EXHIBIT 10.12
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CREDIT AGREEMENT
dated as of October 27, 1997
among
NOVA INFORMATION SYSTEMS, INC.,
as Borrower,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
FIRST UNION NATIONAL BANK,
SUNTRUST BANK ATLANTA, as Lenders,
FIRST UNION NATIONAL BANK, as Documentation Agent,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
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The following Table of Contents has been inserted for convenience only and does
not constitute a part of this Agreement.
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS..................... 1
1.1 Certain Defined Terms...................................... 1
1.2 Other Definitional Provisions.............................. 17
1.3 Accounting and Financial Determinations.................... 18
SECTION 2. THE COMMITMENTS..................................... 18
2.1 Revolving Loan Commitment.................................. 18
2.2 LC Commitment.............................................. 19
2.3 Commitment Limits.......................................... 19
2.4 Increase in the Aggregate Commitment....................... 19
SECTION 3. THE LOANS........................................... 22
3.1 Various Types of Loans..................................... 22
3.2 Notice of Borrowing........................................ 22
3.3 Funding.................................................... 22
3.4 Funding Reliance........................................... 22
3.5 Conversion and Continuation of Loans....................... 23
3.6 [RESERVED]................................................. 24
3.7 Repayment of Revolving Loans; Notes........................ 24
3.8 Recordkeeping.............................................. 24
SECTION 4. THE LETTERS OF CREDIT............................... 25
4.1 Request for Issuance of Letters of Credit.................. 25
4.2 Expiration and other Terms................................. 25
4.3 Participation.............................................. 25
4.4 Notification of Demand for Payment......................... 26
4.5 Funding by Issuing Lender.................................. 26
4.6 Funding By Lenders......................................... 26
4.7 Non-Conforming Demand For Payment.......................... 27
4.8 Return of Funds Related to Non-Conforming Demand........... 27
4.9 Return of Letter of Credit................................. 27
4.10 Reimbursement Agreement of the Borrower.................... 27
4.11 Obligation to Reimburse for or Participate in Letter
of Credit Payments......................................... 28
4.12 Mandatory Payment to Agent of LC Obligations............... 29
SECTION 5. INTEREST AND FEES, ETC.............................. 29
5.1 Interest Rates............................................. 29
5.2 Default Interest Rate...................................... 29
5.3 Interest Payment Dates..................................... 30
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5.4 Interest Periods........................................... 30
5.5 Setting and Notice of Rates................................ 30
5.6 Computation of Interest................................... 30
5.7 Fees...................................................... 30
SECTION 6. REDUCTION OR TERMINATION OF THE COMMITMENTS;....... 32
6.1 Voluntary Reduction or Termination of the Revolving
Loan Commitments.......................................... 32
6.2 Voluntary Prepayments..................................... 32
6.3 Mandatory Prepayments..................................... 33
6.4 Mandatory Reduction in the Commitments.................... 33
6.5 Making of Payments........................................ 33
6.6 Application of Payments................................... 34
6.7 Due Date Extension........................................ 34
6.8 Sharing of Payments....................................... 34
6.9 Setoff.................................................... 35
6.10 Unconditional Payment..................................... 35
SECTION 7. CHANGES IN CIRCUMSTANCES........................... 36
7.1 Increased Costs........................................... 36
7.2 Change in Rate of Return.................................. 37
7.3 Basis for Determining Interest Rate Inadequate or Unfair... 38
7.4 Changes in Law Rendering Certain Loans Unlawful............ 38
7.5 Funding Losses............................................ 39
7.6 Right of Lenders to Fund Through Other Offices............ 39
7.7 Discretion of Lenders as to Manner of Funding............. 39
7.8 Avoidance of Additional Cost.............................. 40
7.9 Conclusiveness of Statements; Survival of Provisions....... 40
SECTION 8. COLLATERAL AND OTHER SECURITY...................... 41
8.1 Subsidiary Guaranties..................................... 41
8.2 Parent.................................................... 41
SECTION 9. REPRESENTATIONS AND WARRANTIES...................... 41
9.1 Organization, etc......................................... 41
9.2 Authorization............................................. 42
9.3 No Conflict............................................... 42
9.4 Governmental Consents..................................... 42
9.5 Validity.................................................. 42
9.6 Financial Statements...................................... 42
9.7 Material Adverse Change................................... 43
9.8 Litigation and Contingent Obligations..................... 43
9.9 Liens..................................................... 43
9.10 Subsidiaries and Joint Ventures........................... 43
9.11 Pension and Welfare Plans................................. 44
9.12 Investment Company Act.................................... 44
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9.13 Public Utility Holding Company Act....................... 45
9.14 Margin Regulation........................................ 45
9.15 Taxes.................................................... 45
9.16 Accuracy of Information.................................. 45
9.17 Environmental Warranties................................. 45
9.18 Use of Loan Proceeds..................................... 47
9.19 Insurance................................................ 47
9.20 Securities Laws.......................................... 47
9.21 Governmental Authorizations.............................. 48
9.22 Representations in Other Agreements True and Correct...... 48
9.23 Possession of Licenses, etc.............................. 48
9.24 VISA/MasterCard.......................................... 48
SECTION 10. AFFIRMATIVE COVENANTS............................. 48
10.1 Reports, Certificates and Other Information............... 48
10.2 Corporate Existence; Foreign Qualification............... 52
10.3 Books, Records and Inspections........................... 52
10.4 Insurance................................................ 53
10.5 Taxes and Liabilities.................................... 53
10.6 Pension Plans and Welfare Plans.......................... 53
10.7 Compliance with Laws..................................... 53
10.8 Maintenance of Permits................................... 53
10.9 Environmental Compliance................................. 53
SECTION 11. NEGATIVE COVENANTS................................ 54
11.1 Limitation on Indebtedness............................... 54
11.2 Liens.................................................... 55
11.3 Consolidation, Merger, etc............................... 56
11.4 Asset Disposition, etc................................... 56
11.5 Dividends, etc........................................... 57
11.6 Investments.............................................. 57
11.7 Acquisitions............................................. 58
11.8 Joint Ventures........................................... 58
11.9 Rental Obligations....................................... 58
11.10 Subordinated Debt........................................ 59
11.11 Take or Pay Contracts.................................... 59
11.12 Regulations G and U...................................... 59
11.13 Subsidiaries............................................. 59
11.14 Other Agreements......................................... 60
11.15 Business Activities...................................... 60
11.16 Transactions with Affiliates............................. 60
11.17 Parent Activities........................................ 60
11.18 Employee Stock Purchase Plan............................. 60
SECTION 12. FINANCIAL COVENANTS............................... 61
12.1 Fixed Charge Coverage Ratio.............................. 61
12.2 Funded Debt Ratio........................................ 61
12.3 Credit Losses and Chargeback Losses...................... 61
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SECTION 13. CONDITIONS........................................ 61
13.1 Effective Date........................................... 62
13.2 Acquisition Cost Borrowing............................... 63
13.3 All Loans and Letters of Credit.......................... 64
SECTION 14. EVENTS OF DEFAULT AND THEIR EFFECT................ 65
14.1 Events of Default........................................ 65
14.2 Effect of Event of Default............................... 67
SECTION 15. THE AGENT......................................... 68
15.1 Appointment and Authorization; "Agent"................... 68
15.2 Delegation of Duties..................................... 68
15.3 Liability of Agent....................................... 69
15.4 Reliance by Agent........................................ 69
15.5 Notice of Default........................................ 70
15.6 Credit Decision.......................................... 70
15.7 Indemnification of Agent................................. 70
15.8 Agent in Individual Capacity............................. 71
15.9 Successor Agent.......................................... 71
15.10 Withholding Tax.......................................... 72
SECTION 16. ASSIGNMENTS AND PARTICIPATIONS.................... 74
16.1 Assignments.............................................. 74
16.2 Participations........................................... 75
16.3 Disclosure of Information................................ 75
16.4 Foreign Transferees...................................... 75
SECTION 17. MISCELLANEOUS..................................... 76
17.1 Waivers and Amendments................................... 76
17.2 Notices.................................................. 77
17.3 Payment of Costs and Expenses............................ 77
17.4 Indemnity................................................ 78
17.5 Subsidiary References/Captions........................... 78
17.6 Disclosure of Information................................ 78
17.7 Governing Law............................................ 79
17.8 Counterparts............................................. 79
17.9 SUBMISSION TO JURISDICTION; WAIVER OF VENUE.............. 79
17.10 WAIVER OF JURY TRIAL..................................... 80
17.11 Successors and Assigns................................... 80
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SCHEDULES AND EXHIBITS
SCHEDULES
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SCHEDULE 1.1A Schedule of Lenders and Percentages
SCHEDULE 9.8 Litigation and Contingent Obligations
SCHEDULE 9.10 Subsidiaries and Joint Ventures
SCHEDULE 9.11 ERISA
SCHEDULE 9.15 Taxes
SCHEDULE 9.17 Environmental Matters
SCHEDULE 9.19 Insurance
SCHEDULE 11.1 Indebtedness
SCHEDULE 11.2 Liens
SCHEDULE 11.6 Investments
EXHIBITS FORM OF
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EXHIBIT A Revolving Note - (S) 1.1
EXHIBIT B Borrowing Request - (S) 3.2
EXHIBIT C Continuation/Conversion Notice - (S) 3.5
EXHIBIT D LC Application - (S) 4.1
EXHIBIT E Parent Pledge Agreement-(S) 8.2(a)
EXHIBIT F Parent Guaranty-(S) 8.2(b)
EXHIBIT G Subsidiary Guaranty - (S)8.1
EXHIBIT H Compliance Certificate-(S) 10.1.4
EXHIBIT I Opinion of Long, Xxxxxxxx & Xxxxxx, LLP,
special counsel to the Borrower and the
Subsidiaries - (S) 13.1.5
EXHIBIT J Officer's Certificate - (S) 13.1.8
EXHIBIT K Assignment Agreement-(S) 16.1(a)
EXHIBIT L-1 Confirmation of New Lender - (S)2.4
EXHIBIT L-2 Confirmation of Step Up Lender - (S)2.4
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 27, 1997, by and among NOVA
INFORMATION SYSTEMS, INC., a Georgia corporation (herein called the "Borrower"),
the lenders party hereto (herein, together with any Eligible Assignees thereof,
collectively called the "Lenders" and each individually called a "Lender"), BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as the Issuing Lender (as
hereinafter defined), FIRST UNION NATIONAL BANK, as Documentation Agent, and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as agent for the Issuing
Lender and the Lenders (herein, in such capacity, together with any successor
thereto in such capacity, called the "Agent").
R E C I T A L S
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WHEREAS, the Lenders have agreed to make available to the Borrower a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Commission" - see Section 5.7(c).
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"Acquisition" shall mean either (i) the acquisition by the Borrower
directly or indirectly of residual payment rights arising from a CCTP Business
or (ii) an Investment by a Credit Party in which such Credit Party acquires all
or a substantial part of the assets of a CCTP Business or all or a majority of
the capital stock or other equity interest of or in a CCTP Business or (iii) an
Alliance; provided, that (a) if such Acquisition involves the acquisition of
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capital stock, such Acquisition must be approved by the Board of Directors of
the CCTP Business; (b) if such Acquisition is not made by the Parent or the
Borrower directly, it shall be made through a Wholly-Owned Subsidiary of the
Borrower; (c) any Acquisition made by a Wholly-Owned Subsidiary shall be funded
by an intercompany loan made by the Borrower to such Wholly-Owned Subsidiary
which loan shall be evidenced by a promissory note; (d) no Default or Event of
Default shall exist either before or after such Acquisition; (e) the conditions
precedent set forth in Sections 13.2 and 13.3 have been satisfied (regardless of
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whether a Loan or Letter of Credit is used in connection with such Acquisition);
and (f) the Borrower shall have delivered to Agent the documents described in
Section 13.2.5 and 13.2.6 dated as of the date of such Acquisition.
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"Acquisition Adjustments" shall mean all reasonable adjustments to the
operating and non-operating expenses of a CCTP Business following the direct or
indirect acquisition thereof by the Borrower, which adjustments relate to the
incurrence or elimination of certain costs following such acquisition; depending
on individual circumstances, examples of adjustments may include (a) reduction
of an owners' salary from operating expenses if the owner is no longer going to
work at the CCTP Business after the Acquisition (this would also apply to
excessive salaries paid to other departing management and the owner's family);
(b) addition of salaries for new managers; (c) savings as a result of
eliminating authorization charges paid to third party providers; (d) reduction
in redundant back-office processing expenses; (e) addition of expenses that may
have previously been provided by a parent or an affiliated company at less than
market rates (examples: legal, accounting, etc.) and (f) such other reasonable
non-operating expenses as are approved by the Required Lenders in their sole
reasonable credit judgment; provided, that (i) no such adjustments may be
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utilized for more than eighteen (18) months following consummation of the
related acquisition and (ii) in the case of any Acquisition in which the
Acquisition Costs exceed $40,000,000, all Acquisition Adjustments shall be
approved in writing by the Required Lenders in their sole discretion.
"Acquisition Costs" shall mean the purchase price and reasonably
related closing costs associated with, and expenditures related to conversion
costs for, an Acquisition by the Parent, the Borrower or a Wholly-Owned
Subsidiary, including, without limitation, one time capital expenditures
relating to such an Acquisition; provided, that such expenditures related to
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conversion costs are incurred within eighteen months following such Acquisition.
"Adjusted Consolidated EBITDA" shall mean, for any period, Adjusted
Consolidated Net Income for such period, plus (i) Consolidated Interest Charges
for such period, plus (ii) the aggregate amount deducted in determining such
Adjusted Consolidated Net Income in respect of income taxes, depreciation,
amortization and other similar non-cash charges for such period.
"Adjusted Consolidated Interest Charges" shall mean, for any period,
the aggregate interest expense net of interest income of the Parent and its
Subsidiaries which would have accrued during such period if all Indebtedness
incurred in connection with Acquisitions during such period were incurred on
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the first day of such period; for purposes hereof, interest expense shall
include, without limitation, (i) the portion of any obligation under capital
leases allocable to interest expense in accordance with GAAP, and (ii) the
portion of any debt discount that shall be amortized in such period.
"Adjusted Consolidated Net Income" shall mean, for any period, the
consolidated net income (or loss) of the Parent and its Subsidiaries for such
period, plus the consolidated net income (or loss) for such period attributable
to the assets or capital stock of the CCTP Business which was the subject of an
Acquisition during such period, after Acquisition Adjustments, provided that
such Acquisition Adjustments are approved in writing by the Required Lenders,
less (a) any extraordinary items of gain under GAAP, plus (b) extraordinary
items of loss under GAAP.
"Adjusted Funded Debt Ratio" shall mean the ratio of Funded
Indebtedness as at any date to Adjusted Consolidated EBITDA for the most recent
four consecutive Fiscal Quarters then ended.
"Affected Lender" - see Section 7.4.
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"Affiliate" of any Person shall mean any other Person which, directly
or indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any commitment with responsibility for
administering, any Pension Plan). A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or indirectly,
power (i) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing general
partners; or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" - see Preamble.
"Agent-Related Person" shall mean BofA and any successor agent arising
under Section 15.9, together with their respective Affiliates (including in the
case of BofA, BRS) and the officers, directors, employees, agents and attorneys-
in-fact of such Persons and Affiliates.
"Aggregate Commitment" shall mean the sum of the Revolving
Loan Commitments and the L/C Commitments.
"Agreement" shall mean this Credit Agreement as hereafter from time to
time amended, modified, restated,
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refinanced, refunded or renewed in whole or in part.
"Alliance" shall mean (i) any Joint Venture involving a CCTP Business
and/or (ii) the acquisition by the Parent, the Borrower or a Wholly-Owned
Subsidiary of a minority interest in a CCTP Business.
"Alternate Base Rate" shall mean, for any day, a fluctuating rate per
annum equal to the greater of (i) the Base Rate in effect on such day or (ii) a
rate per annum (rounded upward to the next higher 1/8 of 1% if not already an
integral multiple of 1/8 of 1%) equal to the Federal Funds Rate in effect at the
commencement of business on such day plus .5% per annum.
"Applicable Base Rate Margin", "Applicable Eurodollar Rate Margin",
"Applicable Commitment Fee" or "Applicable LC Fee Rate" as the case may be,
shall mean at any time a margin or rate as follows:
Adjusted Applicable Applicable Applicable Applicable
Funded Debt Base Rate Eurodollar Commitment LC Fee
Ratio Margin Rate Fee Rate Rate
Margin
Greater 0.00% 0.65% 0.200% 0.65%
than 2.50:1
but less
than or
equal to
3.00:1
Greater 0.00% 0.55% 0.175% 0.55%
than 1.50:1
but less
than or
equal to
2.50:1
Greater 0.00% 0.45% 0.150% 0.45%
than 1.00:1
but less
than or
equal to
1.50:1
Less than 0.00% 0.35% 0.125% 0.35%
or equal to
1.00:1
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The Applicable Base Rate Margin, Applicable Eurodollar Rate Margin,
Applicable Commitment Fee or Applicable LC Rate Fee as the case may be, shall be
adjusted, on the forty-fifth day after the end of each Fiscal Quarter, based on
the Adjusted Funded Debt Ratio as of the last day of the Fiscal Quarter most
recently ended; it being understood that if the Borrower fails to deliver the
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Compliance Certificate required by Section 10.1.4 by the forty-fifth day after
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any Fiscal Quarter (or by the ninetieth day in the case of the last Fiscal
Quarter of a Fiscal Year), then, following written notice from the Agent or the
Required Lenders and until receipt of such Compliance Certificate by the Agent,
the Applicable Base Rate Margin shall be 0.00%, the Applicable Eurodollar Rate
Margin shall be 0.65%, the Applicable Commitment Fee Rate shall be 0.20%, and
the Applicable LC Fee Rate shall be 0.65%. As of the Effective Date, the
Applicable Base Rate Margin is 0.00%, the Applicable Eurodollar Rate Margin is
0.35%, the Applicable Commitment Fee Rate is 0.125% and the Applicable LC Fee
Rate is 0.35%.
"Assignment Agreement" - see Section 16.1.
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"Attorney Costs" shall mean and include all fees and disbursements of
XxXxxxxxx, Will & Xxxxx or other external counsel, the non-duplicative allocated
cost of internal legal services, and all disbursements of internal counsel.
"BofA" shall mean Bank of America National Trust and Savings Association.
"Base Rate" shall mean, at any time, the rate of interest in effect for
such day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by
BofA based upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.)
"Base Rate Loan" shall mean any Loan which bears interest at or by
reference to the Alternate Base Rate.
"BRS" means BancAmerica Xxxxxxxxx Xxxxxxxx, a Delaware corporation.
"Beneficiary" shall mean the beneficiary under any Letter of Credit.
"Borrower" - see Preamble.
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"Borrowing" shall mean a borrowing hereunder consisting of Loans made to
the Borrower at the same time by the Lenders pursuant to Section 2. A Borrowing
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may be a Base Rate Borrowing or a Eurodollar Borrowing.
"Borrowing Request" - see Section 3.2.
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"Business Day" shall mean: (i) in the case of a Business Day which relates
to a Eurodollar Loan, any day of the year on which banks are open for business
in London, San Francisco, Chicago and New York and on which dealings are carried
on in the London interbank eurodollar market; and (ii) in the case of a Business
Day which relates to a Base Rate Loan, any day of the year on which banks are
open for business in San Francisco and Chicago.
"Capitalized Lease Liabilities" shall mean with respect to any Person, all
monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as a capitalized lease, and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Equivalents" means (i) securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (ii) certificates of deposit,
eurodollar time deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements of any Lender or any other commercial bank whose unsecured
long-term debt obligations are rated at least A-1 by Standard & Poor's Ratings
Group and A3 by Xxxxx'x Investors Service, Inc. having maturities of six months
or less from the date of acquisition, and (iii) commercial paper rated at least
A-1 by Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investors Service,
Inc., or carrying an equivalent rating by a nationally recognized rating agency,
if both of the two named rating agencies cease publishing ratings of
investments.
"CCTP Business" shall mean (i) any Person engaged in the business of
merchant credit and/or debit card transaction processing or (ii) a portfolio of
merchant credit and/or debit card service agreements the terms of which permit
the assignment thereof to the Borrower or a Wholly-Owned Subsidiary.
"CERCLA" shall mean the Comprehensive Environmental Response
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Compensation and Liability Act of 1980, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" shall be deemed to have occurred at such times as: (i)
any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) other than the Present Control
Group shall have acquired beneficial ownership of 20% or more of the fully
diluted common stock of the Parent; or (ii) during any period of 12 consecutive
months, individuals who at the beginning of such period constituted the board of
directors of the Parent (together with any new directors whose election by such
board or whose nomination for election by the stockholders of the Parent 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 Borrower then in office; or (iii) the Parent holds less than 100% of the
fully diluted common stock of the Borrower. For purposes hereof, the Present
Control Group means, at any time, any or all of Warburg Pincus Investors, L.P.
(or its affiliates), First Union Corporation (or its affiliates), WorldCom, Inc.
and Persons who are officers of the Parent.
"Chargeback Losses" shall mean, with respect to any fiscal period, the
losses accrued by the Parent and its Subsidiaries in accordance with GAAP for
chargebacks arising from credit or debit card transactions during such period.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, as to any Lender, its Revolving Loan Commitment
and its L/C Commitment. "Commitments" as to all Lenders, means the Revolving
Loan Commitments and the L/C Commitments of all Lenders.
"Commitment Fee" - see Section 5.7(a).
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"Commitment Increase" - See Section 2.4.
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"Commitment Increase Date" - see Section 2.4.
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"Commitments" - see Section 2.4.
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"Compliance Certificate" - see Section 10.1.4.
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"Consolidated Capital Expenditures" shall mean, for any period, the capital
expenditures of the Parent and its Subsidiaries for such period, as the same are
(or would in accordance with GAAP be) set forth in the consolidated statement of
changes in financial position of the Parent and its Subsidiaries for such
period; provided that Consolidated Capital Expenditures shall not include
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capital expenditures which constitute Acquisition Costs (other than Acquisition
Costs associated with recurring capital expenditures or replacing existing
capital assets).
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus (i) Consolidated Interest Charges for such period, plus
(ii) the aggregate amount deducted in determining such Consolidated Net Income
in respect of income taxes, depreciation, amortization and other similar non-
cash charges for such period.
"Consolidated Interest Charges" shall mean, for any period, the aggregate
interest expense net of interest income of the Parent and its Subsidiaries for
such period, including, without limitation, (i) the portion of any obligation
under capital leases allocable to interest expense in accordance with GAAP, and
(ii) the portion of any debt discount that shall be amortized in such period.
"Consolidated Net Income" shall mean, for any period, the consolidated net
income (or loss) of the Parent and its Subsidiaries for such period, less (a)
any extraordinary items of gain under GAAP, plus (b) extraordinary items of loss
under GAAP.
"Consolidated Revenue" shall mean, for any period, the total revenue
(corresponding to the line item identified in the Borrower's consolidated
statement of operations for the fiscal year ended February 28, 1994 as "net
revenue") of the Parent and its Subsidiaries for such period.
"Contingent Obligation" shall mean any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the debt,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation under any Contingent Obligation shall (subject to any
limitation set forth therein) be deemed to be the outstanding
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principal amount (or maximum outstanding principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" - see Section 3.5.
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"Controlled Group" shall mean all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, are treated as a single employer under section 414(b) or section 414(c)
of the Code or section 4001 of ERISA. For purposes of this definition, the term
Parent shall be deemed to include any and all Credit Parties.
"Converted Revolving Loans" - see Section 3.7
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"Credit Losses" shall mean, with respect to any fiscal period, credit and
fraud losses during such period accrued by the Parent or any of its Subsidiaries
in accordance with GAAP with respect to credit or debit card transactions during
such period.
"Credit Parties" shall mean collectively, the Parent, the Borrower and all
other Subsidiaries; and "Credit Party" shall mean any of the Parent, the
Borrower and any of the other Subsidiaries.
"Default" shall mean any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Disposition" - see Section 6.3.
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"Dollars" and the sign "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean the date this Agreement is effective pursuant
to Section 17.8.
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"Eligible Assignee" means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least having a combined
capital and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (c) a Person
-9-
that is primarily engaged in the business of commercial banking and that is (i)
a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (iii) a Person of which a Lender is a Subsidiary.
"Environmental Laws" shall mean all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
common law and consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Eurodollar Lending Office" shall mean the office of BofA specified as its
Eurodollar Lending Office on the signature page hereto, or such other office of
BofA as it may from time to time specify to the Borrower and the Agent.
"Eurodollar Loan" shall mean any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan for any
Interest Period, the rate of interest per annum determined by the Agent to be
the arithmetic mean (rounded upward, if necessary, to the next higher 1/16 of
1%) of the rates per annum notified to the Agent by BofA as the rate of interest
at which Dollar deposits in the approximate amount of the amount of the Loan to
be made or continued as, or converted into, a Eurodollar Loan by BofA and having
a maturity comparable to such Interest Period would be offered to major banks in
the London interbank market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" shall mean, with respect to any
Eurodollar Loan for any Interest Period, a rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%) determined by the Agent pursuant to the
following formula:
Eurodollar Rate = Eurodollar Rate
---------------
(Reserve Adjusted) 1-Eurodollar
Reserve Percentage
"Eurodollar Reserve Percentage" shall mean, for any day for any Interest
Period, the maximum reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day (whether or not applicable to
any Lender) under
-10-
regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities").
"Event of Default" shall mean any of the events described in Section 14.1.
------------
"Federal Funds Rate" shall mean at any time an interest rate per annum
equal to the weighted average of the rates for overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day for such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it, it
being understood that the Federal Funds Rate for any day which is not a Business
Day shall be the Federal Funds Rate for the next preceding Business Day.
"Fiscal Quarter" or "FQ" shall mean any fiscal quarter of a Fiscal Year.
"Fiscal Year" or "FY" shall mean any period of twelve consecutive calendar
months ending on December 31st; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1997 Fiscal Year") refer to the
Fiscal Year ending on the December 31st occurring during such calendar year.
"Funded Indebtedness" shall mean, without duplication, Indebtedness of the
Parent and its Subsidiaries described in clauses (i), (ii), (iii), (iv) and (vi)
----------- ---- ----- ---- ---
of the definition thereof (but in the case of clause (i), excluding advances by
----------
Settlement Banks made pursuant to Settlement Agreements).
"GAAP" - see Section 1.3.
-----------
"Hazardous Material" shall mean: (i) any "hazardous substance," as defined
by CERCLA; (ii) any "hazardous waste," as defined by the Resource Conservation
and Recovery Act, as amended; (iii) any petroleum product; or (iv) any pollutant
or contaminant or hazardous, dangerous or toxic chemical, material or substance
within the meaning of any other applicable federal, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended or hereafter amended.
-11-
"Hedging Facilities" shall mean any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, forward foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or any other similar agreement
(including any option to enter into any of the foregoing).
"Hedging Obligations" shall mean, with respect to any Person, all
obligations and liabilities of such Person of any kind arising under all Hedging
Facilities (including but not limited to obligations and liabilities arising in
connection with or as a result of early or premature termination of a Hedging
Facility, whether or not occurring as a result of a default thereunder),
absolute or contingent, due or to become due, now existing or hereafter created
or incurred.
"Holder" shall mean any holder of a Note or LC Obligation.
"Indebtedness" shall mean, with respect to any Person at any date, without
duplication: (i) all obligations of such Person for borrowed money or in
respect of loans or advances (including, without limitation, advances by
Settlement Banks made pursuant to a Settlement Agreement), (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments; (iii) all obligations in respect of letters of credit, whether or
not drawn, and bankers' acceptances issued for the account of such Person; (iv)
all Capitalized Lease Liabilities of such Person; (v) all Hedging Obligations of
such Person; (vi) all obligations of such Person secured by a Lien; (vii) all
trade payables of such Person; (viii) all other items (exclusive of negative
goodwill) which, in accordance with GAAP, would be included as liabilities on
the liability side of the balance sheet of such Person; (ix) whether or not so
included as liabilities in accordance with GAAP, all obligations of such Person
to pay the deferred purchase price of property or services and Indebtedness
secured by a Lien on property owned or being purchased by such Person (including
Indebtedness arising under conditional sales or other title retention
agreements) whether or not such Indebtedness shall have been assumed by such
Person or is limited in recourse; and (x) all Contingent Obligations of such
Person whether or not in connection with the foregoing.
"Interest Period" - see Section 5.4.
-----------
"Investment" shall mean any investment in any Person,
-12-
whether by means of share purchase, capital contribution, loan, time deposit or
otherwise.
"IRS" shall mean the Internal Revenue Service.
"Issuing Lender" shall mean BofA in its capacity as the issuer of Letters
of Credit for the Borrower's account pursuant to the terms of this Agreement.
"Joint Venture" shall mean any partnership, limited liability company,
joint venture or other legal arrangement (whether created by contract or
conducted through a separate legal entity) now or hereafter formed by the
Parent, the Borrower or any of the Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"LC Amount" - see Section 2.2.
-----------
"LC Application" - see Section 4.1.
-----------
"LC Commitments" - see Section 2.2.
-----------
"LC Commitment Fee" - see Section 5.7(c).
--------------
"LC Obligations" shall mean any and all obligations of every description of
the Borrower in connection with the Letters of Credit issued pursuant to this
Agreement, including without limitation all reimbursement obligations (whether
absolute or contingent) under any LC Application, and all obligations in respect
of related fees or expenses.
"Lenders" or "Lender" - see Preamble.
"Lending Office" shall mean, with respect to any Lender, any office
designated by such Lender in its sole discretion beneath its signature hereto
(or in an Assignment Agreement) or otherwise from time to time by written notice
to the Borrower and the Agent, as a Lending Office for purposes hereunder. A
Lender may designate separate Lending Offices for the purposes of making,
maintaining or continuing Base Rate Loans or Eurodollar Rate Loans and, with
respect to Eurodollar Rate Loans, such Lending Office may be a foreign branch or
an Affiliate of such Lender or such Lender's holding company.
"Letters of Credit" - see Section 2.2.
-----------
"Liabilities" shall mean all obligations of the Credit Parties to the
Lenders, the Issuing Lender and the Agent howsoever created, arising or
evidenced, whether direct or
-13-
indirect, joint or several, absolute or contingent, or now or hereafter
existing, or due or to become due, which arise out of or in connection with (i)
this Agreement, the Notes, the Letters of Credit or the other Related Documents,
or (ii) any agreement entered into by the Borrower with respect to any Hedging
Obligation.
"Lien" shall mean any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement intended as security, encumbrance, lien
(statutory or other), claim or other priority or preferential arrangement of any
kind or nature whatsoever.
"Litigation" shall mean any litigation, proceeding (including without
limitation any governmental proceeding or arbitration proceeding), claim,
lawsuit, and/or investigation pending or threatened against or involving the
Credit Parties, any of their respective businesses or operations, or any
Acquisition.
"Loans" - see Section 2.1.
-----------
"Loan Documents" shall mean this Agreement and the Related Documents
"Material Adverse Change" or "Material Adverse Effect" shall mean any
change, event, action, condition or effect which individually or in the
aggregate (i) impairs the validity or enforceability of any of the Loan
Documents, or (ii) materially and adversely affects the consolidated business,
operations, licenses, prospects or financial condition of the Credit Parties,
taken as a whole or the ability of the Credit Parties to perform their
respective obligations under any of the Loan Documents.
"Material Litigation" or "Material Litigation Development" shall mean any
Litigation, or development in any Litigation, as the case may be (i) which
involves any of the Loan Documents or other transactions contemplated hereby or
thereby, or (ii) which could have a Material Adverse Effect.
"Net Disposition Proceeds" shall mean, with respect to the disposition of
any asset by any Person, the aggregate amount of cash and readily marketable
cash equivalents received by such Person in respect of such disposition minus
-----
the sum of (i) reasonable costs and expenses (including costs of discontinuance
and Taxes other than income Taxes) incurred in connection with such disposition
and required to be paid in cash, and (ii) the estimated income Tax to be paid by
the Borrower or such Person in connection with such disposition. For purposes
of
-14-
this definition, the Net Proceeds received by any Person in respect of any
disposition shall include such Cash Equivalents as may be received ("subsequent
cash proceeds") by such Person at any time or from time to time in connection
with the sale, transfer, lease or other disposition, or otherwise in respect of,
any consideration other than cash or readily marketable Cash Equivalents
received by such Person in respect of such disposition, less the estimated
income Tax to be paid in connection with the receipt of such subsequent cash
proceeds that were not theretofore deducted in computing Net Proceeds.
"New Lender" - see Section 2.4.
-----------
"Notes" shall mean the Revolving Notes, together with any promissory note
issued and accepted by any Lender in replacement of or substitution for any
Revolving Note.
"Parent" shall mean NOVA Corporation, a Georgia corporation, its successors
and assigns.
"Parent Guaranty" - See Section 8.2(b).
--------------
"Parent Pledge Agreement" - See Section 8.2(a).
--------------
"Pension Plan" shall mean a "pension plan," as such term is defined in
section 3(2) of ERISA (including a multiemployer plan as defined in section
4001(a)(3) of ERISA), to which the Parent or any corporation, trade or business
that is, along with the Parent, a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA. For purposes of this definition, the term Parent
shall be deemed to include any and all Credit Parties.
"Percentage" shall mean, relative to any Lender, the percentage set forth
opposite such Lender's name on Schedule 1.1A, as such Percentage may be adjusted
-------------
from time to time pursuant to Sections 2.4 or 16.1.
------------ ----
"Permitted Liens" - see Section 11.2.
------------
"Person" shall mean an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Quarterly Payment Date" shall mean the last Business Day of
-15-
each March, June, September and December.
"Related Documents" shall mean the Notes, the LC Applications, the Letters
of Credit, the Parent Pledge Agreement, the Parent Guaranty, the Subsidiary
Guaranties, and any and all other documents or instruments furnished or required
to be furnished pursuant to Section 8 or Section 13, as the same may be amended
--------- ----------
or modified from time to time.
"Release" shall mean a "release," as such term is defined in CERCLA.
"Reportable Event" shall have the meaning assigned to such term in ERISA.
"Required Lenders" shall mean Lenders having at least 66-2/3% or more of
the Commitments, or if the Commitments have terminated or expired, 66-2/3% of
the aggregate Loans and LC Obligations outstanding at such time.
"Responsible Officer" shall mean, in the case of any Credit Party, any of
the following officers of such Credit Party: the president, the chief financial
officer, the secretary, the controller, or the treasurer. If any of the titles
of the preceding officers are changed after the date hereof, the term
"Responsible Officer" shall thereafter mean any officer performing substantially
the same functions as are presently performed by one or more of the officers
listed in the first sentence of this definition.
"Revolving Conversion Date" shall mean September 30, 2000.
"Revolving Loan Commitments" - see Section 2.1.
-----------
"Revolving Loans" - see Section 2.1.
-----------
"Revolving Note" shall mean a promissory note, substantially in the form of
Exhibit A with blanks appropriately completed in conformity herewith, evidencing
---------
the Revolving Loans of any Lender, together with any promissory note issued and
accepted by any Lender in replacement of or substitution for such promissory
note.
"Revolving Termination Date" shall mean the earlier of (i) September 30,
2002, or (ii) the date of termination in whole of the Commitments pursuant to
Sections 6.1 or 14.2.
------------ ----
"Settlement Account" shall mean any deposit account of any Credit Party
maintained pursuant to the terms of a Settlement
-16-
Agreement (a) through which settlements are made in accordance with a Settlement
Agreement or (b) which is used to hold reserve funds required by such Settlement
Agreement; "Settlement Account" shall include, without limitation, those
accounts listed as Settlement Accounts on Schedule 9.29.
-------------
"Settlement Agreement" shall mean an agreement between any Credit Party and
a Settlement Bank pursuant to which the Settlement Bank agrees to perform
clearing and settlement services for such Credit Party in connection with the
CCTP Business of such Credit Party.
"Settlement Bank" shall mean each financial institution which is a
qualified acquiring member for any credit or debit card association and which
provides clearing and settlement services to a Credit Party.
"Significant Subsidiary" shall mean any Subsidiary which meets either of
the following tests: (i) the assets or the liabilities of such Subsidiary exceed
$1,000,000 or (ii) as at the date of determination, such Subsidiary represents
more than 2.5% of Consolidated EBITDA for the four Fiscal Quarters then most
recently ended.
"Step-Up Lender" - see Section 2.4.
-----------
"Subordinated Debt" shall mean Indebtedness having payment terms and other
terms, and subordinated in form and substance, satisfactory to the Required
Lenders; provided, that in no event shall such Indebtedness begin to amortize
--------
prior to the Revolving Termination Date.
"Subsidiary" shall mean a corporation of which the Parent and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of directors.
"Subsidiary Guaranty" - see Section 8.1.
-----------
"Taxes" shall mean all taxes of any nature whatsoever and however
denominated, including, without limitation, excise, import, governmental fees,
duties and all other charges, as well as additions to tax, penalties and
interest thereon, imposed by any government or instrumentality, whether federal,
state, local, foreign or other.
"Transferee" - see Section 16.3.
------------
"Type of Loan or Borrowing" - see Section 3.1. The various
-----------
-17-
Types of Loans or Borrowings under this Agreement are as follows: Base Rate
Loans or Borrowings and Eurodollar Loans or Borrowings.
"Visa/Master Card" - see Section 9.24.
------------
"Welfare Plan" shall mean a "welfare plan," as such term is defined in
section 3(1) of ERISA.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities of which shall at the time be owned of record by the Borrower.
SECTION 1.2 Other Definitional Provisions.
-----------------------------
(a) All terms defined in this Agreement shall have the above-defined
meanings when used in any Related Document, or any certificate, report or
other document made or delivered pursuant to this Agreement, unless the
context therein shall clearly otherwise require.
(b) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement.
(c) The words "amended or modified" when used in this Agreement or
any Related Document shall mean with respect to this Agreement or any
Related Document such document as from time to time, in whole or in part,
amended, modified, supplemented, restated, refinanced, refunded or renewed.
(d) In the computation of periods of time in this Agreement from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
(e) This Agreement and the other Loan Documents are the result of
negotiations among the Agent, the Borrower and the other parties, have been
reviewed by counsel to the Agent, the Borrower and such other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Lenders or the Agent merely because of the Agent's or Lenders'
involvement in their preparation.
SECTION 1.3 Accounting and Financial Determinations. For purposes of this
---------------------------------------
Agreement, unless otherwise specified, all
-18-
accounting terms used herein or in any Related Document shall be interpreted,
all accounting determinations and computations hereunder or thereunder shall be
made, and all financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with, those generally accepted
accounting principles ("GAAP") applied in the preparation of the financial
statements referred to in Section 9.6.
-----------
SECTION 2. THE COMMITMENTS
Subject to the terms and conditions of this Agreement and relying on the
representations and warranties herein set forth:
SECTION 2.1 Revolving Loan Commitment. Each of the Lenders, severally and
-------------------------
for itself alone, agrees to make loans (herein collectively called "Loans" or
"Revolving Loans" and individually called a "Loan" or "Revolving Loan") to the
Borrower on a revolving basis from time to time before the Revolving Termination
Date, in such Lender's Percentage of such aggregate amounts as the Borrower may
from time to time request from all Lenders; provided, that, in no event shall
--------
the Borrower request Revolving Loans to be made by the Lenders on the same day
in an aggregate principal amount of less than $250,000. The aggregate principal
amount of Revolving Loans which any Lender shall be committed to have
outstanding to the Borrower shall not at any one time exceed the amount set
opposite such Lender's name on Schedule 1.1 hereto under the heading "Revolving
------------
Loan Commitment." The aggregate principal amount of Revolving Loans which all
Lenders shall be committed to have outstanding to the Borrower shall not exceed
the limits specified in Section 2.1. The foregoing commitment of each
-------
Lender is herein called its "Revolving Loan Commitment" and collectively the
"Revolving Loan Commitments."
SECTION 2.2 LC Commitment. The Issuing Lender agrees for itself and the
-------------
Lenders to issue from time to time before the Revolving Termination Date such
standby letters of credit (such letters of credit being herein collectively
called "Letters of Credit" and individually a "Letter of Credit") as the
Borrower may request, it being understood that, pursuant to Section 4.3,
-----------
concurrently with the issuance of each such Letter of Credit, each Lender shall
be deemed to have automatically purchased from the Issuing Lender a
participation in such Letter of Credit equal to its Percentage multiplied by the
face amount of such Letter of Credit. The aggregate amount of all Letters of
Credit (other than Letters of Credit with respect to which the Borrower has
pledged cash collateral in accordance with the terms of Section 4.2) issued and
-----------
outstanding pursuant to this Section 2.2 or drawn
-------
-19-
and not reimbursed pursuant to Section 4.10 (the "LC Amount") shall not at any
------------ ---------------
one time exceed $10,000,000. The foregoing commitment of each Lender is herein
called its "LC Commitment" and collectively the "LC Commitments."
SECTION 2.3 Commitment Limits. Prior to the Revolving Conversion Date,
-----------------
the aggregate principal amount of Revolving Loans which all Lenders shall be
committed to have outstanding hereunder to the Borrower, when added to the LC
Amount, shall not at any one time exceed $80,000,000 (or such other amount as
may be fixed pursuant to Sections 2.4, 6.1 or 6.3). After the Revolving
------------ --- ---
Conversion Date, the aggregate principal amount of Revolving Loans (excluding
the Converted Revolving Loans), when added to the LC Amount, shall not exceed
$50,000,000 (or such reduced amount as may be fixed pursuant to Section 6.1).
-----------
SECTION 2.4 Increase in the Aggregate Commitment. The Borrower may at any
------------------------------------
time, upon 5 day's notice to the Agent, propose that the Aggregate Commitment be
increased (the amount of such increase being a "Commitment Increase"), through
the increase of the Commitments of one or more of the Lenders (each such Lender
that is willing to increase its Commitment hereunder being a "Step-up Lender")
and/or by the addition of one or more other lenders (each of which shall be an
Eligible Assignee) specified by the Borrower (each a "New Lender") as banks and
as parties to this Agreement, such Commitment Increase to be effective as at a
date specified by the Borrower (a "Commitment Increase Date") in such notice;
provided, however, that: (a) such notice of Commitment Increase shall specify as
-------- -------
to each Step-Up Lender and/or New Lender, the amount of the Commitment of such
Lender after giving effect to such Commitment Increase; (b) it shall be in each
Lender's sole discretion whether to increase its Commitment hereunder in
connection with the proposed Commitment Increase; (c) the Borrower may not
propose more than one Commitment Increase; (d) the minimum proposed Commitment
Increase per notice of Commitment Increase shall be $5,000,000; (e) the minimum
Commitment of each New Lender that becomes a party to this Agreement pursuant to
this Section 2.6 shall be at least equal to $5,000,000; (f) in no event shall
-----------
the Aggregate Commitment at any time exceed $100,000,000; (g) No Commitment
Increase shall be permitted at any time after the Borrower shall have reduced or
terminated any Commitment pursuant to Section 6.1 or 6.4; and (h) no Default or
------- --- ---
Event of Default shall have occurred and be continuing on such Commitment
Increase Date.
SECTION 2.4.1 Effectiveness of Commitment Increase. Promptly upon
------------------------------------
its receipt of a notice of Commitment Increase, the Agent shall notify the
Lenders thereof. In the event that by 10:00 A.M. on the applicable Commitment
Increase Date, the Agent
-20-
shall have received to the satisfaction of the Agent each of the following (the
"Commitment Increase Closing Items"):
(x) from each Step-Up Lender and/or New Lender, as applicable, a duly
executed confirmation of Step-Up Commitment and/or New Lender Commitment,
such confirmation to be substantially in the form of Exhibit L-1 or L-2, as
----------- ---
applicable, and to be completed to reflect the amount of the Commitment of
such Lender as specified in the Borrower's notice of Commitment Increase,
and
(y) for each Step-up Lender and/or New Lender, as applicable, (i) a
Note dated such Commitment Increase Date, in the maximum amount of such
Lender's Commitment, (ii) updated confirmations in form and substance
satisfactory to the Agent of the documents furnished pursuant to Schedules
---------
13.1.5, 13.1.6 and 13.1.7, (iii) an officer's certificate of the Borrower
------ ------ ------
to the effect that as of such Commitment Increase Date,
(A) no Default or Event of Default exists or will result from
such increased Commitment,
(B) the representations and warranties of the Parent, the
Borrower and the Subsidiaries contained in Section 9 are true and
---------
correct with the same effect as though made on such date, and
(C) no Material Litigation exists except as disclosed on
Schedule 9.8, and since the Effective Date no Material Litigation
------------
Development has occurred with respect to any Litigation so disclosed
on Schedule 9.8;
------------
and (iv) payment for the account of such Step-Up Lender or New Lender,
as the case may be, of such facility fee as shall have been agreed to in
writing between the Borrower and such Step-Up Lender or New Lender, as the
case may be, prior to such Commitment Increase Date;
then the Commitment Increase specified by the Borrower in its notice of
Commitment Increase shall become effective on such Commitment Increase Date,
whereupon each New Lender (if any) shall automatically become a party to this
Agreement, be bound by the provisions hereof and be included in the definition
of "Lender" and "Lenders" hereunder.
SECTION 2.4.2. Implementation of Commitment Increase. Upon the
-------------------------------------
effectiveness of such Commitment Increase, (i) the Agent shall promptly notify
the Lenders (including any New Lenders) and
-21-
the Borrower of the occurrence of such Commitment Increase, (ii) the Agent shall
promptly distribute a revised Schedule 1.1A giving effect to such Commitment
-------------
Increase, (iii) the Borrower shall effect a combination of borrowings and/or
prepayments so that after giving effect thereto the aggregate principal amount
of the Loans then outstanding of each Lender shall be prorata according to its
Percentage, and (iv) each Lender's participation in Letters of Credit shall be
deemed to be adjusted so that each Lender's undivided interest in each Letter of
Credit then outstanding shall be prorata according to its Percentage. In the
event that by 10:00 A.M. on the applicable Commitment Increase Date the Agent
shall not have received each of the Commitment Increase Closing Items, or the
Borrower by notice to the Agent prior to the applicable Commitment Increase Date
shall have withdrawn its notice of Commitment Increase, then the Borrower's
notice of Commitment Increase shall be deemed not to have been made, whereupon
any Commitment Increase Closing Items delivered to the Agent in respect thereof
shall be deemed to be of no effect and all the rights and obligations of the
parties shall continue as if no such notice had been given."
SECTION 3. THE LOANS
SECTION 3.1 Various Types of Loans. Each Loan shall be either a Base Rate
----------------------
Loan or a Eurodollar Loan (each being herein called a "Type" of Loan), as the
Borrower shall specify in the related Borrowing Request or
Continuation/Conversion Notice pursuant to Section 3.2 or Section 3.5. Base
----------- -----------
Rate Loans and Eurodollar Loans may be outstanding at the same time; provided,
--------
that (a) in the case of Eurodollar Loans, not more than five different Interest
Periods shall be outstanding at any one time for all such Loans, and (b) the
Borrower shall specify Loans and Interest Periods such that no scheduled payment
of any principal on any Loan shall result in a break-up of any Interest Period.
SECTION 3.2 Notice of Borrowing. The Borrower shall give an irrevocable
-------------------
notice (herein called a "Borrowing Request") to the Agent of each proposed
Borrowing by 10:00 A.M., San Francisco time, in the case of a Base Rate
Borrowing, on the proposed date of such Borrowing, and, in the case of a
Eurodollar Borrowing, on a day which is at least three Business Days prior to
the proposed date of such Borrowing. Each Borrowing Request shall be effective
upon receipt by the Agent, shall be in writing (or by telephone to be promptly
confirmed in writing) by the Borrower substantially in the form of Exhibit B,
---------
and shall specify the date, amount and Type of Borrowing, and in the case of a
Eurodollar Borrowing, the initial Interest Period for such Borrowing. Each
Borrowing involving Loans of the same Type shall
-22-
be on a Business Day and, in the case of Base Rate Loans, shall be in an
aggregate principal amount of at least $100,000 or any larger integral multiple
of $50,000 and, in the case of Eurodollar Loans shall be in an aggregate amount
of at least $250,000 or any larger integral multiple of $50,000.
SECTION 3.3 Funding. Promptly upon receipt of a Borrowing Request, the
-------
Agent shall advise each Lender thereof. Not later than 12:30 P.M., San
Francisco time, on the date of a proposed Borrowing, each Lender shall provide
the Agent at the payment office of the Agent with immediately available funds
covering such Lender's Percentage of the Borrowing, and subject to receipt by
the Agent of the documents required under Section 13 with respect to such
----------
Borrowing the Agent shall pay over such funds to the Borrower on the requested
Borrowing date. All Borrowings shall be pro rata among the Lenders in
accordance with their respective Commitments.
SECTION 3.4 Funding Reliance. Unless the Agent shall have been notified
----------------
by telephone, confirmed in writing, by any Lender by 3:00 P.M., San Francisco
time, on the day prior to a Borrowing that such Lender will not make available
the amount which would constitute its Percentage of such Borrowing on the date
specified therefor, the Agent may assume, subject to the satisfactory
fulfillment by the Borrower of the conditions precedent set forth in Section 13,
----------
that such Lender has made such amount available to the Agent and, in reliance
upon such assumption, shall make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Agent, such Lender and the Borrower severally agree to repay
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Agent made such amount available to the
Borrower to the date such amount is repaid to the Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 3.5 Conversion and Continuation of Loans. The Borrower may, by
------------------------------------
delivery to the Agent of a Continuation/ Conversion Notice (herein called a
"Continuation/Conversion Notice") in the form of Exhibit C attached hereto with
---------
appropriate insertions, before 10:00 A.M., San Francisco time, three Business
Days prior to conversion or continuation, convert or continue Loans as follows:
(a) convert Eurodollar Loans into Base Rate Loans, (b) convert Base Rate Loans
into Eurodollar Loans, and (c) continue any Eurodollar Loan into a subsequent
Interest Period of the same duration or of any other duration permitted
hereunder, subject to the following:
(i) the Interest Period applicable to any
-23-
Eurodollar Loan resulting from a conversion shall be specified by the
Borrower in the Continuation/ Conversion Notice delivered pursuant to this
Section; provided, however, that if no such Interest Period shall be
-------- -------
specified, the Borrower shall be deemed to have selected an Interest Period
of one month's duration. If the Borrower shall not have given timely notice
to continue any Loan into a subsequent Interest Period and shall not
otherwise have given notice to convert such Loan, such Loan unless repaid
pursuant to the terms hereof shall automatically be converted into a Base
Rate Loan;
(ii) if less than all Loans at the time outstanding shall be
converted or continued, such conversion or continuation shall be made pro
rata among the Lenders, as applicable, in accordance with the respective
principal amounts of Loans of such Type (and have the same Interest Period)
held by such Lenders immediately prior to such conversion or continuation;
(iii) in the case of a conversion or continuation of less than all
Loans, the aggregate principal amount of such Loans converted or continued
shall be not less than $100,000 or any larger integral multiple of $50,000;
(iv) if any Eurodollar Loan is converted at a time other than the
last day of an Interest Period applicable thereto, the Borrower shall at
the time of conversion pay any loss or expense (including, without
limitation, breakage losses and expenses) associated therewith pursuant to
Section 7.5;
-----------
(v) any portion of a Loan maturing or required to be repaid in less
than one month may not be converted into, or continued as, a Eurodollar
Loan; and
(vi) any portion of a Eurodollar Loan required to be paid on any
principal payment date occurring in less than one month after the end of
the then-current Interest Period applicable to such Loan shall be
automatically converted at the end of such Interest Period into a Base Rate
Loan.
Notwithstanding the foregoing, so long as any Default shall exist, no Loans
shall be converted into Eurodollar Loans or continued as Eurodollar Loans into a
subsequent Interest Period.
-24-
SECTION 3.6 [RESERVED]
SECTION 3.7 Repayment of Revolving Loans; Notes. Subject to prepayment
-----------------------------------
pursuant to Section 6.3, the aggregate principal amount of Revolving Loans shall
-----------
be payable (and the Borrower agrees to pay such aggregate outstanding principal
amount of Revolving Loans) in eight consecutive equal principal installments on
each Quarterly Payment Date commencing on December 31, 2000, and to and
including the Revolving Termination Date, each such installment to be equal to
1/8th of the amount by which on the Revolving Conversion Date, the aggregate
principal amount of Revolving Loans plus the LC Amount exceeds $50,000,000 (the
principal of the Revolving Loans equal to the amount of such excess being herein
called the "Converted Revolving Loans"), except that the installment on the
Revolving Termination Date shall be in the aggregate unpaid principal amount of
all Revolving Loans outstanding on such date. The Revolving Loans of each
Lender shall be evidenced by a Revolving Note, respectively, payable to the
order of such Lender in the principal amount of the Revolving Loan Commitment of
such Lender (or, if less, in the aggregate unpaid principal amount of all of
such Lender's Revolving Loans hereunder outstanding on the Revolving Termination
Date).
SECTION 3.8 Recordkeeping. Each Lender shall record in its records, or at
-------------
its option on the schedule attached to its relevant Note, the date and amount of
each Loan made by such Lender, each repayment or conversion thereof, and in the
case of each Eurodollar Loan the dates on which each Interest Period for such
Loan shall begin and end. The information so recorded shall be rebuttable
presumptive evidence of the accuracy thereof. The failure to so record any such
information or any error in so recording any such information shall not,
however, limit or otherwise affect the obligations of the Borrower hereunder or
under any Note to repay the principal amount of the Loans together with all
interest accruing thereon.
-25-
SECTION 4. THE LETTERS OF CREDIT
SECTION 4.1 Request for Issuance of Letters of Credit. (a) The Borrower
-----------------------------------------
shall give the Agent and the Issuing Lender at least five Business Days' prior
written notice of a request for issuance of each Letter of Credit, each such
request to be accompanied by an application substantially in the form of Exhibit
-------
D (an "LC Application") duly executed by the Borrower and in all respects in
-
form and substance satisfactory to the Agent and the Issuing Lender, together
with such other documentation as the Agent or the Issuing Lender may request in
support thereof. The Agent shall promptly notify each Lender of the Borrower's
request that such Letter of Credit be issued.
(b) It is hereby agreed that, notwithstanding the execution by Borrower of
any printed form letter of credit application (the "Application") used by the
Issuing Lender from time to time in connection with the issuance of Letters of
Credit hereunder, this Agreement, and not any such Application shall govern (i)
the time and amount of payment of principal and interest, fees and commissions,
and any other charges, reimbursements or adjustments, (ii) standards of conduct
and liability, (iii) the occurrence of defaults and acceleration of
indebtedness, (iv) notices and communications, and (v) "Collateral" (as defined
in the Application) and any rights with respect to any such Collateral; and
otherwise in the case of any conflict or inconsistency whatsoever between this
Agreement and any such Standby Credit Agreement, this Agreement shall control in
all respects.
SECTION 4.2 Expiration and other Terms. Each Letter of Credit shall
--------------------------
expire on or before the date which is the earlier of one year following the
issuance of such Letter of Credit or thirty days prior to the Revolving
Termination Date unless the Borrower shall have pledged cash collateral to the
Agent therefore in an amount, and pursuant to documentation reasonably
satisfactory to each Lender, the Issuing Lender and the Agent.
SECTION 4.3 Participation. Concurrently with the issuance of each
-------------
Letter of Credit, the Issuing Lender shall be deemed to have sold and
transferred to each other Lender, and each Lender shall be deemed irrevocably
and unconditionally to have automatically purchased and received from the
Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such other Lender's Percentage, in such Letter
of Credit and the Borrower's related LC Obligations and any security therefor.
-26-
SECTION 4.4 Notification of Demand for Payment. The Issuing Lender shall
----------------------------------
promptly notify the Agent (who shall in turn promptly notify the Borrower and
each Lender) of the amount of each demand for payment under a Letter of Credit
and of the date on which such payment is to be made.
SECTION 4.5 Funding by Issuing Lender. With respect to each demand for
-------------------------
payment pursuant to a Letter of Credit, the Issuing Lender shall, promptly
following its receipt thereof, examine all documents purporting to represent
such demand to ascertain that the same appear on their face to be in conformity
with the terms and conditions of such Letter of Credit. If the Issuing Lender
determines that a demand for payment under a Letter of Credit conforms to the
terms and conditions of such Letter of Credit, then the Issuing Lender shall
make payment to the Beneficiary in accordance with the terms of such Letter of
Credit.
SECTION 4.6 Funding By Lenders. If the Issuing Lender makes any payment
------------------
under any Letter of Credit and the Borrower has not reimbursed the Issuing
Lender in full for such payment on the date on which payment is made under a
Letter of Credit, or if any reimbursement received by the Issuing Lender from
the Borrower is or must be returned or rescinded upon or during any bankruptcy
or reorganization of the Borrower or otherwise, each Lender, promptly upon
notice, shall make available to the Agent, for the account of the Issuing Lender
in Dollars and in same day funds, such Lender's Percentage of the amount of such
payment. If and to the extent any Lender shall not have made such amount
available to the Agent on any such date, such Lender agrees to pay interest on
such amount to the Agent for the account of the Issuing Lender forthwith on
demand for each day from and including the date on which such payment was to be
made to but excluding the date such amount is made available to the Agent for
the account of the Issuing Lender. Such interest shall be determined at a rate
per annum equal to the Federal Funds Rate from time to time in effect, based
upon a year of 360 days. Any Lender's failure to make available to the Agent
its Percentage of any payment under a Letter of Credit shall not relieve any
other Lender of its obligation to make available to the Agent its Percentage of
such payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the Agent
such other Lender's Percentage of any such payment.
SECTION 4.7 Non-Conforming Demand For Payment. If, after examination of a
---------------------------------
demand for payment under a Letter of Credit, the Issuing Lender shall have
determined that such demand does not conform to the terms and conditions of such
Letter of Credit,
-27-
then the Issuing Lender shall, as soon as reasonably practicable, give notice to
the related Beneficiary and to the Borrower to the effect that demand was not in
accordance with the terms and conditions of such Letter of Credit, stating the
reasons therefor and that the relevant document is being held at the disposal of
the Beneficiary or is being returned to the Beneficiary, as the Issuing Lender
may elect. The Beneficiary may attempt to correct any such non-conforming demand
for payment under such Letter of Credit if, and to the extent that, the
Beneficiary is entitled (without regard to the provisions of this sentence) and
able to do so.
SECTION 4.8 Return of Funds Related to Non-Conforming Demand. If the
------------------------------------------------
Issuing Lender does not disburse funds to the Beneficiary for any reason after
having received such funds from any Lender pursuant to Section 4.6, the Issuing
-----------
Lender shall return such funds to such Lender on the next following Business Day
together with interest on such funds from and including the date on which the
Issuing Lender received such funds to but excluding the day on which the Issuing
Lender so returns such funds at the Federal Funds Rate for each such day, based
upon a year of 360 days.
SECTION 4.9 Return of Letter of Credit. With respect to each Letter of
--------------------------
Credit, the Issuing Lender shall have the right, provided the Issuing Lender is
not then in default under such Letter of Credit by reason of its having
wrongfully failed to honor a demand for payment previously made by Beneficiary
under such Letter of Credit, to require the Beneficiary to surrender such Letter
of Credit to the Issuing Lender on the stated expiration date. The Borrower
agrees, if necessary, to use its best efforts (which shall not include the
incurrence of costs outside the ordinary course of business) to cause the
Beneficiary to surrender such Letter of Credit.
SECTION 4.10 Reimbursement Agreement of the Borrower. The Borrower hereby
---------------------------------------
unconditionally and irrevocably agrees to reimburse the Issuing Lender,
immediately upon demand, for each payment made by the Issuing Lender under a
Letter of Credit honoring a demand for payment made by the Beneficiary
thereunder, with interest on the amount so paid by the Issuing Lender from and
including the date paid by the Issuing Lender to but not including the date the
Issuing Lender is reimbursed therefor, at a rate per annum equal to the
Alternate Base Rate from time to time in effect (but not less than the Alternate
Base Rate in effect on the date of such payment by the Issuing Lender) plus 1.0%
per annum. Interest shall be computed for the actual number of days elapsed on
the basis of a year consisting of 360 days. Upon receipt of each payment under
this Section 4.10, the Issuing
------------
-28-
Lender shall promptly pay to each Lender which previously made the entire
payment required under Section 4.6, in Dollars and in the kind of funds
-----------
received, an amount equal to such Lender's Percentage of such received payment.
SECTION 4.11 Obligation to Reimburse for or Participate in Letter of
-------------------------------------------------------
Credit Payments. The Borrower's obligation to reimburse the Issuing Lender for
---------------
payments made by the Issuing Lender under any Letter of Credit honoring a
demand for payment by the Beneficiary thereunder, and each Lender's obligation
to participate in and make available to the Issuing Lender its Percentage of
such payments in accordance with this Agreement, shall be irrevocable, absolute
and unconditional under any and all circumstances including, without limitation,
any of the following circumstances:
(a) any lack of legality, validity, regularity or enforceability of
this Agreement, any Letter of Credit or any other Related Document;
(b) the existence of any claim, setoff, defense or other right which
the Borrower may have or have had at any time against any Beneficiary, the
Agent, the Issuing Lender, any other Lender, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting) or any
other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the
Beneficiary of any Letter of Credit);
(c) any draft, certificate or any other document presented under any
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;
(d) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Related Documents;
(e) payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or certificate or other document that does not
comply with the terms of such Letter of Credit unless such payment by the
Issuing Lender constituted gross negligence or willful misconduct of the
Issuing Lender; or
-29-
(f) the occurrence of any Default or Event of Default;
provided, however, that the Borrower shall not be obligated to reimburse
-------- -------
the Issuing Lender for, and no Lender shall be obligated to participate in,
any wrongful payment made by the Issuing Lender under any Letter of Credit
as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuing Lender or any of its officers,
employees or agents.
SECTION 4.12 Mandatory Payment to Agent of LC Obligations. The Borrower
--------------------------------------------
agrees that, on any termination of the LC Commitments pursuant to Section 6.1 or
-----------
Section 14.2, it will pay to the Agent for the account of the Issuing Lender and
------------
the other Lenders in Dollars and in same day funds an amount equal to the
principal amount of all LC Obligations under any LC Application, whether or not
the related Letter of Credit has been drawn (which amount shall be retained by
the Agent in a separate collateral account, bearing interest for the account of
the Borrower, as security for the LC Obligations and other Liabilities) plus the
then aggregate accrued amount of unpaid fees arising under Section 5.7(c).
--------------
SECTION 5. INTEREST AND FEES, ETC.
SECTION 5.1 Interest Rates. With respect to each Loan, the Borrower
--------------
hereby promises to pay interest on the unpaid principal amount thereof for the
period commencing on the date of such Loan until such Loan is paid in full, as
follows:
(a) At all times while such Loan is a Base Rate Loan, at a rate per
annum equal to the Alternate Base Rate from time to time in effect, plus
the Applicable Base Rate Margin; and
(b) At all times while such Loan is a Eurodollar Rate Loan, for each
Interest Period, at a rate per annum equal to the Eurodollar Rate (Reserve
Adjusted) applicable to such Interest Period, plus the Applicable
Eurodollar Margin.
SECTION 5.2 Default Interest Rate. Notwithstanding the provisions of
---------------------
Section 5.1, in the event that any Default or Event of Default shall occur
-----------
hereunder, the Borrower hereby promises to pay interest on the unpaid principal
amount of such Loan for the period commencing on the date of such Default or
Event of Default until such Default or Event of Default is cured or waived in
-30-
accordance with Section 17.1 at a rate per annum equal to the interest rate
------------
otherwise in effect hereunder from time to time, plus 2.0% per annum.
SECTION 5.3 Interest Payment Dates. Accrued interest on each Base Rate
----------------------
Loan shall be payable on each Quarterly Payment Date, on each date such Base
Rate Loan is converted into a Eurodollar Loan and at final maturity, commencing
with the first of such dates to occur after the date hereof. Accrued interest
on each Eurodollar Loan shall be payable on the last day of each Interest Period
relating to such Loan (and if such Interest Period exceeds three months, also
payable on the date which falls three months after the beginning of such
Interest Period), and at final maturity. After maturity, accrued interest on
all Loans shall be payable on demand.
SECTION 5.4 Interest Periods. Each "Interest Period" for a Eurodollar
----------------
Rate Loan shall commence on the date such Eurodollar Rate Loan was made or
converted from a Loan of a different Type, or on the expiration of the
immediately preceding Interest Period for such Eurodollar Loan, and shall end on
the date which is one, two, three or six months thereafter, as the Borrower may
specify pursuant to Section 3.2 or Section 3.5 hereof. Each "Interest Period"
----------- -----------
for a Eurodollar Loan which would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (unless such next succeeding
Business Day is the first Business Day of a calendar month, in which case with
respect to a Eurodollar Loan such Interest Period shall end on the next
preceding Business Day).
SECTION 5.5 Setting and Notice of Rates. The applicable Eurodollar Rate
---------------------------
for each Interest Period shall be determined by the Agent, and notice thereof
shall be given by the Agent promptly to the Borrower and each Lender. Each
determination of the applicable Eurodollar Rate by the Agent shall be conclusive
and binding upon the parties hereto, in the absence of demonstrable error. If
the Agent is unable to determine such a rate, the provisions of Section 7.3
-----------
shall apply.
SECTION 5.6 Computation of Interest. Interest on all Base Rate Loans
-----------------------
calculated under clause (i) of the definition of "Alternate Base Rate" shall be
computed for the actual number of days elapsed on the basis of a 365-, or if
applicable, 365-day year. All other computations of fees and interest shall be
computed for the actual number of days elapsed on the basis of a 360-day year.
SECTION 5.7 Fees. The Borrower agrees to pay the following fees (all such
----
fees being non-refundable):
-31-
(a) The Borrower agrees to pay to the Agent for the account of each
Lender for the period (including any portion thereof when any of its
Commitments are suspended by reason of the Borrower's inability to satisfy
any condition of Section 13) commencing on the Effective Date and
----------
continuing through the Revolving Termination Date, a commitment fee (the
"Commitment Fee") at a rate per annum equal to the Applicable Commitment
Fee Rate on such Lender's Percentage of the average daily unused portion of
Revolving Loan Commitments (such unused portion at any time being equal to
the amount of the Revolving Loan Commitment minus the aggregate principal
amount of Revolving Loans then outstanding minus the then LC Amount). Such
Commitment Fees shall be payable by the Borrower in arrears on each
Quarterly Payment Date, commencing with the first such day following the
Effective Date, and on the Revolving Termination Date.
(b) The Borrower agrees to pay to Agent all fees set forth in that
certain fee letter dated as of October 27, 1997 herewith between the
Borrower and Agent.
(c) The Borrower agrees to pay (i) to the Agent for the account of
each Lender a Commitment Fee for each Letter of Credit (the "LC Commitment
Fee"), from the date of issuance thereof to the earlier to occur of the
expiration or termination thereof or the date of payment by the Agent
thereunder, at a rate per annum equal to the Applicable LC Fee Rate
(provided that if any Default or Event of Default exists, such fee shall be
at a rate equal to 2.0% per annum above the rate otherwise in effect),
times the aggregate outstanding amount of each such Letter of Credit, such
fee to be payable in arrears on the Quarterly Payment Date (or at such
other times as the Agent shall request, for any period prior to such date
or time for which such Commitment Fee shall not have been theretofore paid)
and (ii) to the Issuing Lender an acceptance commission (the "Acceptance
Commission") for each Letter of Credit at a rate equal to 0.075% times the
aggregate face amount of each such Letter of Credit, such fee to be payable
upon issuance of the respective Letter of Credit and from time to time on
demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Bank relating to
Letters of Credit as from time to time in effect.
-32-
(d) Concurrent with the execution and delivery of this Agreement, the
Borrower agrees to pay directly to the Agent for the account of the Lenders
prorata according to their respective Percentages, a Facility Fee equal to
0.10% of the Aggregate Commitment.
All such fees shall be computed for the actual number of days elapsed on the
basis of a 360-day year without regard to any Default or Event of Default.
SECTION 6. REDUCTION OR TERMINATION OF THE COMMITMENTS;
PAYMENTS AND PREPAYMENTS
SECTION 6.1 Voluntary Reduction or Termination of the Revolving Loan
--------------------------------------------------------
Commitments. The Borrower may from time to time prior to the Revolving
-----------
Termination Date on at least three Business Days' prior written notice received
by the Agent (which shall promptly forward a copy thereof to each Lender)
permanently reduce the amount of the Revolving Loan Commitments (such reduction
to be pro rata among the Lenders according to their respective Percentages) to
an amount not less than the aggregate principal amount of the Revolving Loans
outstanding plus the LC Amount.
Any such reduction shall be in an aggregate amount of $250,000 or an
integral multiple thereof. The Borrower may at any time on like notice prior to
the Revolving Termination Date terminate the LC Commitments and the Revolving
Loan Commitments upon payment in full of the Revolving Loans (and other
obligations of the Borrower hereunder pertaining to the Revolving Loans) and
upon cash collateralization of all outstanding Letters of Credit pursuant to
Section 4.12.
------------
SECTION 6.2 Voluntary Prepayments. The Borrower may from time to time
---------------------
prepay the Loans in whole or in part without premium or penalty; provided, that
--------
(a) the Borrower shall give the Agent (which shall promptly advise each Lender)
(i) in the case of Eurodollar Loans, written notice not later than 9:00 A.M.,
San Francisco time, on the third Business Day prior to such prepayment and (ii)
in the case of Base Rate Loans, written notice not later than 9:00 A.M., San
Francisco time, on the date of such prepayment, in each case specifying the
Loans to be prepaid, and the date and amount of prepayment, (b) subject to
Section 7.5, Eurodollar Loans shall be prepaid only on the last day of the
-----------
Interest Period relating thereto, (c) each partial prepayment shall be, in the
case of Eurodollar Loans, in a principal amount of $250,000 or any larger
integral multiple of $50,000, and, in the case of Base Rate Loans, in a
principal
-33-
amount of $250,000 or any larger integral multiple of $50,000, (d) any
prepayment of the entire principal amount of all Loans shall include accrued
interest to the date of prepayment, and (e) prepayments of the Converted
Revolving Loans occurring on or after the Revolving Conversion Date shall be
applied against the remaining scheduled principal installments on such Loans
pro rata according to the Dollar amount of such principal installments.
--- ----
SECTION 6.3 Mandatory Prepayments. If, on any date, the Borrower or any
---------------------
Subsidiary shall sell, assign, lease, transfer, contribute, convey or otherwise
dispose of (any of the foregoing being a "Disposition") any of its assets, other
than a disposition made in accordance with Section 11.4, the Borrower shall
------------
promptly notify the Agent of such disposition, including the amount of Net
Disposition Proceeds received by the Borrower or any Subsidiary in respect of
such disposition (and the amount and other type of consideration so received).
The Borrower shall promptly apply such Net Disposition Proceeds to repay (i) at
all times prior to the Revolving Conversion Date, first, any Revolving Loans
then outstanding, second, any LC Obligations then outstanding, and third, any
remaining Liabilities, and (ii) at all times on and after the Revolving
Conversion Date, first, any Converted Revolving Loans then outstanding (such
repayments to be applied against the remaining principal installments of such
Converted Revolving Loans pro rata according to the Dollar amount of such
--- ----
principal installments), second, any remaining Revolving Loans then outstanding,
third, any LC Obligations then outstanding, and fourth, any remaining
Liabilities.
SECTION 6.4 Mandatory Reduction in the Commitments. (a) On the Revolving
--------------------------------------
Conversion Date, the aggregate Revolving Loan Commitment shall automatically
reduce to $50,000,000 unless prior to such date the aggregate Revolving Loan
Commitment was reduced pursuant to Section 6.1 to an amount less than
-----------
$50,000,000.
(b) Each repayment of the Revolving Loans pursuant to Section 6.3 shall
-----------
automatically reduce the Revolving Loan Commitments by a like amount.
(c) Each reduction of the Revolving Loan Commitments shall be prorata
among the Lenders according to their respective Percentages.
SECTION 6.5 Making of Payments. Except as otherwise provided, all
------------------
payments (including those made pursuant to Section 5.7, Section 6.2 or Section
----------- ----------- -------
6.3) in respect of the Loans or the Letters of Credit shall be made by the
---
Borrower to the Agent in immediately available funds for the account of the
Lenders pro rata according to the respective unpaid principal
-34-
amounts of the Loans or LC Obligations held by them. All payments of fees
pursuant to Section 5.7 shall be made by the Borrower to the Agent for
-----------
the account of the Lenders pro rata according to their respective Percentages.
All such payments shall be made to the Agent at the address set forth on the
signature pages hereof for making of payments or at such other address within
the United States of America as the Agent may hereafter specify for such
purpose, not later than 12:30 P.M., San Francisco time, on the date due; and
funds received after that hour shall be deemed to have been received by the
Agent on the next following Business Day. The Agent shall promptly remit to each
Lender or other Holder of a Loan or LC Obligation its pro rata share (based on
its Percentage) of all such payments received in collected funds by the Agent
for the account of such Lender or Holder. All payments under Sections 7.1 and
------------
7.4 shall be made by the Borrower directly to the Lender or Lenders entitled
---
thereto. All payments under Section 15.5 shall be made directly to, and for the
------------
sole account of, the Agent.
SECTION 6.6 Application of Payments. Subject to Sections 6.2 and 6.3, so
----------------------- ------------ ---
long as no Default shall exist or result therefrom, any payment (including any
prepayment) of principal or interest shall be applied to such Revolving Loans as
the Borrower shall direct in a notice to the Agent (or, absent such a notice, as
the Agent shall determine in its discretion).
SECTION 6.7 Due Date Extension. If any payment provided for hereunder
------------------
falls due on a Saturday, Sunday or other day which is not a Business Day, then
such due date shall be extended to the next following Business Day (except as
provided in the last sentence of Section 5.4), and additional interest shall
-----------
accrue and be payable for the period of such extension.
SECTION 6.8 Sharing of Payments. (a) If any Lender shall obtain any
-------------------
payment or other recovery (whether voluntary, involuntary, by application of
offset or otherwise) on account of any Loan or LC Obligation (other than
pursuant to the terms of Section 7) in excess of its pro rata share (based on
---------
its Percentage) of payments and other recoveries obtained by all Lenders of
Loans or LC Obligations on account of principal of and interest on Loans or
reimbursement or fees with respect to LC Obligations then held by them, such
Lender shall purchase from the other Lenders such participation in the Loans and
LC Obligations held by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
-------- -------
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the
-35-
purchasing Lender shall repay to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an amount equal to such selling
Lender's ratable share (according to the proportion of (i) the amount of such
selling Lender's required repayment to the purchasing Lender to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered.
(b) The Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to Section 6.8(a) may, to the fullest extent permitted
--------------
by law, exercise all its rights of payment (including pursuant to Section 6.9)
-----------
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect to such secured
claim in a manner consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery of such secured claim.
SECTION 6.9 Setoff. Each Lender shall, upon the occurrence of any Event
------
of Default described in Section 14.1.1 or Section 14.1.3 or, with the consent of
-------------- --------------
the Required Lenders, upon the occurrence of any other Event of Default, have
the right to appropriate and apply to the payment of the Liabilities owing to it
(whether or not then due), and (as security for such Liabilities) the Borrower
hereby grants to each Lender a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender. Any such appropriation and application
shall be subject to the provisions of Section 6.8. Each Lender agrees promptly
-----------
to notify the Borrower and the Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice shall
-------- -------
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 6.10 Unconditional Payment. The Borrower is and shall be
---------------------
obligated to pay principal, interest and any and all other amounts which become
payable hereunder or under the other Related Documents (hereinafter referred to
as "Payments") without abatement, postponement, diminution or deduction, and
free and clear of, and without deduction for, any and all present and future
taxes, levies, imposts, duties, fees, charges, deductions
-36-
or withholdings of any nature (hereinafter referred to as "Deductions"). In the
event that the laws of the United States or of any state in the United States
require withholding of any Deductions from Payments to be delivered to any
Lender (other than the Agent), then the Agent shall withhold from portions of
the Payments delivered by the Agent to any such Lender the sums required by law
to be so withheld, and Borrower agrees to pay the full amount of all Payments to
the Agent.
Notwithstanding the foregoing, in the event the Agent is also a Lender
hereunder and in the event that Borrower is required to withhold Deductions from
Payments made to Agent on account of Agent's monetary participation as Lender in
the Loans, as opposed to its role as Agent, then Borrower shall withhold such
Deductions from Payments owing to Agent for its own account. In the event that
Agent is organized under the laws of a jurisdiction other than the U.S., prior
to the due date of any payments under the Loans or LC Obligations, Agent shall
deliver to the Borrower, on or about the first scheduled payment date in each
calendar year, a United States Internal Revenue Service Form 4224 or Form 1001,
as may be applicable (or any successor form), appropriately completed.
SECTION 7. CHANGES IN CIRCUMSTANCES
SECTION 7.1 Increased Costs. If (a) Regulation D of the Board of
---------------
Governors of the Federal Reserve System, or (b) after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein, 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 Lending Office of
such Lender) with any request or directive (whether or not having the force of
law) or any such authority, central bank or comparable agency,
(i) shall subject any Lender (or any Lending Office of such Lender)
to any tax, duty or other charge with respect to its Eurodollar Loans, its
Loans or its LC Obligations or its obligation to make Eurodollar Loans, or
issues Letters of Credit or shall change the basis of taxation of payments
to any Lender of the principal of or interest on its Eurodollar Loans or
any other amounts due under this Agreement in respect of its Eurodollar
Loans or its obligation to make Eurodollar Loans or its LC Obligations
(except for changes in the rate of Tax, other than Taxes covered by Section
-------
6.10,
----
-37-
on the overall gross or net income of such Lender or its Lending Office);
or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to Section 5 or in the definition
---------
of Eurodollar Rate (Reserve Adjusted)), special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (or any Lending Office of such Lender); or
(iii) shall impose on any Lender (or its Lending Office) any other
condition affecting its Eurodollar Loans or its LC Obligations;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) such Lender (or any
Lending Office of such Lender) of making or maintaining any Eurodollar Loan, or
any Letter of Credit or participation therein or to reduce the amount of any sum
received or receivable by such Lender (or the Lending Office or such Lender)
under this Agreement or under its Loans with respect thereto, then within thirty
days after demand by such Lender (which demand shall be accompanied by a
statement setting forth the basis of such demand), the Borrower shall pay
directly to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or such reduction.
SECTION 7.2 Change in Rate of Return. If any change in, or the
------------------------
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority having jurisdiction over any Lender affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any person controlling such Lender, and such Lender reasonably
determines that the rate of return on its or such controlling person's capital
as a consequence of its Commitments, the Loans or the Letters of Credit made by
such Lender (or any participating interest therein held by such Lender) is
reduced to a level below that which such Lender or such controlling person could
have achieved but for the occurrence of any such circumstance, then, in any such
case the Borrower shall, within thirty days after demand by such Lender to the
Borrower of a written request therefor, pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling person
-38-
for such reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender may use any method of
averaging and attribution that it shall deem reasonably applicable. Each Lender
shall notify the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 7.2.
-----------
SECTION 7.3 Basis for Determining Interest Rate Inadequate or Unfair. If
--------------------------------------------------------
with respect to any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered to BofA in the relevant market for such
Interest Period, or the Agent otherwise determines (which determination
shall be binding and conclusive on all parties) that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable Eurodollar
Rate; or
(b) any Lender advises the Agent that the Eurodollar Rate (Reserve
Adjusted) as determined by the Agent, will not adequately and fairly
reflect the cost to such Lender of maintaining or funding such Loans for
such Interest Period, or that the making or funding of Eurodollar Loans has
become impracticable as a result of an event occurring after the date of
this Agreement which in the opinion of such Lender materially changes such
Loans,
then, so long as such circumstances shall continue: (i) the Agent shall
promptly notify the other parties thereof, (ii) no Lender shall be under any
obligation to make or convert into Eurodollar Loans so affected, and (iii) on
the last day of the then current Interest Period for Loans of the Type so
affected, such Loans shall, unless then repaid in full, automatically convert
to Base Rate Loans. If conditions subsequently change so that the foregoing
conditions no longer exist, the Agent in the case of clause (A) or such Lender
in the case of clause (B) will promptly notify the Borrower and the Lenders
thereof, and upon the receipt of such notice, the obligations of all Lenders to
make or continue Eurodollar Loans shall be reinstated.
SECTION 7.4 Changes in Law Rendering Certain Loans Unlawful. In the event
-----------------------------------------------
that any change in (including the
-39-
adoption of any new) applicable laws or regulations, or any change in the
interpretation of applicable laws or regulations by any governmental or other
regulatory body charged with the administration thereof, should make it unlawful
for a Lender or the Lending Office of such Lender ("Affected Lender") to make,
maintain or fund a Type of Eurodollar Loans, then (a) the Affected Lender shall
promptly notify each of the other parties hereto, (b) the obligation of all
Lenders to make or convert into the Type of Eurodollar Loans made unlawful for
the Affected Lender shall, upon the effectiveness of such event, be suspended
for the duration of such unlawfulness, and (c) on the last day of the current
Interest Period for Eurodollar Loans (or, in any event, if the Affected Lender
so requests, on such earlier date as may be required by the relevant law,
regulation or interpretation), the Eurodollar Loans shall, unless then repaid in
full, automatically convert to Base Rate Loans. If conditions subsequently
change so that the foregoing conditions no longer exist, such Lender will
promptly notify the Borrower and the other Lenders thereof, and upon the receipt
of such notice, the obligations of all Lenders to make or continue Eurodollar
Loans shall be reinstated.
SECTION 7.5 Funding Losses. The Borrower hereby agrees that upon written
--------------
demand by any Lender with a copy to Agent (which demand shall be accompanied by
a statement setting forth the basis for the calculations of the amount being
claimed) the Borrower will indemnify such Lender against any net loss or expense
which such Lender may sustain or incur (including, without limitation, any net
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain Eurodollar
Loans, but not including lost profits), as reasonably determined by such Lender,
as a result of (a) any payment or prepayment or conversion of any Eurodollar
Loan of such Lender on a date other than the last day of an Interest Period for
such Loan, or (b) any failure of the Borrower to borrow or convert any Loans on
a date specified therefor in a Borrowing Request or Continuation/Conversion
request pursuant to this Agreement. For this purpose, all notices to the Agent
pursuant to this Agreement shall be deemed to be irrevocable.
SECTION 7.6 Right of Lenders to Fund Through Other Offices. Each Lender
----------------------------------------------
may, if it so elects, fulfill its Commitment as to any Eurodollar Loan by
causing its Lending Office to make such Loan; provided, that in such event for
--------
the purposes of this Agreement, such Loan shall be deemed to have been made by
such Lender and the obligation of the Borrower to repay such Loan shall
nevertheless be to such Lender and shall be deemed held by it, to the extent of
such Loan, for the account of such branch or
-40-
affiliate.
SECTION 7.7 Discretion of Lenders as to Manner of Funding.
---------------------------------------------
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if such
Lender had actually funded and maintained each Eurodollar Loan during each
Interest Period for such Loan through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to the
Eurodollar Rate, as the case may be, for such Interest Period.
SECTION 7.8 Avoidance of Additional Cost. If at any time the Borrower is
----------------------------
required to pay to any Affected Lender any additional amount pursuant to
Sections 7.1 or 7.2, then (i) such Affected Lender shall make all reasonable
------------ ---
efforts to transfer its rights and obligations hereunder to another Lending
Office of such Affected Lender, and to take such other steps as may be
available, so that the payment under Section 7.1 or 7.2 would no longer be
----------- ---
required or the amount of such payment would be reduced, and (ii) if at the end
of 30 days the efforts referred to in clause (i) have not been made or have not
----------
been successful, then, on request by the Borrower, such Affected Lender shall
pursuant to Section 16.1 make all reasonable efforts to transfer at par (or less
------------
than par if concurrently with such transfer the Borrower shall fully reimburse
such Affected Lender for any loss to such Affected Lender arising from such
transfer at less than par), its rights and obligations hereunder to another
lender or financial institution (which shall, in any event, be an Eligible
Assignee) satisfactory to the Borrower and the Agent, such transfer to be
pursuant to documentation satisfactory to the Borrower and the Agent.
Notwithstanding the foregoing, no Affected Lender shall be required under this
Section 7.8 to take any action which (a) would be inconsistent with applicable
-----------
law or regulations or with such Affected Lenders's internal policies, (b) in the
judgment of such Affected Lender, would be disadvantageous to such Affected
Lender. The Borrower shall use its reasonable efforts to cooperate with any
efforts by an Affected Lender to take action pursuant to this Section 7.8.
-----------
SECTION 7.9 Conclusiveness of Statements; Survival of Provisions.
----------------------------------------------------
Determinations and statements of any Lender pursuant to Section 7.1, Section
----------- -------
7.2, Section 7.3, Section 7.4 or Section 7.5 shall be conclusive absent
----------- ----------- -----------
demonstrable error. No Lender shall assert any demand for payment under
Sections 7.1 or 7.2 more than six months after knowledge by such Lender of the
------------ ---
event giving rise to such demand. The provisions of Sections 7.1, 7.2
------------ ---
-41-
and 7.5 shall survive for one year after the termination of this Agreement.
---
SECTION 8. COLLATERAL AND OTHER SECURITY
SECTION 8.1 Subsidiary Guaranties. With respect to all Significant
---------------------
Subsidiaries existing on the Effective Date, concurrently with or prior to the
Effective Date, and, with respect to all Significant Subsidiaries created or
acquired after the Effective Date, concurrently with the creation or acquisition
thereof, each of such Significant Subsidiaries has executed and delivered or
shall execute and deliver to the Agent a guaranty, substantially in the form of
Exhibit G (herein, as the same may be amended or modified, called the
---------
"Subsidiary Guaranty") covering the payment and performance of all of the
Liabilities.
SECTION 8.2 Parent. Concurrently with or prior to the Effective Date, the
------
Parent shall execute and deliver to the Agent the following:
(a) Pledge Agreement. A pledge agreement, substantially in the form
----------------
of Exhibit E (herein, as the same may be amended or modified, called the
---------
"Parent Pledge Agreement") covering, among other things, all of the issued
and outstanding stock of the Borrower; and
(b) Guaranty. A guaranty, substantially in the form of Exhibit F
-------- ---------
(herein, as the same may be amended or modified, called the "Parent
Guaranty") covering the payment and performance of all of the Liabilities.
SECTION 9. REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Issuing Lender to enter into this Agreement
and to make Loans and to issue or participate in the issuance of Letters of
Credit hereunder, each of the Parent and the Borrower represents and warrants to
the Agent, the Issuing Lender and to each of the Lenders that:
SECTION 9.1 Organization, etc. Each of the Parent and the Borrower is a
------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Georgia. Borrower is a wholly-owned subsidiary of the Parent.
Each Subsidiary is a corporation duly organized and validly existing and in good
standing under the laws of its state of incorporation; and each Credit Party is
duly qualified to transact business and in good
-42-
standing as a foreign corporation authorized to do business in each jurisdiction
where the nature of its business makes such qualification necessary or failure
to so qualify could have a Material Adverse Effect.
SECTION 9.2 Authorization. Each Credit Party (to the extent it is a named
-------------
party thereto) has the corporate power to execute, deliver and perform the Loan
Documents, and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of the Loan Documents.
SECTION 9.3 No Conflict. The execution, delivery and performance by each
-----------
Credit Party (to the extent it is a named party thereto) of the Loan Documents
does not and will not (a) contravene or conflict with any provision of any
applicable law, statute, rule, regulation or court order applicable to such
Credit Party, (b) contravene or conflict with, result in any breach of, or
constitute a default under, any material agreement or instrument binding on it,
(c) result in the creation or imposition of or the obligation to create or
impose any Lien (except for Permitted Liens) upon any of the property or assets
of the Credit Parties, or (d) contravene or conflict with any provision of the
articles of incorporation or by-laws of such Credit Party.
SECTION 9.4 Governmental Consents. No order, consent, approval, license,
---------------------
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the Effective Date and except for
filings or recordings of the UCC statements with respect to the stock pledged by
the Parent pursuant to Section 8.2(a)) or exemption by, any governmental or
--------------
public body or authority, or any subdivision thereof, is required in connection
with the execution, delivery and performance by the Credit Parties (to the
extent each is a named party thereto) of the Loan Documents.
SECTION 9.5 Validity. Each of the Credit Parties (to the extent each is a
--------
named party thereto) has (or prior to the date of the initial Borrowing will
have) duly executed and delivered the Loan Documents, and each of such documents
constitutes (or upon execution and delivery will constitute) the legal, valid
and binding obligation of the Credit Party thereto, enforceable in accordance
with its terms subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
-43-
SECTION 9.6 Financial Statements.
--------------------
(a) The Parent's audited consolidated financial statements as at
December 31, 1996, copies of which have been furnished to each Lender, have
been prepared in conformity with GAAP applied on a basis consistent with
that of the preceding Fiscal Year, and accurately present the financial
condition of the Parent and its Subsidiaries as at such dates and the
results of operations for the periods then ended. With respect to the
Parent's audited consolidated Financial Statements as at December 31, 1996,
the Parent has furnished to each Lender the certificate referred to in
Section 10.1.1(b).
-----------------
(b) The Parent's unaudited consolidated financial statements as at
June 30, 1997, copies of which have been furnished to each Lender, have
been prepared in conformity with GAAP applied on a basis consistent with
that of the preceding Fiscal Year, and accurately present the financial
condition of the Parent and its Subsidiaries in all material respects as at
such dates and the results of operations for the periods then ended.
SECTION 9.7 Material Adverse Change. No Material Adverse Change has
-----------------------
occurred since December 31, 1996.
SECTION 9.8 Litigation and Contingent Obligations. No Material Litigation
-------------------------------------
is pending or threatened except as set forth (including estimates of the Dollar
amounts involved) in Schedule 9.8. The Credit Parties have no material
------------
Contingent Obligations other than as provided for or disclosed on Schedule 9.8
------------
or in the financial statements referred to in Section 9.6.
-----------
SECTION 9.9 Liens. None of the assets of the Credit Parties is subject to
-----
any Lien, except for Permitted Liens.
SECTION 9.10 Subsidiaries and Joint Ventures. As of the Effective Date,
-------------------------------
the Parent has no Subsidiaries, except for the Borrower and the Wholly-Owned
Subsidiaries listed on Schedule 9.10. Each of the Subsidiaries listed on
-------------
Schedule 9.10 is a Significant Subsidiary except LinkNet, Inc. As of the
-------------
Effective Date, neither the Parent, the Borrower, nor any Subsidiary is a party
to any Joint Ventures, except for Alliances listed on Schedule 9.10.
-------------
-44-
SECTION 9.11 Pension and Welfare Plans.
-------------------------
(a) During the twelve-consecutive-month period prior to the Effective
Date of this Agreement and prior to the date of any Borrowing hereunder, no
steps have been taken to terminate or completely or partially withdraw from
any Pension Plan or Welfare Plan, and no contribution failure has occurred
with respect to any Pension Plan sufficient to give rise to a Lien under
section 302(f) of ERISA;
(b) no condition exists or event or transactions have occurred with
respect to any Pension Plan which might result in the incurrence by any
Credit Party or any other member of the Controlled Group of any material
liability, fine, Tax or penalty;
(c) except as disclosed in Schedule 9.11, neither the Credit Parties
-------------
nor any member of the Controlled Group has any vested or contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title
I of ERISA;
(d) with respect to each Pension Plan maintained or contributed to by
any Credit Party which is intended to qualify under Section 401 of the
Code, a favorable determination letter has been received from the Internal
Revenue Service stating that such Pension Plan so qualifies and, except as
disclosed on Schedule 9.11, nothing has occurred since the date of issuance
-------------
of such determination letter which would cause any such Pension Plan to
cease to qualify under Section 401 of the Code;
(e) each fiduciary (as defined in section 3(21) of ERISA) with
respect to any Pension Plan or Welfare Plan and any Person who handles
funds of any Pension Plan or Welfare Plan is bonded in accordance with
Section 412 of ERISA; and
(f) no Pension Plan maintained by or contributed to by any Credit
Party or any other member of the Controlled Group and subject to section
302 of ERISA or section 412 of the Code has incurred an accumulated funding
deficiency as defined in section 302(a)(2) of ERISA and section 412(a) of
the Code, whether or not waived.
SECTION 9.12 Investment Company Act. None of the Credit
----------------------
-45-
Parties is an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
SECTION 9.13 Public Utility Holding Company Act. None of the Credit
----------------------------------
Parties is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 9.14 Margin Regulation. None of the Credit Parties is engaged
-----------------
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation G or Regulation U of the Board of Governors of the Federal
Reserve System).
SECTION 9.15 Taxes. Except as disclosed on Schedule 9.15, each of the
----- -------------
Credit Parties has filed all tax returns and reports required by law to have
been filed by it and has paid or provided adequate reserves for all Taxes
thereby shown to be owing, except any such Taxes which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves have been established and are being maintained in accordance with GAAP.
There is no ongoing audit or, to the Borrower's knowledge, other governmental
investigation of the tax liability of any Credit Party and there is no
unresolved claim in excess of $500,000 by a taxing authority concerning any
Credit Party's tax liability, for any period for which returns have been filed
or were due. The liability stated for Taxes as of December 31, 1996 in the
financial statements described in Section 9.6 is sufficient in all material
-----------
respect for all Taxes as of such date.
SECTION 9.16 Accuracy of Information. All factual information heretofore
-----------------------
or contemporaneously herewith furnished by or on behalf of any Credit Party in
writing to the Agent, the Issuing Lender or any Lender for purposes of or in
connection with the Loan Documents or any information contemplated hereby or
thereby is, and all other such factual information hereafter furnished by or on
behalf of any Credit Party to the Agent, the Issuing Lender or any Lender will
be, true and accurate in every material respect on the date as of which such
information is dated or certified and with respect to information furnished
prior to the Effective Date, as of the Effective Date, and such information is
not, or shall not be, as the case may be, when taken together with all other
information provided, incomplete by omitting to state any material fact
necessary to make such information not misleading.
-46-
SECTION 9.17 Environmental Warranties. Except as set forth
------------------------
in Schedule 9.17:
-------------
(a) all facilities and property (including underlying groundwater)
owned or leased by any Credit Party have been, and continue to be, owned or
leased in material compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information received by any
Credit Party with respect to any alleged violation of any Environmental
Law, or (ii) complaints, notices or inquiries as to such Credit Party
regarding potential liability under any Environmental Law;
(c) there have been no releases of Hazardous Materials at, on or
under any property now or previously owned or leased by any Credit Party
that, individually or in the aggregate, have, or could reasonably have, a
Material Adverse Effect;
(d) the Credit Parties have been issued and are in material
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable
for their businesses, the failure to obtain or comply with which could
reasonably have a Material Adverse Effect;
(e) no property now or previously owned or leased by any Credit Party
is listed or proposed for listing (with respect to owned property only) on
the National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by any Credit Party that, individually or in the
aggregate, could reasonably have a Material Adverse Effect;
(g) no Credit Party has directly transported or directly arranged for
the transportation of any Hazardous Material to any location which is
listed or proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the subject
of federal, state or
-47-
local enforcement actions or other investigations which may lead to
material claims against such Credit Party for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by any Credit
Party that, individually or in the aggregate, could reasonably have a
Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by any Credit Party which, with the passage of
time, or the giving of notice or both, would give rise to liability of any
Credit Party under any Environmental Law.
SECTION 9.18 Use of Loan Proceeds/Letters of Credit. (a) The proceeds of
--------------------------------------
the Revolving Loans will be used to (i) finance Acquisitions made by Credit
Parties and pay Acquisition Costs incurred by Credit Parties, (ii) fund cash
payments required in relation to Alliances, (iii) fund conversion costs
associated with Alliances, (iv) provide funds for working capital expenses
(including integration expenses and chargeback losses), (v) reimburse draws
under Letters of Credit and (vi) provide cash collateral to Settlement Banks to
the extent required pursuant to the respective Settlement Agreement.
(b) Letters of Credit will be issued as irrevocable stand-by letters of
credit supporting any continuing or future obligations of the Borrower and its
Subsidiaries arising pursuant to the terms of an Acquisition or as collateral
required pursuant to any Settlement Agreements.
SECTION 9.19 Insurance. Schedule 9.19 hereto sets forth a true and
--------- -------------
correct summary of all material insurance carried by the Credit Parties. The
Credit Parties are adequately insured for their benefit under policies issued by
insurers of recognized responsibility. No notice of any pending or threatened
cancellation or premium increase has been received by any Credit Party with
respect to any of such insurance policies. The Credit Parties are in
substantial compliance with all conditions contained in such insurance policies.
SECTION 9.20 Securities Laws. Neither the Borrower nor any of its
---------------
Affiliates, nor anyone acting on behalf of any such Person, has directly or
indirectly offered any interest in the Loans or any other Liabilities for sale
to, or solicited any offer to acquire any such interest from, or has sold any
such
-48-
interest to, any Person that would subject the issuance or sale of the Loans or
any other Liabilities to registration under the Securities Act of 1933, as
amended.
SECTION 9.21 Governmental Authorizations. The Credit Parties have all
---------------------------
licenses, franchises, permits and other governmental authorizations necessary
for all businesses presently carried on by them (including ownership and leasing
the real and personal property owned and leased by them), except where failure
to obtain such licenses, franchises, permits and other governmental
authorizations would not have a Material Adverse Effect.
SECTION 9.22 Representations in Other Agreements True and Correct. Each
----------------------------------------------------
of the representations and warranties made by the Credit Parties which are
contained in each Related Document (each as originally executed notwithstanding
any amendment, modification or termination thereof except to the extent
consented to by the Required Lenders) is true and correct in all material
respects.
SECTION 9.23 Possession of Licenses, etc. (a) Each Credit Party owns or
----------------------------
possesses all patents, trademarks, services marks, tradenames, copyrights,
licenses and other rights that are necessary in any material respect for the
operation of its properties and businesses, and (b) no Credit Party is in
violation of any provision thereof in any material respect.
SECTION 9.24 VISA/MasterCard. The Borrower is registered as a member
----------------
service provider with both VISA U.S.A. Inc. and MasterCard International
Incorporated ("VISA/MasterCard") and is registered as such for each clearing
bank with which it conducts business and is required to be so registered. The
Borrower has complied with all requirements of VISA/MasterCard necessary or
desirable to the conduct of its business, the failure to comply with which would
have a Material Adverse Effect.
SECTION 10. AFFIRMATIVE COVENANTS
Each of the Parent and the Borrower agrees that, on and after the Effective
Date and for so long thereafter as the Issuing Lender or any Lender has any
Commitment hereunder or any of the Liabilities remain unpaid or outstanding, it
will:
SECTION 10.1 Reports, Certificates and Other Information. Furnish or
-------------------------------------------
cause to be furnished to the Agent, the Issuing Lender and each Lender:
-49-
10.1.1 Audit Report. As soon as available, but in any event within
------------
ninety days after the end of each Fiscal Year of the Parent: (a) copies of
the consolidated balance sheet of the Parent as at the end of such Fiscal
Year and the related statements of earnings, stockholders' equity and cash
flows for such Fiscal Year, in each case setting forth the figures for the
previous year, prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein, and with
respect to the consolidated statements certified, without qualification by
Ernst & Young (or such other independent certified public accountants of
recognized standing acceptable to the Required Lenders); and (b) a letter
addressed to the Parent from such accountants stating that such accountants
have been informed that a primary intent of the Parent in using the
professional services such accountants provided to the Parent in reporting
on the consolidated financial statements and in issuing the certificate
referred to above was to benefit or influence the Agent and the Lenders,
and identifying the Agent and the Lenders as parties that the Parent has
indicated intend to rely on such professional services provided to the
Parent by such accountants;
10.1.2 [Reserved]
10.1.3 Quarterly Reports. As soon as available, but in any event
-----------------
within forty-five days after the end of each calendar quarter, copies of
the unaudited consolidated balance sheet of the Parent as at the end of
such calendar quarter and the related unaudited statements of earnings and
cash flows for such calendar quarter and the portion of the Fiscal Year
through such calendar quarter, in each case setting forth in comparative
form the figures for (a) the corresponding periods of the previous Fiscal
Year and (b) the corresponding periods from the planned and forecast
referenced in Section 10.1.6 below, prepared in reasonable detail and in
--------------
accordance with GAAP applied consistently throughout the periods reflected
therein;
10.1.4 Compliance Certificate. Within forty-five days after the end
----------------------
of each Fiscal Quarter (excluding any Fiscal Quarter which is also the end
of a Fiscal Year) and contemporaneously with the furnishing of a copy of
each set of the statements and reports provided for in Sections 10.1.1 and
---------------
10.1.3, a duly completed certificate, substantially in the form of Exhibit
------ -------
H (the "Compliance Certificate"), signed by the chief financial officer of
-
the Borrower, containing, among
-50-
other things, a computation of the Adjusted Funded Debt Ratio and showing a
computation of, and compliance with, each of the applicable financial
ratios and restrictions contained in Sections 11 and 12 and certifying that
----------- --
as of such date (a) no Default or Event of Default has occurred and is
continuing, (b) the representations and warranties of the Parent, the
Borrower and the Subsidiaries contained in Section 9 are true and correct
---------
with the same effect as though made on such date, and (c) no Material
Litigation exists except as disclosed on Schedule 9.8, and since the
------------
Effective Date no Material Litigation Development has occurred with respect
to any Litigation so disclosed on Schedule 9.8;
------------
10.1.5 Auditors' Materials. Upon request by the Agent and promptly
-------------------
upon receipt thereof by any Credit Party, copies of all detailed financial
and management reports regarding any Credit Party submitted by independent
public accountants in connection with each annual or interim audit report
made by such accountants of the books of the Credit Parties;
10.1.6 Business Plan. As soon as available, but in any event within
-------------
thirty days after the beginning of each Fiscal Year of the Parent, a copy
of the consolidated plan and forecast (including a projected closing
consolidated balance sheet, income statement and funds flow statements) of
the Parent for each month of such Fiscal Year;
10.1.7 Reports to SEC and to Shareholders. Promptly upon the filing
----------------------------------
or making thereof, copies of each filing and report (including Forms 10K,
10Q and 8K) made by any Credit Party with or to any securities exchange or
the Securities and Exchange Commission and of each communication from the
Parent to shareholders generally;
10.1.8 Notice of Default, Litigation and License Matters. Promptly
-------------------------------------------------
upon learning of the occurrence of any of the following, written notice
thereof, describing the same and the steps being taken by the Parent or the
Borrower, as the case may be, with respect thereto: (a) the occurrence of
a Default or Event of Default, (b) the institution of any Material
Litigation or the occurrence of any Material Litigation Development, (c)
the commencement of any dispute which might lead to the material
modification, transfer, revocation, suspension or termination of any
Related Document, (d) any Material Adverse Change, or (e) any event in
relation to VISA/MasterCard which might be
-51-
deemed to be materially adverse to the Parent or the Borrower, as the case
may be;
10.1.9 Insurance Reports. (a) Within ninety days after the end of
-----------------
each Fiscal Year of the Parent, a certificate signed by a Responsible
Officer that summarizes the insurance policies carried by each Credit Party
(such certificate to be in form and substance satisfactory to the Required
Lenders), (b) written notification thirty days prior to any cancellation or
material change of any such insurance by the respective Credit Party and
within five days after receipt of any notice (whether formal or informal)
of cancellation or material change by any of its insurers;
10.1.10 ERISA Liability. Promptly upon learning of the occurrence of
---------------
the following, written notice thereof describing the same and the steps
being taken by the respective Credit Party with respect thereto: (a) the
failure of any member of the Controlled Group to make a required
contribution to any Pension Plan if such failure is sufficient to give rise
to a Lien under section 302(f)(1) or accumulated funding deficiency under
section 302 of ERISA, (b) the institution of any steps by any member of the
Controlled Group to withdraw from, or the institution of any steps by any
Credit Party to terminate, any Pension Plan, (c) the taking of any action
with respect to a Pension Plan which could result in the requirement that
any Credit Party furnish a bond or other security to the Pension Benefit
Guaranty Corporation or such Pension Plan, or (d) the occurrence of any
event with respect to any Pension Plan which could result in the incurrence
by any Credit Party of any liability, fine, Tax or penalty in excess of
$500,000 or any increase in excess of $500,000 in the vested or contingent
liability of any Credit Party with respect to any post-retirement Welfare
Plan benefit;
10.1.11 Pension Plan Withdrawals. With respect to each Pension Plan
------------------------
which is a "multi-employer plan," as defined in section 4001 of ERISA as to
which any member of the Controlled Group may incur any liability, (a) no
less frequently than annually, a written estimate (which shall be based on
information received from each such plan, it being expressly understood
that the Parent and the Borrower shall take all reasonable steps to obtain
such information) of the withdrawal liability that would be incurred by the
Controlled Group in the event that all members of the Controlled Group were
to completely withdraw from such plan, and
-52-
(b) written notice thereof, as soon as it has reason to believe (on the
basis of the most recent information available to it) that the sum of (i)
the withdrawal liability that would be incurred by the Controlled Group if
all members of the Controlled Group completely withdrew from all multi-
employer plans as to which any member of the Controlled Group has an
obligation to contribute, and (ii) the aggregate amount of the outstanding
withdrawal liability (without unaccrued interest) incurred by the
Controlled Group to multi-employer plans, would exceed $500,000;
10.1.12 Environmental Liabilities. Promptly upon learning thereof,
-------------------------
written notice (together with copies, if available) of all written claims,
complaints, notices or inquiries relating to any Credit Party's (a)
properties or facilities, or (b) compliance with Environmental Laws,
together with a description of the steps being taken by such Credit Party
with respect thereto;
10.1.13 Acquisitions. Promptly upon execution and delivery thereof
------------
by all of the parties thereto, written notice of any letters of intent
pursuant to which any Credit Party intends to undertake an Acquisition for
which the Acquisition Costs exceed $10,000,000; and
10.1.14 Other Information. From time to time such other information
-----------------
and certifications concerning the Credit Parties as the Agent or the Lender
may reasonably request.
SECTION 10.2 Corporate Existence; Foreign Qualification. Do and cause to
------------------------------------------
be done at all times all things necessary to (a) maintain and preserve the
corporate existence of each Credit Party, provided, however, that the Parent or
-------- -------
the Borrower shall be entitled to dissolve in good faith inactive or immaterial
Subsidiaries, (b) be, and ensure that each Credit Party is, duly qualified to do
business and in good standing as foreign corporations in each jurisdiction where
the nature of its business makes such qualification necessary or failure to so
qualify could have a Material Adverse Effect, and (c) comply, and cause the
Parent and the Subsidiaries to comply, with all contractual obligations and
requirements of law binding upon such entity, except to the extent that the
failure to comply therewith could not in the aggregate have a Material Adverse
Effect.
SECTION 10.3 Books, Records and Inspections. (a) Maintain, and cause each
------------------------------
of the Subsidiaries to maintain, complete and accurate books and records; (b)
permit, and cause each of the Subsidiaries to permit, access at reasonable times
by the Agent,
-53-
the Issuing Lender and each Lender to its books and records; (c) permit, and
cause the Parent and each of the Subsidiaries to permit, the Agent, the Issuing
Lender and each Lender to inspect at reasonable times its properties and
operations; and (d) permit, and cause the Parent and each of the Subsidiaries to
permit, the Agent, the Issuing Lender and each Lender to discuss its business,
operations and financial condition with its officers.
SECTION 10.4 Insurance.
---------
(a) Maintain, and cause each of the Subsidiaries to maintain with
responsible insurance companies, insurance with respect to its properties
and business including business interruption insurance against such
casualties and contingencies and of such types and in such amounts as is
customary in the industry in which such parties are engaged.
(b) Maintain, and cause each of the Subsidiaries to maintain, a
sufficient amount of insurance so that neither the Credit Parties nor the
Agent, the Issuing Lender or any Lender will be considered a co-insurer or
co-insurers.
(c) Upon the reasonable request of the Agent, furnish the Agent with
copies of all insurance policies, binders and cover notes or other evidence
of property or casualty insurance obtained by any Credit Party.
SECTION 10.5 Taxes and Liabilities. Pay, and cause each of the
---------------------
Subsidiaries to pay, when due all Taxes and other material liabilities, except
as contested in good faith and by appropriate proceedings and with respect to
which reserves have been established and are being maintained, in accordance
with GAAP.
SECTION 10.6 Pension Plans and Welfare Plans. Maintain, and cause each of
-------------------------------
the Subsidiaries to maintain, each Pension Plan and Welfare Plan as to which it
may have any liability, in compliance in all material respects with all
applicable requirements of law.
SECTION 10.7 Compliance with Laws. Comply, and cause each of the
--------------------
Subsidiaries to comply, with all federal, state and local laws, rules and
regulations related to its businesses (including, without limitation, all such
laws, rules and regulations relating to Hazardous Materials or the disposal
thereof) if the failure so to comply could reasonably have a Material Adverse
Effect.
SECTION 10.8 Maintenance of Permits. Maintain, and cause each of the
----------------------
Subsidiaries to maintain, all permits, licenses and consents as may be required
for the conduct of its business by any state, federal or local government agency
or instrumentality (including, without limitation, any such license, consent or
-54-
permit relating to Hazardous Materials or the disposal thereof) if the failure
to maintain such licenses, permits and consents could reasonably have a Material
Adverse Effect.
SECTION 10.9 Environmental Compliance. Except where such failure would
------------------------
not have a Material Adverse Effect, maintain, and cause each of the Subsidiaries
to maintain (a) all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and use and
operate all of its facilities and properties in material compliance with all
Environmental Laws, and (b) appropriate procedures for the handling of all
Hazardous Materials in material compliance with all applicable Environmental
Laws, and comply with such procedures at all times.
SECTION 11. NEGATIVE COVENANTS
Each of the Parent and the Borrower agrees that, on and after the Effective
Date and for so long thereafter as the Issuing Lender or any Lender has any
Commitment hereunder or any of the Liabilities remains unpaid or outstanding, it
will:
SECTION 11.1 Limitation on Indebtedness. Not, and not permit any
--------------------------
Subsidiary to, incur or at any time be liable with respect to any Indebtedness
except:
(a) Indebtedness outstanding under any Loan Document in respect of
the Loans and other Liabilities;
(b) Indebtedness outstanding on the Effective Date described on
Schedule 11.1; provided, that Indebtedness permitted by this clause (b)
------------- --------
does not include any extension, renewal or refunding of any such
outstanding Indebtedness;
(c) Indebtedness of Subsidiaries owing to the Borrower; provided,
--------
that such Indebtedness is evidenced by a promissory note;
(d) Indebtedness of the Borrower or a Subsidiary secured by a
Permitted Lien;
(e) Indebtedness of the Borrower or a Subsidiary in respect of
Capitalized Lease Liabilities in an aggregate principal amount not
exceeding $10,000,000;
(f) Subordinated Debt of the Borrower or a Subsidiary incurred in
connection with an Acquisition.
(g) Indebtedness in respect of deferred Taxes;
-55-
(h) unsecured Indebtedness in respect of current accounts payable
arising in the ordinary course of business (including open accounts
extended by supplies on normal trade terms) in connection with purchases of
goods and services, but excluding Funded Indebtedness or Contingent
Obligations; and
(i) other unsecured Indebtedness which when added to the Indebtedness
outstanding pursuant to clauses (e) and (f) of this Section 11.1 does not
------------
exceed $20,000,000.
SECTION 11.2 Liens. Not, and not permit any Subsidiary to, create, assume
-----
or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except for the following (collectively called "Permitted Liens"):
(a) Liens in favor of the Agent for the benefit of the Issuing Lender
and Lenders pursuant to this Agreement and the Related Documents;
(b) Liens for current Taxes not delinquent or for Taxes being
contested in good faith and by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(c) Liens shown on Schedule 11.2;
-------------
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other forms of
governmental insurance or benefits or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to some obligations on
surety or appeal bonds;
(e) Liens of mechanics, carriers, materialmen and other like Liens
arising in the ordinary course of business in respect of obligations which
are not delinquent or which are being contested in good faith and by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(f) Liens arising in the ordinary course of business for sums being
contested in good faith and by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP, or
for sums not due, and in either case not involving any deposits or advances
for borrowed money or the deferred purchase price of property or services;
-56-
(g) Liens on Settlement Accounts securing obligations of the Borrower
or any of its Subsidiaries under Settlement Agreements with Settlement
Banks; provided that the aggregate amount of all deposits subject to such
--------
Liens does not at any time exceed $40,000,000;
(h) purchase money security interests on any property acquired or
held by the Parent, the Borrower or its Subsidiaries (including property
acquired pursuant to an Acquisition), securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such property; provided that (i) any such Lien attaches to such
-------- ----
property concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such
transaction, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property, and (iv) the principal amount
of the Indebtedness secured by any and all such purchase money security
interests shall not at any time exceed $10,000,000; and
(i) Other Liens not of the type described in the foregoing clauses
-------
(a) through (h) securing Indebtedness in an aggregate principal amount not
--- ---
to exceed at any one time outstanding $2,500,000.
SECTION 11.3 Consolidation, Merger, etc. Not, and not permit any
---------------------------
Subsidiary to, liquidate or dissolve, consolidate with, or merge into or with,
any other Person, or purchase or otherwise acquire all or substantially all of
the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Subsidiary;
(b) the Borrower may dissolve any inactive Subsidiary which is not a
Significant Subsidiary; and
(c) subject to the limitations set forth in Section 13.2, the Credit
------------
Parties may make Acquisitions.
SECTION 11.4 Asset Disposition, etc. Not, and not permit any Subsidiary
-----------------------
to, sell, assign, lease, transfer, contribute, convey or otherwise dispose of,
or grant options, warrants or other rights with respect to, any of its assets to
any Person, unless:
(a) such sale, assignment, transfer, lease, contribution, conveyance
or other disposition is in the ordinary course of its business;
-57-
(b) in any one Fiscal Year the aggregate proceeds of such assets,
together with the proceeds of all other assets sold, transferred, leased,
contributed or conveyed during such Fiscal Year (otherwise than in the
ordinary course of business) by the Parent or any of its Subsidiaries
pursuant to this clause, does not exceed $2,500,000; or
(c) the proceeds of such sale, assignment or transfer are within
twelve months of such sale, assignment or transfer reinvested in
replacement assets or other income producing assets, or are reinvested in
the business for similar purposes, provided that (i) the aggregate proceeds
of such sale, assignment or transfer does not exceed $12,500,000 in any
twelve month period, and (ii) if not so reinvested within twelve months of
such sale, assignment or transfer, such proceeds shall be applied to a
mandatory prepayment pursuant to Section 6.3.
-----------
SECTION 11.5 Dividends, etc. Not (a) declare, pay or make any dividend or
---------------
distribution (in cash, property or obligations) on any shares of any class of
capital stock (now or hereafter outstanding) of the Parent or the Borrower or on
any warrants, options or other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the Parent or the Borrower
(other than dividends or distributions payable in its common stock or warrants
to purchase its common stock or splitups or reclassifications of its stock into
additional or other shares of its common stock) or (b) except pursuant to
Section 11.18, apply or permit any of the Subsidiaries to apply, any funds,
-------------
property or assets to the purchase, redemption, sinking fund or other retirement
of any shares of any class of capital stock (now or hereafter outstanding) of
the Parent or the Borrower or any option, warrant or other right to acquire
shares of capital stock of the Parent or the Borrower (other than any such
payment pursuant to stock appreciation rights granted and exercised in
accordance with applicable rules and regulations of the Securities and Exchange
Commission); or (c) make any deposit for any of the foregoing purposes.
SECTION 11.6 Investments. Not, and not permit any Subsidiary to, make,
-----------
incur, assume or suffer to exist any Investment in any other Person, except:
(i) Investments existing on the Effective Date and identified in
Schedule 11.6;
-------------
(ii) Cash Equivalent Investments;
(iii) without duplication, Investments permitted as Indebtedness
pursuant to Section 11.1;
------------
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(iv) Investments by the Borrower in any of its Wholly-Owned
Subsidiaries, by way of initial contributions to capital made at the time
of such Wholly-Owned Subsidiary's organization; provided, that (A) the
--------
conditions set forth in Section 11.11 have been satisfied prior to the
-------------
making of such Investment and (B) the aggregate amount of all such
contributions to capital made to any Wholly-Owned Subsidiary shall not
exceed 10% of the total Investment of the Borrower in such Wholly-Owned
Subsidiary;
(v) Investments which are Acquisitions, provided, however, that prior
-------- -------
to making any Acquisition, the conditions set forth in Section 13.2.4,
--------------
13.2.5 and 13.2.6 shall be satisfied, regardless of whether a Loan
------ ------
or Letter of Credit is used in connection with such Acquisition;
(vi) Cash deposits held from time to time in Settlement Accounts; and
(vii) Investments in Joint Ventures to the extent permitted in
Section 11.8.;
-------------
provided, however, that no Investment otherwise permitted by clause (iii), (iv)
-------- ------- ------------ ----
or (v) shall be permitted to be made if, immediately before or after giving
---
effect thereto, any Default or Event of Default shall exist.
SECTION 11.7 Acquisitions. Not, and not permit any of the Subsidiaries
------------
to, make any acquisition of assets outside the ordinary course of business,
except for Acquisitions by the Credit Parties, provided, however, that prior to
-------- -------
making any Acquisition, the conditions set forth in Section 13.2.4, 13.2.5 and
-------------- ------
13.2.6 shall be satisfied, regardless of whether a Loan or Letter of Credit is
------
used in connection with such Acquisition.
SECTION 11.8 Joint Ventures. Not, and not permit the Parent or any of the
--------------
Subsidiaries to, enter into any Joint Venture, except for:
(i) arrangements with independent sales organizations, trade or
similar associations or organizations or associate banks, in each case to
the extent made in the ordinary course of business; and
(ii) profit sharing arrangements with other banks established in
connection with an Acquisition in payment or partial payment of the
purchase price;
(iii) Alliances as to which the aggregate Investment of the Parent,
the Borrower and the Subsidiaries does not
-59-
exceed $20,000,000, and
(iv) Alliances listed in Schedule 9.10;
-------------
provided, however, that the aggregate Investment of the Parent, the Borrower and
-------- -------
the Subsidiaries in all Alliances permitted under clauses (iii) and (iv) above
shall not exceed $100,000,000 at any one time outstanding.
SECTION 11.9 Rental Obligations. Not, and not permit any of the
------------------
Subsidiaries to, enter into at any time any arrangement which involves the
leasing by any Credit Party from any lessor of any real or personal property (or
any interest therein), except arrangements which, together with all other such
arrangements then in effect, will not require the payment of an aggregate amount
of rentals by all Credit Parties in excess of $2,000,000 for any Fiscal Year or
$10,000,000 during the full remaining term of such arrangements; provided,
--------
however, that any calculation made for purposes of this Section shall
-------
exclude (a) any amounts required to be expended for maintenance and repairs,
insurance, Taxes, assessments, and other similar charges, (b) escalations
resulting from a rise in the consumer price or similar index, and (c) rental
obligations comprising Capitalized Lease Liabilities of the Borrower and its
Subsidiaries.
SECTION 11.10 Subordinated Debt. Not, and not permit any Subsidiary to:
-----------------
(a) make any payment (whether of principal, interest or otherwise) on
any Subordinated Debt on any day other than the stated, scheduled date for
such payment set forth in the documents and instruments evidencing such
Subordinated Debt; or
(b) make any payment on any Subordinated Debt in contravention or
violation of the subordination provisions thereof; or
(c) prepay, redeem, purchase or defease any Subordinated Debt, or
make any deposit for any of the foregoing purposes; or
(d) enter into any amendment or modification of any Subordinated Debt
which would in any manner adversely affect the rights of the Lenders in
respect of such Subordinated Debt.
SECTION 11.11 Take or Pay Contracts. Not, and not permit any Subsidiary
---------------------
to, enter into or be a party to any arrangement for the purchase of materials,
supplies, other property or services if such arrangement by its express terms
requires that payment be made by the Borrower or such Subsidiary regardless
of
-60-
whether such materials, supplies, other property or services are delivered or
furnished to it.
SECTION 11.12 Regulations G and U. Not, and not permit any Subsidiary to,
-------------------
use or permit any proceeds of the Loans or LC Obligations to be used, either
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying margin stock" within the meaning of
Regulations G and U of the Board of Governors of the Federal Reserve System, as
amended from time to time.
SECTION 11.13 Subsidiaries. (a) Notwithstanding any provision of this
------------
Agreement to the contrary, not create or permit to exist any Subsidiary other
than (i) the Wholly-Owned Subsidiaries listed on Schedule 9.10 or (ii)
-------------
Significant Subsidiaries which concurrently with the creation thereof execute a
Guaranty. (accompanied by such supporting documents, including an opinion of
counsel, as shall be satisfactory to the Agent) or (iii) Subsidiaries which are
not Significant Subsidiaries.
(b) Not permit any of the Subsidiaries to create or permit to exist any
Subsidiary of such Subsidiary.
(c) Not permit LinkNet, Inc. to be a Significant Subsidiary unless
concurrently with its becoming a Significant Subsidiary it shall execute and
deliver to the Agent a Guaranty (accompanied by such supporting documents,
including an opinion of counsel, as shall be satisfactory to the Agent).
SECTION 11.14 Other Agreements. Not, and not permit any Subsidiary to,
----------------
enter into any agreement containing any provision which (a) would be violated or
breached by the performance of its obligations hereunder or under any instrument
or document delivered or to be delivered by it hereunder or in connection
herewith, (b) prohibits or restricts the creation or assumption of any Lien upon
its properties, revenues or assets (whether now owned or hereafter acquired) as
security for the Liabilities hereunder, (c) prohibits or restricts the ability
of any Subsidiary to make dividends or advances or payments to the Borrower, or
(d) prohibits or restricts the ability of the Borrower or any Subsidiary to
amend or otherwise modify this Agreement or any other document executed in
connection herewith.
SECTION 11.15 Business Activities. Not, and not permit any Subsidiary to,
-------------------
(a) engage in any type of business except the businesses which the Credit
Parties are presently engaged in, or (b) substantially alter the methods by
which the Credit Parties conduct such businesses.
SECTION 11.16 Transactions with Affiliates. Not, and not permit any
----------------------------
Subsidiary to, enter into, or cause, suffer or permit to exist any arrangement
or contract with any of its other
-61-
Affiliates unless such arrangement (a) is fair and equitable to the respective
Credit Party, (b) is of a sort which would be entered into by a prudent Person
in the position of such Credit Party with a Person which is not one of its
Affiliates, and (c) is on terms which are not less favorable to such Credit
Party than are obtainable from a Person which is not one of its Affiliates.
SECTION 11.17 Parent Activities. Not permit the Parent to have any
-----------------
business or activities other than (a) the holding of the capital stock of the
Borrower, (b) the assets and operations of the Parent existing on the Effective
Date, (c) the Investments permitted by clause (v) of Section 11.6, and (d) the
------------
execution and delivery by the Parent of its Guaranty and Pledge Agreement
hereunder pursuant to this Agreement.
SECTION 11.18 Employee Stock Purchase Plan. Not apply or permit any
----------------------------
of the Subsidiaries to apply, any funds, property or assets to the purchase or
retirement of any shares of any class of capital stock (now or hereafter
outstanding) of the Parent or the Borrower, provided, however, that so
-------- -------
long as no Default or Event of Default shall exist or result therefrom, the
Parent or the Borrower may, pursuant to any employee stock purchase plan,
repurchase in any one Fiscal Year, shares for a purchase price not to exceed
$5,000,000 for all such shares so repurchased by the Parent or the Borrower
during such Fiscal Year.
SECTION 12. FINANCIAL COVENANTS
Each of the Parent and Borrower agrees that, on and after the Effective
Date and for so long thereafter as any Lender has any Commitment hereunder or
any of the Liabilities remain unpaid or outstanding, it will:
SECTION 12.1 Fixed Charge Coverage Ratio. Not permit as of the end of any
---------------------------
Fiscal Quarter the ratio of (a) the sum of Adjusted Consolidated EBITDA plus
----
operating lease payments to (b) the sum of Adjusted Consolidated Interest
Charges plus scheduled principal payments on Funded Indebtedness plus operating
---- ----
and capitalized lease payments plus Consolidated Capital Expenditures, each for
----
the four consecutive Fiscal Quarters then ended, to be less 1.50:1.
SECTION 12.2 Funded Debt Ratio. Not permit at any time the ratio of
-----------------
Funded Indebtedness at such date to Consolidated EBITDA, for the most recent
four consecutive Fiscal Quarters then ended, to exceed 3.00:1. (For purposes of
this Section 12.2, Consolidated EBITDA shall be determined by including
------------
historical EBITDA for Acquisitions therefore made, but excluding Acquisition
Adjustments relating to such Acquisitions).
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SECTION 12.3 Credit Losses and Chargeback Losses. For any four
-----------------------------------
consecutive Fiscal Quarter period then most recently ended, not permit the
aggregate of Credit Losses and (without duplication) Chargeback Losses to exceed
an amount equal to the sum of 5% of Consolidated Revenue for such period, plus
up to $5,000,000 of Credit Losses and/or Chargeback Losses to the extent and
only to the extent that such losses have theretofore been funded by Loans under
this Agreement.
SECTION 13. CONDITIONS TO EFFECTIVENESS
OF THIS AGREEMENT
The obligation of each of the Lenders to make its Loans and of the Issuing
Lender to issue Letters of Credit is subject to the performance by the Borrower
of all of its obligations under this Agreement and to the satisfaction of the
following conditions precedent:
SECTION 13.1 Effective Date. Prior to or as of the Effective Date the
--------------
Agent shall have received all of the following, each, except to the extent
otherwise specified below, duly executed by a Responsible Officer, dated as of
the Effective Date, in form and substance satisfactory to the Agent, and each in
sufficient number of signed counterparts to provide one for each Lender:
13.1.1 For each Lender, an appropriately completed Revolving Note,
payable to the order of such Lender;
13.1.2 The Parent Pledge Agreement, together with the stock
certificates pledged thereunder accompanied by stock powers duly executed
in blank;
13.1.3 The Parent Guaranty;
13.1.4 A Subsidiary Guaranty of each Significant Subsidiary set forth
on Schedule 9.10.
-------------
13.1.5 A favorable opinion of Long, Xxxxxxxx & Xxxxxx, counsel to the
Borrower and the Parent, substantially in the form of Exhibit I hereto, and
---------
addressing such other legal matters as the Agent may require;
13.1.6 An officer's certificate of the Parent, the Borrower and each
Significant Subsidiary, each substantially in the form of Exhibit J hereto
---------
and dated as of the date hereof, signed by the president or any vice-
president of the Parent, Borrower or Significant Subsidiary, as the case
may be and attested to by the secretary or any assistant secretary,
together with certified copies of the Parent's and Borrower's and
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each Significant Subsidiary's articles of incorporation, by-laws,
resolutions and any other document pursuant to the terms thereof;
13.1.7 Evidence of the good standing of the Parent, the Borrower and
each Subsidiary in the jurisdiction in which it is incorporated;
13.1.8 Evidence that the Borrower shall have paid to the Agent the
fees and expenses provided for herein;
13.1.9 Evidence that the existing Credit Agreement, amended and
restated as of January 31, 1996, among the Borrower, certain financial
institutions party thereto and BofA, as agent, has been terminated and all
principal, interest, fees and expenses and other Liabilities (as defined
therein) thereunder shall have been paid (and, all security has been
released except for the pledge by the Parent pursuant to Section
-------
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8.2 (a));
--------
13.1.10 Such other information and documents as may reasonably be
required by the Agent, the Issuing Lender or their counsel.
SECTION 13.2 Acquisition Cost Borrowing. In the case of a Revolving Loan
---------------------------
or Letter of Credit issued in connection with any Acquisition after the
Effective Date, the Agent shall have received all of the following, each, except
to the extent otherwise specified below, duly executed by a Responsible Officer,
dated the date of such Loan or Letter of Credit (or such other date as shall be
satisfactory to the Agent), in form and substance satisfactory to the Agent, and
each in sufficient number of signed counterparts to provide one for each Lender:
13.2.1 To the extent that the anticipated Acquisition Costs of such
Acquisition exceed $10,000,000, a certificate executed by a Responsible
Officer of the Borrower to the effect that (i) attached thereto is the
principal agreement governing such Acquisition, (ii) such agreement has
been duly executed by all parties thereto, and (iii) such Acquisition shall
be duly consummated in accordance with the terms of such agreement, without
material modification or waiver of any of such terms;
13.2.2 If the proceeds of such Revolving Loan are to be loaned to a
Wholly-Owned Subsidiary for purposes of effectuating the Acquisition, a
Subsidiary Guaranty;
13.2.3 If the related Acquisition is structured as an acquisition of
stock by merger of a Wholly-Owned Subsidiary, a secretary's certificate of
such Wholly-Owned Subsidiary, dated as of the date of such Revolving Loan,
certifying a copy of the merger agreement and the articles of merger or
merger certificate, each as duly executed by such Wholly-Owned Subsidiaries
and the third-party Person whose capital stock is acquired in connection
with such Acquisition;
13.2.4 A certificate executed by the chief financial officer of the
Borrower, dated as of the date of such Revolving Loan, to the effect that
(a) the Borrower has obtained all financing necessary to fund such
Acquisition, (b) to the extent that the anticipated Acquisition Costs
related to such Acquisition exceed $10,000,000, such Acquisition Costs
equal or exceed the principal amount of such Revolving Loan, (c) attached
thereto is an itemized description and Dollar amount of all such
Acquisition Costs, (d) attached thereto is a business description and
summary
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of the terms of the Acquisition being funded by such Revolving Loan; (e)
attached thereto is a computation of the Acquisition Adjustments with
respect to the related Acquisition, and (f) the conditions in Section
13.2.6 are satisfied; and
13.2.5 In the case of an Acquisition with respect to which the
anticipated Acquisition Costs exceed $25,000,000, a duly completed
Compliance Certificate, dated as of the date of such Revolving Loan, signed
by the chief financial officer of the Borrower, containing, among other
things, on a pro forma basis for the most recent four consecutive Fiscal
Quarters then ended and on a projected basis for the following four
consecutive Fiscal Quarters (such computation on a projected basis to
commence as of the first day of the Fiscal Quarter in which such Revolving
Loan is requested), in each case after giving effect to Acquisition
Adjustments, (a) a computation of, and showing compliance with, each of the
applicable financial ratios and restrictions contained in Sections 11 and
-----------
12, and (b) a computation of the Adjusted Funded Debt Ratio, such
--
computation in each case to show an Adjusted Funded Debt Ratio of not
greater than 2.00:1; and
13.2.6 The Acquisition Costs of such Acquisition shall not exceed
$60,000,000 and the Acquisition Costs of such Acquisition, when added to
the Acquisition Costs of all other Acquisitions consummated in the previous
twelve month period shall not exceed $100,000,000.
SECTION 13.3 All Loans and Letters of Credit. The obligation of each
-------------------------------
Lender to make each Loan of any Type and of the Issuing Lender to issue each
Letter of Credit (including the initial Loan and Letter of Credit) is subject to
the following further conditions precedent:
13.3.1 Receipt by the Agent of a Borrowing Request or an LC
Application, as applicable;
13.3.2 As of the date of such Loan or Letter of Credit, (a) no
Default or Event of Default exists or will result from the making of such
Loan or issuance of such Letter of Credit, (b) the representations and
warranties of the Parent, the Borrower and the Subsidiaries contained in
Section 9 are true and correct with the same effect as though made on the
---------
date of the making of such Loan or issuance of such Letter of Credit, and
(c) no Material Litigation exists except as disclosed on Schedule 9.8, and
------------
since the Effective Date no Material Litigation Development
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has occurred with respect to any Litigation so disclosed on Schedule 9.8;
------------
13.3.3 Such other information and documents as may reasonably be
required by the Agent, the Issuing Lender or their counsel.
SECTION 14. EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 14.1 Events of Default. An "Event of Default" shall exist if any
-----------------
one or more of the following events (herein collectively called "Events of
Default") shall occur and be continuing:
14.1.1 Non-Payment of Loans, etc. (a) Default in the payment or
-------------------------
prepayment when due of any principal of any Loan; or (b) default in the
payment or prepayment when due of any reimbursement obligation with respect
to any LC Obligation; or (c) default and continuance for five days in the
payment when due of any interest, fee or other amount owing by the Borrower
pursuant to this Agreement.
14.1.2 Non-Payment of Other Indebtedness. Default in the payment
---------------------------------
when due (subject to any applicable grace period), whether by acceleration
or otherwise, of any Indebtedness of any Credit Party (other than trade
payable in the ordinary course of business and Indebtedness in respect of
this Agreement) in an amount in excess of $2,500,000 or default in the
performance or observance of any obligation or condition with respect to
any such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or to permit the holder or holders
thereof, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
14.1.3 Bankruptcy, Insolvency, etc. Any Credit Party becomes
---------------------------
insolvent or generally fails to pay, or admits in writing its inability to
pay, debts as they become due; or any Credit Party applies for, consents
to, or acquiesces in the appointment of, a trustee, receiver or other
custodian for any Credit Party or any material portion of the property
thereof, or makes a general assignment for the benefit of creditors; or, in
the absence of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for any Credit Party or for a
substantial part of the property of any thereof and is not discharged
within sixty days; or any bankruptcy, reorganization, debt arrangement,
or other case or
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proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary other than the Borrower), is
commenced in respect of any Credit Party and if such case or proceeding is
not commenced by any Credit Party, it is consented to or acquiesced in by
such Credit Party or remains for thirty days undismissed; or any Credit
Party takes any corporate action to authorize, or in furtherance of, any of
the foregoing.
14.1.4 Defaults Under this Agreement. Failure by the Borrower or the
-----------------------------
Parent to comply with or perform any of the covenants or agreements set
forth in Sections 10.1.8, 10.3, 11 and 12.
--------------- ---- -- --
14.1.5 Other Noncompliance with this Agreement. Failure by the
---------------------------------------
Parent, the Borrower or any Subsidiary to comply with or perform any other
provision of this Agreement or the Related Documents applicable to it
(other than those listed in Section 14.1.4 or those constituting an Event
--------------
of Default under any of the other provisions of this Section 14) and
----------
continuance of such failure for thirty days after notice thereof to the
Borrower from the Agent, any Lender, or any Holder.
14.1.6 Representations and Warranties. Any representation or
------------------------------
warranty made by any Credit Party herein or in any of the Related Documents
is false or misleading in any material respect as of the date hereof or as
of the date hereafter certified, or any schedule, certificate, financial
statement, report, notice, or other writing furnished by any Credit Party
to the Agent or any Lender is false or misleading in any material respect
on the date as of which the facts therein set forth are stated or
certified.
14.1.7 Pension Plans and Welfare Plans. With respect to any Pension
-------------------------------
Plan as to which any Credit Party may have any liability, there shall exist
a deficiency of more than $500,000 in the Pension Plan assets available to
satisfy the benefits guaranteeable under ERISA with respect to such Pension
Plan, and steps are undertaken to terminate such plan or such Pension Plan
is terminated or any Credit Party withdraws from or institutes steps to
withdraw from such Pension Plan or any material Reportable Event with
respect to such Pension Plan shall occur. With respect to any Welfare
Plans as to which any Credit Party may have any liability, there shall
occur any event which could result in the incurrence by such Credit Party
of
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any increase in excess of $500,000 in the vested or contingent liability of
such Credit Party with respect to any post-retirement Welfare Plan benefit.
14.1.8 Adverse Judgment. One or more final judgments or decrees
----------------
shall be entered against any Credit Party involving, in the aggregate, a
liability (not covered by collectible insurance) of $2,500,000 or more and
all such judgments or decrees in excess of $500,000 shall not have been
vacated, satisfied, discharged or stayed or bonded pending appeal within
thirty consecutive days from the entry thereof.
14.1.9 Related Documents. Any Credit Party shall fail to comply with
-----------------
any of the provisions of the Related Documents applicable to it within any
applicable grace period or, if no grace period is specified, within thirty
days after notice of such failure has been given to the Borrower by the
Agent; or any of the Related Documents shall fail to remain in full force
and effect (other than pursuant to its terms) and such failure shall
continue for ten days after notice of such failure has been given to the
Borrower by the Agent; or any action shall be taken by any Credit Party to
discontinue any of the Related Documents to which it is a party or to
assert the invalidity of any thereof.
14.1.10 Change in Control. The occurrence of a Change in Control.
-----------------
14.1.11 Settlement Agreements. Any materially adverse development in
---------------------
arrangements of any Credit Party with a Settlement Bank, including, without
limitation, the occurrence of any material default under a Settlement
Agreement; provided, however, that no termination of any Settlement
-------- -------
Agreement shall be considered an adverse development so long as a successor
Settlement Bank agrees to assume all settlement obligations of the
predecessor Settlement Bank, and such termination otherwise does not result
in a Material Adverse Effect.
SECTION 14.2 Effect of Event of Default. If any Event of Default
--------------------------
described in Section 14.1.3 shall occur and be continuing, the Commitments (if
--------------
they have not theretofore terminated) shall immediately terminate and all
Liabilities shall become immediately due and payable, all without notice of any
kind; and, in the case of any other Event of Default, the Agent may (or shall,
upon the written request of the Required Lenders) declare the Commitments (if
they have not theretofore terminated) to be terminated and all Liabilities to be
due and payable,
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whereupon the Commitments (if they have not theretofore terminated) shall
immediately terminate and all Liabilities shall become immediately due and
payable, all without presentment, demand, protest or notice of any kind. The
Agent shall promptly advise the Borrower and each Lender of any such
declaration, but failure to do so shall not impair the effect of such
declaration. Notwithstanding the foregoing or any provision of Section 17.1, the
------------
effect as an Event of Default of any event described in Section 14.1.3 may be
--------------
waived by the written concurrence of the Holders of 100% of the aggregate unpaid
principal amount of the Loans and LC Obligations, and the effect as an Event of
Default of any other event described in this Section 14 may be waived as
----------
provided in Section 17.1.
------------
SECTION 15. THE AGENT
SECTION 15.1 Appointment and Authorization; "Agent". (a) Each Lender
-------------------------------------
hereby irrevocably (subject to Section 15.09) appoints, designates and
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(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 Agent may agree at the request of the
Required Lenders to act for such Issuing Lender with respect thereto; provided,
--------
however, that the Issuing Lender shall have all the benefits and immunities (i)
-------
provided to the Agent in this Section 15 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 if the
term "Agent," as used
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in this Section 15, 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.
SECTION 15.2 Delegation of Duties. The Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 15.3 Liability of Agent. None of the Agent-Related Persons shall
------------------
(i) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower or any
Subsidiary or Affiliate of the Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
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SECTION 15.4 Reliance by Agent. (a) The Agent shall be entitled to rely,
-----------------
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrower), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 13, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender.
SECTION 15.5 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Lenders, unless the Agent shall
have received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 14.2; provided, however, that unless and until the Agent
-------- -------
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
SECTION 15.6 Credit Decision. Each Lender acknowledges that none of the
---------------
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of any
or all of the Credit Parties, shall be deemed to constitute any representation
or
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warranty by any Agent-Related Person to any Lender. Each Lender represents
to the Agent that it has, independently and without reliance upon any Agent-
Related Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and credit
worthiness of any or all of the Credit Parties, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to any or all of
the Credit Parties hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and credit
worthiness of any or all of the Credit Parties. Except for notices, reports and
other documents expressly herein required to be furnished to the Lenders by the
Agent, the Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or credit worthiness of any
or all of the Credit Parties which may come into the possession of the Agent-
Related Persons.
SECTION 15.7 Indemnification of Agent. Whether or not the transactions
------------------------
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
-------- -------
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this Section shall survive the payment of all Liabilities hereunder and the
resignation or replacement of the Agent.
SECTION 15.8 Agent in Individual Capacity. BofA and its Affiliates may
----------------------------
make loans to, issue letters of credit for the
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account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its Subsidiaries and Affiliates as though BofA
were not the Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or such Affiliates) and acknowledge that the Agent shall
be under no obligation to provide such information to them. With respect to its
Loans, BofA shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" include BofA in its individual capacity.
SECTION 15.9 Successor Agent. The Agent may, and at the request of the
---------------
Required Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If
the Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders [which successor agent shall
be approved by the Borrower (such approval not to be unreasonably withheld)].
If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the
Lenders and the Borrower, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 15 and
Sections 17.3 and 17.4 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, BofA may not be removed as the Agent at
the request of the Required Lenders unless BofA shall also simultaneously be
replaced as "Issuing Lender" hereunder pursuant to documentation in form and
substance reasonably satisfactory to BofA.
SECTION 15.10 Withholding Tax. (a) If any Lender is a "foreign
---------------
corporation, partnership or trust" within the meaning of the Code and such
Lender claims exemption from, or a reduction of, U.S. withholding tax under
Sections 1441 or 1442 of the Code, such Lender agrees with and in favor of the
Agent, to deliver to the Agent:
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(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
and executed copies of IRS Form 1001 before the payment of any interest or
fees in the first calendar year and before the payment of any interest or
fees in each third succeeding calendar year during which interest or fees
may be paid under this Agreement;
(ii) if such Lender claims that interest or fees paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224 before
the payment of any interest or fees is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during which
interest or fees may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Liabilities of the Borrower owing to such Lender, such Lender agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Liabilities of the Borrower owing to such Lender. To the
extent of such percentage amount, the Agent will treat such Lender's IRS Form
1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Liabilities of the
Borrower owing to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such
-75-
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(e) If the IRS or any other governmental authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Liabilities and the resignation or replacement
of the Agent.
SECTION 16. ASSIGNMENTS AND PARTICIPATIONS
SECTION 16.1 Assignments. (a) With the prior written consent of the Agent
-----------
and the Borrower (not to be unreasonably withheld), each Lender shall have the
right at any time to assign, to any Eligible Assignee, all, or any ratable part
of all, of such Lender's rights and obligations under the Loan Documents
including its rights in respect of Loans, Notes, Letters of Credit and LC
Obligations and its obligations in respect of Commitments to make Loans or
participate in Letters of Credit. Any such assignment shall be pursuant to an
assignment agreement, substantially in the form of Exhibit K (an "Assignment
---------
Agreement"), duly executed by such Lender and the Eligible Assignee, and
acknowledged by the Agent. Although its failure to do so will not affect any of
the rights or obligations provided for therein or herein, the Borrower agrees to
duly acknowledge any Assignment Agreement executed by any assigning Lender
promptly after its receipt of the same. No assignment by the Issuing Lender
shall relieve it from its obligations in respect of the Letters of Credit, it
being understood that any assignment by the Issuing Lender as to Letters of
Credit shall be deemed to automatically constitute an assignment by the Issuing
Lender and the purchase by the Eligible Assignee of a participating interest in
such Letters of Credit.
(b) Each assignment, if to a Person other than a Lender, shall be in an
amount equal to or in excess of $5,000,000. In the case of any such assignment,
upon the execution and delivery of such Assignment Agreement by such Lender and
the Borrower to the Agent, the payment by the assignor and/or Eligible Assignee
of a processing and recording fee of $3,000 to the Agent and the
-76-
making of any payment by the Eligible Assignee required by the assigning Lender,
this Agreement shall be deemed to be amended to the extent, and only to the
extent, necessary to reflect the addition of such Eligible Assignee, and the
Eligible Assignee shall for all purposes be a Lender party hereto and shall
have, to the extent of such assignment, the same rights and obligations as a
Lender hereunder, including the right to approve or disapprove actions which, in
accordance with the terms hereof, require the approval of the Lenders or the
Required Lenders, as the case may be, and the obligations to make Loans and to
participate in Letters of Credit.
(c) Upon the consummation of any assignment, the assigning Lender shall be
relieved from its obligations hereunder to the extent of the obligations so
assigned (except, (i) obligations of the Issuing Lender in respect of the
Letters of Credit issued by it, and (ii) to the extent, if any, that the
Borrower, any other Lender or the Agent has rights against such assigning Lender
as a result of any default by such Lender under this Agreement) and appropriate
arrangements shall be made so that, if required, replacement Notes are issued to
such assigning Lender and new Notes or, as appropriate, replacement Notes are
issued to the Eligible Assignee, in each case in principal amounts reflecting
their outstanding Loans as adjusted pursuant to such Assignment Agreement.
Promptly following the consummation of each assignment, the Agent shall furnish
to the Borrower, the Issuing Lender and each Lender revised Schedule 1.1A,
-------------
revised to reflect such assignment.
(d) Notwithstanding Sections 16.1(a) and (b), at any time an Event of
---------------- ---
Default shall exist, consent of the Borrower shall not be required in connection
with any assignment by a Lender pursuant to Section 16.
----------
SECTION 16.2 Participations. Each Lender may grant participations in all
--------------
or any part of its Loans, Notes, Letters of Credit and LC Obligations to any
commercial bank, insurance company or other financial institution. A
participant shall not have any rights under this Agreement or any other document
delivered in connection herewith (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto, which agreement
with respect to such participation shall not restrict such Lender's ability to
make any modification, amendment or waiver to this Agreement without the consent
of the participant except that the consent of such participant may be required
in connection with matters requiring the consent of all of the Lenders under
Section 17.1). All amounts payable by the Borrower under this Agreement shall
------------
be determined as if the Lender had not sold such participation. In the event of
any such sale by a Lender of participating interests to a participant, such
Lender's obligations under this Agreement
-77-
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any obligation for
all purposes under this Agreement, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement.
SECTION 16.3 Disclosure of Information. The Borrower authorizes each
-------------------------
Lender to disclose to any participant, assignee or Eligible Assignee (each, a
"Transferee") and any prospective Transferee any and all financial and other
information in such Lender's possession concerning the Borrower and its
Subsidiaries which has been delivered to such Lender by the Borrower in
connection with such Lender's credit evaluation of the Borrower prior to
entering into this Agreement or which has been delivered to such Lender by the
Borrower pursuant to this Agreement; provided that such Lender shall promptly
--------
notify the Borrower of such disclosure.
SECTION 16.4 Foreign Transferees. If, pursuant to this Section 16, any
------------------- ----------
interest in this Agreement or any Loan, Letter of Credit, Note or LC Obligation
is transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Lender shall cause such Transferee (other than any participant), and may cause
any participant, concurrently with the effectiveness of such transfer, (a) to
represent to the transferor Lender (for the benefit of the transferor Lender,
the Agent, and the Borrower) that under applicable law and treaties no Taxes
will be required to be withheld by the Agent, the Borrower or the transferor
Lender with respect to any payments to be made to such Transferee in respect of
the Loans, Notes or Letters of Credit, (b) to furnish to the transferor Lender,
the Agent and the Borrower either U.S. Internal Revenue Service Form 4224 or
U.S. Internal Revenue Service Form 1001 (wherein such transfer claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder), and (c) to agree (for the benefit of the
transferor Lender, the Agent and the Borrower) to provide the transferor Lender,
the Agent and the Borrower a new Form 4224 or Form 1001 upon the obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
-78-
SECTION 17. MISCELLANEOUS
SECTION 17.1 Waivers and Amendments. The provisions of any of the Loan
----------------------
Documents may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders; provided, that no such amendment, modification or
--------
waiver:
(a) which would modify any requirement hereunder that any particular
action be taken by all Lenders or by the Required Lenders, shall be
effective without the consent of each Lender;
(b) which would modify this Section 17.1, change the definition of
------------
"Required Lenders," change any Percentage for any Lender (except pursuant
to Sections 2.4 or 16.1), reduce any fees, extend the Revolving Termination
------------ ----
Date, or subject any Lender to any additional obligations, shall be
effective without the consent of each Lender;
(c) which would permit the release of all or substantially all of the
stock pledged by the Parent pursuant to Section 8.2(a), shall be effective
--------------
without the consent of each Lender;
(d) which would extend the due date for, or reduce the amount of, any
payment or prepayment of principal of or interest on any Loan or any
reimbursement obligation, interest or fees with respect to any LC
Obligation, shall be effective without the consent of the Holder of such
Loan or LC Obligation; or
(e) which would affect adversely the interests, rights or obligations
of the Agent (in its capacity as the Agent), shall be effective without
consent of the Agent.
SECTION 17.2 Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including bank wire, telex or similar
writing) and shall be given to such party at its address or telex number set
forth on the signature pages hereof or such other address or telex number as
such party may hereafter specify for the purpose by notice to the Agent and the
Borrower. Each such notice, request or other communication shall be effective
(a) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (b) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or
-79-
(c) if given by any other means, when delivered at the address specified in this
Section; provided, that notices to the Agent under Sections 3, 4 and 15 shall
-------- ---------- - --
not be effective until received by the Agent.
SECTION 17.3 Payment of Costs and Expenses. The Borrower agrees to pay on
-----------------------------
demand all reasonable expenses of the Agent (including Attorney Costs) in
connection with:
(a) the negotiation, preparation, execution and delivery of the Loan
Documents, including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to any of the Loan Documents
as may from time to time hereafter be required, whether or not the
transactions contemplated hereby or thereby are consummated,
(b) the filing, recording, refiling or rerecording of any of the Loan
Documents and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements and modifications to any thereof
and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms of
the Loan Documents, and
(c) the preparation and/or review of the form of any document or
instrument relevant to the Loan Documents.
The Borrower further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other Taxes which may be payable
in connection with the execution or delivery of this Agreement, the Borrowings
hereunder, or the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Issuing Lender and each Lender (without duplication) upon demand for
all reasonable out-of-pocket expenses (including Attorney Costs) incurred by the
Agent, the Issuing Lender or such Lender in connection with (x) the negotiation
of any restructuring or "work-out," whether or not consummated, of any
Liabilities and (y) the enforcement of any Liabilities and the consideration of
legal issues relevant hereto and thereto. All obligations of the Borrower
provided for in this Section 17.3 shall survive termination of this Agreement.
------------
SECTION 17.4 Indemnity. The Borrower agrees to indemnify each Lender and
---------
hold each Lender harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind (including, without limitation, Attorney
Costs for any Lender) in connection with any investigative, administrative or
judicial proceedings whether or not such Lender shall be designated a party
thereto, which may be reasonably incurred by
-80-
such Lender (or by the Agent or the Issuing Lender in connection with its
actions as Agent or Issuing Lender hereunder), relating to or arising out of
this Agreement or any actual or proposed use of the proceeds of the Loans or LC
Obligations hereunder; provided, that no Lender shall have the right to be
--------
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction. All obligations of the Borrower
provided for in this Section 17.4 shall survive termination of this Agreement.
------------
SECTION 17.5 Subsidiary References/Captions. The provisions of this
------------------------------
Agreement relating to Subsidiaries shall apply only during such times as the
Borrower has one or more Subsidiaries. Section captions used in this Agreement
are for convenience only, and shall not affect the construction of this
Agreement.
SECTION 17.6 Disclosure of Information. The Agent and each Lender agrees
-------------------------
to maintain the confidentiality of all information provided to it by the
Borrower and each of its Affiliates under this Agreement, provided that the
Agent and each Lender shall be permitted to disclose information regarding the
Credit Parties (i) to any other Agent or Lender, or to any actual or potential
Eligible Assignee or participant (provided that such Eligible Assignee or
participant agrees to be similarly bound by the confidentiality hereof), (ii) to
any Affiliate, agent, or employee of a Lender who agrees to be bound by this
Section 17.6, (iii) upon order of any court or administrative agency, (iv) upon
------------
the request or demand of any regulatory agency or authority having jurisdiction
over such party, (v) which has been publicly disclosed, (vi) which has been
obtained from any Person that is not a party hereto or an Affiliate, agent or
employee of any such party, (vii) in connection with the exercise of any remedy
hereunder or under any other Loan Document, (viii) to any Lender's certified
public accountants and attorneys, or (ix) to any rating agency.
SECTION 17.7 Governing Law. This Agreement, the Notes and each Loan shall
-------------
be a contract made under and governed by the laws of the State of New York,
without regard to conflict of laws principles. All obligations of the Borrower
and rights of the Agent, the Issuing Lender, the Lenders and any other Holders
of the Liabilities expressed herein or in any of the Loan Documents shall be in
addition to and not in limitation of those provided by applicable law.
SECTION 17.8 Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the different parties on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Agreement. This Agreement shall
become effective as of the date hereof (the "Effective Date")
-81-
when (i) counterparts executed by all the parties shall have been delivered to
the Agent (or, in the case of any Lender as to which an executed counterpart
shall not have been so lodged, the Agent shall have received telegraphic,
facsimile, telex or other written confirmation from such Lender of execution of
a counterpart hereof by such Lender, and (ii) the conditions in Section 13.1
------- ----
have been satisfied or waived by the Required Lenders, and at such time the
Agent shall notify the Borrower, the Issuing Lender and each Lender.
SECTION 17.9 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE BORROWER,
-------------------------------------------
ON BEHALF OF ITSELF AND EACH SUBSIDIARY (A) HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK AND/OR ANY COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS, AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR UNITED STATES
COURT, AND (B) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST
THE AGENT, THE ISSUING LENDER OR ANY LENDER OR THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR PROPERTY OF ANY THEREOF, ARISING OUT OF OR RELATING TO THIS
AGREEMENT, IN ANY COURT OTHER THAN AS HEREINABOVE SPECIFIED IN THIS SECTION
-------
17.9. THE BORROWER, ON BEHALF OF ITSELF AND EACH SUBSIDIARY, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY ACTION OR PROCEEDING (WHETHER
BROUGHT BY THE BORROWER, ANY SUBSIDIARY, THE AGENT, THE ISSUING LENDER, ANY
LENDER, OR OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION 17.9 AS
------------
WELL AS ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR
PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON
----- ---
CONVENIENS OR OTHERWISE. THE BORROWER ON BEHALF OF ITSELF AND EACH SUBSIDIARY
----------
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 17.10 WAIVER OF JURY TRIAL. THE BORROWER, THE ISSUING LENDER, THE
--------------------
AGENT AND EACH LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THE LOAN DOCUMENTS OR UNDER ANY OTHER DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT, THE ISSUING LENDER AND THE LENDERS ENTERING INTO THIS
AGREEMENT.
SECTION 17.11 Successors and Assigns. This Agreement shall
----------------------
-82-
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that: (a) the Borrower may
-------- -------
not assign or transfer its rights or obligations hereunder without the prior
written consent of the Agent, the Issuing Lender and all Lenders; and (b) the
rights of the Lenders to make assignments or grant participations are subject to
the provisions of Section 16.
----------
-83-
Delivered under seal at Chicago, Illinois, as of the day and year first
above written.
NOVA INFORMATION SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X Xxxxx
Title: Vice Chairman & Chief Financial Officer
Address:
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attested to by:
/s/ Xxxxxx X. Xxxxxx
---------------------------- [Corporate Seal]
Vice President and Corporate
Counsel
-00-
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent,
Lender and Issuing Lender
By: /s/ L. Xxxxxx Xxxxxxx, Xx.
----------------------------------
Name: L. Xxxxxx Xxxxxxx, Xx.
Title: Managing Director
Address for notices (other than Notices of
Borrowing and Notices of Conversion/Continuation):
Bank of America National Trust
and Savings Association, as Agent
Credit Products-High Technology-SF
#3697
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx XxXxxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices of Borrowing and Notices of
Conversion/
Continuation:
Bank of America National Trust
and Savings Association
Agency Administrative Services
#5596
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for payments:
Bank of America National Trust
and Savings Association
ABA No. 0000-0000-0
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Agency Administrative
Services #5596
For Credit to Bancontrol
A/C No. 12334-14348
Ref: NOVA INFORMATION
-00-
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Lender
Address for notices (other than Notices of
Borrowing and Notices of Conversion/Continuation):
Bank of America National Trust
and Savings Association, as Agent
Credit Products-High Technology-SF
#3697
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx XxXxxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Office (Base Rate and Eurodollar Loans):
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-00-
XXXXXXXX XXXX, XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
00 Xxxx Xxxxx
Mail Code 000/00xx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Vice President
Telephone: (000)000-0000
Facsimile: (000) 000-0000
[For Advances/Paydowns/Account
Information, please contact:]
SunTrust Bank, Atlanta
00 Xxxx Xxxxx
Mail Code 000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx
Corporate Banking Assistant
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Office (Base Rate Loans)
Address: 00 Xxxx Xxxxx
Mail Code 000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Office (Eurodollar Rate
Loans)
Address: 00 Xxxx Xxxxx
Mail Code 000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-00-
XXXXX XXXXX NATIONAL BANK
By: /s/ P. Xxxxxxx Xxxxxx
-------------------------------
Name: P. Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
0000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Office (Base Rate Loans)
0000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Office (Eurodollar Rate
Loans)
0000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-89-
ACCEPTANCE AND ACKNOWLEDGEMENT
------------------------------
NOVA CORPORATION hereby agrees to be bound by all of the representations,
warranties, covenants and other provisions applicable to it contained in this
Agreement.
NOVA CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X Xxxxx
Title: Vice Chairman & Chief Financial Officer
Attested to by:
/s/ Xxxxxx X. Xxxxxx
---------------------------- [Corporate Seal]
Vice President and Corporate
Counsel
Address:
c/o NOVA Information Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-90-
SCHEDULE 1.1A
Lenders
Revolving Loan Lender's
Lender Commitment Percentage
---------------------- -------------- -----------
Bank of America $35,000,000 43.750%
National Trust and
Savings Association
First Union National $30,000,000 37.500%
Bank
SunTrust Bank $15,000,000 18.750%
$80,000,000 100%
-91-
EXHIBIT A
FORM OF REVOLVING NOTE
Chicago, Illinois
$_________ October 27, 1997
The undersigned, FOR VALUE RECEIVED, promises to pay to the order of
____________________________________________________ (the "Lender") at the
principal office of Bank of America National Trust and Savings Association (the
"Agent") in San Francisco, California, _________________________ MILLION DOLLARS
($_________) or, if less, the aggregate unpaid principal amount of all Revolving
Loans (as defined in the Credit Agreement, hereinafter referred to) made by the
Lender to the undersigned pursuant to the Credit Agreement, payable in
installments as set forth in the Credit Agreement, with a final installment (in
the amount necessary to pay in full this Note) due and payable on the
Termination Date (as defined in the Credit Agreement).
The undersigned also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
--- -----
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds.
This Note is a Revolving Note described in, and is subject to the
terms and provisions of, a Credit Agreement, dated as of October 27, 1997 (as
the same may at any time be amended or modified and in effect, the "Credit
Agreement"), among the undersigned, the lenders party thereto (including the
Lender), the Issuing Lender (as defined therein) and the Agent, and payment of
this Note is secured by certain of the Related Documents (as defined in the
Credit Agreement). Reference is hereby made to the Credit Agreement for a
statement of the prepayment rights and obligations of the undersigned, a
description of the properties mortgaged and assigned, the nature and extent of
the collateral security and the rights of the parties to the Related Documents
in respect of such collateral security, and for a statement of the terms and
conditions under which the due date of this Note may be accelerated. Upon the
occurrence of any Event of Default as specified in the Credit Agreement, the
principal balance hereof and the interest accrued hereon may be declared to be
forthwith due and
payable, and any indebtedness of the holder hereof to the undersigned may be
appropriated and applied hereon.
In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the undersigned further agrees, subject only
to any limitation imposed by applicable law, to pay all reasonable expenses,
including attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED UNDER SEAL IN CHICAGO, ILLINOIS AND SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK .
NOVA INFORMATION SYSTEMS, INC.
By:_________________________
Name:_______________________
Title:______________________
Attested to by
______________________________
______________________________ [Corporate Seal]
-2-
EXHIBIT B
FORM OF BORROWING REQUEST
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0/xx/ Xxxxx
Xxxxxxx, XX 00000-0000
Attention: NOVA Info. Systems AO
FAX: (000) 000-0000
TEL: (000) 000-0000
Ladies and Gentlemen:
This Borrowing Request is delivered to you pursuant to Sections 3.2
------------
and 13.3.1 of the Credit Agreement, dated as of October 27, 1997 (as amended or
------
modified, the "Credit Agreement"), among NOVA Information Systems, Inc., a
Georgia corporation (the "Borrower"), the lenders that are or from time to time
become party thereto (the "Lenders"), the Issuing Lender and Bank of America
National Trust and Savings Association, as agent for the Lenders and the Issuing
Lender (in such capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that a Revolving Loan be made in the
aggregate principal amount of $________ on ___________, 19__ (the "Requested
Loan Date") as a [Base Rate Loan] [Eurodollar Rate Loan having an Interest
Period of _____ months].
The Borrower hereby certifies and warrants that on the date the
Borrowing requested hereby is made, after giving effect to the making of such
Borrowing:
(a) No Default or Event of Default has occurred and is continuing or
will result from the making of such Loan.
(b) The representations and warranties of the Borrower contained in
Section 9[, (except Sections 9.6,
--------- ------------
B-1
9.7 and 9.8)]/1/ are true and correct with the same effect as though made
--- ---
on the date hereof.
(c) Except as disclosed to the Agent, the Issuing Lender and the
Lenders in writing and agreed to in writing by the Required Lenders in
their sole discretion, no Material Litigation not disclosed on Schedule 9.8
------------
to the Credit Agreement exists and since the Effective Date of the Credit
Agreement, no Material Litigation Development has occurred with respect to
any Litigation so disclosed on Schedule 9.8.
------------
(d) No Material Adverse Change has occurred since the date of the
most recent financial statements delivered or required to be delivered
pursuant to Section 9.6 of the Credit Agreement except as disclosed to the
------- ---
Agent, the Issuing Lender and the Lenders in writing and agreed to in
writing by the Required Lenders in their sole discretion.
(e) All conditions precedent to the making of such loan, as specified
in Sections 13.1, 13.2, and/or 13.3 of the Credit Agreement will be satisfied as
--------------------------------
of the Requested Loan Date.
The Borrower agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true and
correct in all material respects at such time as if then made, it will
immediately so notify the Agent. Except to the extent, if any, that prior to
the time of the Borrowing requested hereby the Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed once again to be certified as true and correct at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons as set forth on Annex I attached hereto.
-------
This certificate is given by the undersigned in his capacity as a
corporate officer, and the undersigned shall have no personal liability with
respect to the content hereof.
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties
----------------------------
/1/ To be incerted in any request following the initial loans or initial
issuance of any Letter of Credit.
B-2
contained herein to be made, by a Responsible Officer this ____ day of
_____________, 19__.
NOVA INFORMATION SYSTEMS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
B-3
EXHIBIT C
FORM OF CONTINUATION/CONVERSION NOTICE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0/xx/ Xxxxx
Xxxxxxx, XX 00000-0000
Attention: NOVA Info. Systems AO
FAX: (000) 000-0000
TEL: (000) 000-0000
Ladies and Gentlemen:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 3.5 of the Credit Agreement, dated as of October 27, 1997 (as amended or
-----------
modified, the "Credit Agreement"), among NOVA Information Systems, Inc., a
Georgia corporation (the "Borrower"), the lenders that are or from time to time
become party thereto (the "Lenders"), the Issuing Lender and Bank of America
National Trust and Savings Association, as agent for the Lenders and the Issuing
Lender (in such capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on ___, 19 ,
(1) $_______ of the presently outstanding principal amount of the
Revolving Loans originally made on __________, 19__ [and $_____ of the
presently outstanding principal amount of the Revolving Loans originally
made on _________, 19 ,]
(2) and all presently being maintained as [Base Rate Loans]
[Eurodollar Rate Loans],
(3) be [converted into] [continued as],
(4) [Base Rate Loans] [Eurodollar Rate Loans having an
Interest Period of ___ months].
C-1
The Borrower hereby represents and warrants that no Default or Event
of Default has occurred and is continuing or will result from the conversion or
continuation herein requested.
Except to the extent, if any, that prior to the time of the
continuation or conversion requested hereby the Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein to
be made, by a Responsible Officer this ___ day of _________, 19__.
NOVA INFORMATION SYSTEMS, INC.
By:_______________________________
Name: ____________________________
Title:____________________________
C-2
EXHIBIT D
FORM OF LC APPLICATION
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0/xx/ Xxxxx
Xxxxxxx, XX 00000-0000
Attention: NOVA Info. Systems AO
FAX: (000) 000-0000
TEL: (000) 000-0000
Ladies and Gentlemen:
This LC Application is delivered to you pursuant to Sections 4.1 and
------------
13.3.1 of the Credit Agreement, dated as of October 27, 1997 (as amended or
------
modified, the "Credit Agreement") among NOVA Information Systems, Inc., a
Georgia corporation (the "Borrower"), the lenders who are or from time to time
become party thereto (the "Lenders"), the Issuing Lender and Bank of America
National Trust and Savings Association, as agent for the Lenders and the Issuing
Lender (in such capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in the Credit
Agreement.
We hereby request that on ____________, 19__, (the "Requested Issuance
Date") the Issuing Lender issue the Letter of Credit specified on Annex I
-------
attached hereto (the "Requested LC").
To induce the Issuing Lender to issue the Requested LC, the Borrower
hereby represents and warrants to the Issuing Lender, the Agent and the Lenders
that:
(a) No Default or Event of Default has occurred and is continuing or
will result from the issuance of such Letter of Credit.
(b) The representations and warranties of the Borrower contained in
Section 9 [(except Sections 9.6,
--------- ------------
D-1
9.7 and 9.8)]/1/ are true and correct with the same effect as though made
--- ---
on the date hereof.
(c) Except as disclosed to the Agent, the Issuing Lender and the
Lenders in writing and agreed to in writing by the Required Lenders in
their sole discretion, no Material Litigation not disclosed on Schedule 9.8
------------
to the Credit Agreement exists and since the Effective Date of the Credit
Agreement, no Material Litigation Development has occurred with respect to
any Litigation so disclosed on Schedule 9.8.
------------
(d) No Material Adverse Change has occurred since the date of the
most recent financial statements delivered or required to be delivered
pursuant to Section 9.6 of the Credit Agreement except as disclosed to the
------- ---
Agent, the Issuing Lender and the Lenders in writing and agreed to in
writing by the Required Lenders in their sole discretion.
(e) All conditions precedent to the making of such Requested LC as
specified in Sections 13.1, 13.2 and/or 13.3 of the Credit Agreement will be
-------------------------------
satisfied as of the Requested Issuance Date.
The Borrower agrees that if prior to the time of the issuance of the
Letter of Credit requested hereby, any matter certified to herein by it will not
be true and correct in all material respects at such time as if then made, it
will immediately so notify the Issuing Lender and the Agent. Except to the
extent, if any, that prior to the time of the issuance of the Letter of Credit
requested hereby, the Issuing Lender and the Agent shall receive written notice
to the contrary from the Borrower, each matter certified to herein shall be
deemed once again to be certified as true and correct at the date of such
borrowing as if then made.
This certificate is given by the undersigned in his capacity as a
corporate officer, and the undersigned shall have no personal liability with
respect to the content hereof.
/1/ To be inserted in any request following the initial Loans or initial
issuance of any Letter of Credit.
D-2
The Borrower has caused this LC Application to be executed and
delivered, and the certification and warranties contained herein to be made, by
a Responsible Officer this ____ day of ____________, 19__.
NOVA INFORMATION SYSTEMS, INC.
By:_______________________________
Name: ____________________________
Title:____________________________
D-3
ANNEX I
[ATTACH LC APPLICATION]
D-4
EXHIBIT E
FORM OF PARENT PLEDGE AGREEMENT
THIS PARENT PLEDGE AGREEMENT, dated as of October 27, 1997 (herein, as
the same may from time to time be amended, supplemented or modified and in
effect, called the "Pledge Agreement"), by NOVA Corporation, a Georgia
corporation (the "Pledgor"), and in favor of BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for the lenders party to the Credit Agreement
referred to below and the Issuing Lender (herein, in such capacity, together
with any successor thereto in such capacity, called the "Agent").
Recitals
--------
WHEREAS, pursuant to that certain Credit Agreement, dated as of
October 27, 1997, between NOVA Information Systems, Inc., a Georgia corporation
(the "Borrower"), the lenders party thereto (the "Lenders"), the letter of
credit issuer (the "Issuing Lender") and the Agent (herein, as the same may from
time to time be amended or modified and in effect, the "Credit Agreement"), the
Lenders and the Issuing Lender have agreed to make Loans and issue or
participate in the issuance of Letters of Credit to or for the account of the
Pledgor for the purposes described in the Credit Agreement;
WHEREAS, the Borrower is a wholly-owned Subsidiary of the Pledgor and
it is in the best interests of the Pledgor to cause this Parent Pledge Agreement
to be executed on its behalf in as much as the Borrower (and thereby the
Pledgor) will derive substantial direct and indirect benefits from Loans to be
made under the Credit Agreement; and
WHEREAS, it is a condition precedent to the making of the Loans to the
Borrower under the Credit Agreement that the Pledgor execute and deliver this
Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in order to induce
the Lenders and the Issuing Lender to make the Loans and issue or participate in
the issuance of Letters of Credit to or for the account of the Borrower under
the Credit Agreement, the parties hereto agree as follows:
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SECTION 1. DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used in this Pledge
---------------------
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Collateral" - see Section 2.
---------
"Issuer" shall mean the Borrower.
"Pledge Supplement" shall mean a document in the form of Annex I
-------
attached hereto as completed by the Pledgor.
"Pledged Shares" - means any and all issued and outstanding shares of
stock of the Issuer.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise defined
----------------------------
herein, terms used in this Pledge Agreement (and in its preamble and recitals)
which are defined in the Credit Agreement have the meanings provided in the
Credit Agreement including, without limitation, "Commitments", "Default",
"Liabilities", "Event of Default", and "Loans".
SECTION 2. PLEDGE
To secure the prompt and complete payment and performance of the
Liabilities including, without limitation, the obligations of the Pledgor
hereunder, the Pledgor hereby pledges, hypothecates, assigns, transfers, sets
over and delivers unto the Agent for the benefit of the Lenders and the Issuing
Lender a continuing security interest in all of the Pledgor's right, title and
interest in and to the following, whether now owned or existing or hereafter
acquired or arising (herein collectively called the "Collateral"):
(a) the shares of stock listed in Schedule I hereto, and the
----------
certificates representing or evidencing the Pledged Shares, and, in the
case of any uncertificated equity securities pledged hereunder, such
uncertificated equity securities shall contain a notation of the security
interest and the pledge granted to the Agent hereunder on the books and
records of the issuer of the uncertificated equity securities in the name
of the Agent, and all cash, securities, interest, dividends, rights and
other property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
Pledged Shares;
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(b) all other tangible and intangible property and interests therein
hereafter delivered to the Agent or any Lender or the Issuing Lender by the
Pledgor in substitution for or in addition to any of the foregoing, all
certificates, notes and instruments representing or evidencing such other
property, and in the case of uncertificated equity securities, all
notations of the security interest hereafter delivered on the books and
records of the issuer of the uncertificated equity securities in the name
of the Agent, and all cash, securities, interest, dividends, and other
payments, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all thereof; and
(c) all proceeds of all of the foregoing;
TO HAVE AND TO HOLD the Collateral, together with all rights, titles, interests,
privileges and preferences appertaining or incidental thereto, unto the Agent,
its successors and assigns, forever, subject, however, to the terms, covenants
------- -------
and conditions hereafter set forth.
SECTION 3. REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Pledged Shares. The Pledgor represents and warrants to
--------------
the Agent, the Lenders and the Issuing Lender that:
(a) The Pledged Shares are duly authorized, validly issued, are fully
paid and non-assessable and represent 100% of the issued and outstanding
capital stock of the Issuer;
(b) The Agent for the benefit of the Lenders and the Issuing Lender
has, provided it retains possession of the Pledged Shares and other
Collateral, a valid perfected security interest in the Collateral and the
proceeds thereof free of all Liens except Permitted Liens, claims and
rights of third parties whatsoever subject to the making of the Loans;
(c) The Pledgor will, at all times, keep pledged to the Agent
pursuant hereto all uncertificated equity securities or shares of the
capital stock of the Issuer, and all other certificates or instruments
which the Pledgor may now or hereafter own evidencing any ownership of the
Issuer;
E-3
(d) The Pledgor will endorse and deliver to the Agent for pledge
hereunder, promptly upon its obtaining thereof, any additional Pledged
Shares (or other Collateral to the extent required herein). As of the date
of any such delivery of additional shares, interests, uncertificated equity
securities, certificates or instruments to the Agent, the Pledgor will
represent and warrant that: (i) the Pledgor owns such shares,
certificates, uncertificated equity securities and instruments and the
proceeds thereof free and clear of all Liens except Permitted Liens, claims
and rights of any other Person other than the Liens granted hereunder and
Permitted Liens, (ii) the Pledgor has good title to said shares,
certificates and instruments and has the right to deliver, pledge, assign
and transfer such shares, certificates or instruments to the Agent pursuant
to this Pledge Agreement, (iii) the Pledgor has pledged to the Agent, as of
such date, all of the capital stock and uncertificated equity securities of
each of the Issuers, and (iv) provided that the Agent retains possession
thereof, the Agent has a valid, first priority perfected security interest
in said shares, interests, certificates or instruments and the proceeds
thereof free of all Liens except Permitted Liens, claims and rights of
third parties whatsoever; and
(e) All documentary, stamp or other taxes or fees owing in connection
with the issuance, transfer and/or pledge of the Pledged Shares and other
certificates or instruments have been paid and will hereafter be paid by
the Pledgor as such become due and payable.
SECTION 3.2 Collateral. The Pledgor further represents and warrants
----------
to the Agent that it is the lawful owner of the Collateral existing on the date
hereof, free of all Liens except Permitted Liens, claims and rights of any other
Person other than the Lien granted hereunder and Permitted Liens, with full
right to deliver, pledge, assign and transfer such Collateral to the Agent as
Collateral hereunder.
SECTION 3.3 Organization. The Pledgor additionally represents and
------------
warrants to the Agent that:
(a) it is a corporation duly formed, validly existing and in good
standing under the laws of the State of Georgia;
(b) the Pledgor is duly qualified to transact business and is in good
standing as a foreign corporation
E-4
authorized to do business in each jurisdiction where the nature of each of
its businesses makes such qualification necessary where failure to so
qualify could reasonably be expected to have a Material Adverse Effect;
(c) Pledgor has the corporate power to execute, deliver and perform
this Pledge Agreement and such execution, delivery and performance have
been duly authorized by all necessary corporate action (including, without
limitation, shareholder approval, if necessary), have received or made all
necessary governmental approvals, licenses, authorizations, validations,
filings, recordings, registrations or exemptions except to the extent the
failure thereof shall not constitute a Material Adverse Change (if any
shall be required), and do not and will not contravene or conflict with any
provision of law or of the corporate charter or by-laws of the Pledgor or
of any material agreement or instrument binding upon Pledgor or any of its
property, except to the extent the failure thereof shall not constitute a
Material Adverse Change; and
(d) this Pledge Agreement is the legal, valid and binding obligation
of the Pledgor, enforceable against the Pledgor in accordance with its
terms.
SECTION 3.4 Effectiveness. Each representation and warranty made or
-------------
to be made under this Pledge Agreement by the Pledgor shall be deemed remade as
of and on the date of each Loan made or Letter of Credit issued from time to
time under or in connection with the Credit Agreement with the same effect as if
made contemporaneously with the making of each such Loan or issuance of such
Letter of Credit and as of and at the date of delivery of any additional
Collateral to the Agent.
SECTION 4. COVENANTS
So long as any of the Liabilities remain outstanding, the Pledgor
will, unless the Required Lenders shall otherwise consent in writing:
(a) At its sole expense, promptly deliver to the Agent, from time to
time upon request of the Agent, such stock powers, uncertificated equity
securities' powers and rights and other documents, satisfactory in form and
substance to the Agent, with respect to the Collateral as the Agent may
reasonably request, to preserve and
E-5
protect, and to enable the Agent to enforce, its rights and remedies
hereunder;
(b) Not sell, assign, exchange or otherwise transfer any of its rights
to any of the Collateral except for the pledge hereunder and the Lien and
Permitted Liens created hereby;
(c) Promptly endorse and deliver to the Agent for pledge hereunder,
any additional Pledged Shares obtained by it;
(d) Not create or suffer to exist any Lien except for Permitted Liens,
security interest or other charge or encumbrance against, in or with
respect to any of the Collateral except for the pledge hereunder and the
Lien and Permitted Liens created hereby;
(e) Not enter into any agreement or permit to exist any restriction
with respect to any of the Collateral except for the Permitted Liens and
other than restrictions under applicable securities laws on transferability
of Collateral which constitutes a security and pursuant hereto;
(f) Not take or fail to take any action which would in any manner
impair the enforceability of the Agent's Lien and security interest in any
of the Collateral;
(g) Own all Collateral free and clear of all Liens except Permitted
Liens, claims and rights of any Person other than the Agent, have good
title to all of the Collateral and have the right to pledge such
Collateral;
(h) Promptly cause the Issuer to note the Lien of the Agent on any
uncertificated equity securities in its books and records;
(i) Own 100% of the voting stock of the Issuer.
SECTION 5. CARE OF COLLATERAL
The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral if it takes such action for that
purpose as the Pledgor requests in writing, but failure of the Agent to comply
with any such request shall not of itself be deemed a failure to exercise
reasonable care, and no failure of the Agent to preserve or protect any rights
with respect
E-6
to the Collateral against prior or other parties, or to do any act with respect
to preservation of the Collateral not so requested by the Pledgor, shall of
itself be deemed a failure to exercise reasonable care in the custody or
preservation of the Collateral.
SECTION 6. CERTAIN RIGHTS REGARDING
COLLATERAL AND LIABILITIES
SECTION 6.1. Subject to Sections 6.3 and 7 hereof, the Agent may,
------------ -
from time to time after the occurrence and during the continuance of any Default
pursuant to Section 14.1.3 of the Credit Agreement or any Event of Default, in
--------------
its sole discretion and without notice to the Pledgor:
(a) transfer all or any part of the Collateral into the name of the
Agent or its nominee, with or without disclosing that such Collateral is
subject to the Lien and security interest hereunder;
(b) notify the parties obligated on any of the Collateral to make
payment to the Agent of any amounts due or to become due thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise;
(d) only upon the occurrence and during the continuance of an Event of
Default, surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than
the original period) any obligations of any nature of any party with
respect thereto; and
(e) take control of any proceeds of the Collateral;
it being understood that, notwithstanding anything herein to the contrary, if
-- ----- ---------- ----
the Agent shall transfer all or any part of the Pledged Shares into its name or
the name of its nominee pursuant to Section 6.1(a) above solely as a result of
--------------
the occurrence and continuance of a Default under Section 14.1.3 which Default
--------------
does not mature into an Event of Default and which Default is subsequently
cured, the Agent shall, upon such cure, transfer such Pledged Shares into the
name of the Pledgor or its nominee; provided, that, any such transfer by the
-------- ----
Agent to the Pledgor or its nominee shall not impair the validity of the
security interest in the Pledged Shares granted hereunder and concurrent
therewith the Pledgor shall execute and deliver to the Agent blank stock powers
for such Pledged Shares.
E-7
SECTION 6.2. The Agent may, from time to time, in its sole discretion
and without notice to the Pledgor, take any or all of the following actions:
(a) retain or obtain a Lien upon, or a security interest in, any
property to secure payment and performance of any of the Liabilities or any
obligation hereunder;
(b) retain or obtain the primary or secondary obligation of any
obligor or obligors, with respect to any of the Liabilities or any
obligation hereunder;
(c) create, extend or renew for any period (whether or not longer than
the original period) or alter or exchange any of the Liabilities, or
release or compromise any obligation of the Pledgor hereunder or any
obligation of any nature of any other obligor with respect to any of the
Liabilities or any obligation hereunder;
(d) release or fail to perfect its Lien upon or security interest in,
or impair, surrender, release or permit any substitution or exchange for,
all or any part of any property securing any of the Liabilities or any
obligation hereunder, or create, extend or renew for any period (whether or
not longer than the original period) or release, compromise, alter or
exchange any obligations of any nature of any obligor with respect to any
such property; and
(e) after the occurrence and during the continuance of a Default
pursuant to Section 14.1.3 of the Credit Agreement or any Event of Default,
--------------
resort to the Collateral for payment of any of the Liabilities or any
obligation hereunder, whether or not the Agent (i) shall have resorted to
any other property securing any of the Liabilities or (ii) shall have
proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities or any obligation hereunder (all of the
actions referred to in preceding clauses (i) and (ii) being hereby
expressly waived by the Pledgor).
SECTION 6.3. The Agent shall have no right to vote the Pledged Shares
or other Collateral or give consents, waivers or ratifications in respect
thereof except after the occurrence and during the continuance of a Default
pursuant to Section 14.1.3 of the Credit Agreement or any Event of Default.
--------------
After the occurrence and during the continuance of such a Default or Event of
Default,
E-8
the Pledgor shall have the right to vote any and all of the Pledged Shares and
other Collateral and give consents, waivers and ratifications in respect thereof
unless and until it receives notice from the Agent that such right has been
terminated. The Pledgor agrees to deliver (properly endorsed when required) to
the Agent, during the continuance of such a Default or Event of Default,
promptly upon request of the Agent, such proxies and other documents as may be
necessary for the Agent to exercise the voting power with respect to any and all
of the Pledged Shares and other Collateral then or previously owned by the
Pledgor.
SECTION 7. DIVIDENDS, ETC.
SECTION 7.1 No Default. So long as no Default pursuant to Section
---------- -------
14.1.3 of the Credit Agreement nor any Event of Default shall have occurred and
------
be continuing:
(a) Subject to the provisions of the Credit Agreement, the Pledgor
shall be entitled to receive and retain any and all cash dividends and
other payments on the Collateral which it is otherwise entitled to receive,
but any and all stock and/or liquidating dividends, distributions in
property, returns of capital or other distributions made on or in respect
of the Collateral, whether resulting from a subdivision, combination,
reclassification or conversion of the outstanding capital stock of any
issuer, or received in exchange for the Collateral or any part thereof, or
as a result of any merger, consolidation, acquisition or other exchange of
assets to which any issuer may be a party or otherwise, and any and all
cash and other property received in exchange for any Collateral shall be
and become part of the Collateral pledged hereunder and, if received by the
Pledgor, shall forthwith be delivered to the Agent or its designated
nominee (accompanied, if appropriate, by proper instruments of assignment
and/or stock powers executed by the Pledgor in accordance with the Agent's
instructions) to be held subject to the terms of this Pledge Agreement.
(b) If the Collateral or any part thereof shall have been registered
in the name of the Agent, or its agent, the Agent shall execute and deliver
(or cause to be executed and delivered) to the Pledgor all such dividend
orders and other instruments as the Pledgor may request for the purpose of
enabling the Pledgor to receive the dividends or other payments which it is
E-9
authorized to receive and retain pursuant to paragraph (a) above.
-------------
SECTION 7.2 Occurrence of Default. Upon the occurrence and during
---------------------
the continuance of a Default pursuant to Section 14.1.3 of the Credit Agreement
--------------
or any Event of Default, all rights of the Pledgor pursuant to Section 7.1(a)
--------------
hereof shall cease and the Agent shall have the sole and exclusive right and
authority to receive and retain the dividends and other payments which the
Pledgor would otherwise be authorized to retain. All such dividends, and all
other distributions and payments made on or in respect of the Collateral which
may at any time and from time to time be held by the Pledgor, shall, until
delivery to the Agent, be held by the Pledgor separate and apart from its other
property in trust for the Agent. Any and all money and other property paid over
to or received by the Agent pursuant to the provisions of this Section 7.2 shall
-----------
be retained by the Agent as additional Collateral hereunder and be applied in
accordance with the provisions hereof. Notwithstanding anything herein to the
contrary, if the Agent shall transfer all or any part of the Collateral into its
name or the name of its nominee pursuant to Section 6.1(a) above solely as a
--------------
result of the occurrence and continuance of a Default under Section 13.1.3 which
--------------
Default does not mature into an Event of Default and which Default is
subsequently cured, the Agent shall, upon such cure, transfer such Collateral
into the name of the Pledgor or its nominee; provided, that, any such transfer
-------- ----
by the Agent to the Pledgor or its nominee shall not impair the validity of the
security interest in the Collateral granted hereunder and concurrent therewith
the Pledgor shall execute and deliver to the Agent blank stock powers for any
Pledged Shares constituting Collateral.
SECTION 8. DEFAULT
SECTION 8.1 Occurrence of Default. Upon the occurrence and during
---------------------
the continuance of a Default pursuant to Section 14.1.3 of the Credit Agreement
--------------
or any Event of Default, the Agent may exercise from time to time any rights and
remedies available to it under the Uniform Commercial Code as in effect from
time to time in New York or otherwise available to it, including, without
limitation, sale, assignment, or other disposal of the Collateral in exchange
for cash or credit. If any notification of intended disposition of any of the
Collateral is required by law, such notification, if sent by certified mail,
shall be deemed reasonably and properly given if mailed at least ten (10) days
before such disposition, postage prepaid, addressed to the Pledgor at the
address of the Pledgor shown below, or at any other addresses of the Pledgor
appearing on the records of the Agent. Any proceeds of
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any disposition of Collateral shall be applied as provided in Section 9 hereof.
---------
No rights and remedies of the Agent expressed hereunder are intended to be
exclusive of any other right or remedy, but every such right or remedy shall be
cumulative and shall be in addition to all other rights and remedies herein
conferred, or conferred upon the Agent under any other agreement or instrument
relating to any of the Liabilities or security therefor or now or hereafter
existing at law or in equity or by statute. No delay on the part of the Agent in
the exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Agent of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
No action of the Agent permitted hereunder shall impair or affect the rights of
the Agent in and to the Collateral.
SECTION 8.2 Sale of Collateral. Upon the occurrence and during the
------------------
continuance of a Default pursuant to Section 14.1.3 of the Credit Agreement or
--------------
any Event of Default:
(a) The Pledgor agrees that in any sale of any of the Collateral the
Agent is authorized to comply with any limitation or restriction in
connection with such sale as counsel may advise the Agent is necessary in
order to avoid any violation of applicable law (including, without
limitation, compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders
and purchasers have certain qualifications, and restrict such prospective
bidders and purchasers to persons who will represent and agree that they
are purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and the Pledgor further agrees that such
compliance shall not result in such sale being considered or deemed not to
have been made in a commercially reasonable manner, nor shall the Agent be
liable nor accountable to the Pledgor for any discount allowed by reason of
the fact that such Collateral is sold in compliance with any such
limitation or restriction.
(b) If the Agent decides to exercise its right to sell all or any of
the Pledged Shares or other Collateral, upon written request, the Pledgor
shall furnish or cause to be furnished to the Agent all such information
available to it as the Agent may reasonably request in order to qualify
such Pledged Shares or other Collateral as exempt securities, or the sale
or resale of
E-11
such Pledged Shares or other Collateral as exempt transactions, under
federal and state securities laws. The Pledgor agrees to allow, and to
cause the Issuer to allow, the Agent and any underwriter access at
reasonable times and places to the books, records and premises of the
Pledgor and the Issuer. The Pledgor further agrees to assist, and cause the
Issuer to assist, the Agent, any underwriter, any agent of any thereof, and
any counsel, accountant or other expert for any thereof, in inspection,
evaluation, and any other "due diligence" action of or with respect to any
such books, records and premises; and the Pledgor further agrees to use its
reasonable best efforts to cause any independent public accountant for the
Issuer to furnish a letter to the Agent and underwriters in customary form
and covering matters of the type customarily covered by letters of
accountants for issuers to underwriters.
SECTION 9. APPLICATION OF PROCEEDS
The proceeds of sale of Collateral sold pursuant to the terms of
Section 8 hereof, and, after a Default pursuant to Section 14.1.3 of the Credit
--------- --------------
Agreement or any Event of Default, the cash held as Collateral (if any)
hereunder may, in the discretion of the Agent, be held by the Agent as
Collateral for, and/or then or at any time thereafter be applied in the
following order of priority:
FIRST: To the payment of all reasonable costs and expenses of such
-----
sale, collection or other realization and all other expenses, liabilities
and advances made or incurred by the Agent in connection therewith and all
amounts for which the Agent is entitled to indemnification hereunder and
all advances made by the Agent hereunder for the account of the Borrower
and for the payment of all costs and expenses paid or incurred by the Agent
in connection with the exercise of any right or remedy hereunder, all in
accordance with Section 10;
----------
SECOND: To the ratable payment in full of all accrued and unpaid fees
------
owing to the Agent, the Issuing Lender and the Lenders;
THIRD: To the ratable payment in full of all accrued and unpaid
-----
interest owing to the Lenders;
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FOURTH: To the ratable payment in full of all other Liabilities owing
------
to the Agent, the Issuing Lender or the Lenders; and
FIFTH: After payment in full of the amounts specified in the
-----
preceding paragraphs, to the payment to or upon the order of the Pledgor,
or whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds;
SECTION 10. AUTHORITY OF THE AGENT;
INDEMNIFICATION
The Agent may execute any of its duties hereunder by or through agents
or employees and shall (upon notice to the Pledgor) be entitled to retain
counsel and to act in reasonable reliance upon the advice of such counsel
concerning all matters pertaining to its duties hereunder. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it hereunder or in connection herewith
including actions taken or omitted to be taken as a result of its negligence,
except for its or their own gross negligence or willful misconduct or for
violation of law as determined by a court of competent jurisdiction or in
connection with litigation between Pledgor and the Agent unless otherwise
determined or agreed to in such litigation. The Pledgor hereby agrees to pay on
demand all reasonable expenses of the Agent (including the fees and out-of-
pocket expenses of counsel to the Agent and of local counsel, if any, who may be
retained by counsel to the Agent) incurred by the Agent in connection with the
enforcement of this Pledge Agreement (including, without limitation, reasonable
costs and expenses incurred by any agent employed by the Agent) and agrees to
indemnify and hold the Agent (and any such agent employed by the Agent) harmless
from and against any and all liabilities, losses, damages, costs and expenses of
any kind (including, without limitation, the reasonable fees and disbursements
of counsel for the Agent) which may be incurred by the Agent (or such agent
employed by the Agent) hereunder or in connection herewith (including without
limitation, any liability arising by reason of the negligence of the Agent),
provided, that the Agent, or such agent employed by the Agent, as the case may
-------- ----
be, shall not have the right to be indemnified hereunder for its own gross
negligence or willful misconduct or for violation of this Pledge Agreement or
law as determined by a court of competent jurisdiction or in connection with
litigation between the Pledgor and the Agent unless so determined or agreed to
in such
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litigation. All obligations of the Pledgor provided for in this Section
-------
10 shall survive termination of this Pledge Agreement.
--
SECTION 11. TERMINATION
The Pledgor agrees that its pledge hereunder shall (notwithstanding,
without limitation, that at any time or from time to time all Liabilities may
have been paid in full) terminate only when all Liabilities (including, without
limitation, any extensions or renewals of any thereof), but excluding contingent
liabilities which expressly survive the termination of the Credit Agreement or
the other Related Documents and all interest thereon and all reasonable expenses
(including, without limitation, attorneys' fees and legal expenses) paid or
incurred by the Agent or the holder or the holders of the Notes in endeavoring
to enforce this Pledge Agreement, the Credit Agreement and the other Related
Documents to which the Agent is a beneficiary shall have been finally paid in
full and all other obligations of the Pledgor hereunder and thereunder have been
fully performed, and all Commitments under the Credit Agreement have been
terminated, at which time the Agent shall reassign and redeliver (or cause to be
reassigned and redelivered) to the Pledgor, or to such Person or Persons as the
Pledgor shall designate, such of the Collateral (if any) as shall not have been
sold or otherwise applied by the Agent pursuant to the terms hereof and shall
still be held by it hereunder, together with appropriate instruments of
reassignment and release. Any such reassignment shall be without recourse upon,
or representation or warranty by, the Agent and at the sole cost and expense of
the Pledgor.
SECTION 12. MISCELLANEOUS PROVISIONS
SECTION 12.1 Amendments and Waivers. No amendment, modification,
----------------------
termination or waiver of any provision of this Pledge Agreement, and no consent
to any departure by the Pledgor here from, shall in any event be effective
unless the same shall be in writing and signed by the Agent and the Required
Lenders, and then any such amendment, modification, termination, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 12.2 Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including bank wire, facsimile or
similar writing) and shall be given to such party at its address or facsimile
number set forth on the signature pages hereof or such other address or
facsimile number as such party may hereafter specify for the purpose of
E-14
notice to the Agent and the Pledgor. Each such notice, request or other
communication shall be effective (a) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section and the
appropriate answerback is received or (b) if given by any other means, when
delivered at the address specified in this Section.
SECTION 12.3 Captions. Section captions in this Pledge Agreement are
--------
for convenience only, and shall not affect the construction of this Pledge
Agreement.
SECTION 12.4 Waivers. The Pledgor hereby expressly waives: (a)
-------
notice of the acceptance by the Agent of this Pledge Agreement, (b) notice of
the existence or creation or non-payment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and, to the extent permitted
by law, all other notices whatsoever, and (d) all diligence in collection or
protection of or realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing.
SECTION 12.5 Further Assurances. The Pledgor agrees that, if at any
------------------
time all or any part of any payment theretofore applied by the Agent to any of
the Liabilities is or must be rescinded or returned by the Agent for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Pledgor or its Subsidiaries), such Liabilities shall, for
the purposes of this Pledge Agreement, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Agent, and the pledge by the Pledgor
hereunder shall continue to be effective or be reinstated, as the case may be,
as to such Liabilities, all as though such application by the Agent had not been
made.
SECTION 12.6 Governing Law; Terms; Interpretation.
------------------------------------
This Pledge Agreement shall be a contract made under and governed by the laws of
the state of New York , without regard to its conflicts of law principles. All
obligations of the Pledgor and rights of the Agent expressed herein or in the
other Related Documents shall be in addition to and not in limitation of those
provided by applicable law.
SECTION 12.7 Conditions of Effectiveness. No action of the Agent
---------------------------
permitted hereunder shall in any way affect or impair the rights of the Agent
and the obligations of the Pledgor under this Pledge Agreement. The Pledgor
hereby acknowledges that there are no conditions to the effectiveness of this
Pledge Agreement.
E-15
SECTION 12.8 Liabilities. All obligations of the Pledgor and rights
-----------
of the Agent (and any other holder of Notes or Liabilities expressed in this
Pledge Agreement) shall be in addition to and not in limitation of those
provided in applicable law or in any other written instrument or agreement
relating to any of the Liabilities.
SECTION 12.9 Counterparts. This Pledge Agreement may be executed in
------------
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same Pledge
Agreement. The Pledgor hereby acknowledges receipt of a true, correct and
complete counterpart of this Pledge Agreement.
SECTION 12.10 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE
-------------------------------------------
PLEDGOR (A) HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY XXX XXXX XXXXX
XXXXX XXX/XX XXXXXX XXXXXX COURT SITTING IN THE SOUTHERN DISTRICT OF NEW YORK
OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT AND THE PLEDGOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
OR UNITED STATES COURT, AND (B) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR
PROCEEDING AGAINST THE AGENT OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
PROPERTY OF THE AGENT, ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT, IN
ANY COURT OTHER THAN AS HEREINABOVE SPECIFIED IN THIS SECTION 12.10. THE
-------------
PLEDGOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH ACTION
OR PROCEEDING (WHETHER BROUGHT BY EITHER OR BOTH OF THE PLEDGOR, THE AGENT, OR
OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION 12.10 AS WELL AS
-------------
ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING,
ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR
----- --- ----------
OTHERWISE. THE PLEDGOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 12.11 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY
--------------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS
PLEDGE AGREEMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, AND AGREE THAT
ANY SUCH ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT
ENTERING INTO THIS PLEDGE AGREEMENT.
E-16
SECTION 12.12 Successors and Assigns. This Pledge Agreement shall be
----------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that the Pledgor may not
-------- -------
assign or transfer its rights or obligations hereunder without the prior written
consent of the Agent.
E-17
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered under seal as of the date first
above written.
NOVA CORPORATION
a Georgia corporation, as Pledgor
By: _______________________________
Its: ______________________________
Address: Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attested to by:
____________________
____________________ [Corporate Seal]
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By: _______________________________
Its: ______________________________
Address:
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services
#5596
Facsimile: (000) 000-0000
E-18
SCHEDULE I
LISTING OF STOCK PLEDGED (PLEDGED SHARES)
NOVA Information Systems, Inc. has 20,500,000 shares of authorized
capital stock, of which 20,000,000 have been designated as common stock and
500,000 have been designated as preferred stock.
The following are all of the issued and outstanding shares of NOVA
Information Systems, Inc. as of October 27, 1997.
Certificate Number of
Number Shares
----------- -------------------------------------------------
18 652,850 Shares of Common Stock
5 15,515.34 Shares of Series A Convertible
Preferred Stock
2 10,027 Shares of SEries B Convertible Preferred
Stock
2 3,029 Shares of Series C Convertible Preferred
Stock
3 5,000 Shares of Series D Non-Convertible
Preferred Stock
All of the shares of Common Stock described above have voting rights.
Series A, Series B and Series C Preferred Stock have the power to vote for The
Board of Directors. Series D Preferred Stock do not have voting rights other
than those guaranteed by the Georgia Corporation Code.
All of the issued and outstanding shares of NOVA Information Systems,
Inc. are owned by NOVA Corporation.
E-19
ANNEX I
PLEDGE SUPPLEMENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xx 00000-0000
Attention: NOVA Information Systems, Inc.
Ladies and Gentlemen:
This Pledge Supplement is delivered to you pursuant to (i) the Credit
Agreement, dated as of October 27, 1997 (as amended or modified, the "Credit
Agreement"), among NOVA Information Systems, Inc., a Georgia corporation (the
"Borrower"), the lenders that are or from time to time become party thereto (the
"Lenders"), the Issuing Lender and Bank of America National Trust and Savings
Association, as agent for the Lenders and the Issuing Lender (in such capacity,
the "Agent") and (ii) the Pledge Agreement, dated as of October 27, 1997
(herein, as the same may from time to time be amended or modified and in effect,
called the "Pledge Agreement"), by the Borrower in favor of the Agent. Unless
otherwise defined herein, capitalized terms used herein have the meanings
provided in the Pledge Agreement.
Schedule I of the Pledge Agreement is hereby supplemented by adding
the following thereto:
[Describe shares of stock, etc.]
The Borrower has caused this Pledge Supplement to be executed and
delivered by a Responsible Officer this __th day of ________, 1997.
NOVA INFORMATION SYSTEMS, INC.
By:___________________________
Name:_________________________
Title:________________________
E-20
EXHIBIT F
FORM OF PARENT GUARANTY
THIS GUARANTY, dated as of October 27, 1997 (herein called this
"Guaranty"), is executed by the undersigned in favor of Bank of America National
Trust and Savings Association, as agent for the Lenders and the Issuing Lender
under the Credit Agreement referred to below (in such capacity, together with
any successor thereto in such capacity, called the "Agent"). Unless otherwise
defined herein, capitalized terms used herein have the meanings provided in said
Credit Agreement.
W I T N E S E T H:
- - - - - - - - -
WHEREAS, NOVA Information Systems, Inc., a Georgia corporation (the
"Borrower"), has entered into a Credit Agreement, dated as of October 27, 1997
(as amended or otherwise modified from time to time, the "Credit Agreement")
with the lenders who are or may become party to the Credit Agreement (together
with their respective successors and assigns, the "Lenders"), the Issuing Lender
and the Agent, pursuant to which the Lenders and the Issuing Lender have agreed
to make Loans to and issue or participate in the issuance of Letters of Credit
for the account of the Borrower; and
WHEREAS, the undersigned will benefit from the making of Loans and the
issuance of the Letters of Credit pursuant to the Credit Agreement and is
willing to guaranty the Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby, as primary
obligor and not merely as surety, guarantees the full and prompt payment when
due, whether at stated maturity, by required prepayment, declaration, demand,
acceleration or otherwise (including amounts that would become due but for the
operation of the automatic stay under section 362(a) of the Bankruptcy Code (11
U.S.C. (S) 362(a)), and at all times thereafter, of all obligations (monetary or
otherwise) of the Borrower to each of the Lenders, the Issuing Lender and the
Agent, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
including (without limitation) all obligations which arise out of or in
connection with the Credit Agreement or any Related Document, in each case as
the same may be amended, modified, extended or renewed from time to time (all
such obligations being herein collectively called the "Liabilities"), and the
undersigned further agrees to pay all reasonable expenses (including reasonable
F-1
attorneys' fees and legal expenses) paid or incurred by the Lenders, the Issuing
Lender and the Agent in endeavoring to collect the Liabilities, or any part
thereof, and in enforcing this Guaranty; provided, however, that the liability
-------- -------
of the undersigned hereunder shall be limited to the maximum amount of the
Liabilities which the undersigned may guaranty without violating any fraudulent
conveyance or fraudulent transfer law (plus all costs and expenses paid or
incurred by the Agent, the Lenders or the Issuing Lender in enforcing this
Guaranty against the undersigned).
1. The undersigned agrees that, in the event of the occurrence of an
Event of Default pursuant to Section 14.1.3 of the Credit Agreement, and if any
such event shall occur at a time when any of the Liabilities may not then be due
and payable, the undersigned will pay to the Agent for the benefit of the
Lenders and the Issuing Lender forthwith the full amount which would be payable
hereunder by the undersigned if all Liabilities were then due and payable.
2. To secure all obligations of the undersigned hereunder, the Agent
for the benefit of the Lenders and the Issuing Lender shall have a lien upon and
security interest in (and may, without demand or notice of any kind, at any time
and from time to time when any amount shall be due and payable by the
undersigned hereunder, appropriate and apply toward the payment of such amount,
in such order of application as the Agent may elect) any and all balances,
credits, deposits (general or specific, time or demand, provisional or final),
accounts or moneys of or in the name of the undersigned now or hereafter
maintained with the Agent, any Lender or the Issuing Lender and any and all
property of every kind or description of or in the name of the undersigned now
or hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, the Agent, any Lender or the Issuing Lender or any agent
or bailee for the Agent, any Lender or the Issuing Lender.
3. This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of the undersigned or that
at any time or from time to time all Liabilities may have been paid in full),
subject to discontinuance as to the undersigned only upon actual receipt by the
Agent of written notice from the undersigned, or any person duly authorized and
acting on behalf of the undersigned, of the discontinuance hereof as to the
undersigned; provided, however, that no such notice of discontinuance shall
-------- -------
affect or impair any of the agreements and obligations of the undersigned
hereunder with respect to any and all Liabilities existing prior to the time of
actual receipt of such notice by the Agent, any and all Liabilities
F-2
created or acquired thereafter pursuant to any previous commitments created or
acquired thereafter pursuant to any previous commitments made by the Agent, the
Lenders or the Issuing Lender, any and all extensions or renewals of any of the
foregoing, any and all interest on any of the foregoing, and any and all
expenses paid or incurred by the Agent, any Lender or the Issuing Lender in
endeavoring to collect any of the foregoing and in enforcing this Guaranty
against the undersigned; and all of the agreements and obligations of the
undersigned under this Guaranty shall, notwithstanding any such notice of
discontinuance, remain fully in effect until all such Liabilities (other than
Liabilities which expressly survive the payment in full of the Loans and LC
Obligations and the termination of the Commitments but including any extensions
or renewals of any thereof) and all such interest and expenses shall have been
paid in full and all Commitments have terminated.
4. The undersigned further agrees that, if at any time all or any
part of any payment theretofore applied by the Agent to any of the Liabilities
is or must be rescinded or returned by the Agent, the Lenders or the Issuing
Lender for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Borrower or the undersigned), such
Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Agent had not been made.
5. The undersigned agrees that the Agent, any Lender or the Issuing
Lender may, from time to time, whether before or after any discontinuance of
this Guaranty, at its sole discretion and without notice to the undersigned,
take any or all of the following actions without affecting the obligations of
the undersigned hereunder:
(a) Retain or obtain a security interest in any property to secure
any of the Liabilities or any obligation hereunder;
(b) Retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the undersigned with respect to any of
the Liabilities;
(c) Extend or renew for one or more periods (whether or not longer
than the original period), or alter or exchange, any of the Liabilities, or
release or compromise any obligation of the
F-3
undersigned hereunder or any obligation of any nature of the undersigned
with respect to any of the Liabilities;
(d) Release its security interest in, or surrender, release or permit
any substitution or exchange for, all or any part of any property securing
any of the Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and
(e) Resort to the undersigned for payment of any of the Liabilities,
whether or not the Agent (i) shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) shall have
proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to in
preceding clauses (i) and (ii) being hereby expressly waived by the
----------- ----
undersigned).
6. Any amounts received by the Agent from whatsoever source on
account of the Liabilities may be applied in whole or in part by the Agent
against, all or any part of the Liabilities in such order as the Agent shall
elect.
7. No payment made by or for the account of the undersigned pursuant
to this Guaranty shall entitle the undersigned by subrogation or otherwise to
any payment by the Borrower or from or out of any property of the Borrower and
the undersigned shall not exercise any right or remedy against the Borrower or
any property of the Borrower by reason of any performance by the undersigned of
this Guaranty. The undersigned expressly waives, to the fullest extent
permitted by law, all claims or rights of the undersigned against the Borrower,
arising out of any payment by the undersigned under this Guaranty, whether
arising by way of any subrogation, contribution, reimbursement or otherwise and
agrees that, to the extent that any such rights may not be waived under
applicable law, it will contribute such rights to the Borrower as a capital
contribution concurrently with the arising of such rights.
8. The undersigned hereby expressly waives:
F-4
(a) Notice of the acceptance by the Agent, any Lender or the Issuing
Lender of this Guaranty;
(b) Notice of the existence or creation or non-payment of all or any
of the Liabilities;
(c) Presentment, demand, notice of dishonor, protest and all other
notices whatsoever; and
(d) All diligence in collection or protection of or realization upon
the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
9. The creation or existence from time to time of additional
Liabilities to the Agent, the Lenders or the Issuing Lender or any of them is
hereby authorized, without notice to the undersigned, and shall in no way affect
or impair the rights of the Agent, the Lenders or the Issuing Lender or the
obligations of the undersigned under this Guaranty of such additional
Liabilities.
10. Subject to the provisions of Section 16 of the Credit Agreement,
the Agent, any Lender and the Issuing Lender may, from time to time, whether
before or after any discontinuance of this Guaranty, without notice to the
undersigned, assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were a Lender; provided, however, that unless
-------- -------
such Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right prior and superior to that of any such assignee or transferee,
to enforce this Guaranty, for its benefit, as to those of the Liabilities which
it has not assigned or transferred.
11. The undersigned hereby warrants to the Agent, the Lenders and the
Issuing Lender that the undersigned now has and will continue to have
independent means of obtaining information concerning the affairs, financial
condition and business of the Borrower. The Agent, the Lenders and the Issuing
Lender shall not have any duty or responsibility to provide the undersigned with
any credit or other information concerning the affairs, financial condition or
business of the Borrower which may come into the Agent's, any such Lender's or
the Issuing Lender's possession.
F-5
12. The undersigned hereby warrants and agrees that:
(a) The undersigned is a corporation duly existing and in good
standing under the laws of the State of Georgia and the undersigned is duly
qualified and in good standing and authorized to do business in each
jurisdiction where, because of the nature of its activities or properties,
the failure to so qualify would have a Material Adverse Effect;
(b) The undersigned has full power and authority to execute and
deliver this Guaranty;
(c) The execution, delivery and performance by the undersigned of
this Guaranty are within the undersigned's powers, have been duly
authorized by all necessary action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of the organizational
documents of the undersigned or of any agreement binding upon the
undersigned;
(d) This Guaranty is the legal, valid and binding obligation of the
undersigned enforceable against the undersigned in accordance with its
terms, except as enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally or by equitable
principles; and
(e) This Guaranty will directly or indirectly benefit the
undersigned.
(f) The representations and warranties set forth in Section 9 which
---------
relate to the undersigned are true and correct in all material respects.
13. No delay on the part of the Agent, any Lender or the Issuing
Lender in the exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Agent, any Lender or the Issuing Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon the Agent, the Lenders
and the Issuing Lender except as expressly set forth in a writing duly signed
and delivered on behalf of the Agent for the benefit of the Lenders and the
Issuing Lender. No action of the Agent, any Lender or the Issuing Lender
permitted hereunder shall
F-6
in any way affect or impair the rights of the Agent, any Lender or the Issuing
Lender or the obligations of the undersigned under this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all obligations of the
Borrower to the Agent, any Lender or the Issuing Lender, notwithstanding any
right or power of the Borrower or anyone else to assert any claim or defense as
to the invalidity or unenforceability of any such obligation, and no such claim
or defense shall affect or impair the obligations of the undersigned hereunder.
The undersigned agrees that the obligations of the undersigned under this
Guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable discharge or defense of
the undersigned. The undersigned hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
14. Pursuant to the Credit Agreement, (a) this Guaranty has been
delivered to the Agent and (b) the Agent has been authorized to enforce this
Guaranty on behalf of itself and each of the Lenders and the Issuing Lender.
All payments by the undersigned pursuant to this Guaranty shall be made to the
Agent for the ratable benefit of the Lenders.
15. This Guaranty shall be binding upon the undersigned, and upon any
successors and assigns of the undersigned.
16. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CHOICE OF LAW. WHEREVER
POSSIBLE EACH PROVISION OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
GUARANTY SHALL BE PROHIBITED BY OR INVALID UNDER SUCH LAW, SUCH PROVISION SHALL
BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
GUARANTY.
17. The undersigned hereby irrevocably agrees that any legal action
or proceeding pertaining to this Guaranty may be brought in the courts of the
State of New York , or of the United States of America for the Southern District
of New York , and by its execution and delivery hereof the undersigned
irrevocably submits to the jurisdiction of such courts and appoints Xxxxxxxx-
Xxxx, having an address as of the date hereof of 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, as its agent to receive service of process in any such
action or proceeding. The undersigned hereby irrevocably agrees that service of
process in such action or proceeding may be made either by mailing, by
registered or certified mail, postage prepaid, a copy of the summons or
complaint, or other legal process in such action or proceeding to
F-7
the undersigned at the address shown on the signature page hereof, or by
delivering a copy of such process to the undersigned in care of the
undersigned's agent for such purpose at such agent's address in Chicago,
Illinois. Service of process in any such action or proceeding, effected as
aforesaid, shall be effective upon receipt by the undersigned or such agent and
shall be deemed personal service upon the undersigned and shall be legal and
binding upon the undersigned for all purposes, notwithstanding any failure by
the undersigned's agent to forward copies of such process to the undersigned.
The undersigned hereby waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the laying of venue in any such action
or proceeding in any such court as well as any right it may now or hereafter
have to remove any such action or proceeding, once commenced, to another court
on the grounds of forum non conveniens or otherwise.
18. THE UNDERSIGNED AND (BY ACCEPTING THE BENEFITS HEREOF) THE AGENT,
EACH LENDER AND THE ISSUING LENDER, HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER
THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (B)
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
19. THE UNDERSIGNED FURTHER AGREES TO PERFORM ALL OF THE COVENANTS
AND OTHER PROVISIONS OF THE CREDIT AGREEMENT WHICH RELATE TO IT.
* * *
F-8
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered under
seal as of the day and year first above written.
NOVA CORPORATION
By:______________________________
Name: __________________________
Title:___________________________
Attested to by:
____________________
____________________
[Corporate Seal]
F-9
EXHIBIT G
FORM OF SUBSIDIARY GUARANTY
THIS GUARANTY, dated as of October 27, 1997 (herein called this
"Guaranty"), is executed by the undersigned in favor of Bank of America National
Trust and Savings Association, as agent for the Lenders and the Issuing Lender
under the Credit Agreement referred to below (in such capacity, together with
any successor thereto in such capacity, called the "Agent"). Unless otherwise
defined herein, capitalized terms used herein have the meanings provided in said
Credit Agreement.
W I T N E S E T H:
- - - - - - - - -
WHEREAS, NOVA Information Systems, Inc., a Georgia corporation (the
"Borrower"), has entered into a Credit Agreement, dated as of October 27, 1997
(as amended or otherwise modified from time to time, the "Credit Agreement")
with the lenders who are or may become party to the Credit Agreement (together
with their respective successors and assigns, the "Lenders"), the Issuing Lender
and the Agent, pursuant to which the Lenders and the Issuing Lender have agreed
to make Loans to and issue or participate in the issuance of Letters of Credit
for the account of the Borrower; and
WHEREAS, the undersigned will benefit from the making of Loans and the
issuance of the Letters of Credit pursuant to the Credit Agreement and is
willing to guaranty the Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby, as primary
obligor and not merely as surety, guarantees the full and prompt payment when
due, whether at stated maturity, by required prepayment, declaration, demand,
acceleration or otherwise (including amounts that would become due but for the
operation of the automatic stay under section 362(a) of the Bankruptcy Code (11
U.S.C. (S) 362(a)), and at all times thereafter, of all obligations (monetary or
otherwise) of the Borrower to each of the Lenders, the Issuing Lender and the
Agent, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
including (without limitation) all obligations which arise out of or in
connection with the Credit Agreement or any Related Document, in each case as
the same may be amended, modified, extended or renewed from time to time (all
such obligations being herein collectively called the "Liabilities"), and the
undersigned further agrees to pay all reasonable expenses (including reasonable
G-1
attorneys' fees and legal expenses) paid or incurred by the Lenders, the Issuing
Lender and the Agent in endeavoring to collect the Liabilities, or any part
thereof, and in enforcing this Guaranty; provided, however, that the liability
-------- -------
of the undersigned hereunder shall be limited to the maximum amount of the
Liabilities which the undersigned may guaranty without violating any fraudulent
conveyance or fraudulent transfer law (plus all costs and expenses paid or
incurred by the Agent, the Lenders or the Issuing Lender in enforcing this
Guaranty against the undersigned).
1. The undersigned agrees that, in the event of the occurrence of an
Event of Default pursuant to Section 14.1.3 of the Credit Agreement, and if any
such event shall occur at a time when any of the Liabilities may not then be due
and payable, the undersigned will pay to the Agent for the benefit of the
Lenders and the Issuing Lender forthwith the full amount which would be payable
hereunder by the undersigned if all Liabilities were then due and payable.
2. To secure all obligations of the undersigned hereunder, the Agent
for the benefit of the Lenders and the Issuing Lender shall have a lien upon and
security interest in (and may, without demand or notice of any kind, at any time
and from time to time when any amount shall be due and payable by the
undersigned hereunder, appropriate and apply toward the payment of such amount,
in such order of application as the Agent may elect) any and all balances,
credits, deposits (general or specific, time or demand, provisional or final),
accounts or moneys of or in the name of the undersigned now or hereafter
maintained with the Agent, any Lender or the Issuing Lender and any and all
property of every kind or description of or in the name of the undersigned now
or hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, the Agent, any Lender or the Issuing Lender or any agent
or bailee for the Agent, any Lender or the Issuing Lender.
3. This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of the undersigned or that
at any time or from time to time all Liabilities may have been paid in full),
subject to discontinuance as to the undersigned only upon actual receipt by the
Agent of written notice from the undersigned, or any person duly authorized and
acting on behalf of the undersigned, of the discontinuance hereof as to the
undersigned; provided, however, that no such notice of discontinuance shall
-------- -------
affect or impair any of the agreements and obligations of the undersigned
hereunder with respect to any and all Liabilities existing prior to the time of
actual receipt of such notice by the Agent, any and all Liabilities created or
acquired thereafter pursuant to any previous commitments
G-2
made by the Agent, the Lenders or the Issuing Lender, any and all extensions or
renewals of any of the foregoing, any and all interest on any of the foregoing,
and any and all expenses paid or incurred by the Agent, any Lender or the
Issuing Lender in endeavoring to collect any of the foregoing and in enforcing
this Guaranty against the undersigned; and all of the agreements and obligations
of the undersigned under this Guaranty shall, notwithstanding any such notice of
discontinuance, remain fully in effect until all such Liabilities (other than
Liabilities which expressly survive the payment in full of the Loans and LC
Obligations and the termination of the Commitments but including any extensions
or renewals of any thereof) and all such interest and expenses shall have been
paid in full and all Commitments have terminated.
4. The undersigned further agrees that, if at any time all or any
part of any payment theretofore applied by the Agent to any of the Liabilities
is or must be rescinded or returned by the Agent, the Lenders or the Issuing
Lender for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Borrower or the undersigned), such
Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Agent had not been made.
5. The undersigned agrees that the Agent, any Lender or the Issuing
Lender may, from time to time, whether before or after any discontinuance of
this Guaranty, at its sole discretion and without notice to the undersigned,
take any or all of the following actions without affecting the obligations of
the undersigned hereunder:
(a) Retain or obtain a security interest in any property to secure
any of the Liabilities or any obligation hereunder;
(b) Retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the undersigned with respect to any of
the Liabilities;
(c) Extend or renew for one or more periods (whether or not longer
than the original period), or alter or exchange, any of the Liabilities, or
release or compromise any obligation of the undersigned hereunder or any
obligation of any
G-3
nature of the undersigned with respect to any of the Liabilities;
(d) Release its security interest in, or surrender, release or permit
any substitution or exchange for, all or any part of any property securing
any of the Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and
(e) Resort to the undersigned for payment of any of the Liabilities,
whether or not the Agent (i) shall have resorted to any property securing
any of the Liabilities or any obligation hereunder or (ii) shall have
proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to in
preceding clauses (i) and (ii) being hereby expressly waived by the
----------- ----
undersigned).
6. Any amounts received by the Agent from whatsoever source on
account of the Liabilities may be applied in whole or in part by the Agent
against, all or any part of the Liabilities in such order as the Agent shall
elect.
7. No payment made by or for the account of the undersigned pursuant
to this Guaranty shall entitle the undersigned by subrogation or otherwise to
any payment by the Borrower or from or out of any property of the Borrower and
the undersigned shall not exercise any right or remedy against the Borrower or
any property of the Borrower by reason of any performance by the undersigned of
this Guaranty. The undersigned expressly waives, to the fullest extent
permitted by law, all claims or rights of the undersigned against the Borrower,
arising out of any payment by the undersigned under this Guaranty, whether
arising by way of any subrogation, contribution, reimbursement or otherwise and
agrees that, to the extent that any such rights may not be waived under
applicable law, it will contribute such rights to the Borrower as a capital
contribution concurrently with the arising of such rights.
8. The undersigned hereby expressly waives:
(a) Notice of the acceptance by the Agent, any Lender or the Issuing
Lender of this Guaranty;
G-4
(b) Notice of the existence or creation or non-payment of all or any
of the Liabilities;
(c) Presentment, demand, notice of dishonor, protest and all other
notices whatsoever; and
(d) All diligence in collection or protection of or realization upon
the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
9. The creation or existence from time to time of additional
Liabilities to the Agent, the Lenders or the Issuing Lender or any of them is
hereby authorized, without notice to the undersigned, and shall in no way affect
or impair the rights of the Agent, the Lenders or the Issuing Lender or the
obligations of the undersigned under this Guaranty of such additional
Liabilities.
10. Subject to the provisions of Section 16 of the Credit Agreement,
the Agent, any Lender and the Issuing Lender may, from time to time, whether
before or after any discontinuance of this Guaranty, without notice to the
undersigned, assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were a Lender; provided, however, that unless
-------- -------
such Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right prior and superior to that of any such assignee or transferee,
to enforce this Guaranty, for its benefit, as to those of the Liabilities which
it has not assigned or transferred.
11. The undersigned hereby warrants to the Agent, the Lenders and the
Issuing Lender that the undersigned now has and will continue to have
independent means of obtaining information concerning the affairs, financial
condition and business of the Borrower. The Agent, the Lenders and the Issuing
Lender shall not have any duty or responsibility to provide the undersigned with
any credit or other information concerning the affairs, financial condition or
business of the Borrower which may come into the Agent's, any such Lender's or
the Issuing Lender's possession.
12. The undersigned hereby warrants and agrees that:
G-5
(a) The undersigned is a corporation duly existing and in good
standing under the laws of the State of Georgia and the undersigned is duly
qualified and in good standing and authorized to do business in each
jurisdiction where, because of the nature of its activities or properties,
the failure to so qualify would have a Material Adverse Effect;
(b) The undersigned has full power and authority to execute and
deliver this Guaranty;
(c) The execution, delivery and performance by the undersigned of
this Guaranty are within the undersigned's powers, have been duly
authorized by all necessary action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of the organizational
documents of the undersigned or of any agreement binding upon the
undersigned;
(d) This Guaranty is the legal, valid and binding obligation of the
undersigned enforceable against the undersigned in accordance with its
terms, except as enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally or by equitable
principles; and
(e) This Guaranty will directly or indirectly benefit the
undersigned.
13. No delay on the part of the Agent, any Lender or the Issuing
Lender in the exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Agent, any Lender or the Issuing Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon the Agent, the Lenders
and the Issuing Lender except as expressly set forth in a writing duly signed
and delivered on behalf of the Agent for the benefit of the Lenders and the
Issuing Lender. No action of the Agent, any Lender or the Issuing Lender
permitted hereunder shall in any way affect or impair the rights of the Agent,
any Lender or the Issuing Lender or the obligations of the undersigned under
this Guaranty. For the purposes of this Guaranty, Liabilities shall include all
obligations of the Borrower to the Agent, any Lender or the Issuing Lender,
notwithstanding any right or power of the Borrower or anyone else to assert any
claim or defense as to the
G-6
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of the undersigned hereunder. The
undersigned agrees that the obligations of the undersigned under this Guaranty
shall be absolute and unconditional irrespective of any circumstance whatsoever
which might constitute a legal or equitable discharge or defense of the
undersigned. The undersigned hereby acknowledges that there are no conditions to
the effectiveness of this Guaranty.
14. Pursuant to the Credit Agreement, (a) this Guaranty has been
delivered to the Agent and (b) the Agent has been authorized to enforce this
Guaranty on behalf of itself and each of the Lenders and the Issuing Lender.
All payments by the undersigned pursuant to this Guaranty shall be made to the
Agent for the ratable benefit of the Lenders.
15. This Guaranty shall be binding upon the undersigned, and upon any
successors and assigns of the undersigned.
16. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CHOICE OF LAW. WHEREVER
POSSIBLE EACH PROVISION OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
GUARANTY SHALL BE PROHIBITED BY OR INVALID UNDER SUCH LAW, SUCH PROVISION SHALL
BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
GUARANTY.
17. The undersigned hereby irrevocably agrees that any legal action
or proceeding pertaining to this Guaranty may be brought in the courts of the
State of New York , or of the United States of America for the Southern District
of New York, and by its execution and delivery hereof the undersigned
irrevocably submits to the jurisdiction of such courts and appoints Xxxxxxxx-
Xxxx, having an address as of the date hereof of 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, as its agent to receive service of process in any such
action or proceeding. The undersigned hereby irrevocably agrees that service of
process in such action or proceeding may be made either by mailing, by
registered or certified mail, postage prepaid, a copy of the summons or
complaint, or other legal process in such action or proceeding to the
undersigned at the address shown on the signature page hereof, or by delivering
a copy of such process to the undersigned in care of the undersigned's agent for
such purpose at such agent's address in Chicago, Illinois. Service of process
in any such action or proceeding, effected as aforesaid, shall be effective upon
receipt by the undersigned or such agent and shall be deemed personal
G-7
service upon the undersigned and shall be legal and binding upon the undersigned
for all purposes, notwithstanding any failure by the undersigned's agent to
forward copies of such process to the undersigned. The undersigned hereby
waives, to the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any such action or proceeding in any
such court as well as any right it may now or hereafter have to remove any such
action or proceeding, once commenced, to another court on the grounds of forum
non conveniens or otherwise.
18. THE UNDERSIGNED AND (BY ACCEPTING THE BENEFITS HEREOF) THE AGENT,
EACH LENDER AND THE ISSUING LENDER, HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER
THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (B)
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
* * *
G-8
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
under seal as of the day and year first above written.
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Attested to by:
____________________
____________________ [Corporate Seal]
G-9
EXHIBIT H
COMPLIANCE CERTIFICATE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
Unit 5596
1455 Market Street, 12th FL
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
This certificate (the "Certificate") is delivered to you pursuant to
Section 10.1.4 of the Credit Agreement, dated as of October 27, 1997 (as amended
--------------
or modified, the "Credit Agreement"), among NOVA Information Systems, Inc., a
Georgia corporation (the "Borrower"), the lenders who are or from time to time
become party thereto (the "Lenders"), Bank of America Illinois, as Issuing
Lender and Bank of America National Trust and Savings Association, as agent for
the Lenders and the Issuing Lender (in such capacity, the "Agent"). Unless
otherwise defined herein, capitalized terms used herein have the meanings
provided in the Credit Agreement.
The undersigned hereby certifies and warrants to the Agent, the
Issuing Lender and the Lenders that he is the chief financial officer of the
Borrower (in such capacity, the "CFO") and that, as such, he is authorized to
execute this Certificate on behalf of the Borrower and further certifies and
warrants to the Agent, the Issuing Lender and the Lenders on behalf of the
Borrower that as at ____________, 19__ (the "Computation Date") the following is
a true and correct computation of the ratios and financial restrictions
contained in the Credit Agreement:
1. Section 12.1 - Fixed Charge Coverage Ratio This ratio shall be
------------------------------------------
measured at the end of each Fiscal Quarter for the four consecutive Fiscal
Quarters then ended.
(a) Adjusted Consolidated EBITDA : $_______
(b) Operating lease payments : $_______
H-1
(c) The sum of Items 1(a) and 1(b) :$_______
(d) Adjusted Consolidated Interest
Charges : $_______
(e) Scheduled principal payments on
Funded Indebtedness : $_______
(f) Operating and capitalized lease
payments : $_______
(g) Consolidated Capital
Expenditures : $_______
(h) The sum of Items 1(d), 1(e), 1(f)
and 1(g) : $_______
(i) The ratio of Item 1(c) to
Item 1(h) : ___:___
(j) The ratio in Item 1(i) may not be
less than the ratio applicable to such
Fiscal Quarter, as set forth below :
Four Consecutive Fiscal Quarters Ending
---------------------------------------
__________, 199__. ___:___
(Not to be less than 1.50:1)
2. Section 12.2 - Funded Debt Ratio This ratio shall apply at all
--------------------------------
times and shall be measured at the end of each Fiscal Quarter for the most
recent four consecutive Fiscal Quarters then ended.
(a) Funded Indebtedness as of the
Computation Date : $_______
(b) Consolidated EBITDA for the
four consecutive Fiscal Quarters
then ended : $_______
(c) The ratio of Item 2(a) to Item
2(b) : ___:___
H-2
(d) The ratio in Item 2(c) may not
exceed the ratio applicable to such
Fiscal Quarter, as set forth below :
Four Consecutive Fiscal Quarters Ending
---------------------------------------
___________, 199__. (Not to exceed 3.00:1)
___:___
(For purposes heretofore, Consolidated EBITDA shall be determined
by including historical EBITDA for Acquisitions therefore made,
but excluding Acquisition Adjustments relating to such
Acquisitions).
3. Section 12.3 Credit Losses and Chargeback Losses This test
-------------------------------------------------
shall be measured at the end of each Fiscal Quarter for the most recent Four
Fiscal Quarters then ended.
(a) Credit Losses : $_____
(b) Chargeback Losses : $_____
(c) The sum of Items 3 (a) and 3 (b) : $_____
(d) Consolidated Revenue as of most recent
Fiscal Quarter : $_____
(e) 5% of item 3(d) $_____
(f) Up to $5,000,000 of Credit and/or
Chargeback Losses theretofore funded
by Loans under the Credit Agreement $_____
(g) Sum of Item 3(e) and 3(f) $_____
(h) Item 3(c) not to exceed Item 3(g) $_____
4. Section 10.1.4 - Adjusted Funded Debt Ratio. This ratio shall be
-------------------------------------------
measured at the end of each Fiscal Quarter for the most recent four consecutive
Fiscal Quarters then ended.
(a) Funded Indebtedness as of the
Computation Date : $_______
(b) Consolidated EBITDA for the
most recent four consecutive Fiscal
Quarters then ended : $_______
H-3
(c) Adjustments to Consolidated EBITDA $_______
(d) Item 4(b) [plus/ minus] Item 4 (c) $_______
(e) Ratio of Item 4(a) to Item 4 (d) : ___:___
The Borrower hereby certifies and warrants that as of the date hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) The representations and warranties of the Borrower contained in
Section 9, (except Sections 9.6, 9.7 and 9.8) are true and correct with the same
--------- ------------ --- ---
effect as though made on the date hereof.
(c) Except as disclosed to the Agent, the Issuing Lender and the
Lenders in writing and agreed to in writing by the Required Lenders in their
sole discretion, no Material Litigation not disclosed on Schedule 9.8 to the
------------
Credit Agreement exists and since the Effective Date of the Credit Agreement, no
Material Litigation Development has occurred with respect to any Litigation so
disclosed on Schedule 9.8.
------------
(d) No Material Adverse Change has occurred since the date of the
most recent financial statements delivered or required to be delivered pursuant
to Section 9.6 of the Credit Agreement except as disclosed to the Agent, the
-----------
Issuing Lender and the Lenders in writing and agreed to in writing by the
Required Lenders in their sole discretion.
This certificate is given by the undersigned in his capacity as a
corporate officer, and the undersigned shall have no personal liability with
respect to the content hereof.
H-4
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered and the certifications and warranties contained herein to
be made, by its Chief Financial Officer this ___ day of ________, 19__.
NOVA INFORMATION SYSTEMS, INC.
By:_______________________________
Name:_____________________________
Title: Chief Financial Officer
H-5
EXHIBIT I
OPINION OF LONG, XXXXXXXX & XXXXXX, LLP
I-1
EXHIBIT J
FORM OF OFFICER'S CERTIFICATE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent for the Lenders
and the Issuing Lender
High Technology #3697
000 Xxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx XxXxxxxxx, Managing Director
Ladies and Gentlemen:
This certificate (the "Certificate") is delivered to you pursuant to
Section 13.1.7 of the Credit Agreement, dated as of October 27, 1997 (as amended
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or modified, the "Credit Agreement"), among NOVA Information Systems, Inc., a
Georgia corporation (the "Borrower"), the lenders who are or from time to time
become party thereto (the "Lenders"), the Issuing Lender and Bank of America
National Trust and Savings Association, as agent for the Lenders and the Issuing
Lender (in such capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in the Credit
Agreement.
The undersigned hereby certifies and warrants to the Agent, the
Issuing Lender and the Lenders that he is the [President/Vice President] of [the
Parent] [the Borrower][Subsidiary] (the "Company"), and that, as such, he is
authorized to execute this Certificate on behalf of the Company and further
certifies and warrants to the Agent, the Issuing Lender and the Lenders on
behalf of the Company that:
1. The following named individuals are, and have been since
__________ __, 19__,/1/ elected officers of the Company, and each holds the
office of the Company set forth opposite his name. The signature written
opposite the name and title of each such officer is his correct signature.
--------------------
/1/ Insert date occurring before any action taken with regard to the Credit
Agreement or the Related Documents.
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Name Office Signature
---- ------ ---------
-------------------- --------------------------- ----------------------------
-------------------- --------------------------- ----------------------------
-------------------- --------------------------- ----------------------------
2. Attached hereto as Annex A is a certified copy of the Articles of
-------
Incorporation of the Company as filed in the Office of the Secretary of State of
the State of [Georgia] on _______________, 19__, together with all amendments
thereto adopted through the date hereof.
3. Attached hereto as Annex B is a true and correct copy of the By-
-------
Laws of the Company which were duly adopted, and are in full force and effect of
the date hereof.
4. Attached hereto as Annex C is a true and correct copy of
-------
resolutions which were duly adopted on __________, 1995 [by unanimous written
consent of the Board of Directors of the Company] [at a meeting of the Board of
Directors of the Company duly called and held, at which meeting a quorum of such
Board was at all times present in person and acting], and such resolutions have
not been rescinded, amended or modified.
This certificate is given by the undersigned in his capacity as a
corporate officer, and the undersigned shall have no personal liability with
respect to the content hereof.
IN WITNESS WHEREOF, the Company has caused this certificate to be
executed by the [President/Vice President] this ___ day of __________, 199_.
[COMPANY]
By:_______________________________
Name:_____________________________
Title:____________________________
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The undersigned hereby certifies and warrants to the Agent, the
Issuing Lender and the Lenders that he is the [Secretary/Assistant Secretary] of
the Company, and that, as such, he is authorized to execute this Certificate on
behalf of the Company and further certifies and warrants to the Agent, the
Issuing Lender and the Lenders on behalf of the Company that:
1. [Name of Person making above certifications] is the duly elected
and qualified [President/Vice President] of the Company and the signature above
is his genuine signature.
2. The certifications made by [name of Person making above
certifications] in items 2, 3 and 4 above are true and correct.
This certificate is given by the undersigned in his capacity as a
corporate officer, and the undersigned shall have no personal liability with
respect to the content hereof.
IN WITNESS WHEREOF, the Company has caused this certificate to be
executed by the [Secretary/Assistant Secretary] this ____ day of __________,
199_.
[COMPANY]
By:______________________________
Name:____________________________
Title:___________________________
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EXHIBIT K
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AND ACCEPTANCE dated ______________, 19__ between
___________________________ (the "Assignor") and ____________________________
(the "Assignee").
PRELIMINARY STATEMENTS
A. Reference is made to the Credit Agreement dated as of October 27,
1997 (as amended and modified, the "Credit Agreement") among NOVA Information
Systems, Inc., a Georgia corporation (the "Borrower"), the lenders who are or
from time to time become party thereto (the "Lenders"), the Issuing Lender and
Bank of America National Trust and Savings Association, as agent for the Lenders
and the Issuing Lender (in such capacity, the "Agent"). Unless otherwise
defined herein, capitalized terms used herein have the meanings provided in the
Credit Agreement.
B. The Assignor is a Lender under and as defined in the Credit
Agreement and, as such, presently holds a percentage of the rights and
obligations of the Lenders under the Credit Agreement. On the terms and
conditions set forth below, the Assignor desires to sell and assign to the
Assignee, and the Assignee desires to purchase and assume from the Assignor, a
______% interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the Assignment Effective Date (as defined below) (the
"Assigned Percentage").
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the Assigned
Percentage of the Assignor's rights and obligations under the Credit
Agreement as of the Assignment Effective Date (including, without
limitation, the Assigned Percentage of (i) the Assignor's Revolving Loan
Commitment as in effect on the Assignment Effective Date, (ii) the
Revolving Loans owing to the Assignor on the Assignment Effective Date and
(iii) the Revolving Notes held by the Assignor on the Assignment Effective
Date).
2. The Assignor (i) represents and warrants that as of the date
hereof its Commitment (without giving effect to assignments thereof which
have not yet become effective) is
K-1
$_____________; (ii) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (iii) makes no
representations or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any Related
Document furnished pursuant thereto; (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any guarantor or the performance or observance
by the Borrower or any guarantor of any of their obligations under the
Credit Agreement or any Related Document furnished pursuant thereto, and
(v) attaches the Notes and requests that the Agent exchange such Notes for
[new Notes, dated __________, 19__, in the principal amount of $___________
(Revolving Note), payable to the order of the Assignee] [new Notes dated
______________, 19__, in the principal amount of $_________ (Revolving
Note), payable to the order of the Assignor].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Agent, the Issuing
Lender, 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 Credit
Agreement; (iii) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
Lender; (v) specifies as its Lending Office for Base Rate Loans (and
address for notices) and Lending Office for Eurodollar Loans the offices
set forth beneath its name on the signature page hereof; and (vi)
represents and warrants that it is an Eligible Assignee as such term is
defined in the Credit Agreement.
4. The effective date for this Assignment and Acceptance shall be
_______________ (the "Assignment
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Effective Date")./1/ Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance and recording
by the Agent.
5. Upon such acceptance and recording, as of the Assignment Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the Assignment
Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Credit Agreement and the Notes for periods prior to the Assignment
Effective Date directly between themselves.
--------------------
/1/ Such date shall be at least two (2) Business Days after the execution of
this Assignment and Acceptance.
K-3
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the internal laws of the State of New York .
[NAME OF ASSIGNOR]
By: ______________________________
Name:______________________________
Title:_____________________________
[NAME OF ASSIGNEE]
By: ______________________________
Name:______________________________
Title:_____________________________
Lending Office (Base Rate Loans)
(and address for notices)
[Address]
Lending Office (Eurodollar Rate Loans):
[Address]
Accepted this _____ day
of ______________, 19__
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _________________________
Name:________________________
Title:_______________________
K-4
EXHIBIT L-1
FORM OF CONFIRMATION OF NEW LENDER
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Section 2.4
Reference is made to the Credit Agreement, dated as of October 27,
1997 (herein, as heretofore amended, modified or supplemented, called the
"Credit Agreement"), among NOVA Information Systems, Inc., a Georgia corporation
(the "Borrower"), the Lenders and Agent parties thereto. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
1. As of __________, 199_ (the "Increase Commitment Date"), pursuant
and subject to the provisions of Section 2.4 of the Credit Agreement (the "New
-----------
Lender") hereby becomes a party to and a Lender under the Credit Agreement with
a Commitment equal to $__________.
2. The New Lender acknowledges and agrees that:
(a) neither any Agent nor any other Lender makes any representation
or warranty or assumes any responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or any other instrument or document furnished pursuant thereto or
the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto,
(b) neither any Agent nor any other Lender makes any representation
or warranty or assumes any responsibility with respect to the financial
condition or creditworthiness of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto,
(c) the New Lender (i) has made and will continue to make such
inquiries and has taken and will continue to take such care on its own
behalf as would have been the case had it made Loans directly to the
Borrower without the intervention of any Agent or any other Person, and
(ii) has made and will continue to make its own credit analysis and
decisions relating to the Credit Agreement independently and without
reliance upon any Agent or any other Person, and
L-1-1
based on such documents and information as it has deemed appropriate.
3. If the New Lender is a Non-United States Person, it hereby agrees
to deliver to the Agent a written representation and warranty substantially
similar to that contained in Section of the Credit Agreement.
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This Confirmation shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to conflict of laws
principles.
__________________________________
By:___________________________
Name:___________________
Copies of all notices, etc,
should be sent to:
Attention:____________________
Telephone:____________________
Telecopy: ____________________
Telex: ____________________
Lending Office (Base Rate Loans):
Lending Office (Eurodollar Rate Loans):
Accepted this ____ day
of _______, 19__.
X-0-0
XXXXXXX X-0
FORM OF CONFIRMATION OF STEP-UP LENDER
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Section 2.4
Reference is made to the Credit Agreement, dated as of October 27,
1997 (herein, as heretofore amended, modified or supplemented, called the
"Credit Agreement"), among NOVA Information Systems, Inc., a Georgia corporation
(the "Borrower"), and the Lenders and Agent parties thereto. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
As of _______ 19__ (the "Increase Commitment Date"), pursuant and
subject to the provisions of Section 2.4 of the Credit Agreement, ___________
-----------
(the "Step-up Lender") increases its Commitment from $______ to $______.
This Confirmation shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to conflict of laws
principles.
[NAME OF ____________
STEP-UP LENDER]
By:___________________________
Title:___________________
Copies of all notices, etc,
should be sent to:
Attention:____________________
Telephone:____________________
Telecopy: ____________________
Telex: ____________________
Lending Office (Base Rate Loans):
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L-2-1
Lending Office (Eurodollar Rate Loans):
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Accepted this __ day
of ____________, 19__.
BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION as Agent
By:_____________________________
Title:_____________________
