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EXHIBIT 10.11
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
among
ECLIPSYS CORPORATION,
THE LENDERS NAMED HEREIN,
and
FIRST UNION NATIONAL BANK,
as Agent
and
BANKBOSTON, N.A.
as Co-Agent
$50,000,000 Senior Credit Facilities
Arranged by
FIRST UNION CAPITAL MARKETS,
a division of Wheat First Securities, Inc.
Dated as of May 29, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.3 Other Terms; Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments; Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.2 Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.3 Disbursements; Funding Reliance; Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . . . 27
2.4 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.5 Termination and Reduction of Revolving Credit Commitments and
Swingline Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.6 Mandatory Repayments and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.7 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.8 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.9 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.10 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.11 Conversions and Continuations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.12 Method of Payments; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.13 Recovery of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.14 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.15 Pro Rata Treatment; Sharing of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.16 Increased Costs; Change in Circumstances; Illegality; etc . . . . . . . . . . . . . . . . . . . . 39
2.17 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.18 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE III
LETTERS OF CREDIT
3.1 Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.3 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.4 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.5 Payment by Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.6 Payment to Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.7 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.8 Cash Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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3.9 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
4.1 Conditions of Initial Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.2 Conditions of All Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Organization and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.2 Authorization; Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.3 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.4 Authorizations; Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.7 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.8 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.9 Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.10 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.11 Financial Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.12 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.14 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.15 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.16 Regulated Industries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.17 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.18 Certain Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.19 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.20 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5.21 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VI
AFFIRMATIVE COVENANTS
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.2 Other Business and Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3 Existence; Franchises; Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.4 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.5 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.7 Maintenance of Books and Records; Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.8 Creation or Acquisition of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.9 Year 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
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6.10 Additional Security; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE VII
FINANCIAL COVENANTS
7.1 Ratio of Consolidated Funded Debt to Annualized EBITDA . . . . . . . . . . . . . . . . . . . . . . 69
7.2 Ratio of Annualized EBITDA to Annualized Interest Expense . . . . . . . . . . . . . . . . . . . . 69
7.3 Ratio of Consolidated Funded Debt to Consolidated Total Capital . . . . . . . . . . . . . . . . . 69
7.4 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Merger; Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.2 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.3 Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.4 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.5 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.6 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.7 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8.8 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.9 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.10 Certain Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.11 Limitation on Certain Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.12 No Other Negative Pledges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.13 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.14 Accounting Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE IX
EVENTS OF DEFAULT
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.2 Remedies: Termination of Revolving Credit Commitments,
Swingline Commitment, Acceleration, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.3 Remedies: Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE X
THE AGENT
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
10.2 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
10.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
10.5 Non-Reliance on Agent and Other Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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10.6 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.8 The Agent in its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.10 Collateral Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.11 Issuing Lender and Swingline Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE XI
MISCELLANEOUS
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.3 Governing Law; Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
11.4 Arbitration; Preservation and Limitation of Remedies . . . . . . . . . . . . . . . . . . . . . . 93
11.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
11.6 Amendments, Waivers, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
11.7 Assignments, Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
11.8 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
11.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
11.10 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
11.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
11.12 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
11.13 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
11.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
11.15 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
EXHIBITS
Exhibit A-1 Form of Notice of Revolving Borrowing
Exhibit A-2 Form of Notice of Swingline Borrowing
Exhibit B-1 Form of Revolving Credit Note
Exhibit B-2 Form of Swingline Note
Exhibit C Form of Notice of Prepayment
Exhibit D Form of Notice of Conversion/Continuation
Exhibit E Form of Letter of Credit Notice
Exhibit F Form of Amended and Restated Subsidiary Guaranty
Exhibit G Form of Amended and Restated Borrower Pledge and Security
Agreement
Exhibit H Form of Amended and Restated Subsidiary Pledge and
Security Agreement
Exhibit I Form of Opinion of Borrower's Counsel
Exhibit J Form of Financial Condition Certificate
Exhibit K Form of Compliance Certificate
Exhibit L Form of Assignment and Acceptance
Exhibit M Form of Landlord Consent
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SCHEDULES
Schedule 5.3 No Violation
Schedule 5.4 Consents and Approvals
Schedule 5.5 Litigation
Schedule 5.6 Taxes
Schedule 5.7 Subsidiaries
Schedule 5.10 No Material Adverse Change
Schedule 5.12(a) Claims Against Intellectual Property
Schedule 5.12(b) Leases
Schedule 5.15 Compliance with Laws
Schedule 5.17 Insurance
Schedule 5.18 Certain Contracts
Schedule 5.19 Capital Stock
Schedule 8.2 Indebtedness
Schedule 8.3 Contingent Obligations
Schedule 8.4 Liens
Schedule 8.6 Investments
Schedule 8.8 Transactions with Affiliates
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FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 29th
day of May , 1998 (this "Agreement"), is made among ECLIPSYS CORPORATION, a
Delaware corporation with its chief executive office in Delray Beach, Florida
(the "Borrower"), the banks and financial institutions listed on the signature
pages hereof or that become parties hereto after the date hereof (collectively,
the "Lenders"), FIRST UNION NATIONAL BANK (formerly known as First Union
National Bank of North Carolina) ("First Union"), as agent for the Lenders (in
such capacity, the "Agent") and BANKBOSTON, N.A., as Co-Agent.
RECITALS
A. The Borrower, certain banks and other financial institutions,
and the Agent are parties to a Credit Agreement, dated as of January 24, 1997
(as amended, the "Original Credit Agreement") providing credit facilities in
the aggregate principal amount of $30,000,000.
B. The Borrower has requested certain amendments to the Original
Credit Agreement and that the Lenders make available to the Borrower revolving
credit facilities in the aggregate principal amount of $50,000,000, all as more
fully described herein.
C. The Lenders are willing to make such amendments to the
Original Credit Agreement and to make available to the Borrower the credit
facilities described herein subject to and on the terms and conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants
and agreements herein contained, the parties hereto hereby agree that, as of
the Amendment Effective Date, the Original Credit Agreement shall be amended
and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, in addition to
the terms defined elsewhere herein, the following terms shall have the meanings
set forth below (such meanings to be equally applicable to the singular and
plural forms thereof):
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"ABR Loan" shall mean, at any time, any Loan that bears interest at
such time at the applicable Adjusted Alternate Base Rate.
"Account Designation Letter" shall mean a letter from the Borrower to
the Agent, duly completed and signed by an Authorized Officer and in form and
substance satisfactory to the Agent, listing any one or more accounts to which
the Borrower may at any time and from time to time request the Agent to forward
the proceeds of any Loans made hereunder.
"Acquisition" shall mean any transaction or series of related
transactions, consummated on or after the date hereof, by which the Borrower
directly, or indirectly through one or more Subsidiaries, (i) acquires any
going business or division, or all or substantially all of the assets, of any
Person, whether through purchase of assets, merger or otherwise, or (ii)
acquires securities or other ownership interests of any Person having at least
a majority of combined voting power of the then outstanding securities or other
ownership interests of such Person.
"Acquisition Amount" shall mean, with respect to any Permitted
Acquisition, the sum (without duplication) of (i) the amount of cash paid by
the Borrower and its Subsidiaries in connection with such Permitted
Acquisition, (ii) the Fair Market Value of all capital stock or other ownership
interests of the Borrower or any of its Subsidiaries issued or given in
consideration of such Permitted Acquisition, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is greater)
of all debt incurred, assumed or acquired in connection with such Permitted
Acquisition, (iv) all additional purchase price amounts in the form of earnouts
and other contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with Generally
Accepted Accounting Principles, (v) all amounts paid in respect of covenants
not to compete, consulting agreements and other similar contracts in connection
with such Permitted Acquisition and (vi) the aggregate Fair Market Value of all
other consideration given by the Borrower and its Subsidiaries in connection
with such Permitted Acquisition.
"Adjusted Alternate Base Rate" shall mean, at any time with respect to
any ABR Loan, a rate per annum equal to the Alternate Base Rate as in effect at
such time plus the Applicable Margin Percentage for such ABR Loan, as in effect
at such time.
"Adjusted LIBOR Rate" shall mean, at any time with respect to any
LIBOR Loan, a rate per annum equal to the LIBOR Rate as in effect at such time
plus the Applicable Margin Percentage for such LIBOR Loan, as in effect at such
time.
"Affiliate" shall mean, as to any Person, each other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or under common control with, such Person or is a director or
officer of such Person; provided that no Person shall be deemed to be an
Affiliate of another Person solely by reason of an officer or director of such
Person serving as an officer or director of such other Person. For purposes of
this definition, with respect to any Person, "control" shall mean (i) the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise, or (ii) the beneficial
ownership of securities or other ownership interests of such Person having 10%
or more of the combined voting power of the
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then outstanding securities or other ownership interests of such Person
ordinarily (and apart from rights accruing under special circumstances) having
the right to vote in the election of directors or other governing body of such
Person.
"Agent" shall mean First Union, in its capacity as Agent appointed
under ARTICLE X, and its successors and permitted assigns in such capacity.
"Agreement" shall mean this First Amended and Restated Credit
Agreement, as amended, modified or supplemented from time to time.
"Alternate Base Rate" shall mean the higher of (i) the per annum
interest rate publicly announced from time to time by First Union in Charlotte,
North Carolina, to be its prime rate (which may not necessarily be its best
lending rate), as adjusted to conform to changes as of the opening of business
on the date of any such change in such prime rate, or (ii) 0.5% per annum plus
the Federal Funds Rate, as adjusted to conform to changes as of the opening of
business on the date of any such change in the Federal Funds Rate. In the event
First Union shall abolish or abandon the practice of announcing its prime rate
or should the same be unascertainable, the Agent shall, with the Borrower's
consent, designate a comparable reference rate, which shall, once so
designated, be deemed to be the rate referred to in clause (i) above for
purposes of determining the Alternate Base Rate.
"Amendment Effective Date" shall mean the date on which all of the
conditions precedent set forth in SECTION 4.1 have been satisfied or waived in
accordance with the terms of this Agreement.
"Annualized EBITDA" shall mean, as of the last day of each fiscal
quarter, two (2) times Consolidated EBITDA for the period of two consecutive
fiscal quarters then ending.
"Annualized Interest Expense" shall mean, as of the last day of each
fiscal quarter, two (2) times Consolidated Interest Expense for the period of
two consecutive fiscal quarters then ending.
"Applicable Margin Percentage" shall mean, at any time from and after
the Amendment Effective Date, 0.0% if such Revolving Loan is an ABR Loan and
1.0% if such Revolving Loan is a LIBOR Loan; provided, however, that on each
Adjustment Date, the Applicable Margin Percentage for all Revolving Loans shall
be adjusted effective as of such date (based upon the calculation of the ratio
of Consolidated Funded Debt to Annualized EBITDA as of the last day of the
fiscal period to which such Adjustment Date relates) in accordance with (i)
matrix A set forth in Annex I hereto for any such fiscal periods ending prior
to the successful consummation of a Qualified Public Offering or (ii) matrix B
set forth in Annex I hereto for any such fiscal periods ending concurrently
with or any time after the successful consummation of a Qualified Public
Offering; and provided further that, notwithstanding the foregoing or anything
in Annex I to the contrary, (A) if at any time the Borrower shall have failed
to deliver the financial statements and a Compliance Certificate as required by
SECTION 6.1(a) or SECTION 6.1(b) (as the case may be) and SECTION 6.2(a), then
at all times from and including the date on which such statements and
Compliance Certificate are required to have been delivered to the date on which
the same shall
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have been delivered (or until clause (B) below shall apply because a Default or
Event of Default shall have occurred and be continuing), each Applicable Margin
Percentage shall be determined in accordance with matrix A or B, as applicable,
of Annex I as if the ratio of Consolidated Funded Debt to Annualized EBITDA
(notwithstanding the actual ratio) was the highest level ratio set forth on
such applicable matrix, and (B) if at any time a Default or Event of Default
shall have occurred and be continuing, then at all times from and including the
date of occurrence of such Default or Event of Default to the date on which
such Default or Event of Default shall be cured or waived, each Applicable
Margin Percentage shall be determined in accordance with matrix A or B, as
applicable, of Annex I as if the ratio of Consolidated Funded Debt to
Annualized EBITDA (notwithstanding the actual ratio) was the highest level
ratio set forth on such applicable matrix. For purposes of this definition,
"Adjustment Date" shall mean, with respect to any fiscal quarter of the
Borrower, beginning with the fiscal quarter ending June 30, 1998, the fifth
(5th) day (or, if such day is not a Business Day, on the next succeeding
Business Day) after delivery by the Borrower in accordance with SECTION 6.1(a)
or SECTION 6.1(b), as the case may be, of (i) financial statements for the most
recently completed applicable fiscal period and (ii) a duly completed
Compliance Certificate with respect to such fiscal period.
"Asset Disposition" shall mean any sale, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries to any other Person
(other than to the Borrower or to a Wholly Owned Subsidiary), whether in one
transaction or a series of related transactions, of any of its assets, business
units or other properties (including any interests in property, whether
tangible or intangible, and including Capital Stock of Subsidiaries), but
excluding the sale or other disposition of assets permitted under clauses (i),
(ii), (iii), (iv), (v) and (vi) of SECTION 8.5.
"Assignee" shall have the meaning given to such term in SECTION
11.7(a).
"Assignment and Acceptance" shall mean an Assignment and Acceptance
entered into between a Lender and an Assignee and accepted by the Agent and the
Borrower, in substantially the form of EXHIBIT L.
"Authorized Officer" shall mean any individual properly authorized by
resolution of the board of directors of the Borrower or other Person (or in
accordance with the terms of its bylaws, operating agreement, partnership
agreement or other applicable organizational document) to take the action
specified herein on its behalf, and in each case whose signature and incumbency
shall have been certified to the Agent by the secretary or an assistant
secretary (or such other individual who is properly authorized to perform the
duties normally associated with the title of secretary or assistant secretary)
of the Borrower or such other Person, as the case may be.
"Bankruptcy Code" shall mean 11 U.S.C. Sections 101 et seq., as
amended from time to time, and any successor statute.
"Borrower Pledge and Security Agreement" shall mean the amended and
restated pledge and security agreement made by the Borrower in favor of the
Agent, in substantially the form of EXHIBIT G, as amended, modified or
supplemented from time to time.
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"Borrowing" shall mean the incurrence by the Borrower (including as a
result of conversions and continuations of outstanding Loans pursuant to
SECTION 2.11) on a single date of a group of Loans of a single Type (or a
Swingline Loan made by the Swingline Lender) and, in the case of LIBOR Loans,
as to which a single Interest Period is in effect.
"Borrowing Date" shall mean, with respect to any Borrowing, the date
upon which such Borrowing is made.
"Business Day" shall mean (i) any day other than a Saturday or Sunday,
a legal holiday or a day on which commercial banks in Charlotte, North Carolina
are required by law to be closed and (ii) in respect of any determination
relevant to a LIBOR Loan, any such day that is also a day on which tradings are
conducted in the London interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, without
duplication, the aggregate amount (whether paid in cash or accrued as a
liability) that would, in accordance with Generally Accepted Accounting
Principles, be included on the consolidated statement of cash flows of the
Borrower and its Subsidiaries for such period as additions to equipment, fixed
assets, real property or improvements or other capital assets (including,
without limitation, capital lease obligations); provided, however, that Capital
Expenditures shall not include any such expenditures for replacements and
substitutions for capital assets, to the extent made with the proceeds of
insurance.
"Capital Stock" shall mean (i) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in corporate stock
(whether voting or nonvoting, and whether common or preferred) of such
corporation, and (ii) with respect to any Person that is not a corporation, any
and all partnership, membership, limited liability company or other equity
interests of such Person; and in each case, any and all warrants or options to
purchase any of the foregoing.
"Cash Collateral Account" shall have the meaning given to such term in
SECTION 3.8.
"Cash Equivalents" shall mean (i) securities or other direct
obligations issued or unconditionally guaranteed by the United States of
America or any agency or instrumentality thereof, backed by the full faith and
credit of the United States of America and maturing within 180 days from the
date of acquisition, (ii) securities or other direct obligations issued by any
state in the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within 180 days from the
date of acquisition, and at the time of acquisition, having the highest rating
obtainable from either Standard & Poor's Rating Services or Xxxxx'x Investors
Service, Inc.; (iii) commercial paper issued by any Person organized under the
laws of the United States of America, maturing within 180 days from the date of
acquisition and, at the time of acquisition, having a rating of at least A-1 or
the equivalent thereof by Standard & Poor's Ratings Services or at least P-1 or
the equivalent thereof by Xxxxx'x Investors Service, Inc., (iv) time deposits
and certificates of deposit maturing within 180 days from the date of issuance
and issued by a bank or trust company organized under the laws of the United
States of America or any state thereof that has combined capital and surplus of
at least $500,000,000 and that has (or is a subsidiary of a bank holding
company that has) a long-term
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unsecured debt rating of at least A or the equivalent thereof by Standard &
Poor's Ratings Services or at least A2 or the equivalent thereof by Xxxxx'x
Investors Service, Inc., (v) repurchase obligations with a term not exceeding
seven (7) days with respect to underlying securities of the types described in
clause (i) above entered into with any bank or trust company meeting the
qualifications specified in clause (iii) above, and (vi) money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (v) above.
"Casualty Event" shall mean, with respect to any property (including
any interest in property) of the Borrower or any of its Subsidiaries, any loss
of, damage to, or condemnation or other taking of, such property for which the
Borrower or such Subsidiary receives insurance proceeds, proceeds of a
condemnation award or other compensation.
"Collateral" shall mean all the assets, property and interests in
property that shall from time to time be pledged or be purported to be pledged
as direct or indirect security for the Obligations pursuant to any one or more
of the Security Documents.
"Compliance Certificate" shall mean a fully completed and duly
executed certificate in the form of Exhibit K, together with a Covenant
Compliance Worksheet.
"Consolidated EBITDA" shall mean, for any period, the aggregate of (i)
Consolidated Net Income for such period, plus (ii) the sum of Consolidated
Interest Expense, federal, state, local and other income taxes, depreciation,
amortization of intangible assets, and other non-cash expenses or charges
reducing income for such period all to the extent taken into account in the
calculation of Consolidated Net Income for such period, minus (iii) non-cash
credits increasing Consolidated Net Income for such period, to the extent taken
into account in the calculation of Consolidated Net Income for such period;
provided, however, that the calculation of Consolidated EBITDA shall only
include income of Designated Non-Guarantor Subsidiaries to the extent of the
amount of cash dividends or cash distributions paid to the Borrower or any
Wholly Owned Subsidiary by such Designated Non-Guarantor Subsidiary.
"Consolidated Funded Debt" shall mean, as of any date, the aggregate
(without duplication) of all Indebtedness of the Borrower and its Subsidiaries
as of such date, determined on a consolidated basis, other than accrued
expenses, current trade or other accounts payable (unless such expenses and
accounts payable are 90 days or more past due) and other current liabilities
arising in the ordinary course of business and not incurred through the
borrowing of money.
"Consolidated Interest Expense" shall mean, for any period, the sum
(without duplication) of (i) total interest expense of the Borrower and its
Subsidiaries for such period in respect of Consolidated Funded Debt of the
Borrower and its Subsidiaries (including, without limitation, all such interest
expense attributable to capital lease obligations) and, determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles,
and (ii) all net amounts paid or accrued by the Borrower and its Subsidiaries
during such period under or in respect of Hedge Agreements.
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"Consolidated Net Income" shall mean, for any period, net income (or
loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles
but excluding as income (a) gains on the sale, conversion or other disposition
of capital assets, (b) gains on the acquisition, retirement, sale or other
disposition of Capital Stock of the Borrower or any of its Subsidiaries, (c)
gains on the collection of life insurance proceeds, (d) any write-up of any
asset, and (e) any other gain or credit of an extraordinary nature.
"Consolidated Net Revenues" shall mean for any period the total net
revenues of the Borrower and its Subsidiaries, on a consolidated basis,
determined in accordance with Generally Accepted Accounting Principles.
"Consolidated Net Worth" shall mean, as of any date, the net worth of
the Borrower and its Subsidiaries as of such date, determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles (including,
without limitation, the Series B Preferred Stock and Series C Preferred Stock
(each as defined in the Preferred Stock Purchase Agreement) having the rights
and preferences set forth in the Transaction Documents and the Amended and
Restated Certificate of Incorporation of the Borrower as existing on the date
hereof and as amended in compliance with the terms hereof) but (i) excluding
any Disqualified Capital Stock of the Borrower, and (ii) without regard to the
requirements of Statements of Financial Accounting Standards No. 115 by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants.
"Consolidated Total Capital" shall mean, as of any date, the sum of
(i) Consolidated Net Worth as of such date and (ii) Consolidated Funded Debt as
of such date.
"Contingent Obligation" shall mean, with respect to any Person, any
direct or indirect liability of such Person with respect to any Indebtedness,
liability or other obligation (the "primary obligation") of another Person (the
"primary obligor"), whether or not contingent, (a) to purchase, repurchase or
otherwise acquire such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor in respect thereof to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss or failure or inability
to perform in respect thereof. The amount of any Contingent Obligation shall
be deemed to be the amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof; provided, however, that, with respect to the Borrower and its
Subsidiaries, the term Contingent Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
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"Covenant Compliance Worksheet" shall mean a fully completed worksheet
in the form of Attachment A to EXHIBIT K.
"Credit Documents" shall mean this Agreement, the Notes, the Letters
of Credit, the Fee Letter, the Subordination Agreement, the Borrower Pledge and
Security Agreement, the Subsidiary Guaranty, the Subsidiary Pledge and Security
Agreement, all other Security Documents, any Hedge Agreement to which the
Borrower and any Lender are parties and that is permitted hereunder, and all
other agreements, instruments, documents and certificates now or hereafter
executed and delivered to the Agent or any Lender by or on behalf of the
Borrower or any of its Subsidiaries with respect to this Agreement and the
transactions contemplated hereby, in each case as amended, modified,
supplemented or restated from time to time.
"Default" shall mean any event or condition that, with the passage of
time or giving of notice, or both, would constitute an Event of Default.
"Designated Non-Guarantor Subsidiary" shall mean (i) Eclipsys Limited
and (ii) any other Subsidiary of the Borrower that is not a Wholly Owned
Subsidiary and that has elected, by written notice to the Agent given not less
than five (5) Business Days after the creation or acquisition thereof by the
Borrower or any other Subsidiary, not to become a guarantor under the
Subsidiary Guaranty and not to grant to the Agent a Lien upon and security
interest in its personal property assets pursuant to the Subsidiary Pledge and
Security Agreement.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event or otherwise, (i) matures or is mandatorily
redeemable or subject to any mandatory repurchase requirement, pursuant to a
sinking fund obligation or otherwise, (ii) is redeemable or subject to any
mandatory repurchase requirement at the sole option of the holder thereof, or
(iii) is convertible into or exchangeable for (whether at the option of the
issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above
at any time on or prior to the Revolving Credit Maturity Date; provided,
however, that (A) only the portion of Capital Stock that so matures or is
mandatorily redeemable, is so redeemable at the option of the holder thereof,
or is so convertible or exchangeable on or prior to such date shall be deemed
to be Disqualified Capital Stock, and (B) none of the Borrower's common stock
or Capital Stock having the rights and preferences set forth in the Transaction
Documents or the Amended and Restated Certificate of Incorporation of the
Borrower (in the forms delivered to the Agent on the Closing Date (as defined
in the Original Credit Agreement) or amended or modified in accordance with the
terms of this Agreement) shall be deemed Disqualified Capital Stock hereunder.
"Dollars" or "$" shall mean dollars of the United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute, and all rules
and regulations from time to time promulgated thereunder.
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"ERISA Affiliate" shall mean any Person (including any trade or
business, whether or not incorporated) that would be deemed to be under "common
control" with, or a member of the same "controlled group" as, the Borrower or
any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o)
of the Internal Revenue Code or Section 4001 of ERISA.
"ERISA Event" shall mean any of the following with respect to a Plan
or Multiemployer Plan, as applicable: (i) a Reportable Event with respect to a
Plan or a Multiemployer Plan, (ii) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan that results in
liability under Section 4201 or 4204 of ERISA, or the receipt by the Borrower
or any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section 4041A of ERISA, (iii)
the distribution by the Borrower or any ERISA Affiliate under Section 4041 or
4041A of ERISA of a notice of intent to terminate any Plan or the taking of
any action to terminate any Plan, (iv) the commencement of proceedings by the
PBGC under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from any Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan, (v) the institution
of a proceeding by any fiduciary of any Multiemployer Plan against the Borrower
or any ERISA Affiliate to enforce Section 515 of ERISA, which is not dismissed
within thirty (30) days, (vi) the imposition upon the Borrower or any ERISA
Affiliate of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, or the imposition
or threatened imposition of any Lien upon any assets of the Borrower or any
ERISA Affiliate as a result of any alleged failure to comply with the Internal
Revenue Code or ERISA in respect of any Plan, (vii) the engaging in or
otherwise becoming liable for a nonexempt Prohibited Transaction by the
Borrower or any ERISA Affiliate, (viii) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Internal Revenue Code by any fiduciary of any Plan for
which the Borrower or any of its ERISA Affiliates may be directly or indirectly
liable or (ix) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Internal Revenue Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such Plan is a
part if the Borrower or an ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of such sections.
"Eclipsys Limited" shall mean Eclipsys Limited, formerly known as
ALLTEL Healthcare Information Services Limited, a corporation organized under
the laws of England and Wales.
"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States or any state thereof and having total assets in
excess of $1,000,000,000, (ii) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic Cooperation
and Development or any successor thereto (the "OECD") or a political
subdivision of any such country and having total assets in excess of
$1,000,000,000, provided that such bank or other financial institution is
acting through a branch or agency located in the United States, in the country
under the laws of which it is organized or in another country that is also a
member of the OECD, (iii) the central bank of any country that is a member of
the OECD, (iv) a finance company, insurance company or other financial
institution or fund that is engaged in making, purchasing or otherwise
investing in loans in the ordinary
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course of its business and having total assets in excess of $500,000,000, (v)
any Affiliate of an existing Lender or (vi) any other Person approved by the
Required Lenders and the Borrower, which approval shall not be unreasonably
withheld.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
accusations, allegations, notices of noncompliance or violation, investigations
(other than internal reports prepared by any Person in the ordinary course of
its business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (collectively,
"Claims"), including, without limitation, (i) any and all Claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law and
(ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Substances or arising from alleged injury or threat of injury to
human health or the environment.
"Environmental Laws" shall mean any and all federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations, rules of common law and orders of courts or Governmental
Authorities, relating to the protection of occupational safety or the
environment, now or hereafter in effect and in each case as amended from time
to time, including, without limitation, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Substances.
"Equity Issuance" shall mean (i) the issuance, sale or other
disposition by the Borrower or any of its Subsidiaries of its Capital Stock
(including, without limitation, pursuant to an initial registered public
offering of the Borrower's Capital Stock), any rights, warrants or options to
purchase or acquire any shares of its Capital Stock or any other security or
instrument representing, convertible into or exchangeable for an equity
interest in the Borrower or any of its Subsidiaries, and (ii) the receipt by
the Borrower or any of its Subsidiaries of any capital contribution (whether or
not evidenced by any security or instrument); provided, however, that the term
Equity Issuance shall not include (t) the purchase by employees of the Borrower
or any of its Subsidiaries of any Capital Stock of the Borrower or its
Subsidiaries in accordance with stock option plans or employee stock purchase
plans established by the board of directors of the Borrower or any such
Subsidiary, as applicable, (u) the issuance or sale (A) by any Subsidiary of
its Capital Stock to the Borrower or another Subsidiary, provided that (except
as provided in SECTION 8.6(IX)) such Capital Stock is pledged to the Agent
pursuant to the Borrower Pledge and Security Agreement or the Subsidiary Pledge
and Security Agreement, as applicable, or (B) by any Designated Non-Guarantor
Subsidiary of its Capital Stock to its partners, members or stockholders (other
than the Borrower or any Subsidiary), (v) the issuance of the Borrower's
Preferred Stock and Warrants pursuant to the Preferred Stock Purchase
Agreement, (w) the issuance of the Borrower's Preferred Stock to AIS pursuant
to the Merger Agreement, (x) any capital contribution to any Subsidiary, to the
extent made directly or indirectly by the Borrower, (y) any Capital Stock or
other equity securities of the Borrower issued or sold in connection with any
Permitted Acquisition and constituting all or a portion of the applicable
purchase price, or
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(z) any other transaction described in clauses (i) or (ii) above if the
related Net Cash Proceeds of any such transaction are less than $20,000.
"Equity Purchasers" shall mean General Atlantic Partners 38, L.P., a
Delaware limited partnership, GAP Coinvestment Partners, L.P., a New York
limited partnership, First Union Corporation, a North Carolina corporation, BT
Investment Partners, Inc., a Delaware corporation, Wilfam Ltd., a Florida
limited partnership, Xxxxx Xxxxxx Associates IHS L.P., a Delaware limited
partnership, Xxxxxx Xxxxxxxxxx, St. Xxxx Venture Capital, IV, L.L.C., a
Delaware limited liability company, and Xxxxx Xxxxxxxx, Jr.
"Event of Default" shall have the meaning given to such term in
SECTION 9.1.
"Excess Cash" shall mean the amount of cash and Cash Equivalents held
by the Borrower and its Subsidiaries (including any amounts of cash and Cash
Equivalents pledged to the Agent) exceeding $5,000,000 plus outstanding
Revolving Loans and Swingline Loans.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"Existing Revolving Loans" shall have the meaning assigned to such
term in SECTION 2.1(a).
"Fair Market Value" shall mean, with respect to any capital stock,
other ownership interests or other property issued or given by the Borrower or
any of its Subsidiaries in connection with a Permitted Acquisition or a
redemption permitted by SECTION 8.7, or received by the Borrower or any
Subsidiary in connection with an Asset Disposition, as of the close of business
on the Business Day immediately preceding such Permitted Acquisition,
redemption or Asset Disposition (i) in the case of common stock of the Borrower
or other securities that are then designated as a national market system
security by the National Association of Securities Dealers, Inc. ("NASDAQ") or
are listed on a national securities exchange, the average for the five Business
Days ending on the date of determination of the average of the last reported
bid and ask quotations or closing prices (as applicable) reported thereon for
such securities or (ii) in all other cases, the reasonable determination of the
fair market value thereof in good faith by a majority of members of the board
of directors of the Borrower or such Subsidiary (excluding any director with a
direct or indirect (other than by virtue of being a director or stockholder)
economic interest in such Permitted Acquisition, redemption or Asset
Disposition), provided that if such determination is not reasonably
satisfactory to the Required Lenders, such determination shall be made by a
nationally recognized investment banking firm selected by the Borrower and the
Required Lenders, the expenses of which shall be borne by the Borrower.
"Federal Funds Rate" shall mean, for any period, a fluctuating per
annum interest rate (rounded upwards, if necessary, to the nearest 1/100 of
one percentage point) equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the
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Federal Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by the Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" shall mean the letter from First Union to the Borrower,
dated April 9, 1998, relating to certain fees payable by the Borrower in
respect of the transactions contemplated by this Agreement, as amended,
modified or supplemented from time to time.
"Financial Condition Certificate" shall mean a financial condition
certificate, substantially in the form of EXHIBIT J, duly executed by a
Financial Officer of the Borrower.
"Financial Officer" shall mean, with respect to the Borrower, the
chief financial officer, vice president-finance, principal accounting officer
or treasurer of the Borrower.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles, as set forth in the statements, opinions and
pronouncements of the Accounting Principles Board, the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board (or,
to the extent not so set forth in such statements, opinions and pronouncements,
as generally followed by entities similar in size to the Borrower and engaged
in generally similar lines of business), consistently applied and maintained
and in conformity with those used in the preparation of the most recent
financial statements of the Borrower referred to in SECTION 5.11(a).
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any central bank thereof, any
municipal, local, city or county government, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Hazardous Substances" shall mean any substances or materials (i) that
are or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (ii) that are
defined by any Environmental Law as toxic, explosive, corrosive, ignitable,
infectious, radioactive, mutagenic or otherwise hazardous, (iii) the presence
of which require investigation or response under any Environmental Law, (iv)
that constitute a nuisance, trespass or health or safety hazard to Persons or
neighboring properties, (v) that consist of underground or aboveground storage
tanks, whether empty, filled or partially filled with any substance or (vi)
that contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or wastes, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedge Agreement" shall mean any interest or foreign currency rate
swap, cap, collar, option, hedge, forward rate or other similar agreement or
arrangement designed to protect against fluctuations in interest rates or
currency exchange rates.
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"Indebtedness" shall mean, with respect to any Person (without
duplication), (i) all indebtedness, obligations and liabilities of such Person
for borrowed money or in respect of loans or advances, (ii) all obligations of
such Person evidenced by notes, bonds, debentures or similar instruments, (iii)
all reimbursement obligations of such Person with respect to surety bonds,
letters of credit and bankers' acceptances (in each case, whether or not drawn
or matured and in the stated amount thereof), (iv) all obligations of such
Person to pay the deferred purchase price of property or services, (v) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, (vi) all
obligations of such Person as lessee under leases that are or should be, in
accordance with Generally Accepted Accounting Principles, recorded as capital
leases, to the extent such obligations are required to be so recorded, (vii)
all Disqualified Capital Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the
greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any (for purposes
hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Agreement, and if such price is
based upon, or measured by, the fair market value of such Disqualified Capital
Stock, such fair market value to be determined reasonably and in good faith by
the board of directors or other governing body of the issuer of such
Disqualified Capital Stock), (viii) the net termination obligations of such
Person under any Hedge Agreements, calculated as of any date as if such
agreement or arrangement were terminated as of such date, (ix) all Contingent
Obligations of such Person and (x) all indebtedness referred to in clauses (i)
through (ix) above secured by any Lien on any property or asset owned or held
by such Person regardless of whether the indebtedness secured thereby shall
have been assumed by such Person or is nonrecourse to the credit of such
Person.
"Intellectual Property" shall have the meaning set forth in SECTION
5.12.
"Interest Period" shall have the meaning given to such term in
SECTION 2.10.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"Issuing Lender" shall mean First Union in its capacity as issuer of
the Letters of Credit, and its successors in such capacity.
"LIBOR Loan" shall mean, at any time, any Revolving Loan that bears
interest at such time at the Adjusted LIBOR Rate.
"LIBOR Rate" shall mean, with respect to each LIBOR Loan comprising
part of the same Borrowing for any Interest Period, an interest rate per annum
obtained by dividing (i) (y) the rate of interest (or, if more than one such
rate appears, the arithmetic mean of rates) for deposits in Dollars that
appears on Telerate Page 3750 (or any successor page) or (z) if no such rate is
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available, the rate of interest determined by the Agent to be the rate or the
arithmetic mean of rates (rounded upward, if necessary, to the nearest 1/16 of
one percentage point) at which Dollar deposits in immediately available funds
are offered by First Union to first-tier banks in the London interbank
Eurodollar market, in each case under (y) and (z) above at approximately 11:00
a.m., London time, two (2) Business Days prior to the first day of such
Interest Period for a period substantially equal to such Interest Period and in
an amount substantially equal to the amount of First Union's LIBOR Loan
comprising part of such Borrowing, by (ii) the amount equal to 1.00 minus the
Reserve Requirement (expressed as a decimal) for such Interest Period.
"Landlord Consents" shall mean, collectively, (i) a waiver and consent
from each landlord with respect to certain of the properties of the Borrower
and its Subsidiaries listed on SCHEDULE 5.12(b) and designated by the Agent and
(ii) all other similar waivers and consents that the Agent or the Required
Lenders may reasonably require of the Borrower or any of its Subsidiaries from
time to time in respect of amendments, modifications or renewals of the leases
referred to in clause (i) above or in respect of any other leases to which the
Borrower or any of its Subsidiaries is now or hereafter a party, in each case
in form and substance reasonably satisfactory to the Agent, and in each case as
amended, modified or supplemented from time to time.
"Lender" shall mean each financial institution signatory hereto as a
"Lender" or the "Swingline Lender" and each other financial institution that
becomes a "Lender" or the "Swingline Lender" hereunder pursuant to SECTION
11.7, and their respective successors and assigns.
"Lending Office" shall mean, with respect to any Lender, the office of
such Lender designated as its "Lending Office" on its signature page hereto or
in an Assignment and Acceptance, or such other office as may be otherwise
designated in writing from time to time by such Lender to the Borrower and the
Agent. A Lender may designate separate Lending Offices as provided in the
foregoing sentence for the purposes of making or maintaining different Types of
Loans, and, with respect to LIBOR Loans, such office may be a domestic or
foreign branch or Affiliate of such Lender.
"Letter of Credit Exposure" shall mean, with respect to any Lender at
any time, such Lender's Revolving Credit Percentage of the sum of (i) the
aggregate Stated Amount of all Letters of Credit outstanding at such time and
(ii) the aggregate amount of all Reimbursement Obligations outstanding at such
time.
"Letter of Credit Notice" shall have the meaning given to such term in
SECTION 3.2.
"Letters of Credit" shall have the meaning given to such term in
SECTION 3.1.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
security interest, lien (statutory or otherwise), preference, priority, charge
or other encumbrance of any nature, whether voluntary or involuntary,
including, without limitation, the interest of any vendor or lessor under any
conditional sale agreement, title retention agreement, capital lease or any
other lease or arrangement having substantially the same effect as any of the
foregoing.
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"Loans" shall mean any or all of the Revolving Loans and the Swingline
Loans.
"Margin Stock" shall have the meaning given to such term in Regulation
U.
"Material Adverse Change" shall mean a material adverse change in the
condition (financial or otherwise), operations, business, properties, assets or
prospects of the Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect upon
(i) the condition (financial or otherwise), operations, business, properties,
assets or prospects of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower or any of its Subsidiaries to perform its
obligations under this Agreement or any of the other Credit Documents to which
the Borrower or any such Subsidiary is a party, or (iii) the legality, validity
or enforceability of this Agreement and the other Credit Documents taken as a
whole or the rights and remedies of the Agent and the Lenders under this
Agreement and the other Credit Documents taken as a whole.
"Merger Agreement" shall mean the Agreement of Merger, dated as of
January 24, 1997, as amended, modified and supplemented from time to time.
"Multiemployer Plan" shall mean any "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate makes, is making or is obligated to make contributions or has made
or been obligated to make contributions.
"Net Cash Proceeds" shall mean (i) in the case of any Equity Issuance,
the aggregate cash payments received by the Borrower and its Subsidiaries less
reasonable and customary fees and expenses (including, as applicable,
accounting and legal expenses, selling and brokerage expenses and discounts,
and underwriting discounts and commissions) incurred (or reasonably estimated
by the Borrower to be payable) by the Borrower and its Subsidiaries in
connection therewith, (ii) in the case of any Casualty Event, the aggregate
cash proceeds of insurance, condemnation awards and other compensation received
by the Borrower and its Subsidiaries in respect of such Casualty Event net of
any permitted replacement repurchases and less (y) reasonable fees and expenses
incurred (or reasonably estimated by the Borrower to be payable) by the
Borrower and its Subsidiaries in connection therewith and (z) contractually
required repayments of Indebtedness to the extent secured by Liens on the
property subject to such Casualty Event and any income or transfer taxes paid
or reasonably estimated by the Borrower to be payable by the Borrower and its
Subsidiaries as a result of such Casualty Event, and (iii) in the case of any
Asset Disposition, the aggregate amount of all cash payments and the Fair
Market Value of any noncash consideration received by the Borrower and its
Subsidiaries in connection with such Asset Disposition less (x) reasonable fees
and expenses incurred (or reasonably estimated by the Borrower to be payable)
by the Borrower and its Subsidiaries in connection therewith, (y) Indebtedness
to the extent the amount thereof is secured by a Lien on the property that is
the subject of such Asset Disposition and the transferee of (or holder of the
Lien on) such Property requires that such Indebtedness be repaid as a condition
to such Asset Disposition, and (z) any income or transfer taxes paid or
reasonably estimated by the Borrower to be payable by the Borrower and its
Subsidiaries as a result of such Asset Disposition.
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"Notes" shall mean any or all of the Revolving Notes and the Swingline
Note.
"Notice of Conversion/Continuation" shall have the meaning given to
such term in SECTION 2.11(b).
"Notice of Prepayment" shall have the meaning given to such term in
SECTION 2.7(a).
"Notice of Revolving Borrowing" shall have the meaning given to such
term in SECTION 2.2(b).
"Notice of Swingline Borrowing" shall have the meaning given to such
term in SECTION 2.2(d).
"Obligations" shall mean all principal of and interest (including, to
the greatest extent permitted by law, post-petition interest) on the Loans, all
Reimbursement Obligations and all fees, expenses, indemnities and other
obligations owing, due or payable at any time by the Borrower to the Agent,
any Lender, the Issuing Lender or any other Person entitled thereto, under this
Agreement or any of the other Credit Documents.
"Original Credit Agreement" shall have the meaning given to such term
in the recitals hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"Participant" shall have the meaning given to such term in SECTION
11.7(d).
"Partners/B&W Agreements" shall mean (i) each of the Information
Systems Technology License and the Technical Services Agreement, dated as of
May 3, 1996, between Partners Healthcare System, Inc., a Massachusetts
not-for-profit corporation, Xxxxxxx and Women's Hospital, Inc., a Massachusetts
not-for-profit corporation, and the Borrower, and (ii) the Partners Affiliates
Assistance Agreement, dated as of May 3, 1996, between Partners Healthcare
System, Inc., a Massachusetts not-for-profit corporation, and its affiliates,
and the Borrower, in each case as amended, restated, modified or supplemented
in accordance with the terms thereof.
"Permitted Acquisition" shall have the meaning given to such term in
SECTION 8.6(vi).
"Permitted Liens" shall have the meaning given to such term in SECTION
8.4.
"Person" shall mean any corporation, association, joint venture,
partnership, limited liability company, organization, business, individual,
trust, government or agency or political subdivision thereof or any other legal
entity.
"Plan" shall mean any "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA that is subject to the provisions of Title IV
of ERISA (other than a Multiemployer Plan) and to which the Borrower or any
ERISA Affiliate may have any liability.
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"Preferred Stock" shall mean, as applied to the Capital Stock of any
corporation, Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation (including the Series B 8.5% Redeemable Preferred Stock, Series C
8.5% Redeemable Preferred Stock, Series D Convertible Preferred Stock, Series E
Convertible Preferred Stock, Series F Convertible Preferred Stock and the
Series G Convertible Preferred Stock of the Borrower issued pursuant to the
Preferred Stock Purchase Agreement and the Merger Agreement and the Series G
Convertible Preferred Stock Agreement).
"Preferred Stock Purchase Agreement" shall mean the Preferred Stock
and Warrant Purchase Agreement, dated January 24, 1997, as amended, between the
Borrower, the Equity Purchasers, General Atlantic Partners 28, L.P., a Delaware
limited partnership, and GAP Coinvestment Partners, L.P., First Union
Corporation, BT Investment Partners, Inc., Wilfam, Ltd, Xxxxx Xxxxxx Associates
IHS L.P., Xxxxxx Xxxxxxxxxx, St. Xxxx Venture Capital IV, LLC, ALLTEL
Information Services, Inc. and Xxxxx Karmonos, Jr. pursuant to which the Equity
Purchasers have agreed to purchase certain Preferred Stock and Warrants of the
Borrower, as amended, modified or supplemented from time to time in accordance
with the terms of this Agreement.
"Prepayment Account" shall have the meaning given to such term in
SECTION 2.6(f).
"Prepayment Event" shall have the meaning given to such term in
SECTION 2.6(g).
"Pro Forma Balance Sheet" shall have the meaning given to such term in
SECTION 5.11(c).
"Pro Rata Share" of any amount shall mean, with respect to any Lender
at any time, the product of such amount, multiplied by, such Lender's Revolving
Credit Percentage.
"Prohibited Transaction" shall mean any transaction described in (i)
Section 406 of ERISA that is not exempt by reason of Section 408 of ERISA or by
reason of a Department of Labor prohibited transaction individual or class
exemption or (ii) Section 4975(c) of the Internal Revenue Code that is not
exempt by reason of Section 4975(c)(2) or 4975(d) of the Internal Revenue Code.
"Projections" shall have the meaning given to such term in SECTION
5.11(d).
"Qualified Capital Stock" shall mean any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Public Offering" shall mean a registered initial public
offering of common stock of the Borrower, underwritten by a nationally
recognized underwriter and yielding proceeds of at least $60,000,000 (net of
underwriter's commission and expenses of the offering).
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"Refunded Swingline Loans" shall have the meaning given to such term
in SECTION 2.2(e).
"Register" shall have the meaning given to such term in SECTION
11.7(b).
"Registration Rights Agreement" shall mean the Second Amended and
Restated Registration Rights Agreement, dated January 28, 1998, as amended,
among the Borrower, the Equity Purchasers, Partners Healthcare System, Inc.,
General Atlantic Partners 28, L.P., General Atlantic Partners 38, L.P., General
Atlantic Partners 47, L.P., GAP Coinvestment Partners, L.P., Partners
Healthcare System, Inc., Wilfam, Ltd., Alltel Information Services, Inc., First
Union Corporation, BT Investment Partners, Inc., Xxxxx Xxxxxx Associates IHS,
L.P., Xxxxxx Xxxxxxxxxx, St. Xxxx Capital IV, L.L.C., Xxxxx Xxxxxxxx, Jr., the
Xxxxxxx Stockholders (as therein defined), Motorola, Inc. and Xxxxxx X. Xxxxxx,
as amended, modified or supplemented from time to time in accordance with the
terms of this Agreement and certain holders of its Capital Stock, as further
amended, modified or supplemented from time to time in accordance with the
terms of this Agreement.
"Regulations D, G, U and X" shall mean Regulations D, G, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"Reimbursement Obligation" shall have the meaning given to such term
in SECTION 3.4.
"Reportable Event" shall mean (i) any "reportable event" within the
meaning of Section 4043(c) of ERISA for which the 30-day notice under Section
4043(a) of ERISA has not been waived by the PBGC (including any failure to meet
the minimum funding standard of, or timely make any required installment under,
Section 412 of the Internal Revenue Code or Section 302 of ERISA, regardless of
the issuance of any waivers in accordance with Section 412(d) of the Internal
Revenue Code), (ii) any such "reportable event" subject to advance notice to
the PBGC under Section 4043(b)(3) of ERISA, (iii) any application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Internal Revenue Code, and (iv) a cessation of operations described in
Section 4062(e) of ERISA.
"Required Lenders" shall mean the Lenders holding outstanding
Revolving Loans and Revolving Credit Commitments (or, after the termination of
the Revolving Credit Commitments, outstanding Revolving Loans and Letter of
Credit Exposure) representing more than sixty-six and two-thirds percent
(66-2/3%) of the aggregate at such time of all outstanding Revolving Loans and
Revolving Credit Commitments (or, after the termination of the Revolving Credit
Commitments, the aggregate at such time of all outstanding Revolving Loans and
Letter of Credit Exposure).
"Requirement of Law" shall mean, with respect to any Person, the
charter, articles or certificate of organization or incorporation and bylaws or
other organizational or governing documents of such Person, and any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or determination
of any arbitrator or court or other Governmental Authority, in each case
applicable to or binding upon such Person or
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any of its property or to which such Person or any of its property is subject
or otherwise pertaining to any or all of the transactions contemplated by this
Agreement and the other Credit Documents.
"Reserve Requirement" shall mean, with respect to any Interest Period,
the reserve percentage (expressed as a decimal) in effect from time to time
during such Interest Period, as provided by the Federal Reserve Board, applied
for determining the maximum reserve requirements (including, without
limitation, basic, supplemental, marginal and emergency reserves) applicable to
First Union under Regulation D with respect to "Eurocurrency liabilities"
within the meaning of Regulation D, or under any similar or successor
regulation with respect to Eurocurrency liabilities or Eurocurrency funding.
"Revolving Credit Commitment" shall mean, with respect to any Lender
at any time, the amount set forth opposite such Lender's name on its signature
page hereto under the caption "Revolving Credit Commitment" or, if such Lender
has entered into one or more Assignment and Acceptances, the amount set forth
for such Lender at such time in the Register maintained by the Agent pursuant
to SECTION 11.7(b) as such Lender's "Revolving Credit Commitment," as such
amount may be reduced at or prior to such time pursuant to the terms hereof.
"Revolving Credit Commitment Fee" shall have the meaning given to such
term in SECTION 2.9(b).
"Revolving Credit Maturity Date" shall mean January 24, 2000;
provided, that if the Borrower successfully consummates a Qualified Public
Offering, "Revolving Credit Maturity Date" shall mean the third anniversary of
the date that such Qualified Public Offering is consummated.
"Revolving Credit Notes" shall mean the promissory notes of the
Borrower in substantially the form of EXHIBIT B, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Revolving Credit Percentage" shall mean, with respect to any Lender
at any time, a fraction (expressed as a percentage) the numerator of which is
the Revolving Credit Commitment of such Lender at such time and the denominator
of which is the Total Revolving Credit Commitment at such time; provided that
if the Revolving Credit Percentage of any Lender is to be determined after the
Revolving Credit Commitments have been terminated, then such Revolving Credit
Percentage shall be determined immediately prior (and without giving effect) to
such termination.
"Revolving Credit Termination Date" shall mean the Revolving Credit
Maturity Date or such earlier date of termination of the Revolving Credit
Commitments pursuant to SECTION 2.5 or SECTION 9.2.
"Revolving Loans" shall have the meaning assigned to such term in
SECTION 2.1.
"Security Documents" shall mean the Borrower Pledge and Security
Agreement, the Subsidiary Pledge and Security Agreement and all other pledge or
security agreements,
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mortgages, assignments or other similar agreements or instruments executed and
delivered by the Borrower or any of its Subsidiaries pursuant to SECTION 6.8 or
SECTION 6.9 or otherwise in connection with the transactions contemplated
hereby, in each case as amended, modified or supplemented from time to time.
"Series A Agreement" shall mean the Preferred Stock Purchase
Agreement, dated May 3, 1996, by and among General Atlantic Partners 28, L.P.,
GAP Coinvestment Partners, L.P., Xxxxx Xxxxxx Associates IHS L.P., Xxxxxx
Xxxxxxxxxx and the Borrower, as amended, modified or supplemented from time to
time in accordance with the terms of this Agreement.
Series G Preferred Stock Purchase Agreement, dated January 28, 1998,
by and between the Company and General Atlantic Partners 47, L.P. and GAP
Coinvestment Partners, L.P.
"Stated Amount" shall mean, with respect to any Letter of Credit at
any time, the aggregate amount available to be drawn thereunder at such time
(regardless of whether any conditions for drawing could then be met).
"Stockholders Agreement" shall mean the Second Amended and Restated
Stockholders Agreement, dated January 28, 1998, among the Borrower, the Equity
Purchasers, Partners Healthcare System, Inc., General Atlantic Partners 28,
L.P., General Atlantic Partners 38, L.P., General Atlantic Partners 47, L.P.,
GAP Coinvestment Partners, L.P. a Delaware limited partnership, Partners
Healthcare Systems, Inc., Wilfam, Ltd., Alltel Information Services, Inc.,
First Union Corporation, BT Investment Partners, Inc., Xxxxx Xxxxxx Associates
IHS, L.P., Xxxxxx Xxxxxxxxxx, St. Xxxx Venture Capital IV, L.L.C., Xxxxx
Xxxxxxxx, Jr., the Xxxxxxx Stockholders (as therein defined), Motorola, Inc., a
Delaware corporation, and Xxxxxx X. Xxxxxx, as amended, modified or
supplemented from time to time in accordance with the terms of this Agreement.
"Solvent" shall mean, as to any Person on any particular date, that
such Person (i) has capital reasonably sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage,
(ii) is able to pay its debts as they mature, (iii) owns property having a fair
saleable value greater than the amount required to pay its probable liability
on existing debts as they mature (including known reasonable contingencies and
contingencies that should be included in notes of the financial statements of
such Person pursuant to Generally Accepted Accounting Principles), and (iv)
does not intend to, and does not believe that it will, incur debts or probable
liabilities beyond its ability to pay such debts or liabilities as they mature.
"Subordinated Indebtedness" shall have the meaning given to such term
in SECTION 8.2(ii).
"Subordination Agreement" shall mean the Subordination Agreement,
dated as of the Amendment Effective Date, executed by the parties to the
Preferred Stock Purchase Agreement and the Series A Agreement, the Borrower,
and the Agent, as amended, restated, modified or supplemented from time to
time.
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"Subsidiary" shall mean, with respect to any Person, any corporation
or other Person of which fifty percent (50%) or more of the outstanding Capital
Stock having ordinary voting power to elect a majority of the board of
directors, board of managers or other governing body of such Person, is at the
time, directly or indirectly, owned or controlled by such Person and one or
more of its other Subsidiaries or a combination thereof (irrespective of
whether, at the time, securities of any other class or classes of any such
corporation or other Person shall or might have voting power by reason of the
happening of any contingency). When used without reference to a parent entity,
the term "Subsidiary" shall be deemed to refer to a Subsidiary of the Borrower.
"Subsidiary Guaranty" shall mean the amended and restated guaranty
agreement executed by the Wholly-Owned Subsidiaries of the Borrower in
substantially the form of EXHIBIT F, as amended, modified or supplemented from
time to time.
"Subsidiary Pledge and Security Agreement" shall mean the amended and
restated pledge and security agreement executed by the Subsidiaries of the
Borrower in favor of the Agent, in substantially the form of EXHIBIT H, as
amended, modified or supplemented from time to time.
"Swingline Commitment" shall mean $5,000,000 or, if less, the Total
Revolving Credit Commitments at the time of determination, as such amount may
be reduced at or prior to such time pursuant to the terms hereof.
"Swingline Lender" shall mean First Union in its capacity as maker of
Swingline Loans, and its successors in such capacity.
"Swingline Loans" shall have the meaning given to such term in SECTION
2.1(c).
"Swingline Maturity Date" shall mean the date that is five (5)
Business Days prior to the Revolving Credit Maturity Date.
"Swingline Note" shall mean the promissory note of the Borrower in
substantially the form of EXHIBIT B-2, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Total Revolving Credit Commitments" shall mean, at any time, the sum
of the Revolving Credit Commitments of all Lenders at such time.
"Transaction Documents" shall mean, collectively, this Agreement and
the other Credit Documents, the Merger Agreement, the Preferred Stock Purchase
Agreement, the Warrants, the Stockholders Agreement, the Registration Rights
Agreement, and all other agreements, instruments, certificates and documents
executed and delivered by the Borrower or any of its Subsidiaries in connection
with the transactions contemplated thereby, in each case as amended, modified
or supplemented from time to time in accordance with the terms of this
Agreement
"Type" shall have the meaning given to such term in SECTION 2.2(a).
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"Unfunded Pension Liability" shall mean, with respect to any Plan or
Multiemployer Plan, the excess of its benefit liabilities under Section
4001(a)(16) of ERISA over the current value of its assets, determined in
accordance with the applicable assumptions used for funding under Section 412
of the Code for the applicable plan year.
"Unutilized Revolving Credit Commitment" shall mean, with respect to
any Lender at any time, such Lender's Revolving Credit Commitment at such time,
in each case, less the sum of (i) the aggregate principal amount of all
Revolving Loans made by such Lender that are outstanding at such time and (ii)
such Lender's Pro Rata Share of all Letter of Credit Exposure at such time.
"Unutilized Swingline Commitment" shall mean, with respect to the
Swingline Lender at any time, the Swingline Commitment at such time less the
aggregate principal amount of all Swingline Loans that are outstanding at such
time.
"Warrants" shall mean the warrants to purchase Capital Stock of the
Borrower, issued in connection with the issuance of the Series B 8.5%
Cumulative Redeemable Preferred Stock, par value $.0l per share, of the
Borrower on the terms and conditions set forth in the Preferred Stock Purchase
Agreement, as amended, modified or supplemented from time to time in accordance
with the terms of this Agreement.
"Wholly Owned" shall mean, with respect to any Subsidiary of any
Person, that 100% of the outstanding Capital Stock of such Subsidiary is owned,
directly or indirectly, by such Person.
"Xxxxxx Employment Agreement" shall mean the employment agreement,
dated May 1, 1996, between the Borrower and Xxxxxx X. Xxxxxx, as amended,
restated, modified or supplemented from time to time in accordance with the
terms hereof.
1.2 Accounting Terms. Except as specifically provided otherwise
in this Agreement, all accounting terms used herein that are not specifically
defined shall have the meanings customarily given them, and all financial
computations hereunder shall be made, in accordance with Generally Accepted
Accounting Principles. Notwithstanding the foregoing, in the event that any
changes in Generally Accepted Accounting Principles after the date hereof are
required to be applied to the Borrower and would affect the computation of the
financial covenants contained in SECTIONS 7.1 through 7.6, as applicable, such
changes shall be followed only from and after the date this Agreement shall
have been amended to take into account any such changes.
1.3 Other Terms; Construction. Unless otherwise specified or
unless the context otherwise requires, all references herein to sections,
annexes, schedules and exhibits are references to sections, annexes, schedules
and exhibits in and to this Agreement, and all terms defined in this Agreement
shall have the defined meanings when used in any other Credit Document or any
certificate or other document made or delivered pursuant hereto. All
references herein to the Lenders or any of them shall be deemed to include the
Issuing Lender unless specifically provided otherwise or unless the context
otherwise requires.
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ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments; Loans.
(a) The aggregate principal amount of all Revolving Loans (as
defined in the Original Credit Agreement) made pursuant to the Original Credit
Agreement and outstanding on the Amendment Effective Date (collectively, the
"Existing Revolving Loans") is $16,277,988.00. On the Amendment Effective
Date, the aggregate outstanding principal amount of all Existing Revolving
Loans shall automatically be converted to an equivalent principal amount of
Revolving Loans hereunder, made by the Lenders ratably in accordance with their
respective Revolving Credit Commitments, and for all purposes of this Agreement
shall be deemed to be Revolving Loans hereunder and entitled to the benefits of
(and subject to the terms of) this Agreement and the other Credit Documents.
To the extent possible, all such Revolving Loans hereunder shall be of the same
Type, and shall have the same Interest Period, as the corresponding Existing
Revolving Loans. All Letters of Credit issued under the Original Credit
Agreement shall be deemed issued hereunder.
(b) Each Lender severally agrees, subject to and on the terms and
conditions of this Agreement, to make loans (each, a "Revolving Loan" and
collectively, the "Revolving Loans") to the Borrower, from time to time on any
Business Day during the period from the date hereof to the Revolving Credit
Termination Date in an amount not greater than the excess, if any, of its
Revolving Credit Commitment at such time over its outstanding Revolving Loans
and Letter of Credit Exposure at such time, provided that no Borrowing of
Revolving Loans shall be made if, immediately after giving effect thereto, the
sum of (x) the aggregate principal amount of Revolving Loans outstanding at
such time, (y) the aggregate Letter of Credit Exposure of all Lenders at such
time (excluding the Reimbursement Obligations that are repaid with the proceeds
of Revolving Loans made pursuant to such Borrowing) and (z) the aggregate
principal amount of Swingline Loans outstanding at such time (excluding the
aggregate amount of any Swingline Loans to be repaid with proceeds of Revolving
Loans made pursuant to such Borrowing) would exceed the Total Revolving Credit
Commitments at such time. Subject to and on the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans until
the Revolving Credit Termination Date.
(c) The Swingline Lender agrees, subject to and on the terms and
conditions of this Agreement, to make loans (each, a "Swingline Loan," and
collectively, the "Swingline Loans") to the Borrower, from time to time on any
Business Day during the period from the Amendment Effective Date to but not
including the Swingline Maturity Date (or, if earlier, the Revolving Credit
Termination Date), in an aggregate principal amount at any time outstanding not
exceeding the Swingline Commitment, notwithstanding that the aggregate
principal amount of Swingline Loans outstanding at any time, when added to the
aggregate principal amount of the Revolving Loans made by the Swingline Lender
in its capacity as a Lender outstanding at such time and its Letter of Credit
Exposure at such time, may exceed its Revolving Credit Commitment at such
time, but provided that no Borrowing of Swingline Loans shall be made (i) if,
immediately after giving effect thereto, the sum of (x) the aggregate principal
amount of Revolving Loans outstanding at such time, (y) the aggregate Letter of
Credit Exposure of all
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Lenders at such time and (z) the aggregate principal amount of Swingline Loans
outstanding at such time would exceed the Total Revolving Credit Commitments at
such time or (ii) if the Swingline Lender has received written notice from a
Lender that an Event of Default exists hereunder and requesting that the
Swingline Lender cease making Swingline Loans until the Event of Default has
been cured or waived by the Required Lenders. Subject to and on the terms and
conditions of this Agreement, the Borrower may borrow, repay (including by
means of a Borrowing of Revolving Loans pursuant to SECTION 2.2(e)) and
reborrow Swingline Loans.
2.2 Borrowings.
(a) The Revolving Loans shall, at the option of the Borrower and
subject to the terms and conditions of this Agreement, be either ABR Loans or
LIBOR Loans (each, a "Type" of Loan), provided that all Revolving Loans
comprising the same Borrowing shall, unless otherwise specifically provided
herein, be of the same Type. The Swingline Loans shall be made and maintained
as ABR Loans at all times.
(b) In order to make a Borrowing of Revolving Loans (other than
(x) Borrowings of Swingline Loans, which shall be made pursuant to SECTION
2.2(e), (y) Borrowings for the purpose of repaying Refunded Swingline Loans,
which shall be made pursuant to SECTION 2.2(e), and (z) Borrowings involving
continuations or conversions of outstanding Revolving Loans, which shall be
made pursuant to SECTION 2.11), the Borrower will give the Agent written notice
not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to
each such Borrowing to be comprised of LIBOR Loans and one (1) Business Day
prior to each such Borrowing to be comprised of ABR Loans; provided, however,
that a request for a Borrowing of any Revolving Loans to be made on the
Amendment Effective Date may, at the discretion of the Agent, be given later
than the times specified hereinabove. Each such notice (each, a "Notice of
Revolving Borrowing") shall be irrevocable, shall be given in the form of
EXHIBIT A-1 and shall specify (x) the aggregate principal amount and initial
Type of the Revolving Loans to be made pursuant to such Borrowing, (y) in the
case of a Borrowing of LIBOR Loans, the initial Interest Period to be
applicable thereto, and (z) the requested Borrowing Date, which shall be a
Business Day. Upon its receipt of a Notice of Revolving Borrowing, the Agent
will promptly notify each Lender of the proposed Borrowing. Notwithstanding
anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing of
Revolving Loans that is comprised of ABR Loans shall not be less than
$500,000 or, if greater, an integral multiple of $100,000 in excess
thereof (or, if less, in the amount of the aggregate Unutilized
Revolving Credit Commitments), and the aggregate principal amount of
each Borrowing of Revolving Loans that is comprised of LIBOR Loans
shall not be less than $1,000,000 or, if greater, an integral
multiple of $500,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the
Type of Revolving Loans comprising a Borrowing, the Borrower shall be
deemed to have requested a Borrowing comprised of ABR Loans; and
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(iii) if the Borrower shall have failed to select the
duration of the Interest Period to be applicable to any Borrowing of
LIBOR Loans, then the Borrower shall be deemed to have selected an
Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested
Borrowing Date, each Lender will make available to the Agent for the account of
the Borrower at its office referred to in SECTION 11.5 (or at such other
location as the Agent may designate) an amount, in Dollars and in immediately
available funds, equal to the amount of the Revolving Loan or Revolving Loans
to be made by such Lender. To the extent the relevant Lenders have made such
amounts available to the Agent as provided hereinabove, the Agent will make the
aggregate of such amounts available to the Borrower by 3:30 p.m., Charlotte
time, on the Borrowing Date in accordance with SECTION 2.3(a) and in like funds
as received by the Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Borrower
will give the Agent and the Swingline Lender written notice not later than
11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice
(each, a "Notice of Swingline Borrowing") shall be irrevocable, shall be given
in the form of EXHIBIT A-2 and shall specify (i) the principal amount of the
Swingline Loan to be made pursuant to such Borrowing (which shall not be less
than $250,000 and, if greater, shall be in an integral multiple of $100,000 in
excess thereof (or, if less, in the amount of the Unutilized Swingline
Commitment)) and (ii) the requested Borrowing Date, which shall be a Business
Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing
Date, the Swingline Lender will make available to the Agent at its office
referred to in SECTION 11.5 (or at such other location as the Agent may
designate) an amount, in Dollars and in immediately available funds, equal to
the amount of the requested Swingline Loan. To the extent the Swingline Lender
has made such amount available to the Agent as provided hereinabove, the Agent
will make such amount available to the Borrower in accordance with SECTION
2.3(a) and in like funds as received by the Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline
Lender may at any time (whether or not an Event of Default has occurred and is
continuing) in its sole and absolute discretion, and is hereby authorized and
empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made
for the purpose of repaying such Swingline Loans by delivering to the Agent (if
the Agent is different from the Swingline Lender) and each other Lender (on
behalf of, and with a copy to, the Borrower), not later than 11:00 a.m.,
Charlotte time, one (1) Business Day prior to the proposed Borrowing Date
therefor, a notice (which shall be deemed to be a Notice of Borrowing given by
the Borrower) requesting the Lenders to make Revolving Loans (which shall be
made initially as ABR Loans) on such Borrowing Date in an aggregate amount
equal to the amount of such Swingline Loans (the "Refunded Swingline Loans")
outstanding on the date such notice is given that the Swingline Lender requests
to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested
Borrowing Date, each Lender (other than the Swingline Lender) will make
available to the Agent at its office referred to in SECTION 11.5 (or at such
other location as the Agent may designate) an amount, in Dollars and in
immediately available funds, equal to the amount of the Revolving Loan to be
made by such Lender. To the extent the Lenders have made such amounts
available to the Agent as provided hereinabove, the Agent will make the
aggregate of such amounts available to the Swingline Lender in like funds as
received by the Agent, which shall apply such amounts in repayment of the
Refunded Swingline Loans. Notwithstanding any provision of this Agreement to
the
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contrary, on the relevant Borrowing Date, the Refunded Swingline Loans
(including the Swingline Lender's ratable share thereof, in its capacity as a
Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans
made as provided above (including a Revolving Loan deemed to have been made by
the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid
shall no longer be outstanding as Swingline Loans but shall be outstanding as
Revolving Loans. If any portion of any such amount repaid (or deemed to be
repaid) to the Swingline Lender shall be recovered by or on behalf of the
Borrower from the Swingline Lender in any bankruptcy, insolvency or similar
proceeding or otherwise, the loss of the amount so recovered shall be shared
ratably among all the Lenders in the manner contemplated by SECTION 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar
proceeding with respect to the Borrower, Revolving Loans are not made pursuant
to subsection (e) above in an amount sufficient to repay any amounts owed to
the Swingline Lender in respect of any outstanding Swingline Loans, or if the
Swingline Lender is otherwise precluded for any reason from giving a notice on
behalf of the Borrower as provided for hereinabove, the Swingline Lender shall
be deemed to have sold without recourse, representation or warranty, and each
Lender shall be deemed to have purchased and hereby agrees to purchase, a
participation in such outstanding Swingline Loans in an amount equal to its
ratable share (based on its Pro Rata Share of the Total Revolving Credit
Commitments at such time) of the unpaid amount thereof together with accrued
interest thereon. Upon one (1) Business Day's prior notice from the Swingline
Lender, each Lender (other than the Swingline Lender) will make available to
the Agent at its office referred to in SECTION 11.5 (or at such other location
as the Agent may designate) an amount, in Dollars and in immediately available
funds, equal to its respective participation. To the extent the Lenders have
made such amounts available to the Agent as provided hereinabove, the Agent
will make the aggregate of such amounts available to the Swingline Lender in
like funds as received by the Agent. In the event any such Lender fails to
make available to the Agent the amount of such Lender's participation as
provided in this subsection (f), the Swingline Lender shall be entitled to
recover such amount on demand from such Lender, together with interest thereon
for each day from the date such amount is required to be made available for the
account of the Swingline Lender until the date such amount is made available to
the Swingline Lender at the Federal Funds Rate for the first three (3) Business
Days and thereafter at the Adjusted Alternate Base Rate applicable to Revolving
Loans. Promptly following its receipt of any payment by or on behalf of the
Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each
Lender that has acquired a participation therein such Lender's ratable share of
such payment.
(g) Notwithstanding any provision of this Agreement to the
contrary, the obligation of each Lender (other than the Swingline Lender) to
make Revolving Loans for the purpose of repaying any Refunded Swingline Loans
pursuant to subsection (e) above and each such Lender's obligation to purchase
a participation in any unpaid Swingline Loans pursuant to subsection (f) above
shall be absolute and unconditional and shall not be affected by any
circumstance or event whatsoever, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right that such Lender may
have against the Swingline Lender, the Agent, the Borrower or any other Person
for any reason whatsoever, (ii) the occurrence or continuance of any Default or
Event of Default, (iii) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of the
Borrower or any of its Subsidiaries, or (iv) any breach of this Agreement by
any party hereto.
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2.3 Disbursements; Funding Reliance; Domicile of Loans.
(a) The Borrower hereby authorizes the Agent to disburse the
proceeds of each Borrowing in accordance with the terms of any written
instructions from any of the Authorized Officers, provided that the Agent shall
not be obligated under any circumstances to forward amounts to any account not
listed in an Account Designation Letter. The Borrower may at any time deliver
to the Agent an Account Designation Letter listing any additional accounts or
deleting any accounts listed in a previous Account Designation Letter.
(b) Unless the Agent has received, prior to 1:00 p.m., Charlotte
time, on the relevant Borrowing Date, written notice from a Lender that such
Lender will not make available to the Agent such Lender's ratable portion, if
any, of the relevant Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent in immediately available funds on such
Borrowing Date in accordance with the applicable provisions of SECTION 2.2, and
the Agent may, in reliance upon such assumption, but shall not be obligated to,
make a corresponding amount available to the Borrower on such Borrowing Date.
If and to the extent that such Lender shall not have made such portion
available to the Agent, and the Agent shall have made such corresponding amount
available to the Borrower, such Lender agrees to pay to the Agent forthwith on
demand such corresponding amount, together with interest thereon for each day
from the date such amount is made available to the Borrower until the date
such amount is repaid to the Agent at the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount within three (3) Business
Days after the Borrowing Date, such amount shall constitute such Lender's
Revolving Loan as part of such Borrowing for purposes of this Agreement. If
such Lender does not make such amount available to the Agent within three (3)
Business Days after the Borrowing Date, the Agent shall promptly notify the
Borrower thereof, and the Borrower (to the extent the proceeds of the
corresponding Revolving Loan amount have been made available by the Agent, on
behalf of such Lender, to the Borrower) will, upon such notice, repay to the
Agent an amount equal to such amount together with interest thereon at the rate
applicable to the Revolving Loans disbursed on the Borrowing Date, from the
date such amount is made available to the Borrower until such amount is repaid
to the Agent. The failure of any Lender to make any Revolving Loan required to
be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Revolving Loan as part of such
Borrowing, or relieve the Lender who failed to make such amount available of
its obligation to subsequently repay such amount, or relieve any Lender
(including the Lender that failed to make such amount available) of its
obligation, if any, hereunder to make its ratable portion of any Borrowing
available as part of any subsequent Revolving Loans, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Loan to
be made by such other Lender as part of any Borrowing.
(c) Each Lender may, at its option, make and maintain any
Revolving Loan at, to or for the account of any of its Lending Offices,
provided that any exercise of such option shall not affect the obligation of
the Borrower to repay such Revolving Loan to or for the account of such Lender
in accordance with the terms of this Agreement.
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2.4 Notes.
(a) The Revolving Loans made by each Lender shall be evidenced by
a Revolving Credit Note appropriately completed in substantially the form of
EXHIBIT B-1. The Swingline Loans made by the Swingline Lender shall be
evidenced by a Swingline Note appropriately completed in substantially the form
of EXHIBIT B-2.
(b) Each Revolving Credit Note issued to a Lender shall (i) be
executed by the Borrower, (ii) be payable to the order of such Lender, (iii) be
dated as of the Amendment Effective Date, (iv) be in a stated principal amount
equal to such Lender's Revolving Credit Commitment, (v) bear interest in
accordance with the provisions of SECTION 2.8, as the same may be applicable to
the Revolving Loans made by such Lender from time to time, and (vi) be entitled
to all of the benefits of this Agreement and the other Credit Documents and
subject to the provisions hereof and thereof. The amount of principal owing on
each Revolving Credit Note at any given time shall be the aggregate amount of
all Revolving Loans made under such Revolving Credit Note, less all payments of
principal theretofore made by the Borrower and applied thereto in accordance
with the terms of this Agreement.
(c) Each Lender (or Swingline Lender, as applicable) will record
on its internal records the amount and Type of each Revolving Loan, or
Swingline Loan, as applicable, made by it and each payment received by it in
respect thereof and will, in the event of any transfer of any of its Revolving
Credit Notes or Swingline Notes, as applicable, either endorse on the reverse
side thereof or on a schedule attached thereto (or any continuation thereof)
the outstanding principal amount and Type of the Revolving Loans, or Swingline
Loan, as applicable, evidenced thereby as of the date of transfer or provide
such information on a schedule to the Assignment and Acceptance relating to
such transfer; provided, however, that the failure of any Lender (or Swingline
Lender, as applicable) to make any such recordation or provide any such
information, or any error therein, shall not affect the Borrower's obligations
under this Agreement or the Revolving Credit Notes or the Swingline Note.
(d) The Swingline Note shall (i) be executed by the Borrower, (ii)
be payable to the order of the Swingline Lender, (iii) be dated as of the
Amendment Effective Date, (iv) be in a stated principal amount equal to the
Swingline Commitment, (v) bear interest in accordance with the provisions of
SECTION 2.8, as the same may be applicable from time to time to the Swingline
Loans, and (vi) be entitled to all of the benefits of this Agreement and the
other Credit Documents and subject to the provisions hereof and thereof. The
amount of principal owing on each Swingline Note at any given time shall be the
aggregate amount of all Swingline Loans made under such Swingline Note, less
all payments of principal theretofore made by the Borrower and applied thereto
in accordance with the terms of this Agreement.
2.5 Termination and Reduction of Revolving Credit Commitments and
Swingline Commitment.
(a) The Revolving Credit Commitments of each Lender shall be
automatically and permanently terminated on the Revolving Credit Termination
Date. The Swingline Commitment
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shall be automatically and permanently terminated on the Swingline Maturity
Date, unless sooner terminated pursuant to any other provision of this Section
or SECTION 9.2.
(b) The Revolving Credit Commitments shall, on each date upon
which a prepayment of the Loans is required under any provision of SECTION 2.6
(exclusive of any such prepayments under SECTION 2.6(c)(ii) resulting from a
Qualified Public Offering), be automatically and permanently reduced by the
amount, if any, by the amount of such required prepayment.
(c) At any time and from time to time after the date hereof, upon
not less than five (5) Business Days' prior written notice to the Agent (and,
in the case of a termination or reduction of the Unutilized Swingline
Commitment, the Swingline Lender), the Borrower may terminate in whole or
reduce in part the aggregate Unutilized Revolving Credit Commitments or the
Unutilized Swingline Commitment, provided that any such partial reduction
shall be in an aggregate amount of not less than $500,000 or, if greater, an
integral multiple of $100,000 in excess thereof ($250,000 and $100,000,
respectively, in the case of the Unutilized Swingline Commitment). The amount
of any termination or reduction made under this subsection (c) may not
thereafter be reinstated.
(d) Each reduction of the Revolving Credit Commitments pursuant to
this Section shall be applied ratably among the Lenders according to their
respective Revolving Credit Commitments. Notwithstanding any provision of this
Agreement to the contrary, any reduction of the Revolving Credit Commitments
pursuant to this Section that has the effect of reducing the aggregate
Revolving Credit Commitments to an amount less than the amount of the Swingline
Commitment at such time shall result in an automatic corresponding reduction of
the Swingline Commitment to the amount of the aggregate Revolving Credit
Commitments (as so reduced), without any further action on the part of the
Borrower or the Swingline Lender.
2.6 Mandatory Repayments and Prepayments.
(a) Except to the extent due or paid sooner pursuant to the
provisions of this Agreement, (i) the aggregate outstanding principal of the
Revolving Loans shall be due and payable in full on the Revolving Credit
Maturity Date, and (ii) the aggregate outstanding principal of the Swingline
Loans shall be due and payable in full on the Swingline Maturity Date.
(b) In the event that at any time the sum of (x) the aggregate
principal amount of Revolving Loans outstanding at such time, (y) the aggregate
Letter of Credit Exposure of all Lenders at such time (excluding the
Reimbursement Obligations that are prepaid with the proceeds of Revolving Loans
made on the date of determination) and (z) the aggregate principal amount of
Swingline Loans outstanding at such time (excluding the aggregate amount of any
Swingline Loans to be repaid with proceeds of Revolving Loans made on the date
of determination) shall exceed the Total Revolving Credit Commitments at such
time (after giving effect to any concurrent termination or reduction thereof),
the Borrower will immediately prepay the outstanding principal amount of the
Swingline Loans and, to the extent of any excess remaining after prepayment in
full of outstanding Swingline Loans, the Borrower will immediately prepay the
outstanding principal amount of the Revolving Loans in the amount of such
excess; provided that, to the extent such excess amount is greater than the
aggregate
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principal amount of Revolving Loans outstanding immediately prior to the
application of such prepayment, the amount so prepaid in excess of such
aggregate principal amount of Revolving Loans shall be retained by the Agent
and held in the Cash Collateral Account as cover for the Letter of Credit
Exposure of the Lenders, as more particularly described in SECTION 3.8, and
thereupon such cash shall be deemed to reduce the aggregate Letter of Credit
Exposure by an equivalent amount.
(c) Promptly upon (and in any event not later than two (2)
Business Days after) its receipt thereof, in the case of an Equity Issuance
(other than a Qualified Public Offering) the Borrower will prepay the
outstanding principal amount of the Revolving Loans in an amount equal to the
lesser of (v) 80% of the Net Cash Proceeds from any Equity Issuance (other than
a Qualified Public Offering) and (w) the total outstanding Revolving Loans and
Swingline Loans. Promptly upon (and in any event not later than two (2)
Business Days after) its receipt thereof, in the case of a Qualified Public
Offering, the Borrower will prepay the outstanding principal amount of the
Revolving Loans in an amount equal to the lesser of (x) 100% of the Net Cash
Proceeds from a Qualified Public Offering or (y) the total outstanding
Revolving Loans and Swingline Loans, and will deliver to the Agent,
concurrently with such prepayment, a certificate signed by a Financial Officer
in form and substance satisfactory to the Agent and setting forth the
calculation of such Net Cash Proceeds.
(d) Not later than 180 days after its receipt of any proceeds of
insurance, condemnation award or other compensation in respect of any Casualty
Event (a "Casualty Event Payment Date"), the Borrower will prepay the
outstanding principal amount of the Loans in an amount equal to 100% of the Net
Cash Proceeds from such Casualty Event less any amounts theretofore applied to
the repair or replacement of property subject to such Casualty Event) and will
deliver to the Agent, concurrently with such prepayment, a certificate signed
by a Financial Officer in form and substance satisfactory to the Agent and
setting forth the calculation of such Net Cash Proceeds; provided, however,
that, notwithstanding the foregoing, (i) upon the Borrower's determination not
to repair or replace any property subject to such casualty, the Borrower may,
prior to such Casualty Event Payment Date, use such proceeds (or notify the
Agent to apply any proceeds that are held by the Agent) to make a voluntary
prepayment pursuant to SECTION 2.7, (ii) nothing in this subsection shall be
deemed to limit or otherwise affect any right of the Agent herein or in any of
the other Credit Documents to receive and hold such proceeds as loss payee and
to disburse the same to the Borrower upon the terms hereof or thereof, or any
obligation of the Borrower and each of its Subsidiaries herein or in any of the
other Credit Documents to remit any such proceeds to the Agent upon its receipt
thereof, and (iii) any and all such proceeds received or held by the Agent or
the Borrower or any of its Subsidiaries during the continuance of an Event of
Default (regardless of any proposed or actual use thereof for repair or
replacement) shall be applied to prepay the outstanding principal amount of the
Loans.
(e) Promptly upon (and in any event not later than five (5)
Business Days after) its receipt thereof, the Borrower will prepay the
outstanding principal amount of the Loans in an amount equal to 85% of the Net
Cash Proceeds from any Asset Disposition and will deliver to the Agent,
concurrently with such prepayment, a certificate signed by a Financial Officer
in form and substance satisfactory to the Agent and setting forth the
calculation of such Net Cash
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Proceeds. Notwithstanding the foregoing, nothing in this subsection shall be
deemed to permit any Asset Disposition not expressly permitted under SECTION
8.5.
(f) Promptly upon (and in any event not later than two (2)
Business Days after) its receipt thereof, the Borrower will prepay the
outstanding principal amount of the Loans in an amount equal to 100% of any
proceeds of the key-man life insurance required under SECTION 6.6(b).
(g) Each prepayment of the Loans made pursuant to subsections (c)
through (f) above (each, a "Prepayment Event") shall be applied (i) first, to
reduce the outstanding principal amount of the Swingline Loans, with a
corresponding reduction to the Total Revolving Credit Commitments as provided
in SECTION 2.5(b), (ii) second, to the extent of any excess remaining after
application as provided in clause (i) above, to reduce the outstanding
principal amount of the Revolving Loans, with a corresponding reduction to the
Revolving Credit Commitments to the extent provided in SECTION 2.5(b), (iii)
third, to the extent of any excess remaining after application as provided in
clauses (i) and (ii) above, to pay any outstanding Reimbursement Obligations,
and (iv) fourth, to the extent of any excess remaining after application as
provided in the preceding clauses (i) through (iii) above, to cash
collateralize Letter of Credit Exposure (in an aggregate amount equal to the
Stated Amount of any outstanding Letters of Credit) pursuant to SECTION 3.8
and, thereafter, any remaining amounts shall be returned to the Borrower. Each
such prepayment shall be applied ratably among the Lenders holding the Loans
being prepaid, in proportion to the principal amount held by each, and shall be
applied first to prepay all ABR Loans before any LIBOR Loans are prepaid. Any
amounts remaining after each application to ABR Loans shall, at the option of
the Borrower, be applied to prepay LIBOR Loans immediately and/or shall be
deposited in a separate Prepayment Account (as defined below) for the LIBOR
Loans. The Agent shall apply any cash deposited in the Prepayment Account to
prepay LIBOR Loans on the last day of their respective Interest Periods (or, at
the direction of the Borrower, on any earlier date), until all outstanding
LIBOR Loans have been prepaid or until all the allocable cash on deposit in the
Prepayment Account has been exhausted. For purposes of this Agreement, the
term "Prepayment Account" shall mean an account established by the Borrower
with the Agent and over which the Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal for application in
accordance with this SECTION 2.6(g). The Agent will, at the request of the
Borrower, invest amounts on deposit in the Prepayment Account in Cash
Equivalents that mature prior to the last day of the applicable Interest
Periods of the LIBOR Loans to be prepaid; provided, however, that (i) the Agent
shall not be required to make any investment that, in its sole judgment, would
require or cause the Agent to be in, or would result in any, violation of any
law, rule or regulation and (ii) if a Default or an Event of Default shall have
occurred and be continuing, the Agent may in its sole discretion, but shall not
be required to, invest such amounts in Cash Equivalents requested by the
Borrower. The Borrower shall indemnify the Agent for any losses relating to
the investments so that the amount available to prepay LIBOR Loans on the last
day of the applicable Interest Periods is not less than the amount that would
have been available had no investments been made pursuant thereto. Other than
any interest earned on such investments, the Prepayment Accounts shall not bear
interest. Interest or profits, if any, on such investments shall be deposited
in the applicable Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Loans has been accelerated pursuant to ARTICLE
IX, the Agent may, in its sole discretion, apply all amounts on
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deposit in the Prepayment Account to satisfy any of the Obligations (provided
that such amounts shall be applied first to prepay all outstanding ABR Loans).
The Borrower hereby pledges and assigns to the Agent, for its benefit and the
benefit of the Lenders, each Prepayment Account established hereunder to secure
the Obligations.
(h) In the event and on each occasion that a Prepayment Event
occurs, the Borrower shall give to the Agent and the Lenders at least five (5)
Business Days' prior written notice of such event (to the extent practicable),
the amount of Loans anticipated to be prepaid and the application of such
prepayment as set forth in subsection (g) above.
(i) Each payment or prepayment of a LIBOR Loan made pursuant to
the provisions of this SECTION 2.6 on a day other than the last day of the
Interest Period applicable thereto shall be made together with all amounts
required under SECTION 2.18 to be paid as a consequence thereof.
2.7 Voluntary Prepayments.
(a) At any time and from time to time, the Borrower shall have the
right to prepay the Loans, in whole or in part, without premium or penalty
(except as provided in clause (iii) below), upon written notice to the Agent in
the form of EXHIBIT C (each, a "Notice of Prepayment"), given not later than
11:00 a.m., Charlotte time, three (3) Business Days prior to each intended
prepayment, provided that (i) each partial prepayment shall be in an aggregate
principal amount of not less than $500,000 ($250,000 in the case of Swingline
Loans) or, if greater, an integral multiple of $100,000 in excess thereof, (ii)
no partial prepayment of LIBOR Loans made pursuant to any single Borrowing
shall reduce the aggregate outstanding principal amount of the remaining LIBOR
Loans under such Borrowing to less than $1,000,000 or to any greater amount not
an integral multiple of $500,000 in excess thereof, and (iii) unless made
together with all amounts required under SECTION 2.18 to be paid as a
consequence of such prepayment, a prepayment of a LIBOR Loan may be made only
on the last day of the Interest Period applicable thereto. Each such Notice of
Prepayment shall specify the proposed date of such prepayment and the aggregate
principal amount and Type of Loans to be prepaid (and, in the case of LIBOR
Loans, the Interest Period of the Borrowing pursuant to which made) and shall
be irrevocable and shall bind the Borrower to make such prepayment on the terms
specified therein. Revolving Loans and Swingline Loans prepaid pursuant to
this subsection (a) may be reborrowed, subject to the terms and conditions of
this Agreement.
(b) Each payment of Loans made pursuant to subsection (a) above
shall be applied to such Loans outstanding as directed by the Borrower in the
related Notice of Prepayment. Each prepayment of the Loans pursuant to this
SECTION 2.7 shall be applied ratably among the Lenders holding the Loans being
prepaid in accordance with this subsection (b), in proportion to the principal
amount held by each.
2.8 Interest.
(a) The Borrower will pay interest in respect of the unpaid
principal amount of each Loan, from the date of Borrowing thereof until such
principal amount shall be paid in full, (i) at
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the Adjusted Alternate Base Rate, as in effect from time to time during such
periods as such Loan is an ABR Loan, and (ii) at the Adjusted LIBOR Rate, as in
effect from time to time during such periods as such Loan is a LIBOR Loan.
(b) Upon the occurrence and during the continuance of an Event of
Default as the result of failure by the Borrower to pay any principal of or
interest on any Loan, any fees or other amount hereunder when due (whether at
maturity, pursuant to acceleration or otherwise), and (at the election of the
Required Lenders) upon the occurrence and during the continuance of any other
Event of Default, all outstanding principal amounts of the Loans and, to the
greatest extent permitted by law, all interest accrued on the Loans and all
other accrued and outstanding fees and other amounts hereunder, shall bear
interest at a rate per annum equal to the interest rate applicable from time to
time thereafter to such Loans (whether the Adjusted Alternate Base Rate or the
Adjusted LIBOR Rate) plus 2% (or, in the case of fees and other amounts, at the
Adjusted Alternate Base Rate applicable to Revolving Loans plus 2%), and, in
each case, such default interest shall be payable on demand. To the greatest
extent permitted by law, interest shall continue to accrue after the filing by
or against the Borrower of any petition seeking any relief in bankruptcy or
under any law pertaining to insolvency or debtor relief.
(c) Accrued (and theretofore unpaid) interest shall be payable as
follows:
(i) in respect of each ABR Loan (including any ABR Loan
or portion thereof paid or prepaid pursuant to the provisions of
SECTION 2.6, except as provided hereinbelow), in arrears on the last
Business Day of each calendar quarter, beginning with the first such
day to occur after the Amendment Effective Date; provided, that in the
event the Loans are repaid or prepaid in full and the Revolving Credit
Commitments and the Swingline Commitment have been terminated, then
accrued interest in respect of all ABR Loans shall be payable together
with such repayment or prepayment on the date thereof,
(ii) in respect of each LIBOR Loan (including any LIBOR
Loan or portion thereof paid or prepaid pursuant to the provisions of
SECTION 2.6, except as provided hereinbelow), in arrears on the last
Business Day of the Interest Period applicable thereto (subject to the
provisions of clause (iv) in SECTION 2.10); provided, that in the
event all LIBOR Loans made pursuant to a single Borrowing are repaid
or prepaid in full, then accrued interest in respect of such LIBOR
Loans shall be payable together with such repayment or prepayment on
the date thereof; and
(iii) in respect of any Loan, at maturity (whether pursuant
to acceleration or otherwise) and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Credit
Document shall be deemed to establish or require the payment of interest to any
Lender at a rate in excess of the maximum rate permitted by applicable law. If
the amount of interest payable for the account of any Lender on any interest
payment date would exceed the maximum amount permitted by applicable law to be
charged by such Lender, the amount of interest payable for its account on such
interest payment date shall be automatically reduced to such maximum
permissible amount.
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In the event of any such reduction affecting any Lender, if from time to time
thereafter the amount of interest payable for the account of such Lender on any
interest payment date would be less than the maximum amount permitted by
applicable law to be charged by such Lender, then the amount of interest
payable for its account on such subsequent interest payment date shall be
automatically increased to such maximum permissible amount, provided that at no
time shall the aggregate amount by which interest paid for the account of any
Lender has been increased pursuant to this sentence exceed the aggregate amount
by which interest paid for its account has theretofore been reduced pursuant to
the previous sentence.
(e) The Agent shall promptly notify the Borrower and the Lenders
upon determining the interest rate for each Borrowing of LIBOR Loans after its
receipt of the relevant Notice of Revolving Borrowing or Notice of
Conversion/Continuation, and upon each change in the Alternate Base Rate;
provided, however, that the failure of the Agent to provide the Borrower or the
Lenders with any such notice shall neither affect any obligations of the
Borrower or the Lenders hereunder nor result in any liability on the part of
the Agent to the Borrower or any Lender. Each such determination (including
each determination of the Reserve Requirement) shall, absent manifest error, be
conclusive and binding on all parties hereto.
2.9 Fees. The Borrower agrees to pay:
(a) To First Union for its own account, on the date of execution
of this Agreement, the fee described in the second paragraph of the Fee Letter,
in the amount set forth therein as due and payable on such date;
(b) To the Agent, for the account of each Lender, a commitment fee
(the "Revolving Credit Commitment Fee") for the period from the date of this
Agreement to the Revolving Credit Termination Date, at a per annum rate equal
to 0.375% on such Lender's average daily aggregate Unutilized Revolving Credit
Commitment, payable in arrears (i) on the last Business Day of each calendar
quarter, beginning with the first such day to occur after the Amendment
Effective Date, and (ii) on the Revolving Credit Termination Date;
(c) To the Agent, for the account of each Lender with a Revolving
Credit Commitment, a letter of credit fee for each calendar quarter in respect
of all Letters of Credit outstanding during such quarter, at a per annum rate
equal to the Applicable Margin Percentage from time to time during such quarter
for Revolving Loans that are maintained as LIBOR Loans, on such Lender's
ratable share (based on the proportion that its Revolving Credit Commitment
bears to the aggregate Revolving Credit Commitments) of the daily average
aggregate Stated Amount of such Letters of Credit, payable in arrears (i) on
the last Business Day of each calendar quarter, beginning with the first such
day to occur after the Amendment Effective Date, and (ii) on the later of the
Revolving Credit Termination Date and the date of termination of the last
outstanding Letter of Credit;
(d) To the Issuing Lender, for its own account, a facing fee for
each calendar quarter in respect of all Letters of Credit outstanding during
such quarter, at a per annum rate of 0.125% on the daily average aggregate
Stated Amount of such Letters of Credit, payable in arrears (i) on the last
Business Day of each calendar quarter, beginning with the first such day to
occur after
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the Amendment Effective Date, and (ii) on the later of the Revolving Credit
Termination Date and the date of termination of the last outstanding Letter of
Credit; and
(e) To the Agent, for its own account, the annual administrative
fee described in the third paragraph of the Fee Letter, on the terms and
conditions, in the amount and at the times set forth therein.
2.10 Interest Periods. Concurrently with the giving of (y) a
Notice of Revolving Borrowing or (z) a Notice of Conversion/Continuation in
respect of any Borrowing comprised of ABR Loans to be converted into, or LIBOR
Loans to be continued as, LIBOR Loans, the Borrower shall have the right to
elect, pursuant to such notice, the interest period (each, an "Interest
Period") to be applicable to such LIBOR Loans, which Interest Period shall, at
the option of the Borrower, be a one, two or three-month period; provided,
however, that:
(i) all LIBOR Loans comprising a single Borrowing shall
at all times have the same Interest Period;
(ii) the initial Interest Period for any LIBOR Loan shall
commence on the date of the Borrowing of such LIBOR Loan (including
the date of any continuation of, or conversion into, such LIBOR Loan),
and each successive Interest Period applicable to such LIBOR Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) LIBOR Loans may not be outstanding under more than
six (6) separate Interest Periods at any one time (for which purpose
Interest Periods shall be deemed to be separate even if they are
coterminous);
(iv) if any Interest Period otherwise would expire on a
day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day unless such next succeeding Business
Day falls in another calendar month, in which case such Interest
Period shall expire on the next preceding Business Day;
(v) the Borrower may not select any Interest Period that
begins prior to the third (3rd) Business Day after the Amendment
Effective Date or that expires after the Revolving Credit Maturity
Date, with respect to Revolving Loans that are to be maintained as
LIBOR Loans;
(vi) if any Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month during
which such Interest Period would otherwise expire, such Interest
Period shall expire on the last Business Day of such calendar month;
and
(vii) if, upon the expiration of any Interest Period
applicable to a Borrowing of LIBOR Loans, the Borrower shall have
failed to elect a new Interest Period to be applicable to such LIBOR
Loans, then the Borrower shall be deemed to have elected to
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convert such LIBOR Loans into ABR Loans as of the expiration of the
then current Interest Period applicable thereto.
2.11 Conversions and Continuations.
(a) The Borrower shall have the right, on any Business Day
occurring on or after the Amendment Effective Date, to elect (i) to convert all
or a portion of the outstanding principal amount of any ABR Loans into LIBOR
Loans, or to convert any LIBOR Loans the Interest Periods for which end on the
same day into ABR Loans, or (ii) to continue all or a portion of the
outstanding principal amount of any LIBOR Loans the Interest Periods for which
end on the same day for an additional Interest Period, provided that (x) any
such conversion of LIBOR Loans into ABR Loans shall involve an aggregate
principal amount of not less than $500,000 or, if greater, an integral multiple
of $100,000 thereof; any such conversion of ABR Loans into, or continuation of,
LIBOR Loans shall involve an aggregate principal amount of not less than
$1,000,000 or, if greater, an integral multiple of $500,000 thereof, and no
partial conversion of LIBOR Loans made pursuant to a single Borrowing shall
reduce the outstanding principal amount of such LIBOR Loans to less than
$1,000,000 or to any greater amount not an integral multiple of $500,000 in
excess thereof, (x) except as otherwise provided in SECTION 2.16(D), LIBOR
Loans may be converted into ABR Loans only on the last day of the Interest
Period applicable thereto (and, in any event, if a LIBOR Loan is converted into
an ABR Loan on any day other than the last day of the Interest Period
applicable thereto, the Borrower will pay, upon such conversion, all amounts
required under SECTION 2.18 to be paid as a consequence thereof), (y) no such
conversion or continuation shall be permitted with regard to any ABR Loans that
are Swingline Loans, and (z) no conversion of ABR Loans into LIBOR Loans or
continuation of LIBOR Loans upon the expiration of the Interest Period therefor
shall be permitted during the continuance of a Default or Event of Default.
(b) The Borrower shall make each such election by giving the Agent
written notice not later than 11:00 a.m., Charlotte time, three (3) Business
Days prior to the intended effective date of any conversion of ABR Loans into,
or continuation of, LIBOR Loans and one (1) Business Day prior to the intended
effective date of any conversion of LIBOR Loans into ABR Loans. Each such
notice (each, a "Notice of Conversion/Continuation") shall be irrevocable,
shall be given in the form of EXHIBIT D and shall specify (x) the date of such
conversion or continuation (which shall be a Business Day), (y) in the case of
a conversion into, or a continuation of, LIBOR Loans, the Interest Period to be
applicable thereto, and (z) the aggregate amount and Type of the Revolving
Loans being converted or continued. Upon the receipt of a Notice of
Conversion/Continuation, the Agent will promptly notify each Lender of the
proposed conversion or continuation. In the event that the Borrower shall fail
to deliver a Notice of Conversion/Continuation as provided herein with respect
to any outstanding LIBOR Loans, such LIBOR Loans shall automatically be
converted to ABR Loans upon the expiration of the then current Interest Period
applicable thereto (unless repaid pursuant to the terms hereof).
2.12 Method of Payments; Computations.
(a) All payments by the Borrower hereunder shall be made without
setoff, counterclaim or other defense, in Dollars and in immediately available
funds to the Agent, for
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the account of the Lenders entitled to such payment (except as otherwise
expressly provided herein as to payments required to be made directly to the
Issuing Lender and the Lenders), at the Agent's office referred to in SECTION
11.5, prior to 12:00 noon, Charlotte time, on the date payment is due. Any
payment made as required hereinabove, but after 12:00 noon, Charlotte time,
shall be deemed to have been made on the next succeeding Business Day. If any
payment falls due on a day that is not a Business Day, then such due date shall
be extended to the next succeeding Business Day (except that in the case of
LIBOR Loans to which the proviso of clause (iv) in SECTION 2.10 is applicable,
such due date shall be the next preceding Business Day), and such extension of
time shall then be included in the computation of payment of interest, fees or
other applicable amounts.
(b) The Agent will distribute to the Lenders like amounts relating
to payments made to the Agent for the account of the Lenders as follows: (i)
if the payment is received by 12:00 noon, Charlotte time, in immediately
available funds, the Agent will make available to each relevant Lender on the
same date, by wire transfer of immediately available funds, such Lender's
ratable share of such payment (based on the percentage that the amount of the
relevant payment owing to such Lender bears to the total amount of such payment
owing to all of the relevant Lenders), and (ii) if such payment is received
after 12:00 noon, Charlotte time, or in other than immediately available funds,
the Agent will make available to each such Lender its ratable share of such
payment by wire transfer of immediately available funds on the next succeeding
Business Day (or in the case of uncollected funds, as soon as practicable
after collected). If the Agent shall not have made a required distribution to
the appropriate Lenders as required hereinabove after receiving a payment for
the account of such Lenders, the Agent will pay to each such Lender, on demand,
its ratable share of such payment with interest thereon at the Federal Funds
Rate for each day from the date such amount was required to be disbursed by the
Agent until the date repaid to such Lender. The Agent will distribute to the
Issuing Lender like amounts relating to payments made to the Agent for the
account of the Issuing Lender in the same manner, and subject to the same terms
and conditions, as set forth hereinabove with respect to distributions of
amounts to the Lenders.
(c) Unless the Agent shall have received written notice from the
Borrower prior to the date on which any payment is due to any Lender hereunder
that such payment will not be made in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date, and the Agent
may, in reliance on such assumption, but shall not be obligated to, cause to be
distributed to such Lender on such due date an amount equal to the amount then
due to such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, and without limiting the obligation of the
Borrower to make such payment in accordance with the terms hereof, such Lender
shall repay to the Agent forthwith on demand such amount so distributed to such
Lender, together with interest thereon for each day from the date such amount
is so distributed to such Lender until the date repaid to the Agent, at the
Federal Funds Rate.
(d) Each Lender for whose account any payment is to be made
hereunder may, but shall not be obligated to, debit the amount of any such
payment not made as and when required hereunder to any ordinary deposit account
of the Borrower with such Lender (with prompt notice
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to the Agent and the Borrower); provided, however, that the failure to give
such notice shall not affect the validity of such debit by such Lender.
(e) All computations of interest and fees hereunder (including
computations of the Reserve Requirement) shall be made on the basis of a year
consisting of (i) in the case of interest on ABR Loans, 365 days, or (ii) in
all other instances, 360 days; and in each instance under (i) and (ii) above,
with regard to the actual number of days (including the first day, but
excluding the last day) elapsed.
2.13 Recovery of Payments.
(a) The Borrower agrees that to the extent the Borrower makes a
payment or payments to or for the account of the Agent, the Issuing Lender or
any Lender, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party under any bankruptcy,
insolvency or similar state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, the Obligation intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been received.
(b) If any amounts distributed by the Agent to any Lender are
subsequently returned or repaid by the Agent to the Borrower or its
representative or successor in interest, whether by court order or by
settlement approved by the Lender in question, such Lender will, promptly upon
receipt of notice thereof from the Agent, pay the Agent such amount. If any
such amounts are recovered by the Agent from the Borrower or its representative
or successor in interest, the Agent will redistribute such amounts to the
Lenders on the same basis as such amounts were originally distributed.
2.14 Use of Proceeds. The proceeds of the Loans shall be used
solely for working capital and general corporate purposes and to finance
Permitted Acquisitions in accordance with the terms and provisions of this
Agreement, including, without limitation, the provisions set forth in SECTION
8.6(vi).
2.15 Pro Rata Treatment; Sharing of Payments.
(a) All fundings, continuations and conversions of Revolving Loans
shall be made by the Lenders pro rata on the basis of their respective
Revolving Credit Commitments or on the basis of their respective outstanding
Revolving Loans (in the case of continuations and conversions of Revolving
Loans pursuant to SECTION 2.11, and additionally in all cases in the event the
Revolving Credit Commitments have expired or have been terminated), as the case
may be from time to time. All payments on account of principal of or interest
on any Revolving Loans, fees or any other Obligations owing to or for the
account of any one or more Lenders with Revolving Credit Commitments shall be
apportioned ratably among such Lenders in proportion to the amounts of such
principal, interest, fees or other Obligations owed to them respectively.
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(b) Each Lender agrees that if it shall receive any amount
hereunder (whether by voluntary payment, realization upon security, exercise of
the right of setoff or banker's lien, counterclaim or cross action, or
otherwise, other than pursuant to SECTION 11.7) applicable to the payment of
any of the Obligations that exceeds its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
at such time to (ii) the aggregate amount of such Obligations due and payable
to all Lenders at such time) of payments on account of such Obligations then or
therewith obtained by all the Lenders to which such payments are required to
have been made, such Lender shall forthwith purchase from the other Lenders
such participations in such Obligations 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 such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each such other Lender shall be rescinded and each such other Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery, together with an amount equal to such other Lender's ratable share
(according to the proportion of (i) the amount of such other Lender's required
repayment 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. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to the provisions of
this subsection may, to the fullest extent permitted by law, exercise any and
all rights of payment (including, without limitation, setoff, banker's lien or
counterclaim) with respect to such participation as fully as if such
participant were a direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or similar law,
any Lender receives a secured claim in lieu of a setoff to which this
subsection applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this subsection to share in the benefits of any
recovery on such secured claim.
2.16 Increased Costs; Change in Circumstances; Illegality; etc.
(a) If, at any time after the Amendment Effective Date and from
time to time, the introduction of or any change in any applicable law, rule or
regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender with any guideline or directive from any
such Governmental Authority (whether or not having the force of law), shall (i)
subject such Lender to any tax or other charge (other than "Taxes," as such
term is defined in SECTION 2.17, and taxes imposed on the overall net income or
profits of, or any branch or franchise tax applicable to such Lender or the
Lending Office of such Lender), or change the basis of taxation of payments to
such Lender, in respect of any of its LIBOR Loans or its obligation to make,
fund or maintain any LIBOR Loans (other than changes in "Taxes," as such term
is defined in SECTION 2.17, and taxes on the overall net income or profits of,
or any branch or franchise tax applicable to such Lender or its applicable
Lending Office), (ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement (other than as a result of any damage in the
Reserve Requirement) against assets of, deposits with or for the account of, or
credit extended by, such Lender or its applicable Lending Office, or (iii)
impose on such Lender or its applicable Lending Office any other condition, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any LIBOR Loans or issuing or participating in
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Letters of Credit or to reduce the yield or rate of return received or
receivable by such Lender in respect thereof, such Lender (or the Agent on
behalf of such Lender) shall, promptly after receiving notice thereof, notify
the Borrower (with a copy to the Agent), and the Borrower shall, within fifteen
(15) days after delivery of such notice by such Lender, pay to such Lender such
additional amounts as shall compensate such Lender for such increase in costs
or reduction in return.
(b) If, at any time after the Amendment Effective Date and from
time to time, any Lender shall have reasonably determined that the
introduction of or any change in any applicable law, rule or regulation
regarding capital adequacy or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, or compliance by such Lender with any guideline or directive from any
such Governmental Authority (whether or not having the force of law), has or
would have the effect, as a consequence of such Lender's Revolving Credit
Commitment, Swingline Commitment, Loans or issuance of or participations in
Letters of Credit hereunder, of reducing the rate of return on the capital of
such Lender or any Person controlling such Lender to a level below that which
such Lender or controlling Person could have achieved but for such
introduction, change or compliance (taking into account such Lender's or
controlling Person's policies with respect to capital adequacy), such Lender
shall (or the Agent on behalf of such Lender), promptly after receiving notice
thereof, notify the Borrower (with a copy to the Agent), and the Borrower
shall, within fifteen (15) days after delivery of such notice by such Lender,
pay to such Lender such additional amounts as will compensate such Lender for
such reduction in return; provided, however, that the Borrower shall not be
required to compensate any Lender upon this subsection (b) to the extent that
any such adoption, implementation or interpretation of or modification in any
such law, rule, or regulation is applied by the relevant Governmental Authority
solely to such Lender or to the extent such Lender does not seek compensation
in respect thereof generally from substantially all of its similarly situated
borrowers that are bound by indemnities requiring that such compensation be
paid.
(c) If, on or prior to the first day of any Interest Period, (y)
the Agent shall have determined that adequate and reasonable means do not exist
for ascertaining the applicable LIBOR Rate for such Interest Period or (z) the
Agent shall have received written notice from the Required Lenders of their
determination that the rate of interest referred to in the definition of "LIBOR
Rate" upon the basis of which the Adjusted LIBOR Rate for LIBOR Loans for such
Interest Period is to be determined will not adequately and fairly reflect the
cost to such Lenders of making or maintaining LIBOR Loans during such Interest
Period, the Agent will forthwith so notify the Borrower and the Lenders. Upon
such notice, (i) all then outstanding LIBOR Loans shall automatically, on the
expiration date of the respective Interest Periods applicable thereto (unless
then repaid in full), be converted into ABR Loans, (ii) the obligation of the
Lenders to make, to convert ABR Loans into, or to continue, LIBOR Loans shall
be suspended (including pursuant to the Borrowing to which such Interest Period
applies), and (iii) any Notice of Revolving Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR
Loans shall be deemed to be a request for ABR Loans, in each case until the
Agent or the Required Lenders, as the case may be, shall have determined that
the circumstances giving rise to such suspension no longer
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exist. Promptly after the Agent or the Required Lenders (as the case may be)
determine that the circumstances giving rise to such suspension no longer
exist, the Required Lenders (if making such determination) shall notify the
Agent, and the Agent shall notify the Borrower, and the obligation of the
Lenders to make, convert and continue LIBOR Loans shall be reinstated.
(d) Notwithstanding any other provision in this Agreement, if, at
any time after the Amendment Effective Date and from time to time, any Lender
shall have determined in good faith that the introduction of or any change in
any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance with any guideline or
directive from any such Governmental Authority (whether or not having the force
of law), has or would have the effect of making it unlawful for such Lender to
make or to continue to make or maintain LIBOR Loans, such Lender will forthwith
so notify the Agent and the Borrower. Upon such notice, (i) each of such
Lender's then outstanding LIBOR Loans shall automatically, on the expiration
date of the respective Interest Period applicable thereto (or, to the extent
any such LIBOR Loan may not lawfully be maintained as a LIBOR Loan until such
expiration date, upon such notice), be converted into an ABR Loan, (ii) the
obligation of such Lender to make, to convert ABR Loans into, or to continue,
LIBOR Loans shall be suspended (including pursuant to any Borrowing of
Revolving Loans for which the Agent has received a Notice of Revolving
Borrowing but for which the Borrowing Date has not arrived), and (iii) any
Notice of Revolving Borrowing or Notice of Conversion/Continuation given at any
time thereafter with respect to LIBOR Loans shall, as to such Lender, be deemed
to be a request for an ABR Loan, in each case until such Lender shall have
determined in good faith that the circumstances giving rise to such suspension
no longer exist and shall have so notified the Agent, and the Agent shall have
so notified the Borrower.
(e) Determinations by the Agent or any Lender for purposes of this
SECTION 2.16 of any increased costs, reduction in return, market contingencies,
illegality or any other matter shall, absent manifest error, be conclusive,
provided that such determinations are made in good faith. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of this
Section with respect to such Lender, it will, if requested by the Borrower and
to the extent permitted by law, endeavor in good faith to designate another
Lending Office for its LIBOR Loans, but only if such designation would make it
lawful for such Lender to continue to make or maintain LIBOR Loans hereunder;
provided that such designation is made on such terms that such Lender, in its
good faith determination, suffers no increased cost or economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of this Section. In addition, if, after the
Amendment Effective Date, any Lender designates any new Lending Office that is
not approved by the Borrower, then the Borrower shall not be obligated to pay
any additional amounts described in this Section to the extent such amounts
arise solely as a result of such change in Lending Office; provided that (i)
the Borrower shall be deemed to have approved any change in Lending Office
three (3) Business Days after receiving notice thereof, unless it has otherwise
reasonably objected in writing to the Agent and such Lender, and (ii) this
sentence shall not apply to any change in Lending Office made by any Lender as
a result of the introduction or any change in applicable law, rule or
regulation or the interpretation or administration thereof, or compliance by
any Lender with any guideline or directive from any Governmental Authority
(whether or not having the force of law). No failure by the Agent or any
Lender at any time to demand payment of any amounts payable under this
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SECTION 2.16 shall constitute a waiver of its right to demand payment of any
additional amounts arising at any subsequent time. Nothing in this SECTION
2.16 shall require or be construed to require the Borrower to pay any interest,
fees, costs or other amounts in excess of that permitted by applicable law.
2.17 Taxes.
(a) Any and all payments by the Borrower hereunder or under any
Note shall be made, in accordance with the terms hereof and thereof, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, other than net income and franchise taxes imposed on the Agent or any
Lender by the United States or by the jurisdiction under the laws of which the
Agent or such Lender, as the case may be, is organized or in which its
principal office or (in the case of a Lender) its applicable Lending Office is
located, or any political subdivision or taxing authority thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to the Agent or any Lender, (i) the sum payable
shall (without any obligation on the part of the Borrower to pay such amounts
ratably in accordance with the provisions of SECTION 2.15) be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 2.17), the Agent or
such Lender, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower will make
such deductions, (iii) the Borrower will pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower will deliver to the Agent or such Lender, as the case
may be, evidence of such payment.
(b) The Borrower will indemnify the Agent and each Lender for the
full amount of Taxes (including, without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this SECTION 2.17) paid by the Agent or
such Lender, as the case may be, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or
not such Taxes were correctly or legally asserted. This indemnification shall
be made within 30 days from the date the Agent or such Lender, as the case may
be, makes written demand therefor.
(c) Each of the Agent and the Lenders agrees that if it
subsequently recovers, or receives a permanent net tax benefit with respect to,
any amount of Taxes (i) previously paid by it and as to which it has been
indemnified by or on behalf of the Borrower or (ii) previously deducted by the
Borrower (including, without limitation, any Taxes deducted from any additional
sums payable under clause (i) of subsection (a) above), the Agent or such
Lender, as the case may be, shall reimburse the Borrower to the extent of the
amount of any such recovery or permanent net tax benefit (but only to the
extent of indemnity payments made, or additional amounts paid, by or on behalf
of the Borrower under this SECTION 2.17 with respect to the Taxes giving rise
to such recovery or tax benefit); provided, however, that the Borrower, upon
the request of the Agent or such Lender, agrees to repay to the Agent or such
Lender, as the case may be, the amount paid over to the Borrower (together with
any penalties, interest or other charges), in the event the Agent or such
Lender is required to repay such amount to the relevant
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taxing authority or other Governmental Authority. The determination by the
Agent or any Lender of the amount of any such recovery or permanent net tax
benefit shall, in the absence of manifest error, be conclusive and binding.
(d) On or prior to the Amendment Effective Date (or, in the case
of a Lender that becomes a party to this Agreement as a result of an assignment
after the Amendment Effective Date, on the effective date of such assignment),
each Lender will deliver to each of the Agent and the Borrower a properly
completed Internal Revenue Service Form W-8 or W-9, as applicable (or successor
forms). If any Lender is incorporated or organized under the laws of a
jurisdiction other than the United States of America or any state thereof or
its Lending Office is located in a jurisdiction other than the United States of
America or any state thereof (a "Non-U.S. Lender"), such Non-U.S. Lender will
deliver to each of the Agent and the Borrower, on or prior to the Amendment
Effective Date (or, in the case of a Non-U.S. Lender that becomes a party to
this Agreement as a result of an assignment after the Amendment Effective Date
or a change in such Lender's Lending Office, on or prior to the effective date
of such assignment or change in Lending Office), (i) in the case of a Non-U.S.
Lender that is a "bank" for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code, a properly completed Internal Revenue Service Form 4224 or 1001,
as applicable (or successor forms), certifying that such Non-U.S. Lender is
entitled to an exemption from withholding on account of United States federal
income taxes in connection with payments under this Agreement or any of the
Notes, and (ii) in the case of a Non-U.S. Lender that is not a "bank" for
purposes of Section 881(c)(3)(A) of the Internal Revenue Code, a certificate in
form and substance reasonably satisfactory to the Agent and the Borrower and to
the effect that such Non-U.S. Lender (x) is not a "bank" for purposes of
Section 881(c)(3)(A) of the Internal Revenue Code, is not subject to regulatory
or other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application made to a rating
agency or qualification for any exemption from any tax, securities law or other
legal requirements, (y) is not a 10-percent shareholder of the Borrower for
purposes of Section 881(c)(3)(B) of the Internal Revenue Code and (z) is not a
controlled foreign corporation related to the Borrower for purposes of Section
881(c)(3)(C) of the Internal Revenue Code. Each Lender further agrees to
deliver to each of the Agent and the Borrower an additional copy of each such
relevant form on or before the date that such form expires or becomes obsolete
or after the occurrence of any event (including a change in its applicable
Lending Office) requiring a change in the most recent forms so delivered by it,
in each case certifying that such Lender is entitled to an exemption from
withholding on account of United States federal income taxes in connection with
payments under this Agreement or any of the Notes, unless in any such case any
change in treaty, law, rule or regulation, or in the interpretation or
application thereof, has occurred prior to the date on which any such delivery
would otherwise be required, which event renders all such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Agent and the Borrower that it is not entitled to receive payments without
deduction or withholding of United States federal income taxes. Each such
Non-U.S. Lender will promptly notify the Agent and the Borrower of any changes
in circumstances that would modify or render invalid any claimed exemption or
reduction.
(e) If any Lender is entitled to a reduction in (and not a
complete exemption from) the applicable withholding tax, the Borrower and the
Agent may withhold from any interest, fees
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or other payments (other than principal payments) to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If any of the forms or other documentation required under
subsection (d) above are not delivered to the Agent as therein required, then
the Borrower and the Agent may withhold from any interest, fees or other
payments (other than principal payments) to such Lender not providing such
forms or other documentation an amount equivalent to the applicable withholding
tax, and the Borrower shall not have any obligation to pay any amount to or for
the account of any Lender pursuant to SECTION 2.17(b).
2.18 Compensation. The Borrower will compensate each Lender upon
demand for all losses, expenses and liabilities (including, without limitation,
any loss, expense or liability incurred by reason of the liquidation or
reemployment of deposits or other funds required by such Lender to fund or
maintain LIBOR Loans) that such Lender may incur or sustain (i) if for any
reason (other than (x) a default by such Lender or (y) a suspension or
limitation of the right of the Borrower to select LIBOR Loans pursuant to the
terms of this Agreement) a borrowing or continuation of, or conversion into, a
LIBOR Loan does not occur on a date specified therefor in a Notice of Revolving
Borrowing or Notice of Conversion/Continuation, (ii) if any repayment,
prepayment or conversion of any LIBOR Loan occurs on a date other than the last
day of an Interest Period applicable thereto (including as a consequence of
acceleration of the maturity of the Revolving Loans pursuant to SECTION 9.2),
(iii) if any prepayment of any LIBOR Loan is not made on any date specified in
a notice of prepayment given by the Borrower or (iv) as a consequence of any
other failure by the Borrower to make any payments with respect to any LIBOR
Loan when due hereunder. Calculation of all amounts payable to a Lender under
this SECTION 2.18 shall be made as though such Lender had actually funded its
relevant LIBOR Loan through the purchase of a Eurodollar deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of such LIBOR Loan,
having a maturity comparable to the relevant Interest Period; provided,
however, that each Lender may fund its LIBOR Loans in any manner it sees fit
and the foregoing assumption shall be utilized only for the calculation of
amounts payable under this SECTION 2.18. Determinations by any Lender for
purposes of this SECTION 2.18 of any such losses, expenses or liabilities
shall, absent manifest error, be conclusive, provided that such determinations
are made in good faith.
ARTICLE III
LETTERS OF CREDIT
3.1 Issuance. Subject to and upon the terms and conditions herein
set forth, so long as no Default or Event of Default has occurred and is
continuing, the Issuing Lender will, at any time and from time to time on and
after the Amendment Effective Date and prior to the earlier of (i) the seventh
day prior to the Revolving Credit Maturity Date and (ii) the Revolving Credit
Termination Date, and upon request by the Borrower in accordance with the
provisions of SECTION 3.2, issue for the account of the Borrower one or more
irrevocable standby letters of
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credit denominated in Dollars and in a form customarily used or otherwise
approved by the Issuing Lender (together with all amendments, modifications and
supplements thereto, substitutions therefor and renewals and restatements
thereof, collectively, the "Letters of Credit"). The Stated Amount of each
Letter of Credit shall not be less than $250,000. Notwithstanding the
foregoing:
(a) No Letter of Credit shall be issued the Stated Amount upon
issuance of which (i) when added to the aggregate Letter of Credit Exposure of
the Lenders at such time, would exceed $5,000,000 or, (ii) when added to the
sum of (x) the aggregate Letter of Credit Exposure of all Lenders at such time,
(y) the aggregate principal amount of all Revolving Loans then outstanding, and
(z) the aggregate principal amount of all Swingline Loans then outstanding,
would exceed the Total Revolving Credit Commitments at such time;
(b) Unless the Issuing Lender otherwise agrees, there shall not be
more than five (5) Letters of Credit issued and outstanding at any time;
(c) No Letter of Credit shall be issued that by its terms expires
later than the seventh day prior to the Revolving Credit Maturity Date or, in
any event, more than one (1) year after its date of issuance; provided,
however, that a Letter of Credit may, if requested by the Borrower, provide by
its terms, and on terms acceptable to the Issuing Lender, for renewal for
successive periods of one year or less (but not beyond the seventh day prior to
the Revolving Credit Maturity Date), unless and until the Issuing Lender shall
have delivered a notice of nonrenewal to the beneficiary of such Letter of
Credit; and
(d) The Issuing Lender shall be under no obligation to issue any
Letter of Credit if, at the time of such proposed issuance, (i) any order,
judgment or decree of any Governmental Authority or arbitrator shall purport by
its terms to enjoin or restrain the Issuing Lender from issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing Lender or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which the Issuing Lender is
not otherwise compensated) not in effect on the Amendment Effective Date, or
any unreimbursed loss, cost or expense that was not applicable, in effect or
known to the Issuing Lender as of the Amendment Effective Date and that the
Issuing Lender in good xxxxx xxxxx material to it, or (ii) the Issuing Lender
shall have actual knowledge, or shall have received notice from any Lender,
prior to the issuance of such Letter of Credit that one or more of the
conditions specified in SECTIONS 4.1 (if applicable) or 4.2 are not then
satisfied (or have not been waived in writing as required herein) or that the
issuance of such Letter of Credit would violate the provisions of subsection
(a) above.
3.2 Notices. Whenever the Borrower desires the issuance of a
Letter of Credit, the Borrower will give the Issuing Lender written notice
(with a copy to the Agent) not later than 11:00 a.m., Charlotte time, three (3)
Business Days (or such shorter period as is acceptable to the Issuing Lender in
any given case) prior to the requested date of issuance thereof. Each such
notice (each, a "Letter of Credit Notice") shall be irrevocable, shall be given
in the form of EXHIBIT E and shall specify (i) the requested date of issuance,
which shall be a Business Day, (ii) the requested Stated Amount and expiry date
of the Letter of Credit, and (iii) the name and address of the requested
beneficiary or beneficiaries of the Letter of Credit. The Borrower will
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also complete any application procedures and documents required by the Issuing
Lender in connection with the issuance of any Letter of Credit. Upon its
issuance of any Letter of Credit, the Issuing Lender will promptly notify the
Agent of such issuance, and the Agent will give prompt notice thereof to each
Lender.
3.3 Participations. Immediately upon the issuance of any Letter
of Credit, the Issuing Lender shall be deemed to have sold and transferred to
each Lender with a Revolving Credit Commitment, and each such Lender shall be
deemed irrevocably and unconditionally to have purchased and received from the
Issuing Lender, without recourse or warranty, an undivided interest and
participation, pro rata (based on the percentage of the aggregate Revolving
Credit Commitments represented by such Lender's Revolving Credit Commitment),
in such Letter of Credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto and any Collateral or
other security therefor or guaranty pertaining thereto; provided, however, that
the fee relating to Letters of Credit described in SECTION 2.9(d) shall be
payable directly to the Issuing Lender as provided therein, and such Lenders
shall have no right to receive any portion thereof. Upon any change in the
Revolving Credit Commitments of any of the Lenders pursuant to SECTION 11.7(a),
with respect to all outstanding Letters of Credit and Reimbursement Obligations
there shall be an automatic adjustment to the participations pursuant to this
Section to reflect the new pro rata shares of the assigning Lender and the
Assignee.
3.4 Reimbursement. The Borrower hereby agrees to reimburse the
Issuing Lender by making payment to the Agent, for the account of the Issuing
Lender, in immediately available funds, for any payment made by the Issuing
Lender under any Letter of Credit (each such amount so paid until reimbursed,
together with interest thereon payable as provided hereinbelow, a
"Reimbursement Obligation") immediately after, and in any event within one (1)
Business Day after its receipt of notice of, such payment, together with
interest on the amount so paid by the Issuing Lender, to the extent not
reimbursed prior to 1:00 p.m., Charlotte time, on the date of such payment or
disbursement, for the period from the date of the respective payment to the
date the Reimbursement Obligation created thereby is satisfied, at the Adjusted
Alternate Base Rate applicable to Revolving Loans as in effect from time to
time during such period, such interest also to be payable on demand. The
Issuing Lender will provide the Agent and the Borrower with prompt notice of
any payment or disbursement made under any Letter of Credit, although the
failure to give, or any delay in giving, any such notice shall not release,
diminish or otherwise affect the Borrower's obligations under this Section or
any other provision of this Agreement. The Agent will promptly pay to the
Issuing Lender any such amounts received by it under this Section.
3.5 Payment by Revolving Loans. In the event that the Issuing
Lender makes any payment under any Letter of Credit and the Borrower shall not
have timely satisfied in full its Reimbursement Obligation to the Issuing
Lender pursuant to SECTION 3.4, and to the extent that any amounts then held in
the Cash Collateral Account established pursuant to SECTION 3.8 shall be
insufficient to satisfy such Reimbursement Obligation in full, the Issuing
Lender will promptly notify the Agent, and the Agent will promptly notify each
Lender with a Revolving Credit Commitment, of such failure. If the Agent gives
such notice prior to 11:00 a.m., Charlotte time, on any Business Day, each such
Lender will make available to the Agent, for the account of the Issuing Lender,
its Pro Rata Share of the amount of such payment on such Business Day in
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immediately available funds. If the Agent gives such notice after 11:00 a.m.,
Charlotte time, on any Business Day, each such Lender shall make its Pro Rata
Share of such amount available to the Agent on the next succeeding Business
Day. If and to the extent any such Lender shall not have so made its Pro Rata
Share of the amount of such payment available to the Agent, such Lender agrees
to pay to the Agent, for the account of the Issuing Lender, forthwith on demand
such amount, together with interest thereon at the Federal Funds Rate for each
day from such date until the date such amount is paid to the Agent. The
failure of any such Lender to make available to the Agent its Pro Rata Share
of any payment under any Letter of Credit shall not relieve any such other
Lender of its obligation hereunder to make available to the Agent its Pro Rata
Share of any payment under any Letter of Credit on the date required, as
specified above, but no such Lender shall be responsible for the failure of any
such other Lender to make available to the Agent such other Lender's Pro Rata
Share of any such payment. Each such payment by a Lender with a Revolving
Credit Commitment under this SECTION 3.5 of its Pro Rata Share of an amount
paid by the Issuing Lender shall constitute a Revolving Loan by such Lender
(the Borrower being deemed to have given a timely Notice of Revolving Borrowing
therefor) and shall be treated as such for all purposes of this Agreement;
provided that for purposes of determining the aggregate Unutilized Revolving
Credit Commitments immediately prior to giving effect to the application of the
proceeds of such Revolving Loans, the Reimbursement Obligation being satisfied
thereby shall be deemed not to be outstanding at such time.
3.6 Payment to Lenders. Whenever the Issuing Lender receives a
payment in respect of a Reimbursement Obligation as to which the Agent has
received, for the account of the Issuing Lender, any payments from the Lenders
with a Revolving Credit Commitment pursuant to SECTION 3.5, the Issuing Lender
will promptly pay to the Agent, and the Agent will promptly pay to each Lender
with a Revolving Credit Commitment that has paid its Pro Rata Share thereof, in
immediately available funds, an amount equal to such Lender's ratable share
(based on the proportionate amount funded by such Lender to the aggregate
amount funded by all Lenders) of such Reimbursement Obligation.
3.7 Obligations Absolute. The Reimbursement Obligations of the
Borrower, and the obligations of the Lenders with a Revolving Credit Commitment
under SECTION 3.5 to make payments to the Agent, for the account of the Issuing
Lender, with respect to Letters of Credit, shall be irrevocable, shall remain
in effect until the Issuing Lender shall have no further obligations to make
any payments or disbursements under any circumstances with respect to any
Letter of Credit, and, except to the extent resulting from any gross negligence
or willful misconduct on the part of the Issuing Lender, shall be absolute and
unconditional, shall not be subject to counterclaim, setoff or other defense or
any other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(a) Any lack of validity or enforceability of this Agreement, any
of the other Credit Documents or any documents or instruments relating to any
Letter of Credit;
(b) Any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations in respect of any Letter of
Credit or any other amendment, modification or waiver of or any consent to
departure from any Letter of Credit or any
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documents or instruments relating thereto, in each case whether or not the
Borrower has notice or knowledge thereof;
(c) The existence of any claim, setoff, defense or other right
that the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Agent, the Issuing Lender, any Lender or
other Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated hereby or any unrelated transactions (including
any underlying transaction between the Borrower and the beneficiary named in
any such Letter of Credit);
(d) Any draft, certificate or any other document presented under
the 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, any errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, telecopier or otherwise, or any errors in
translation or in interpretation of technical terms;
(e) Any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit, any
nonapplication or misapplication by the beneficiary or any transferee of the
proceeds of such drawing or any other act or omission of such beneficiary or
transferee in connection with such Letter of Credit;
(f) The exchange, release, surrender or impairment of any
Collateral or other security for the Obligations;
(g) The occurrence of any Default or Event of Default; or
(h) Any other circumstance or event whatsoever, including, without
limitation, any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor.
Any action taken or omitted to be taken by the Issuing Lender under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall be binding upon the Borrower and
each Lender and shall not create or result in any liability of the Issuing
Lender to the Borrower or any Lender. It is expressly understood and agreed
that, for purposes of determining whether a wrongful payment under a Letter of
Credit resulted from the Issuing Lender's gross negligence or willful
misconduct, (i) the Issuing Lender's acceptance in good faith of documents that
appear on their face to comply with the terms of such Letter of Credit, without
responsibility for further investigation, (ii) the Issuing Lender's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including the amount of any draft presented
under such Letter of Credit, whether or not the amount due to the beneficiary
thereunder equals the amount of such draft and whether or not any document
presented pursuant to such Letter of Credit proves to be insufficient in any
respect (so long as such document appears on its face to comply with the terms
of such Letter of Credit), and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be
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inaccurate or untrue in any respect whatsoever, and (iii) any noncompliance in
any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute gross
negligence or willful misconduct of the Issuing Lender.
3.8 Cash Collateral Account. At any time and from time to time
(i) after the occurrence and during the continuance of an Event of Default, the
Agent, at the direction or with the consent of the Required Lenders, may
require the Borrower to deliver to the Agent such additional amount of cash as
is equal to the aggregate Stated Amount of all Letters of Credit at any time
outstanding (whether or not any beneficiary under any Letter of Credit shall
have drawn or be entitled at such time to draw thereunder) and (ii) in the
event of a prepayment under SECTION 2.6(b), or to the extent any amount of a
required prepayment under any of SECTIONS 2.6(c) through 2.6(d) remains after
prepayment of all outstanding Loans and Reimbursement Obligations and
termination of the Revolving Credit Commitments and the Swingline Commitments,
as contemplated by SECTION 2.6(g), the Agent will retain such amount as may
then be required to be retained pursuant to SECTION 2.6(g), such amounts in
each case under clauses (i) and (ii) above to be held by the Agent in a cash
collateral account (the "Cash Collateral Account"). The Borrower hereby grants
to the Agent, for the benefit of the Issuing Lender and the Lenders, a Lien
upon and security interest in the Cash Collateral Account and all amounts held
therein from time to time as security for Letter of Credit Exposure, and for
application to the Borrower's Reimbursement Obligations as and when the same
shall arise. The Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other than any interest
on the investment of such amounts in Cash Equivalents, which investments shall
be made at the direction of the Borrower (unless a Default or Event of Default
shall have occurred and be continuing, in which case the determination as to
investments shall be made at the option and in the discretion of the Agent),
amounts in the Cash Collateral Account shall not bear interest. Interest and
profits, if any, on such investments shall accumulate in such account. In the
event of a drawing, and subsequent payment by the Issuing Lender, under any
Letter of Credit at any time during which any amounts are held in the Cash
Collateral Account, the Agent will deliver to the Issuing Lender an amount
equal to the Reimbursement Obligation created as a result of such payment (or,
if the amounts so held are less than such Reimbursement Obligation, all of such
amounts) to reimburse the Issuing Lender therefor. Any amounts remaining in
the Cash Collateral Account after the expiration of all Letters of Credit and
reimbursement in full of the Issuing Lender for all of its obligations
thereunder shall (i) with respect to any amounts held by the Agent pursuant to
SECTION 2.6(g), be immediately returned to the Borrower (together with any
interest or of earnings thereon) and (ii) with respect to any amounts held by
the Agent pursuant to clause (i) of the first sentence of this SECTION 3.8 be
held by the Agent, for the benefit of the Borrower, to be applied against the
Obligations, if any, in such order and manner as the Agent may direct. If the
Borrower is required to provide cash collateral pursuant to SECTION 2.6(b),
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower on demand, provided that after giving effect to such return (i) the
sum of (x) the aggregate principal amount of all Revolving Loans outstanding at
such time, (y) the aggregate principal amount of all Swingline Loans
outstanding at such time and (z) the aggregate Letter of Credit Exposure of all
Lenders at such time would not exceed the aggregate Revolving Credit
Commitments at such time and (ii) no Default or Event of Default shall have
occurred and be continuing at such time. If the Borrower is required
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to provide cash collateral as a result of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three (3) Business Days after all Events of Default have been cured or waived
together with all interest and other earnings thereon.
3.9 Effectiveness. Notwithstanding any termination of the
Revolving Credit Commitments or repayment of the Loans, or both, the
obligations of the Borrower under this ARTICLE III shall remain in full force
and effect until the Issuing Lender and the Lenders shall have no further
obligations to make any payments or disbursements under any circumstances with
respect to any Letter of Credit.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
4.1 Conditions of Initial Borrowing. The effectiveness of this
Agreement, the amendment and restatement of the Original Credit Agreement and
the obligation of each Lender to make Revolving Loans and the obligation of the
Issuing Lender to issue Letters of Credit hereunder, is subject to the
satisfaction of the following conditions precedent:
(a) The Agent shall have received the following, each dated as of
the Amendment Effective Date (unless otherwise specified) and, except for the
Revolving Credit Notes and any certificates or instruments required to be
delivered under the Borrower Pledge and Security Agreement and the Subsidiary
Pledge and Security Agreement, in sufficient copies for each Lender:
(i) a Revolving Credit Note for each Lender with
a Revolving Credit Commitment that is a party hereto as of the
Amendment Effective Date, in the amount of such Lender's Revolving
Credit Commitment; and a Swingline Note for the Swingline Lender, in
the amount of the Swingline Commitment, in each case duly completed in
accordance with the relevant provisions of SECTION 2.4 and executed by
the Borrower;
(ii) the Subsidiary Guaranty, duly completed and
executed by each of the Wholly Owned Subsidiaries of the Borrower
(other than Eclipsys Limited);
(iii) the Borrower Pledge and Security Agreement,
duly completed and executed by the Borrower, and the Subsidiary Pledge
and Security Agreement, duly completed and executed by each of the
Subsidiaries of the Borrower (other than Eclipsys Limited), in each
case together with any certificates evidencing the interests being
pledged thereunder as of the Amendment Effective Date and undated
stock powers for any such certificate, duly executed in blank, and any
promissory notes being pledged thereunder, duly endorsed in blank (or,
in the case of uncertificated interests, appropriately completed and
duly executed instructions for registration and notification thereof);
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(iv) the favorable opinion of Xxxx and Xxxx LLP,
special counsel to the Borrower and its Subsidiaries, in substantially
the form of EXHIBIT I, addressed to the Agent and the Lenders and
addressing such other matters as the Agent or any Lender may
reasonably request; and
(v) the Subordination Agreement, duly executed by
the Borrower and each of the parties thereto.
(b) The Agent shall have received a certificate, signed by the
chief executive officer, president or chief financial officer of the Borrower,
in form and substance satisfactory to the Agent, certifying that (i) all
representations and warranties of the Borrower contained in this Agreement and
the other Credit Documents are true and correct as of the Amendment Effective
Date, and (ii) no Default or Event of Default has occurred and is continuing.
(c) The Agent shall have received a certificate of the secretary
or an assistant secretary of the Borrower, in form and substance satisfactory
to the Agent, certifying (i) that attached thereto is a true and complete copy
of the certificate of incorporation and all amendments thereto of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware, and that the same has not been amended since the date of such
certification, (ii) that attached thereto is a true and complete copy of the
bylaws of the Borrower and all amendments thereto, as in effect on the date of
such certificate and as in effect at all times from the date on which the
resolutions referred to in clause (iii) below were adopted to and including the
date of such certificate, and (iii) that attached thereto is a true and
complete copy of resolutions adopted by the board of directors of the Borrower
authorizing the execution, delivery and performance by the Borrower of this
Agreement and the other Credit Documents to which it is a party, and as to the
incumbency and genuineness of the signature of each officer of the Borrower
executing this Agreement or any of such other Credit Documents on behalf of the
Borrower.
(d) The Agent shall have received a certificate of the secretary
or an assistant secretary of each Subsidiary, in form and substance
satisfactory to the Agent, certifying (i) that attached thereto is a true and
complete copy of the certificate or articles of incorporation and all
amendments thereto of such Subsidiary, certified as of a recent date by the
Secretary of State (or other similar official) of such Subsidiary's
jurisdiction of incorporation, and that the same has not been amended since the
date of such certification, (ii) that attached thereto is a true and complete
copy of the bylaws of such Subsidiary, as in effect on the date of such
certificate and as in effect at all times from the date on which the
resolutions referred to in clause (iii) below were adopted to and including the
date of such certificate, and (iii) that attached thereto is a true and
complete copy of the resolutions adopted by the board of directors of such
Subsidiary authorizing the execution, delivery and performance by such
Subsidiary of the Credit Documents to which it is a party, and as to the
incumbency and genuineness of the signature of each officer of such Subsidiary
executing any of such Credit Documents on behalf of such Subsidiary.
(e) The Agent shall have received (i) a certificate as of a recent
date of the good standing of each of the Borrower and each of its Subsidiaries
under the laws of its jurisdictions of incorporation, and (ii) a certificate as
of a recent date of the qualification of each of the
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Borrower and each of its Subsidiaries to conduct business as a foreign
corporation in each state where such Person is so qualified.
(f) All approvals, permits and consents of any Governmental
Authorities or other Persons required in connection with the execution and
delivery of this Agreement shall have been obtained (without the imposition of
conditions that are not acceptable to the Agent), and all related filings, if
any, shall have been made, and all such approvals, permits, consents and
filings shall be in full force and effect and the Agent shall have received
such copies thereof as it shall have requested except for any of the foregoing
the failure of which to obtain or be in full force and effect would not
reasonably be expected to have a Material Adverse Effect; all applicable
waiting periods shall have expired without any adverse action being taken by
any Governmental Authority having jurisdiction; and no action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before, and no order, injunction or decree shall have been entered
by, any court or other Governmental Authority, in each case to enjoin, restrain
or prohibit, to obtain substantial damages in respect of, or that is otherwise
related to or arises out of, this Agreement, or that, in the opinion of the
Agent, could reasonably be expected to have a Material Adverse Effect.
(g) The Agent shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and other
actions (including, without limitation, the filing of duly completed UCC-1
financing statements in each jurisdiction listed on Annex A to the Borrower
Pledge and Security Agreement or the Subsidiary Pledge and Security Agreement,
as applicable) necessary or, in the reasonable opinion of the Agent, desirable
to perfect the Liens created by the Security Documents shall have been
completed.
(h) Since December 31, 1997, both immediately before and after
giving effect to the consummation of the transactions contemplated by this
Agreement, there shall not have occurred any Material Adverse Change or any
event, condition or state of facts that could reasonably be expected to result
in a Material Adverse Change.
(i) The Borrower shall have paid (i) to First Union, the fee
described in the second paragraph of the Fee Letter, (ii) all other fees and
expenses of the Agent and the Lenders required hereunder or under any other
Credit Document to be paid on or prior to the Amendment Effective Date
(including reasonable fees and expenses of counsel to the Agent) in connection
with this Agreement and the transactions contemplated hereby and (iii) to the
appropriate Person(s), unpaid and outstanding interest accrued on the Existing
Revolving Loans as of the Amendment Effective Date.
(j) The Agent shall have received a Financial Condition
Certificate, together with the Pro Forma Balance Sheet and the Projections as
described in SECTIONS 5.11(c) and 5.11(d), all of which shall be in form and
substance satisfactory to the Agent.
(k) The Agent shall have received evidence in form and substance
reasonably satisfactory to it that all of the requirements of SECTION 6.6 and
those provisions of the Borrower Pledge and Security Agreement and the
Subsidiary Pledge and Security Agreement relating to the maintenance of
insurance have been satisfied, including receipt of certificates of insurance
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evidencing the insurance coverages described on SCHEDULE 5.17 and all other or
additional coverages required under the Borrower Pledge and Security Agreement
and the Subsidiary Pledge and Security Agreement and naming the Agent as loss
payee or additional insured, as its interests may appear; and the Agent shall
have received a collateral assignment of the key-man life insurance required
under SECTION 6.6(B), duly completed and executed by the Borrower and in form
and substance satisfactory to the Agent.
(l) The Agent shall have received an Account Designation Letter,
together with written instructions from an Authorized Officer, including wire
transfer information, directing the payment of the proceeds of the initial
Revolving Loans to be made hereunder.
(m) The Agent and each Lender shall have received such other
documents, certificates, opinions and instruments in connection with this
Agreement as it shall have reasonably requested.
4.2 Conditions of All Borrowings. The obligation of each Lender
to make any Loans hereunder, including the initial Revolving Loans (but
excluding Revolving Loans made for the purpose of repaying Refunded Swingline
Loans pursuant to SECTION 2.2(e)) and the obligation of the Issuing Lender to
issue any Letters of Credit hereunder, is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date or date of
issuance:
(a) The Agent shall have received a Notice of Revolving Borrowing
in accordance with SECTION 2.2(b) or (together with the Swingline Lender) a
Notice of Swingline Borrowing in accordance with SECTION 2.2(d), or (together
with the Issuing Lender) a Letter of Credit Notice in accordance with SECTION
3.2, as applicable;
(b) Each of the representations and warranties contained in
ARTICLE V and in the other Credit Documents shall be true and correct in all
material respects on and as of such Borrowing Date (including the Amendment
Effective Date, in the case of the initial Revolving Loans made hereunder) or
date of issuance with the same effect as if made on and as of such date, both
immediately before and after giving effect to the Loans to be made or Letter of
Credit to be issued on such date (except to the extent the facts upon which
such representation and warranty are based may be changed as a result of a
transaction or occurrence permitted or contemplated hereby or such
representation or warranty relates solely to a prior date, in which case such
representation or warranty shall be true and correct as of such date); and
(c) No Default or Event of Default shall have occurred and be
continuing on such date, both immediately before and after giving effect to the
Loans to be made or Letter of Credit to be issued on such date.
Each giving of a Notice of Revolving Borrowing, a Notice of Swingline
Borrowing or a Letter of Credit Notice shall be deemed to constitute a
representation by the Borrower that the statements contained in subsections (b)
and (c) above are true, both as of the date of such notice or request and as of
the relevant Borrowing Date or date of issuance.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and
to induce the Lenders to extend the credit contemplated hereby, the Borrower
represents and warrants to the Agent and the Lenders, as follows:
5.1 Corporate Organization and Power. Each of the Borrower and
its Subsidiaries (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (ii) has
the full corporate power and authority to execute, deliver and perform the
Credit Documents to which it is or will be a party, to own and hold its
property and to engage in its business as presently conducted, and (iii) is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the nature of its business or the ownership of its
properties requires it to be so qualified, except where the failure to be so
qualified would not, individually or in the aggregate, be reasonably expected
to have a Material Adverse Effect.
5.2 Authorization; Enforceability. Each of the Borrower and its
Subsidiaries has taken all necessary corporate action to execute, deliver and
perform each of the Credit Documents to which it is or will be a party, and has
validly executed and delivered each of the Credit Documents to which it is or
will be a party. This Agreement constitutes, and each of the other Credit
Documents upon execution and delivery will constitute, the legal, valid and
binding obligation of each of the Borrower and its Subsidiaries to the extent a
party hereto or thereto, enforceable against it in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general equitable principles.
5.3 No Violation. The execution, delivery and performance by each
of the Borrower and its Subsidiaries of this Agreement and each of the other
Credit Documents to which it is or will be a party, compliance by it with the
terms hereof and thereof, and the consummation of the transactions contemplated
by the Credit Documents, do not and will not (i) violate any provision of its
articles or certificate of incorporation or bylaws or contravene any other
Requirement of Law applicable to it, (ii) except as set forth on SCHEDULE 5.3,
conflict with, result in a breach of or constitute (with notice, lapse of time
or both) a default under any indenture, loan agreement or other material
agreement or instrument to which it is a party, by which it or any of its
properties is bound or to which it is subject, (iii) require any approval of
its stockholders that has not been obtained, or (iv) except for the Liens
granted pursuant to the Security Documents and Permitted Liens, result in or
require the creation or imposition of any Lien upon any of its properties or
assets. No Subsidiary is subject to any restriction or encumbrance on its
ability to make dividend payments or other distributions in respect of its
Capital Stock, to repay Indebtedness owed to the Borrower or any other
Subsidiary, to make loans or advances to the Borrower or any other Subsidiary,
or, except as set forth on SCHEDULE 5.3, to transfer any of its assets or
properties to the Borrower or any other Subsidiary, in each case other than
such restrictions or encumbrances existing under or by reason of (i) the Credit
Documents, (ii) applicable Requirements of Law, (iii) customary non-assignment
provisions in any lease governing a leasehold interest and
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(iv) customary non-assignment provisions in any license governing Intellectual
Property (as defined in SECTION 5.12) provided by a third party.
5.4 Authorizations; Permits.
(a) No consent, approval, authorization or other action by, notice
to, or registration or filing with, any Governmental Authority is required as a
condition to or otherwise in connection with the due execution, delivery and
performance by each of the Borrower and its Subsidiaries of this Agreement or
any of the other Credit Documents to which it is or will be a party or the
legality, validity or enforceability hereof or thereof, other than (i)
consents, authorizations and filings listed on SCHEDULE 5.4, and (ii) filings
of Uniform Commercial Code financing statements and other instruments necessary
to perfect the Liens created by the Security Documents.
(b) Each of the Borrower and its Subsidiaries has, and is in good
standing with respect to, all governmental approvals, licenses, permits and
authorizations necessary to conduct its business as presently conducted and to
own or lease and operate its properties, except for those the failure of which
to obtain, or to be in good standing with respect to, would not be reasonably
expected, individually or in the aggregate, to have a Material Adverse Effect.
5.5 Litigation. Except as set forth on SCHEDULE 5.5, there are no
actions, investigations, suits or proceedings pending or, to the knowledge of
the Borrower threatened, at law, in equity or in arbitration, before any court,
arbitrator or Governmental Authority, (i) against or affecting the Borrower,
any of its Subsidiaries or any of their respective properties that would, if
adversely determined, be reasonably expected to have a Material Adverse Effect,
or (ii) that question the legality, validity or enforceability of this
Agreement or any Credit Documents.
5.6 Taxes. Except as set forth in SCHEDULE 5.6, each of the
Borrower and its Subsidiaries has timely filed all federal, state and local tax
returns and reports required to be filed by it or has obtained extensions for
filing and has paid all taxes, assessments, fees and other charges levied upon
it or upon its properties that are shown thereon as due and payable, other than
those that are being contested in good faith and by proper proceedings and for
which adequate reserves have been established in accordance with Generally
Accepted Accounting Principles. Such returns accurately reflect in all
material respects all liability for taxes of the Borrower and its Subsidiaries
for the periods covered thereby. Except as set forth on SCHEDULE 5.6, there is
no ongoing audit or examination or, to the knowledge of the Borrower, other
investigation by any Governmental Authority of the tax liability of the
Borrower or any of its Subsidiaries, and there is no unresolved claim by any
Governmental Authority concerning the tax liability of the Borrower or any of
its Subsidiaries for any period for which tax returns have been or were
required to have been filed, other than claims for which adequate reserves have
been established in accordance with Generally Accepted Accounting Principles.
Except with respect to the taxes set forth on SCHEDULE 5.6, neither the
Borrower nor, to the knowledge of the Borrower, any of its Subsidiaries has
waived or extended or has been requested to waive or extend the statute of
limitations relating to the payment of any taxes.
5.7 Subsidiaries. SCHEDULE 5.7 sets forth a list, as of the
Amendment Effective Date, of all of the Subsidiaries of the Borrower and, as to
each such Subsidiary, the percentage
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ownership (direct and indirect) of the Borrower in each class of its Capital
Stock and each direct owner thereof. Except for the shares of Capital Stock
expressly indicated on SCHEDULE 5.7, there are no shares of Capital Stock or
warrants, rights, options or other equity securities of any Subsidiary of the
Borrower outstanding or reserved for any purpose. All outstanding shares of
Capital Stock of each Subsidiary of the Borrower are duly and validly issued,
fully paid and nonassessable. The Borrower or the applicable Subsidiary
indicated on SCHEDULE 5.7 is the sole legal, record and beneficial owner of,
and has good and valid title to, all such Capital Stock, free and clear of all
Liens other than the Liens created pursuant to the Borrower Pledge and Security
Agreement and the Subsidiary Pledge and Security Agreement.
5.8 Full Disclosure. As of the Amendment Effective Date, (i) none
of the Credit Documents, nor any other document or certificate furnished to the
Agent or any Lender by or on behalf of the Borrower at the Closing, contains
any untrue statement of a material fact, and (ii) the Credit Documents
delivered at the Closing, together with all other documents and certificates
furnished to the Agent or any Lender by or on behalf of the Borrower at the
Closing, taken as a whole, do not omit to state a material fact necessary to
make the statements contained therein, in light of the circumstances under
which they were made, not misleading.
5.9 Margin Regulations. Neither the Borrower nor any of its
Subsidiaries 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. No proceeds of the Loans will be used, directly or indirectly,
to purchase or carry any Margin Stock, to extend credit for such purpose or for
any other purpose that would violate or be inconsistent with Regulations G, U
or X or any provision of the Exchange Act.
5.10 No Material Adverse Change. Except as set forth on SCHEDULE
5.10, there has been no Material Adverse Change relating to the Borrower or its
Subsidiaries since December 31, 1997 and there exists no event, condition or
state of facts that would reasonably be expected to result in a Material
Adverse Change.
5.11 Financial Matters.
(a) The unaudited balance sheet of the Borrower and its
Subsidiaries as of December 31, 1997 and the related statements of income,
stockholders equity and cash flows for the fiscal year period then ended,
copies of which have been delivered to the Agent, have been prepared in
accordance with Generally Accepted Accounting Principles (subject to the
absence of notes required by Generally Accepted Accounting Principles and to
normal year-end adjustments) and fairly present the financial position of the
Borrower as of such date and the results of operations of the Borrower for the
period covered thereby.
(b) Except (i) as fully reflected in the financial statements
referred to in subsection (a) above (including the notes thereto, if any), (ii)
incurred in the ordinary course of business since the respective dates of such
financial statements and (iii) for the obligations of the Borrower and its
Subsidiaries under the Credit Documents, neither the Company nor any of its
Subsidiaries has any material direct or indirect obligations or liabilities of
any kind, whether or not required by Generally Accepted Accounting Principles
to be set forth on financial statements.
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(c) The unaudited consolidated pro forma balance sheet of the
Borrower and its Subsidiaries as of December 31, 1997 has been delivered to the
Agent and appears in the Borrower's Form S-1, filed on April 23, 1998 (the "Pro
Forma Balance Sheet"). The Pro Forma Balance Sheet has been prepared in
accordance with Generally Accepted Accounting Principles (subject to the
absence of footnotes required by Generally Accepted Accounting Principles and
subject to normal year-end adjustments) and, subject to stated assumptions made
in good faith and having a reasonable basis set forth therein, presents fairly
the consolidated financial position of the Borrower and its Subsidiaries on an
unaudited pro forma basis as of the date set forth therein.
(d) The Borrower has prepared, and has furnished to the Agent a
copy of, consolidated and consolidating pro forma projected statements of
income of the Borrower and its Subsidiaries for the three-year period beginning
January 1, 1998, prepared on a quarterly basis for fiscal year 1998 and on an
annual basis thereafter, giving effect to the consummation of the Credit
Documents, the extensions of credit made under this Agreement, the payment of
transaction fees and expenses related to the foregoing (the "Projections"). In
the opinion of management of the Borrower, the assumptions used in the
preparation of the Projections were reasonable when made and continue to be
reasonable as of the Amendment Effective Date, subject to the uncertainties and
approximations inherent in any projection. The Projections have been prepared
in good faith by the executive and financial personnel of the Borrower and
represent, as of the Amendment Effective Date, a reasonable estimate of the
future performance of the Borrower and its Subsidiaries it being acknowledged
by the Agent and the Lenders that these projections as to future events are
subject to the uncertainties and estimations inherent in any projections and
that actual results during the periods covered by such Projections may differ
from the projected results (and that such differences may be material and
adverse).
5.12 Ownership of Properties.
(a) Each of the Borrower and its Subsidiaries (i) has good and
marketable title to all real property owned by it (if any), (ii) holds
interests as lessee under valid leases in full force and effect with respect to
all material leased real and personal property used in connection with its
business, (iii) owns or has valid rights to use patents, trade secrets,
copyrights, trademarks, service marks, trade names, know-how, computer software
and other similar assets (collectively, "Intellectual Property") sufficient to
enable it to continue to conduct its business substantially as heretofore
conducted and without any material infringement of the intellectual property
rights of others, and (iv) has good title to all of its other properties and
assets reflected in the most recent financial statements referred to in SECTION
5.11(a) (except as sold or otherwise disposed of since the date thereof in the
ordinary course of business), in each case under (i), (ii), (iii) and (iv)
above free and clear of all Liens other than Permitted Liens. Except as set
forth on SCHEDULE 5.12(a), no claim of which the Borrower is aware has been
asserted by any Person challenging or questioning the rights of the Borrower or
any of its Subsidiaries to use any Intellectual Property or the validity of any
Intellectual Property owned or used by the Borrower or any of its Subsidiaries,
nor does the Borrower know of any valid basis for any such claim.
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(b) SCHEDULE 5.12(b) lists, as of the Amendment Effective Date,
all real property leasehold interests of each of the Borrower and its
Subsidiaries, indicating in each case the identity of the lessors, the nature
of the leased premises and the address of the property. As of the Amendment
Effective Date, neither the Borrower nor any of its Subsidiaries owns any fee
interest in any real property.
5.13 ERISA. Each Plan is and has been administered in compliance
in all material respects with all applicable Requirements of Law, including,
without limitation, the applicable provisions of ERISA and the Internal Revenue
Code. No ERISA Event has occurred and is continuing or, to the knowledge of
the Borrower, is reasonably expected to occur with respect to any Plan, in
either case that could be reasonably expected, individually or in the
aggregate, to have a Material Adverse Effect. No Plan has any Unfunded Pension
Liability, and neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA, in
either instance where the same could be reasonably expected, individually or in
the aggregate, to have a Material Adverse Effect. Neither the Borrower nor any
ERISA Affiliate has any material liability to a Multiemployer Plan.
5.14 Environmental Matters.
(a) Except in each case as would not reasonably be expected to
have a Material Adverse Effect, (i) no Hazardous Substances are or have been
generated, used, located, released, treated, disposed of or stored by the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, by
any other Person (including any predecessor in interest) or otherwise, in, on
or under any portion of any real property leased, owned or operated by the
Borrower or any of its Subsidiaries, except in material compliance with all
applicable Environmental Laws, (ii) no portion of any such real property or, to
the knowledge of the Borrower, any other real property at any time leased,
owned or operated by the Borrower or any of its Subsidiaries, has been
contaminated by any Hazardous Substance; and (iii) no portion of any real
property leased, owned or operated by the Borrower or any of its Subsidiaries
has been or is presently the subject of a remedial action. The Borrower has
delivered to the Agent all environmental audits and assessments (if any) in its
possession relating to any real property owned, leased or operated by the
Borrower or any of its Subsidiaries.
(b) Except in each case as would not reasonably be expected to
have a Material Adverse Effect, (i) no portion of any real property leased,
owned or operated by the Borrower or any of its Subsidiaries has been used as
or for a mine, a landfill, a dump or other disposal facility, a gasoline
service station, or (other than for petroleum substances stored in the ordinary
course of business) a petroleum products storage facility; (ii) no portion of
such real property or any other real property at any time leased, owned or
operated by the Borrower or any of its Subsidiaries has, pursuant to any
Environmental Law, been placed on the "National Priorities List" or "CERCLIS
List" (or any similar federal, state or local list) of sites subject to
possible environmental problems; and (iii) there are not and have never been
any underground storage tanks situated on any real property leased, owned or
operated by the Borrower or any of its Subsidiaries.
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(c) Each of the Borrower and its Subsidiaries has obtained all
licenses and permits under Environmental Laws necessary to their respective
operations, and all such licenses and permits are being maintained in good
standing, and each of the Borrower and its Subsidiaries is in compliance with
all material terms and conditions of such licenses and permits, except for any
such licenses or permits the failure to obtain, maintain or comply with which
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(d) Neither the Borrower nor any of its Subsidiaries has received
(i) any notice or claim to the effect that it is or may be liable to any Person
under any Environmental Law, including, without limitation, any claim relating
to any Hazardous Substances, except as could not reasonably be expected to have
a Material Adverse Effect, or (ii) any letter or request for information under
Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9604) or comparable foreign or state laws
regarding any matter which could reasonably be expected to result in a Material
Adverse Effect, and, to the Borrower's knowledge, neither the Borrower nor any
of its Subsidiaries is involved in any investigation, response or corrective
action relating to or in connection with any Hazardous Substances at any real
property occupied by such Person or at any other location, except for such of
the foregoing which would not reasonably be expected to have a Material Adverse
Effect.
(e) Neither the Borrower nor any of its Subsidiaries is subject to
any judicial or administrative proceeding alleging the violation of or
liability under any Environmental Laws which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect.
(f) Neither the Borrower nor any of its Subsidiaries nor any of
their respective properties or operations is subject to any outstanding written
order or agreement with any Governmental Authority or private party relating to
any actual or potential violation of or liability under any Environmental Laws
or any Environmental Claims, except for such of the foregoing which would not
reasonably be expected to have a Material Adverse Effect.
(g) Neither the Borrower nor any of its Subsidiaries, nor, to the
Borrower's knowledge, any predecessor thereof, has filed any notice under any
Environmental Law indicating past or present treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state
equivalent.
(h) No Lien in favor of any Person relating to or in connection
with any Environmental Claim has been filed or has been attached to any
property of the Borrower or any of its Subsidiaries, except for any such Lien
which would not reasonably be expected to have a Material Adverse Effect.
(i) All activities and operations of each of the Borrower and its
Subsidiaries are in compliance with the requirements of all applicable
Environmental Laws, except to the extent the failure so to comply, individually
or in the aggregate, would not be reasonably expected to have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries is involved in
any suit, action or proceeding, or has received any notice, complaint or other
request for information from any Governmental Authority or other Person, with
respect to any actual or alleged Environmental Claims that, if adversely
determined, would be reasonably expected, individually
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or in the aggregate, to have a Material Adverse Effect; and, to the knowledge
of the Borrower, there are no threatened actions, suits, proceedings or
investigations with respect to any such Environmental Claims, nor any basis
therefor.
5.15 Compliance With Laws. Except as set forth on SCHEDULE 5.15,
each of the Borrower and its Subsidiaries has timely filed all material
reports, documents and other materials required to be filed by it under all
applicable Requirements of Law with any Governmental Authority, except for any
filings the failure of which to make, individually or in the aggregate, would
not be reasonably expected to have a Material Adverse Effect, and is otherwise
in compliance with all applicable Requirements of Law in respect of the conduct
of its business and the ownership and operation of its properties, except for
such Requirements of Law the failure to comply with which, individually or in
the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
5.16 Regulated Industries. Neither the Borrower nor any of its
Subsidiaries is (i) an "investment company," a company "controlled" by an
"investment company," or an "investment advisor," within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company," 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, or (iii)
subject to regulation under the Federal Power Act.
5.17 Insurance. SCHEDULE 5.17 lists and summarizes all insurance
policies or programs carried or maintained by the Borrower and its Subsidiaries
as of the Amendment Effective Date. The assets, properties and business of the
Borrower and its Subsidiaries are insured against such hazards and liabilities,
under such coverages and in such amounts, as are customarily maintained by
companies similarly situated and engaged in the same or similar businesses.
5.18 Certain Contracts. SCHEDULE 5.18(a) lists, as of the
Amendment Effective Date, each contract, agreement or commitment, written or
oral (other than oral agreements terminable at will by either party), to which
the Borrower or any of its Subsidiaries is a party, by which any of them or
their respective properties is bound or to which any of them is subject and
that (i) relates to employment of senior executives or labor matters, (ii)
evidences or relates to Indebtedness in excess of $50,000, (iii) involves
aggregate consideration payable to or by any party thereto of $500,000 or more,
or (iv) is otherwise material to the business, condition (financial or
otherwise), operations, performance or properties of the Borrower and its
Subsidiaries, taken as a whole, in each case including customer orders and
letters of intent, and also indicates the parties, subject matter and term
(except with respect to agreements with third party vendors) thereof. Except
as set forth on SCHEDULE 5.18(b), as of the Amendment Effective Date, each such
contract is in full force and effect, and neither the Borrower nor any of its
Subsidiaries or, to the knowledge of the Borrower, any other party thereto, is
in default under any such contract.
5.19 Capitalization. On the Amendment Effective Date, the
authorized capital stock of the Borrower consists of (i) 50,000,000 shares of
Common Stock ("Class A Common Stock" as defined in the Preferred Stock Purchase
Agreement), of which 6,300,000 shares are issued and
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outstanding, (ii) 3,000,000 shares of Non-Voting Common Stock ("Class of Common
Stock" as defined in the Preferred Stock Purchase Agreement), of which no
shares are issued and outstanding, (iii) 30,000 shares of Series B Preferred
Stock (as defined in the Preferred Stock Purchase Agreement), all of which are
outstanding and issued to First Union Corporation ("FUCP") and BT Investment
Partners, Inc. ("BT"), (iv) 25,000 shares of Series C 8.5% Cumulative
Redeemable Preferred Stock (as defined in the Preferred Stock Purchase
Agreement), 15,500 of which are outstanding and issued to Alltel Information
Services, Inc., (v) 7,200,000 shares of Series D Preferred Stock (as defined in
the Preferred Stock Purchase Agreement), of which 7,058,786 are outstanding and
issued to General Atlantic Partners 38, L.P., GAP Coinvestment Partners, L.P.
("GAP Coinvestment"), Wilfam Ltd., Xxxxx Xxxxxx Associates IHS, L.P. ("Xxxxx
Xxxxxx"), Xxxxxx Xxxxxxxxxx, St. Xxxx Venture Capital IV, L.L.C., Xxxxx
Xxxxxxxx, Jr., and AIS, (vi) 920,000 shares of Series E Preferred Stock (as
defined in the Preferred Stock Purchase Agreement), of which 896,431 are
outstanding and issued to FUCP and BT, (vii) 1,530,000 shares of Series F
Preferred Stock (as defined in the Preferred Stock Purchase Agreement), of
which 1,478,097 are outstanding and issued to General Atlantic Partners 28,
L.P. ("GAP 28"), GAP Coinvestment, Xxxxx Xxxxxx and Xxxxxxxxxx, (viii) 900,000
shares of Series G Convertible Preferred Stock, (as defined in the Series G
Preferred Stock Purchase Agreement) par value $.01 per share, all of which are
outstanding and issued to GAP Coinvestment and General Atlantic Partners 47,
L.P., a Delaware limited partnership, and (ix) 1,100,000 shares, par value $.0l
per share, of undesignated preferred stock. SCHEDULE 5.19 sets forth a true
and complete list of the stockholders of the Borrower and, opposite the name of
each stockholder, the amount of all outstanding Capital Stock and all
securities or obligations convertible or exchangeable or exercisable for shares
of Capital Stock of the Borrower (including options, warrants, or other
subscription or purchase rights with respect to such Capital Stock) owned by
such stockholder.
5.20 Security Documents. The provisions of each of the Security
Documents (whether executed and delivered prior to or on the Amendment
Effective Date or thereafter) are and will be effective to create in favor of
the Agent, for its benefit and the benefit of the Lenders, a valid and
enforceable security interest in and Lien upon all right, title and interest of
each of the Borrower and its Subsidiaries to the extent a party thereto in and
to the Collateral purported to be pledged by it thereunder and described
therein, and upon (i) the initial extension of credit hereunder, (ii) the
filing of appropriately completed Uniform Commercial Code financing statements
and continuations thereof in the jurisdictions specified therein, (iii) the
filing of appropriately completed short-form assignments in the U.S. Patent and
Trademark Office and the U.S. Copyright Office, (iv) in the case of
uncertificated securities, compliance with Section 8-313 (or its successor
provision) of the applicable Uniform Commercial Code, and (v) the possession by
the Agent of any certificates evidencing the securities pledged thereby, such
security interest and Lien shall constitute a fully perfected and first
priority security interest in and Lien upon such right, title and interest of
each of the Borrower and its Subsidiaries in and to such Collateral, to the
extent that such security interest and Lien can be perfected by such filings,
actions and possession, subject only to Permitted Liens.
5.21 Solvency. The Borrower and each of its Subsidiaries is
Solvent.
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ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the Swingline Commitment, the termination or
expiration of all Letters of Credit and the payment in full of all principal
and interest with respect to the Loans and all Reimbursement Obligations
together with all other amounts then due and owing hereunder:
6.1 Financial Statements. The Borrower will deliver to each
Lender:
(a) As soon as available and in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year (or, if later, within 10 days after the Borrower's receipt of the audit
report for the previous fiscal year, with respect to the first quarter only),
beginning with the fiscal quarter ending June 30, 1998, unaudited consolidated
balance sheets of the Borrower and its consolidated Subsidiaries as of the end
of such fiscal quarter and unaudited consolidated and consolidating (with
respect to the Borrower, on the one hand, and Eclipsys Solutions Corp. and its
Subsidiaries, on the other hand) statements of income, retained earnings and
cash flows for the Borrower and its consolidated Subsidiaries for the fiscal
quarter then ended and for that portion of the fiscal year then ended, in each
case setting forth comparative budgeted figures for such period and comparative
figures as of the end of and for the corresponding period in the preceding
fiscal year, all prepared in accordance with Generally Accepted Accounting
Principles (subject to the absence of notes required by Generally Accepted
Accounting Principles and subject to normal year-end adjustments) applied on a
basis consistent with that of the preceding quarter or containing disclosure of
the effect on the financial condition or results of operations of any change in
the application of accounting principles and practices during such quarter and
certified by a Financial Officer of the Borrower as fairly presenting the
consolidated financial condition and consolidated and consolidating results of
operations of the Borrower and its consolidated Subsidiaries as of the dates
and for the periods indicated;
(b) As soon as available and in any event within 90 days after the
end of each fiscal year, beginning with the fiscal year ending December 31,
1999, (i) an audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year and audited
consolidated statements of income, retained earnings and cash flows for the
Borrower and its consolidated Subsidiaries for the fiscal year then ended, in
each case setting forth comparative figures for the preceding fiscal year and
comparable budgeted figures for the fiscal year then ended, and including the
notes thereto, and (ii) unaudited consolidating (with respect to the Borrower,
on the one hand, and Eclipsys Solutions Corp. and its consolidated
Subsidiaries, on the other hand) statements of income, retained earnings and
cash flows for the Borrower and its Subsidiaries for the fiscal year then
ended, all prepared in accordance with Generally Accepted Accounting Principles
applied on a basis consistent with those of the preceding year or containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
year, certified (with respect to the unaudited statements) by a Financial
Officer of the Borrower as fairly presenting the consolidated financial
condition and consolidated and consolidating results of operations of the
Borrower and its consolidated Subsidiaries as of the dates and for the
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periods indicated, together (in the case of the audited statements) with (y) a
report thereon by Price Waterhouse LLP or another certified public accounting
firm of recognized national standing reasonably acceptable to the Required
Lenders that is not qualified as to going concern or scope of audit and to the
effect that such financial statements present fairly the consolidated financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries as of the dates and for the periods indicated in accordance with
Generally Accepted Accounting Principles applied on a basis consistent with
that of the preceding year or containing disclosure of the effect on the
financial position or results of operations of any change in the application of
accounting principles and practices during such year, and (z) a certificate by
such accountants to the effect that, based on and in connection with their
examination of the financial statements of the Borrower and its consolidated
Subsidiaries, such accountants obtained no knowledge of the occurrence or
existence of any Default or Event of Default relating to accounting or
financial reporting matters, or a statement specifying the nature and period of
existence of any such Default or Event of Default disclosed by their audit
(provided, however, that such accountants shall not be liable by reason of the
failure to obtain knowledge of any Default or Event of Default that would not
be disclosed or revealed in the course of an audit conducted in accordance with
Generally Accepted Auditing Standards).
6.2 Other Business and Financial Information. The Borrower will
deliver or provide to each Lender:
(a) Concurrently with each delivery of the financial statements
described in SECTION 6.1(a) or SECTION 6.1(b), (i) a Compliance Certificate in
the form of EXHIBIT K with respect to the period covered by the financial
statements then being delivered, executed by a Financial Officer of the
Borrower, together with a Covenant Compliance Worksheet reflecting the
computation of the financial covenants set forth in SECTIONS 7.1 through 7.4 as
of the last day of the period covered by such financial statements, and (ii) an
accounts receivable aging schedule as of the last day of such period;
(b) As soon as available, but in any event not later than 30 days
prior to the end of each fiscal year, a consolidated operating budget prepared
on a quarterly basis for the Borrower and its Subsidiaries for the next fiscal
year;
(c) Promptly upon receipt thereof, copies of any management letter
delivered to the Borrower by its independent certified public accountants in
connection with each annual audit of the Borrower and its Subsidiaries;
(d) Promptly upon the sending, filing or receipt thereof, copies
of (i) all regular, periodic and special reports, proxy statements,
registration statements and prospectuses (other than on Form S-8) that the
Borrower or any of its Subsidiaries shall render to or file with the Securities
and Exchange Commission, the National Association of Securities Dealers, Inc.
or any national securities exchange and (ii) all press releases and other
statements made available generally by the Borrower or any of its Subsidiaries
to the public concerning material developments in the business of the Borrower
or any of its Subsidiaries;
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(e) Promptly upon (and in any event within five (5) Business Days
after) obtaining knowledge thereof, written notice of any of the following:
(i) the occurrence of any Default or Event of
Default;
(ii) the institution or threatened institution of
any action, suit, investigation or proceeding against or affecting the
Borrower or any of its Subsidiaries, including any such investigation
or proceeding by any Governmental Authority (other than routine
periodic inquiries, investigations or reviews), that seeks to enjoin
or otherwise prevent the consummation of, or to recover damages or
obtain relief as a result of, any of the Credit Documents, or that
could, if adversely determined, be reasonably expected, individually
or in the aggregate, to have a Material Adverse Effect, and any
material and adverse development in any litigation or other
proceeding previously reported pursuant to SECTION 5.5 or this SECTION
6.2(e)(ii);
(iii) the receipt by the Borrower or any of its
Subsidiaries from any Governmental Authority of any notice asserting
any failure by the Borrower or any of its Subsidiaries to be in
compliance with applicable Requirements of Law or that threatens the
taking of any action against the Borrower or such Subsidiary or sets
forth circumstances that, if taken or adversely determined, could be
reasonably expected to have a Material Adverse Effect;
(iv) the occurrence of any ERISA Event, together
with (i) a written statement of the chief executive officer or a
Financial Officer of theBorrower specifying the details of such ERISA
Event and the action that the Borrower has taken, is taking and
proposes to take with respect thereto, (ii) a copy of any notice with
respect to such ERISA Event that may be required to be filed with the
PBGC and (iii) a copy of any notice delivered by the PBGC to the
Borrower or such ERISA Affiliate with respect to such ERISA Event;
(v) the termination, resignation or replacement
of any of the chairman, chief executive officer, or president of the
Borrower or Eclipsys Solutions Corp. and (together with copies
thereof) the execution of any material modification of any existing
employment agreement, or any new employment agreement, with any such
officer (unless notice has previously been delivered pursuant to
SECTION 8.10);
(vi) the payment or assertion of a claim for
payment of any amount in excess of $50,000 by any party to the Merger
Agreement under SECTIONS 4.4, 10.1 or 10.2 of the Merger Agreement
(without regard to the "basket" limitation set forth in SECTION 10.6
thereof), or any other notices delivered or received by the Borrower
or any of its Subsidiaries under the Merger Agreement;
(vii) the occurrence of any breach, default or
event of default under (i) the leases identified on SCHEDULE 5.12(b)
relating to leased properties in Atlanta, Georgia, Roseland, New
Jersey, or San Jose, California, or (ii) any other lease of real
property under which the Borrower or any Subsidiary is lessee which
breach or default could reasonably be expected to have a Material
Adverse Effect.
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(viii) the occurrence of any material default under,
or any proposed or threatened termination or cancellation of, any
material contract or agreement to which the Borrower or any of its
Subsidiaries is a party, the termination or cancellation of which
could be reasonably expected to have a Material Adverse Effect;
(ix) the occurrence of any of the following: (i)
the assertion of any Environmental Claim against or affecting the
Borrower, any of its Subsidiaries or any real property leased, owned
or occupied by the Borrower or any of its Subsidiaries; (ii) the
receipt by the Borrower or any of its Subsidiaries of notice of any
alleged violation of or noncompliance with any Environmental Laws; or
(iii) the taking of any remedial action by the Borrower, any of its
Subsidiaries or any other Person in response to the actual or alleged
generation, storage, release, disposal or discharge of any Hazardous
Substances on, to, upon or from any real property leased, owned or
occupied by the Borrower or any of its Subsidiaries; but in each case
under clauses (i), (ii) and (iii) above, only to the extent the same
could be reasonably expected to have a Material Adverse Effect; and
(x) any other matter or event that has, or could
be reasonably expected to have, a Material Adverse Effect, together
with a written statement of the chief executive officer or a Financial
Officer of the Borrower setting forth the nature and period of
existence thereof and the action that the Borrower has taken, is
taking and proposes to take with respect thereto;
(f) At the same time required to be provided to the holders of the
Borrower's Preferred Stock or the Warrants, any information or notice required
to be provided to such holders pursuant to the Series A Agreement, the
Preferred Stock Purchase Agreement, the Warrants or the certificate of
incorporation of the Borrower;
(g) As soon as reasonably practicable after the consummation of
any Permitted Acquisition, and to the extent not previously provided, copies of
the fully executed acquisition agreement (including schedules and exhibits
thereto) and other material documents and closing papers delivered in
connection therewith;
(h) Promptly upon completion thereof, copies of all material
amendments to the certificate or articles of incorporation, bylaws or other
organizational documents of the Borrower or any of its Subsidiaries; and
(i) As promptly as reasonably possible, such other information
about the business, condition (financial or otherwise), operations or
properties of the Borrower or any of its Subsidiaries (including any Plan and
any information required to be filed under ERISA, and including any statements,
audits or other reports submitted by or on behalf of the Borrower or any of its
Subsidiaries to any state Governmental Authority) as the Agent or any Lender
may from time to time reasonably request.
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6.3 Existence; Franchises; Maintenance of Properties. The
Borrower will, and will cause each of its Subsidiaries to, (i) maintain and
preserve in full force and effect its corporate existence, except as permitted
otherwise by SECTION 8.1, (ii) obtain, maintain and preserve in full force and
effect all other rights, franchises, licenses, permits, certifications,
approvals and authorizations required by Governmental Authorities and necessary
to the ownership, occupation or use of its properties or the conduct of its
business, except to the extent the failure to do so would not be reasonably
expected to have a Material Adverse Effect, and (iii) keep all material
properties in good working order and condition (normal wear and tear excepted)
and from time to time make all necessary repairs to and renewals and
replacements of such properties, except to the extent that any of such
properties are obsolete or are being replaced.
6.4 Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply in all respects with all Requirements of Law
applicable in respect of the conduct of its business and the ownership and
operation of its properties, except to the extent the failure so to comply
could not be reasonably expected to have a Material Adverse Effect.
6.5 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, (i) pay all liabilities and obligations as and
when due (subject to any applicable subordination provisions), except to the
extent failure to do so would not be reasonably expected to have a Material
Adverse Effect, and (ii) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it, upon its income or profits or
upon any of its properties, prior to the date on which penalties would attach
thereto, and all lawful claims that, if unpaid, might become a Lien upon any of
the properties of the Borrower or any of its Subsidiaries; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings and as to which the Borrower or such Subsidiary
is maintaining adequate reserves with respect thereto in accordance with
Generally Accepted Accounting Principles, unless and until any tax lien notice
has become effective with respect thereto or until any Lien resulting therefrom
attaches to its properties and becomes enforceable against its other creditors.
6.6 Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to,
maintain with financially sound and reputable insurance companies insurance
with respect to its assets, properties and business, against such hazards and
liabilities, of such types and in such amounts, as is customarily maintained by
companies of established reputation engaged in the same or similar businesses
similarly situated, and maintain such other or additional insurance on such
terms and subject to such conditions as may be required under any Security
Document.
(b) Until the consummation of a Qualified Public Offering, the
Borrower shall maintain and collaterally assign to the Agent, for the benefit
of the Lenders, at least $5,000,000 in key man life insurance on the life of
Xxxxxx X. Xxxxxx with such insurance companies as shall be determined by the
Borrower (provided that such insurance companies shall be reasonably acceptable
to the Agent).
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6.7 Maintenance of Books and Records; Inspection. The Borrower
will, and will cause each of its Subsidiaries to, (i) maintain adequate books,
accounts and records, in which full, true and correct entries shall be made of
all financial transactions in relation to its business and properties, and
prepare all financial statements required under this Agreement, in each case in
accordance with Generally Accepted Accounting Principles and in compliance with
the requirements of any Governmental Authority having jurisdiction over it, and
(ii) permit employees or agents of the Agent or any Lender to inspect its
properties and examine or audit its books, records, working papers and accounts
and make copies and memoranda of them, and to discuss its affairs, finances and
accounts with its officers and employees and, upon notice to the Borrower, the
independent public accountants of the Borrower and its Subsidiaries (and by
this provision the Borrower authorizes such accountants to discuss the finances
and affairs of the Borrower and its Subsidiaries), all at such times and from
time to time, upon reasonable notice and during business hours, as may be
reasonably requested; provided that the Borrower shall not be required to
reimburse the Agent or any Lender in excess of $10,000 per year for the
out-of-pocket or any other expenses incurred in connection with the
administration, monitoring and reviewing of the Loans and the Collateral,
including, without limitation, for travel, meals, long-distance telephone, wire
transfer fees and facsimile transmission charges and copying; provided,
however, that all such expenses incurred upon or during the continuation of any
Event of Default shall not be included in the calculation of the $10,000 amount
referred to above and shall be paid by the Borrower without regard to amount,
subject to the other limitations set forth herein.
6.8 Creation or Acquisition of Subsidiaries. Subject to the
provisions of SECTION 8.6, the Borrower may from time to time create or acquire
new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or
otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or
acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect
acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary
(unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute
and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to
which such new Wholly Owned Subsidiary shall become a guarantor thereunder and
shall agree to guarantee the payment in full of the Obligations of the Borrower
under this Agreement and the other Credit Documents, and (ii) a joinder to the
Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly
Owned Subsidiary shall grant to the Agent a first priority Lien upon and
security interest in its accounts receivable, inventory, equipment, general
intangibles and other personal property as Collateral for its obligations under
the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new
Wholly Owned Subsidiary the Capital Stock of which is directly owned by the
Borrower, the Borrower will execute and deliver to the Agent an amendment or
supplement to the Borrower Pledge and Security Agreement, pursuant to which all
of the Capital Stock of such new Wholly Owned Subsidiary and any promissory
notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to
the Agent, together with the certificates evidencing such Capital Stock and
undated stock powers duly executed in blank and any such promissory notes duly
endorsed in blank; and concurrently with the creation or acquisition of any new
Wholly Owned Subsidiary the Capital Stock of which is directly owned by another
Wholly Owned Subsidiary (the "Parent
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Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a
joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and
Security Agreement, pursuant to which all of the Capital Stock of such new
Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned
Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together
with the certificates evidencing such Capital Stock and undated stock powers
duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its
Subsidiaries will deliver any such other documents, certificates and opinions
(including opinions of local counsel in the jurisdiction of organization of
each such new Wholly Owned Subsidiary), in form and substance reasonably
satisfactory to the Agent, as the Agent may reasonably request in connection
therewith and will take such other action as the Agent may reasonably request
to create in favor of the Agent a first priority perfected security interest in
the Collateral being pledged pursuant to the documents described above, subject
only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall
hold assets located solely in, and shall be organized under the laws of any
jurisdiction of, the United States of America.
6.9 Year 2000. Borrower shall use its best commercial efforts to
assure that the Borrower's and its Subsidiaries' computer based systems are
able to operate and effectively process data, including dates, on and after
January 1, 2000. At the request of the Agent, the Borrower shall provide the
Agent assurance acceptable to the Agent of the Borrower's and its Subsidiaries'
Year 2000 capability.
6.10 Additional Security; Further Assurances.
(a) The Borrower will, and will cause each of its Subsidiaries
(other than Designated Non-Guarantor Subsidiaries) to, grant to the Agent from
time to time security interests, Liens and mortgages in and upon such real
properties of the Borrower or such Subsidiary as are not covered by the
Security Documents executed and delivered on the Amendment Effective Date or
pursuant to SECTION 6.8 or as may be requested from time to time by the
Required Lenders (including, without limitation, Liens on real properties
acquired by the Borrower or such Subsidiary in connection with any Permitted
Acquisition); provided that the Borrower will not be obligated to execute and
deliver leasehold mortgages with respect to the leased properties set forth on
SCHEDULE 5.12(b) as of the Amendment Effective Date. Such security interests,
Liens and mortgages shall be granted pursuant to documentation in form and
substance satisfactory to the Required Lenders and shall constitute valid and
perfected security interests and Liens superior to and prior to the rights of
all other Persons and subject to no Liens other than Permitted Liens. Without
limitation of the foregoing, in connection with the grant of any mortgage or
deed of trust with respect to any fee or leasehold interest in real property,
the Borrower will, and will cause each applicable Subsidiary to, at the
Borrower's expense, prepare, obtain and deliver to the Agent any environmental
assessments, appraisals, surveys, title insurance and other matters or
documents (including, without limitation, Landlord Consents) as the Agent may
reasonably request or as may be required under applicable banking laws and
regulations.
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(b) The Borrower will, and will cause each of its Subsidiaries to,
make, execute, endorse, acknowledge and deliver any amendments, modifications
or supplements hereto and restatements hereof and any other agreements,
instruments or documents, and take any and all such other actions, as may from
time to time be reasonably requested by the Agent or the Required Lenders to
perfect and maintain the validity and priority of the Liens granted pursuant to
the Security Documents and to effect, confirm or further assure or protect and
preserve the interests, rights and remedies of the Agent and the Lenders under
this Agreement and the other Credit Documents.
ARTICLE VII
FINANCIAL COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the Swingline Commitment, the termination or
expiration of all Letters of Credit and the payment in full of all principal
and interest with respect to the Loans and all Reimbursement Obligations
together with all other amounts then due and owing hereunder:
7.1 Ratio of Consolidated Funded Debt to Annualized EBITDA. The
Borrower will not permit the ratio of Consolidated Funded Debt to Annualized
EBITDA (i) as of the last day of any fiscal quarter ending prior to the
successful consummation of a Qualified Public Offering, to be greater than 2.5
to 1.0, and (ii) as of the last day of any fiscal quarter ending after or
concurrently with the successful consummation of a Qualified Public Offering,
to be greater than 3.0 to 1.0.
7.2 Ratio of Annualized EBITDA to Annualized Interest Expense.
The Borrower will not permit the ratio of Annualized EBITDA to Annualized
Interest Expense to be less than 3.0 to 1.0 as of the last day of any fiscal
quarter.
7.3 Ratio of Consolidated Funded Debt to Consolidated Total
Capital. The Borrower will not permit the ratio of Consolidated Funded Debt to
Consolidated Total Capital (i) as of the last day of any fiscal quarter ending
prior to the successful consummation of a Qualified Public Offering, to be
greater than 0.6 to 1.0, and (ii) as of the last day of any fiscal quarter
ending after or concurrently with the successful consummation of a Qualified
Public Offering, to be greater than 0.5 to 1.0.
7.4 Capital Expenditures. The Borrower will not permit Capital
Expenditures during any fiscal year to exceed 6% of the Consolidated Net
Revenues for the previous fiscal year.
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ARTICLE VIII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the Swingline Commitment, the termination or
expiration of all Letters of Credit and the payment in full of all principal
and interest with respect to the Loans and all Reimbursement Obligations
together with all other amounts then due and owing hereunder:
8.1 Merger; Consolidation. The Borrower will not, and will not
permit or cause any of its Subsidiaries (other than Eclipsys Limited) to,
liquidate, wind up or dissolve, or enter into any consolidation, merger or
other combination, or agree to do any of the foregoing; provided, however,
that:
(i) the Borrower may merge or consolidate with
another Person so long as (w) the Borrower is the surviving entity,
(x) if such other Person is a Subsidiary immediately prior to giving
effect thereto, the aggregate of any cash or other assets of the
Borrower or any of its Subsidiaries received as consideration pursuant
to such transaction by Persons other than the Borrower or a Wholly
Owned Subsidiary shall be deemed to constitute an Investment made by
the Borrower pursuant to clause (x) of SECTION 8.6, (y) if such other
Person is not already a Subsidiary immediately prior to giving effect
thereto, such merger or consolidation shall constitute a Permitted
Acquisition and the applicable conditions and requirements of SECTION
8.6(vi) shall be satisfied, and (z) immediately after giving effect
thereto, no Default or Event of Default would exist; and
(ii) any Subsidiary may merge or consolidate with
another Person so long as (w) the surviving entity is the Borrower or
a Wholly Owned Subsidiary and a party to the Subsidiary Guaranty or
this Agreement, (x) if such other Person is a Subsidiary immediately
prior to giving effect thereto, the aggregate of any cash or other
assets of the Borrower or any of its Subsidiaries received as
consideration pursuant to such transaction by Persons other than the
Borrower or a Wholly Owned Subsidiary shall be deemed to constitute an
Investment made by the Borrower pursuant to (x) of SECTION 8.6, (y) if
such other Person is not already a Subsidiary immediately prior to
giving effect thereto, such merger or consolidation shall constitute a
Permitted Acquisition and the applicable conditions and requirements
of SECTION 8.6(vi) shall be satisfied, and (z) immediately after
giving effect thereto, no Default or Event of Default would exist.
8.2 Indebtedness. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness other than:
(i) Indebtedness incurred under this Agreement,
the Notes and the other Credit Documents;
(ii) unsecured Indebtedness of the Borrower and
Wholly Owned Subsidiaries that is expressly subordinated and made
junior in right and time of payment to the prior
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payment in full of the Obligations and that is evidenced by one or
more written agreements or instruments the terms, conditions and
provisions (including, without limitation, covenants, events of
default and subordination provisions) of which are satisfactory in
form and substance to the Required Lenders in their sole discretion,
and that, at a minimum and without limitation, (1) bears a stated
maturity date not earlier than one year after the Revolving Credit
Maturity Date, (2) does not by its terms provide for any scheduled
payments of principal, and does not otherwise require any payments of
principal under any circumstances (other than pursuant to acceleration
upon default), to be made at any time earlier than one year after the
Revolving Credit Maturity Date, and (3) contains covenants and
undertakings that are, in the judgment of the Required Lenders,
materially less restrictive taken as a whole than those set forth in
this Agreement, and without limitation of the foregoing such
agreements and instruments shall not have any financial, affirmative
or negative covenants or events of default that are more restrictive
than those contained in this Agreement (the Indebtedness described in
this clause (iii), "Subordinated Indebtedness"), provided that,
immediately prior to and after giving effect to the incurrence of such
Indebtedness, no Default or Event of Default shall have occurred and
be continuing, and provided further that, prior to the incurrence of
any such Subordinated Indebtedness, (y) all agreements and instruments
evidencing such Subordinated Indebtedness shall have been approved in
writing by the Required Lenders (or the Agent with their approval and
on their behalf), and (z) the Borrower shall have delivered to each
Lender a certificate, signed by a Financial Officer, satisfactory in
form and substance to the Required Lenders and to the effect that,
after giving effect to the incurrence of such Subordinated
Indebtedness, the Borrower is in compliance with the financial
covenants set forth in SECTIONS 7.1 through 7.4, such compliance
determined with regard to calculations made on a pro forma basis in
accordance with Generally Accepted Accounting Principles as of the
last day of the fiscal quarter then most recently ended and as if such
Subordinated Indebtedness had been incurred on the first day of the
period applicable to such covenants (such calculations to be attached
to such certificate);
(iii) Indebtedness existing on the Amendment
Effective Date and described in SCHEDULE 8.2;
(iv) accrued expenses, current trade or other
accounts payable and other current liabilities arising in the ordinary
course of business and not incurred through the borrowing of money,
provided that the same shall be paid when due except to the extent
being contested in good faith and by appropriate proceedings;
(v) unsecured loans and advances by (y) the
Borrower and its Subsidiaries to Wholly Owned Subsidiaries (other than
Eclipsys Limited, except for loans of up to the lesser of (i)
$1,000,000 annually or (ii) the amount of funds in any manner annually
distributed by Eclipsys Limited to the Borrower, provided that the
Borrower is in compliance with the Excess Cash requirements hereunder)
or (z) by any Wholly Owned Subsidiaries to the Borrower, provided that
any such loan or advance, if requested by the Agent, is evidenced by a
promissory note, in form and substance satisfactory to the Agent,
pledged to the Agent pursuant to the Security Documents and, as to
Indebtedness
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described in clause (y), is fully subordinated in right and time of
payment to the Obligations;
(vi) Contingent Obligations permitted under SECTION
8.3;
(vii) Indebtedness of the Borrower under Hedge
Agreements entered into with any Lender in respect of the Indebtedness
incurred pursuant to this Agreement, provided that the notional amount
of all such agreements at any time shall not exceed the aggregate
Revolving Credit Commitments at such time;
(viii) Indebtedness of the Borrower and its
Subsidiaries of the type described in, and secured by Liens of the
types described in, clause (vi) of SECTION 8.4 of up to $500,000 at
any one time outstanding;
(ix) Indebtedness assumed or incurred in
connection with any Permitted Acquisition to the extent approved in
writing by the Required Lenders prior to the consummation of such
Permitted Acquisition;
(x) loans to Designated Non-Guarantor Subsidiaries
to the extent permitted by SECTION 8.6(ix);
(xi) additional unsecured Indebtedness not
exceeding $500,000 in aggregate principal amount at any one time
outstanding; and
(xii) refinancings, refundings or extensions of the
foregoing; provided, that such refinancing, refunding or extensions
shall not (u) exceed the principal amount refinanced, refunded or
extended, (v) shorten the maturity (or weighted average life to
maturity) of such Indebtedness, (w) increase the interest rate
applicable to such Indebtedness, (x) cause any covenants or
undertakings (whether affirmative or negative) of the Borrower or any
Subsidiary in respect of such Indebtedness to be more restrictive than
such covenants or undertakings had been prior to such refinancing,
refunding or extension assumed or incurred in connection with any
Acquisition to the extent approved in writing by the Required Lender
prior to the consummation of such Acquisition, (y) facilitate the
exercise or enforcement of any remedies of any obligee of such
Indebtedness in respect of any default or event of default thereunder,
or (z) result in any amendments or modifications of any of the
subordination provisions applicable to such Indebtedness.
8.3 Contingent Obligations. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, create, incur, assume or suffer to
exist any Contingent Obligation other than:
(i) Contingent Obligations incurred pursuant to
the Transaction Documents;
(ii) Contingent Obligations consisting of the
indemnification by the Borrower or any of its Subsidiaries of (u) the
officers, directors, employees and agents of the
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Borrower or such Subsidiary, to the extent permissible under the
corporation law of the jurisdiction in which the Borrower or such
Subsidiary is organized, (v) commercial banks, investment bankers and
other independent consultants or professional advisors pursuant to
agreements relating to the underwriting of the Borrower's or such
Subsidiary's securities or the rendering of banking or professional
services to the Borrower or such Subsidiary, (w) landlords, licensors,
licensees, suppliers, customers and other parties pursuant to
agreements entered into in the ordinary course of business by the
Borrower or such Subsidiary, (x) any seller in an Acquisition, and (y)
any other Person pursuant to customary indemnification or warranty
provisions in any agreement entered into in the ordinary course of
business;
(iii) Contingent Obligations owed to a seller in a
Permitted Acquisition that relate to customary post-closing
adjustments and payments;
(iv) guarantees by the Borrower or any of its
Subsidiaries (other than Eclipsys Limited except as set forth on
SCHEDULE 8.3) of obligations of the Borrower or its Subsidiaries under
leases permitted hereunder;
(v) guarantees by the Borrower or any of its
Subsidiaries of any other Indebtedness permitted under SECTION 8.2
(provided that any guarantees of Subordinated Indebtedness shall be
subordinated to guarantees of the Obligations to at least the same
extent and in the same manner as such Subordinated Indebtedness is
subordinated to the Obligations);
(vi) guarantees by the Borrower set forth on
SCHEDULE 8.3 assumed in connection with Acquisitions consummated prior
to the Amendment Effective Date.
8.4 Liens. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, directly or indirectly, make, create, incur, assume
or suffer to exist, any Lien upon or with respect to any part of its property
or assets (including without limitation any rights to receive income or
profits therefrom), whether now owned or hereafter acquired, or file or permit
the filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, assets, income or
profits under the Uniform Commercial Code of any state or under any similar
recording or notice statute, or agree to do any of the foregoing, other than
the following (collectively, "Permitted Liens"):
(i) Liens created under the Credit Documents;
(ii) Liens in existence on the Amendment Effective
Date and set forth on SCHEDULE 8.4;
(iii) Liens imposed by law, such as Liens of
carriers, warehousemen, mechanics, materialmen and landlords, and
other similar Liens incurred in the ordinary course of business for
sums not constituting borrowed money that are not overdue for a period
of more than thirty (30) days or that are being contested in good
faith by
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appropriate proceedings and for which adequate reserves have been
established in accordance with Generally Accepted Accounting
Principles;
(iv) Liens (other than any Lien imposed by ERISA,
the creation or incurrence of which would result in an Event of
Default under SECTION 9.1(j)) 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 the performance of letters of credit, bids, tenders, statutory
obligations, surety and appeal bonds, leases, trade contracts and
other similar obligations (other than obligations for borrowed money)
entered into in the ordinary course of business, provided that all
such Liens would not have a Material Adverse Effect;
(v) Liens for taxes, assessments or other
governmental charges or statutory obligations that are not delinquent
or remain payable without any penalty or that are being contested in
good faith by appropriate proceedings and for which adequate reserves
have been established in accordance with Generally Accepted Accounting
Principles;
(vi) Purchase money Liens upon equipment, fixed
assets or similar property used or leased by the Borrower or any of
its Subsidiaries in the ordinary course of its business, incurred in
compliance with SECTION 7.5 hereof, and securing Indebtedness incurred
solely to pay all or a portion of the purchase price thereof
(including in connection with capital leases) and any extensions,
renewals or replacements of such Liens; provided that any such Lien
(i) shall attach to such property concurrently with or within ten (10)
days after the acquisition thereof by the Borrower or such Subsidiary,
(ii) shall not exceed the lesser of (y) the fair market value of such
property or (z) the cost thereof to the Borrower or such Subsidiary
and (iii) shall not encumber any other property of the Borrower or any
of its Subsidiaries;
(vii) Any attachment or judgment Lien not
constituting an Event of Default under SECTION 9.1(i) that is being
contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with Generally
Accepted Accounting Principles;
(viii) Liens arising from the filing, for notice
purposes only, of financing statements in respect of operating leases;
(ix) With respect to any real property occupied by
the Borrower or any of its Subsidiaries, all easements, rights of way,
licenses and similar encumbrances on title that do not materially
impair the use of such property for its intended purposes; and
(x) Liens securing Indebtedness permitted
pursuant to clause (ix) of Section 8.2.
8.5 Disposition of Assets. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
all or any portion of its assets, business or properties (including, without
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limitation, any Capital Stock of any Subsidiary), or enter into any arrangement
with any Person providing for the lease by the Borrower or any Subsidiary as
lessee of any asset that has been sold or transferred by the Borrower or such
Subsidiary to such Person, or agree to do any of the foregoing, except for:
(i) the sale of inventory and the license or
lease of Intellectual Property and other assets, in each case in the
ordinary course of business;
(ii) the sale or exchange of used or obsolete
equipment to the extent the proceeds of such sale are applied towards,
or such equipment is exchanged for, similar replacement equipment or
other equipment to be utilized in business of the Borrower or its
Subsidiaries;
(iii) the sale, lease or other disposition of
assets by the Borrower or a Subsidiary of the Borrower to the Borrower
or to another Wholly Owned Subsidiary or to a Designated Non-Guarantor
Subsidiary (provided, that the value of assets sold, leased or
otherwise disposed shall be included as Investments and subject to the
limitations set forth in SECTION 8.6(ix) hereof), if, immediately
after giving effect thereto, no Default or Event of Default would
exist;
(iv) the sale of the network services and
international divisions of Eclipsys Solutions Corporation (including
the stock or assets of Eclipsys Limited), to the extent the aggregate
proceeds of such dispositions do not exceed $2,000,000;
(v) the sale or disposition of assets outside the
ordinary course of business for cash, provided that (x) the Net Cash
Proceeds from such sales or dispositions do not exceed $500,000 in the
aggregate for the Borrower and its Subsidiaries during any fiscal
year, (y) in no event shall the Borrower or any of its Subsidiaries
sell or otherwise dispose of any of the Capital Stock of any
Subsidiary (except as set forth on clause (iv) above), and (z)
immediately after giving effect thereto, no Default or Event of
Default would exist; and
(vi) the sale or disposition of Investments
expressly permitted to be held pursuant to clause (i) of SECTION 8.6.
To the extent any Collateral is sold as permitted by this Section,
such Collateral shall be sold free and clear of all liens created by the Credit
Documents, and the Agent shall be authorized to take any actions it deems
appropriate in order to effect the foregoing.
8.6 Investments. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, directly or indirectly, purchase, own, invest
in or otherwise acquire any Capital Stock, evidence of indebtedness or other
obligation or security or any interest whatsoever in any other Person, or make
or permit to exist any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any other Person, or
consummate an Acquisition or create or acquire any Subsidiary, or become a
partner or joint venturer in any
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partnership or joint venture (collectively, "Investments"), or make a
commitment or otherwise agree to do any of the foregoing, other than:
(i) Cash Equivalents;
(ii) Investments consisting of the purchase,
acquisition, license or lease of inventory, supplies, materials,
equipment, intellectual property and other assets in the ordinary
course of business;
(iii) Investments consisting of loans and advances
to employees for reasonable travel, relocation and business expenses
in the ordinary course of business (provided that the aggregate
outstanding amount of all such loans and advances shall not exceed
$400,000 at any time), extensions of trade credit in the ordinary
course of business, and prepaid expenses incurred in the ordinary
course of business;
(iv) without duplication, Investments consisting
of Indebtedness permitted under clause (v) of SECTION 8.2;
(v) Investments existing on the Amendment
Effective Date and described in SCHEDULE 8.6;
(vi) Investments consisting of Acquisitions with
respect to which all of the following conditions have been satisfied or
waived in writing by the Required Lenders or the Agent on their behalf
("Permitted Acquisitions"):
(a) Either (i) the Required Lenders
shall have given their prior written consent to the
consummation of such Acquisition, which consent may
be in their sole discretion and may be given subject
to such terms and conditions as the Required Lenders
may establish in addition to the terms and
conditions set forth in this SECTION 8.6(vi), or (ii)
(A) with respect to any Acquisition occurring prior
to the successful consummation of a Qualified Public
Offering, the Acquisition Amount relating to any such
Acquisition does not exceed $500,000 individually
and, together with the Acquisition Amount of all
Acquisitions under this clause (vi) since the
Closing Date (as defined in the Original Credit
Agreement), $1,500,000 in the aggregate and (B) with
respect to any Acquisition occurring after or
concurrently with the successful consummation of a
Qualified Public Offering, (1) the total Acquisition
Amount for such Acquisition does not exceed
$35,000,000 and/or (2) the Borrower incurs a Borrowing
directly or indirectly, of less than $5,000,000 in
connection with any individual Acquisition or incurs
Borrowings of less than $35,000,000, directly or
indirectly, in connection with all Acquisitions in
the aggregate in any fiscal year of the Borrower;
provided that any Acquisition with a total
Acquisition Amount of greater than $35,000,000 shall
require Required Lender approval;
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(b) With respect to each such Acquisition, no
Default or Event of Default shall have occurred and be
continuing at the time of the consummation of such Acquisition
or would exist immediately after giving effect thereto; and
(c) Not less than ten (10) Business Days prior to
the consummation of any such Acquisition, the Borrower shall
have delivered to the Agent and each Lender the following
items:
(1) a reasonably detailed description of
the material terms of such Acquisition (including,
without limitation, the purchase price and method and
structure of payment) and of each Person or business
that is the subject of such Acquisition (each, a
"Target");
(2) historical financial statements of
the Target (or, if there are two or more Targets that
are the subject of such Acquisition and that are part
of the same consolidated group, consolidated
historical financial statements for all such Targets)
for the most recent fiscal year available and, if
available, for any interim periods since the most
recent fiscal year-end (including a calculation of
revenue and cash flow during such period) (provided
that, with respect to Acquisitions described in
clause (ii) of subsection (a) above, such financial
statements shall be delivered as promptly as
practicable and not more than ten (10) Business Days
after the consummation of the Acquisition);
(3) consolidated projected income
statements of the Borrower and its Subsidiaries
(giving effect to such Acquisition and the
consolidation with the Borrower of each relevant
Target) for the two-year period following the
consummation of such Acquisition, in reasonable
detail (including a calculation of Consolidated
EBITDA during such periods), together with any
appropriate statement of assumptions and pro forma
adjustments (provided that, with respect to
Acquisitions described in clause (ii) of subsection
(a) above, such financial statements shall be
delivered as promptly as practicable and not more
than ten (10) Business Days after the consummation of
the Acquisition); and
(4) a certificate, in form and substance
satisfactory to the Agent, executed by a Financial
Officer of the Borrower setting forth the applicable
purchase price and further to the effect that, to the
best of such individual's knowledge, (w) the
consummation of such Acquisition will not result in a
violation of any provision of this SECTION 8.6(vi),
(x) after giving effect to such Acquisition and any
Borrowings made in connection therewith, the Borrower
is in compliance with the financial covenants
contained in SECTIONS 7.1 through 7.4, such
compliance determined with regard to calculations
made on a pro forma basis in accordance with
Generally Accepted Accounting Principles as if each
Target had been consolidated with the Borrower and
its Subsidiaries for those periods
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applicable to such covenants as determined for the
most recent calculation period (such calculations to
be attached to the certificate), (y) the Borrower
believes in good faith that it will continue to
comply with such financial covenants for a period of
one year following the date of the consummation of
such Acquisition, and (z) after giving effect to such
Acquisition and any Borrowings in connection
therewith, the Borrower believes in good faith that
it will have sufficient availability under the
Revolving Credit Commitments to meet its ongoing
working capital requirements; and
(d) At the request of the Agent or any Lender,
the Borrower will furnish copies of current drafts or, to the
extent available, final versions, of the definitive
acquisition agreement (including schedules and exhibits
thereto) and other material documents and agreements delivered
or to be delivered in connection therewith;
(vii) existing Investments in Persons that are Subsidiaries
on the Amendment Effective Date;
(viii) Investments in Wholly Owned Subsidiaries
(other than Eclipsys Limited) and the creation of and Investments in
newly created or acquired Wholly Owned Subsidiaries (other than
Designated Non-Guarantor Subsidiaries) with respect to which the
applicable conditions and requirements of SECTION 6.8 have been
satisfied, excluding in each case Investments in assets, properties or
Persons located outside the United States of America;
(ix) the creation of and Investments in Designated
Non-Guarantor Subsidiaries, provided (i) all Investments in any single
Designated Non-Guarantor Subsidiary do not exceed $350,000, (ii) the
aggregate of all Investments in Designated Non-Guarantor Subsidiaries
under this clause (ix) since the Closing Date (as defined in the
Original Credit Agreement) does not exceed $1,000,000, (iii) the
Borrower or a Wholly Owned Subsidiary owns not less than 50% of the
total economic equity or ownership interest in, and otherwise
exercises a controlling influence over the management and policies of,
such Designated Non-Guarantor Subsidiary, and (iv) the Capital Stock
(or a security interest in the dividends or distributions) of such
Designated Non-Guarantor Subsidiary held (or to be received) by the
Borrower or any of its Subsidiaries is pledged or granted to the
Agent, on terms satisfactory to the Agent in its sole discretion,
pursuant to the Borrower Pledge and Security Agreement or the
Subsidiary Pledge and Security Agreement (it being acknowledged that
the Borrower or Subsidiary holding such Capital Stock shall use its
commercially reasonable efforts (not to include the institution of
litigation or the payment of any costs or fees other than incidental
costs or fees relating thereto), including by seeking to obtain any
necessary consents, to pledge such Capital Stock rather than the
security interest in such dividends or distributions); and
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(x) Investments (other than Investments specified
in clauses (i) through (ix) above), in an aggregate amount not
exceeding $250,000 for all such Investments from and after the
Amendment Effective Date.
8.7 Restricted Payments.
(a) The Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, declare or make any dividend payment,
or make any other distribution or payment of cash, property or assets, in
respect of any of its Capital Stock or any warrants, rights or options to
acquire its Capital Stock, or make any payment to any holders of its Capital
Stock or any Warrants, rights or options to acquire its Capital Stock under the
Preferred Stock Purchase Agreement, the Series G Preferred Stock Purchase
Agreement, or the Warrants, or purchase, redeem, retire or otherwise acquire
for value any shares of its Capital Stock (including any Preferred Stock) or
any warrants, rights or options to acquire its Capital Stock (including the
Warrants), or set aside funds for any of the foregoing, except that:
(i) the Borrower may declare and make dividend
payments or other distributions payable solely in Qualified Capital
Stock;
(ii) each Subsidiary of the Borrower may declare
and make dividend payments or other distributions to the Borrower or
any Wholly Owned Subsidiary of the Borrower, to the extent not
prohibited under applicable Requirements of Law;
(iii) the Borrower may purchase or redeem any
shares of its Capital Stock provided the amount of cash or the Fair
Market Value of other consideration paid in exchange therefor shall
not exceed $50,000 for all such transactions after the Amendment
Effective Date (other than pursuant to SUBSECTION (V) below);
(iv) upon the terms set forth in Section 8 of the
Stockholders Agreement, the Borrower may purchase its Capital Stock
held by Partners Healthcare System, Inc. upon the exercise of the
"Partners Put" (as defined in the Stockholders Agreement), provided
that the Company Note (as defined in the Stockholders Agreement) is
subordinated to the obligations on terms satisfactory to the Agent in
its sole discretion;
(v) concurrently with or immediately following the
closing of the initial Qualified Public Offering, the Borrower may
redeem all of the outstanding shares of its Series B 8.5% Redeemable
Preferred Stock and Series C 8.5% Redeemable Preferred Stock using the
proceeds of such Qualified Public Offering;
(vi) concurrently with or immediately following the
closing of the initial Qualified Public Offering and after any
repayment obligations under Section 2.6(c) of this Agreement have been
met, the Borrower may pay the subordinated promissory notes, dated
June 26, 1997, issued jointly by the Borrower and SDK Medical Computer
Services Corporation in connection with the acquisition of SDK Medical
Computer Services Corporation in an aggregate amount of $7,588,159.95
(the "SDK Notes") using the remaining portion of the proceeds of the
initial Qualified Public Offering after the
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redemption of shares as set forth in paragraph (v) above and the
repayment of outstanding amounts under this Agreement pursuant to
Section 2.6(c); and
(vii) after the successful consummation of a Qualified
Public Offering, the Borrower may repurchase shares of stock of the
Borrower in cash in an amount not exceeding $10,000,000 per fiscal
year as long as (A) such redemption payments are made with Excess Cash
and (B) no Default or Event of Default has occurred and is continuing
both before and after giving effect to such dividend payment.
(b) The Borrower will not, and will not permit or cause any of its
Subsidiaries to, make (or give any notice in respect of) any voluntary or
optional payment or prepayment of principal on, or directly or indirectly make
any redemption (including pursuant to any change of control provision),
retirement, defeasance or other acquisition for value of, any Subordinated
Indebtedness, or make any deposit or otherwise set aside funds for any of the
foregoing purposes.
8.8 Transactions with Affiliates. The Borrower will not, and will
not permit or cause any of its Subsidiaries to, enter into any transaction
(including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service) with any officer, director,
stockholder or other Affiliate of the Borrower or any Subsidiary, except in the
ordinary course of its business and upon fair and reasonable terms that are no
less favorable to it than would obtain in a comparable arm's length transaction
with a Person other than an Affiliate of the Borrower or such Subsidiary;
provided, however, that nothing contained in this Section shall prohibit:
(i) transactions described on SCHEDULE 8.8 or transactions
otherwise permitted under this Agreement;
(ii) transactions after the Amendment Effective
Date that are contemplated by the Preferred Stock Purchase Agreement,
the Series G Preferred Stock Purchase Agreement, the Warrants, the
Stockholders Agreement, the Registration Rights Agreement and any
other Transaction Document and that are not prohibited by any other
provision of this Agreement or any other Credit Document, and the
performance by the Borrower and its Subsidiaries of their respective
obligations under the Transaction Documents;
(iii) travel or other reasonable expense advances
to employees, officers, directors and Board observers in the ordinary
course of business;
(iv) transactions among or between the Borrower or
any Subsidiary that are not prohibited by any other provisions of this
Agreement or any other Credit Document.
8.9 Lines of Business. The Borrower will not, and will not permit
or cause any of its Subsidiaries to, engage in any business other than the
businesses in which it is engaged on the date hereof or a business reasonably
related thereto.
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8.10 Certain Amendments. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, without the prior written consent
of the Required Lenders (not to be unreasonably withheld or delayed), (i)
amend, modify or waive, or permit the amendment, modification or waiver of, any
provision of any Subordinated Indebtedness, or breach or otherwise violate any
of the subordination provisions applicable thereto, including, without
limitation, restrictions against payment of principal and interest thereon
(other than amendments, modifications or waivers that do not affect payments,
prepayments, subordination, the definition of senior indebtedness, information,
affirmative or negative covenants, defaults or other provisions that would be
expected to affect the Lenders adversely, as determined in the reasonable
judgment of the Required Lenders), (ii) amend, modify or waive, or permit the
amendment, modification or waiver of, in any manner that would be expected to
affect the Lenders adversely (as determined in the reasonable judgment of the
Required Lenders), any provision of the Preferred Stock Purchase Agreement, the
Series G Preferred Stock Purchase Agreement, the Stockholders Agreement, the
Warrants, the Partners/B&W Agreements, the Xxxxxx Employment Agreement or any
other agreement entered into by it with respect to its Capital Stock, or enter
into any new agreement with respect to its Capital Stock (other than any
underwriting agreement necessary for the consummation of a Qualified Public
Offering), or (iii) amend, modify or change, in any manner that would be
expected to affect the Lenders adversely (as determined in the reasonable
judgment of the Required Lenders), any provision of its certificate or articles
of incorporation, certificate of partnership, certificate or articles of
organization, operating agreement, partnership agreement or bylaws, as
applicable, or the terms of any class or series of its Capital Stock (including
Preferred Stock). The Borrower will give no less than five (5) Business Days'
prior written notice to the Agent of any proposed amendment, modification or
waiver of or with respect to any document or agreement referenced in this
SECTION 8.10.
8.11 Limitation on Certain Restrictions. The Borrower will not,
and will not permit or cause any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any restriction or encumbrance on (i) the ability of the Borrower and its
Subsidiaries to perform and comply with their respective obligations under the
Credit Documents or (ii) the ability of any Subsidiary of the Borrower to make
any dividend payments or other distributions in respect of its Capital Stock,
to repay Indebtedness owed to the Borrower or any other Subsidiary, to make
loans or advances to the Borrower or any other Subsidiary, or to transfer any
of its assets or properties to the Borrower or any other Subsidiary, in each
case other than such restrictions or encumbrances existing under or by reason
of (i) the Credit Documents, (ii) applicable Requirements of Law, (iii)
customary non-assignment provisions in any lease governing a leasehold interest
or in any permitted purchase money security interest document and (iv)
customary non-assignment provisions in any license governing Intellectual
Property provided by a third party.
8.12 No Other Negative Pledges. The Borrower will not, and will
not permit or cause any of its Subsidiaries to, directly or indirectly, enter
into or suffer to exist any agreement or restriction that prohibits or
conditions the creation, incurrence or assumption of any Lien upon or with
respect to any part of its property or assets, whether now owned or hereafter
acquired, or agree to do any of the foregoing, other than as set forth in this
Agreement and the Security Documents, other than such restrictions or
encumbrances existing under or by reason of
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(i) customary non-assignment provisions in any lease governing a leasehold
interest or in permitted purchase money security interest documents and (ii)
customary non-assignment provisions in any license governing Intellectual
Property provided by a third party.
8.13 Fiscal Year. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, change the ending date of its fiscal year to
a date other than December 31 unless (i) the Borrower gives the Agent written
notice of its intention to change such fiscal year at least sixty (60) days
prior thereto, and (ii) this Agreement shall have been amended to make any
changes in the financial covenants and other terms and conditions of this
Agreement to the extent necessary in the Required Lenders' reasonable
determination to reflect the new fiscal year end.
8.14 Accounting Changes. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, make or permit any material change
in its accounting policies or reporting practices, except as may be required by
Generally Accepted Accounting Principles.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(a) The Borrower shall fail to pay any principal of any Loan or
any Reimbursement Obligation when due;
(b) The Borrower shall fail to pay any interest on any Loan, any
fee or any other Obligation (other than as set forth in subsection (a) above)
when due, and such failure shall continue unremedied for three (3) days;
(c) The Borrower shall fail to observe, perform or comply with, in
any material respect, any condition, covenant or agreement contained in any of
SECTIONS 2.14, 6.2(e)(i), 6.3(i), 6.8, ARTICLE VII or ARTICLE VIII;
(d) The Borrower or any of its Subsidiaries shall fail to observe,
perform or comply with any condition, covenant or agreement contained in this
Agreement or any of the other Credit Documents other than those enumerated in
subsections (a) and (b) above, and such failure shall continue unremedied for
any grace period specifically applicable thereto or, if no such grace period is
applicable, for a period of thirty (30) days after the earlier of (i) the date
on which the Borrower acquires knowledge thereof and (ii) the date on which
written notice thereof is delivered by the Agent or any Lender to the Borrower;
(e) (i) Any representation or warranty made or deemed made by, or
on behalf of the Borrower or any of its Subsidiaries in this Agreement or any
of the other Credit Documents shall prove to have been false or misleading in
any material respect as of the time made or deemed made; (ii) or any
representation or warranty made or deemed made by or on behalf of ALLTEL
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Healthcare Information Services, Inc. in the Merger Agreement or in any
certificate, instrument, report or other document furnished in connection
therewith or in connection with the transactions contemplated thereby shall
prove to have been false or misleading in any material respect as of the time
made, deemed made or furnished, and in the case of this clause (ii) such
misrepresentation would reasonably be expected to have a Material Adverse
Effect;
(f) The Borrower or any of its Subsidiaries shall (i) fail to pay
when due (whether by scheduled maturity, acceleration or otherwise and after
giving effect to any applicable grace period) any principal of or interest on
any Indebtedness (other than the Indebtedness incurred pursuant to this
Agreement) having an aggregate principal amount of at least $250,000; or (ii)
fail to observe, perform or comply with any condition, covenant or agreement
contained in any agreement or instrument evidencing or relating to any such
Indebtedness, or any other event shall occur or condition exist in respect
thereof, and the effect of such failure, event or condition is to cause, or
permit the holder or holders of such Indebtedness (or a trustee or agent on its
or their behalf) to cause (with the giving of notice, lapse of time, or both),
such Indebtedness to become due, or to be prepaid, redeemed (other than
pursuant to a regular schedule therefor), purchased or defeased, prior to its
stated maturity;
(g) The Borrower or any of its Subsidiaries shall (i) file a
voluntary petition or commence a voluntary case seeking liquidation,
winding-up, reorganization, dissolution, arrangement, readjustment of debts or
any other relief under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to controvert in a timely and appropriate
manner, any petition or case of the type described in subsection (g) below,
(iii) apply for or consent to the appointment of or taking possession by a
custodian, trustee, receiver or similar official for or of itself or all or a
substantial part of its properties or assets, (iv) fail generally, or admit in
writing its inability, to pay its debts generally as they become due, (v) make
a general assignment for the benefit of creditors or (vi) take any corporate
action to authorize or approve any of the foregoing;
(h) Any involuntary petition or case shall be filed or commenced
against the Borrower or any of its Subsidiaries seeking liquidation,
winding-up, reorganization, dissolution, arrangement, readjustment of debts,
the appointment of a custodian, trustee, receiver or similar official for it or
all or a substantial part of its properties or any other relief under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, and such petition or case shall continue
undismissed and unstayed for a period of sixty (60) days; or an order, judgment
or decree approving or ordering any of the foregoing shall be entered in any
such proceeding;
(i) Any one or more money judgments, writs or warrants of
attachment, executions or similar processes involving an aggregate amount
(exclusive of amounts fully bonded or covered by insurance as to which the
surety or insurer, as the case may be, has acknowledged its liability in
writing) in excess of $100,000 shall be entered or filed against the Borrower
or any of its Subsidiaries or any of their respective properties and the same
shall not be dismissed, stayed or discharged for a period of thirty (30) days
or in any event later than five days prior to the date of any proposed sale
thereunder;
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(j) Any ERISA Event shall occur or exist with respect to any Plan
or Multiemployer Plan, and such ERISA Event, together with all other ERISA
Events then existing, if any, could be reasonably expected to have a Material
Adverse Effect;
(k) Any agreement or contract to which the Borrower or any of its
Subsidiaries is a party shall be terminated by the other party thereto prior to
the scheduled termination thereof or shall, for any other reason (other than
pursuant to the scheduled termination thereof or termination by the Borrower or
such Subsidiary), fail to be in full force and effect and enforceable by the
Borrower or such Subsidiary in accordance with its terms, and such event or
condition, together with all other such events or conditions, if any, would be
reasonably expected to have a Material Adverse Effect;
(l) Any of the Partners/B&W Agreements shall be terminated other
than pursuant to the scheduled termination thereof (or the license granted to
the Borrower thereunder shall become nonexclusive) or shall, for any other
reason, fail to be in full force and effect and enforceable in accordance with
its terms other than pursuant to the scheduled termination thereof;
(m) Any Security Document to which the Borrower or any of its
Subsidiaries is now or hereafter a party shall for any reason cease to be in
full force and effect or cease to be effective to give the Agent a valid and
perfected security interest in and Lien upon the Collateral purported to be
covered thereby, subject to no Liens other than Permitted Liens, in each case
unless any such cessation occurs in accordance with the terms thereof or is due
to any act or failure to act on the part of the Agent or any Lender, or the
Borrower or any of its Subsidiaries shall assert any of the foregoing; or the
Subsidiary Guaranty shall for any reason (except in accordance with the terms
thereof) cease to be in full force and effect, or any Subsidiary or any Person
acting on its behalf shall deny or disaffirm such Subsidiary's obligations
under the Subsidiary Guaranty;
(n) Xxxxxx X. Xxxxxx shall cease (i) to be the chief executive
officer of the Borrower, (ii) to perform the normal and customary duties of a
chief executive officer, or (iii) to be involved in the day-to-day operations
of the Borrower, unless upon the occurrence of any event described in (i)-(iii)
above the Borrower shall have hired a new chief executive officer of reasonably
comparable skill and expertise, reasonably acceptable to the Required Lenders,
within ninety (90) days of such occurrence;
(o) If any of the following shall occur prior to the successful
consummation of a Qualified Public Offering: (i) any Person or group of
Persons acting in concert as a partnership or other group (other than the
Equity Purchasers or their Affiliates) shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become, after the date hereof, the "beneficial owner" (within
the meaning of such term under Rule 13d-3 under the Exchange Act) of securities
of the Borrower representing 33 1/3% or more of the combined voting power of
the then outstanding securities of the Borrower ordinarily (and apart from
rights accruing under special circumstances) having the right to vote in the
election of directors; (ii) the replacement of a majority of the Board of
Directors of the Borrower from the directors who constituted the Board of
Directors on the Amendment Effective Date, and such
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replacement shall not have been approved by the Board of Directors of the
Borrower (or its replacement approved by the Board of Directors of the
Borrower) as constituted on the Amendment Effective Date; (iii) General
Atlantic Partners, LLC and its Affiliates collectively shall cease to own
Capital Stock of the Borrower representing at least 80% of the total number of
shares of common stock of the Borrower (determined on an "as converted" fully
diluted basis and after giving effect to any adjustments) held by such Persons
on the Amendment Effective Date; (iv) Partners Healthcare System, Inc. and its
Affiliates collectively shall cease to own Capital Stock of the Borrower
representing at least 80% of the total number of shares of common stock of the
Borrower (determined on an "as converted" fully diluted basis and after giving
effect to any adjustments) held by Partners Healthcare System, Inc. on the
Amendment Effective Date, except as a result of a redemption by the Borrower
(but not any other party) of its Capital Stock upon the exercise of the
"Partners Put" in accordance with clause (iv) of SECTION 8.7(a) above; (v)
Xxxxxx X. Xxxxxx and Wilfam Ltd. (together with their "Permitted Transferees"
under the Stockholders Agreement) collectively shall cease to own Capital Stock
of the Borrower representing at least 80% of the total number of shares of
common stock of the Borrower (determined on an "as converted" fully diluted
basis and after giving effect to any adjustments) held by such Persons on the
Amendment Effective Date; (vi) General Atlantic Partners LLC and its
Affiliates, Partners Healthcare System, Inc. and its Affiliates, Xxxxxx X.
Xxxxxx, Wilfam, Ltd., and any other employees of the Borrower who own its
Capital Stock on the Amendment Effective Date collectively shall cease to own
at least a majority of the combined voting power of the then outstanding
securities of the Borrower ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the election of directors,
except as a result of a redemption by the Borrower (but not any other party) of
its Capital Stock upon the exercise of the "Partners Put" in accordance with
clause (iv) of SECTION 8.7(a) or (vii) any event giving rise to the "Series B
Put" or the "Series C Put" (referenced in SECTION 8.7(a)(v) above) shall have
occurred, and the Borrower shall have received notice from any of its
stockholders that it wishes to exercise the Series B Put; or
(p) Concurrently with or at any time after the successful
consummation of a Qualified Public Offering, (i) any Person or group of Persons
acting in concert as a partnership or other group (other than (i) Xxxxxx X.
Xxxxxx and Wilfam, Ltd. and (ii) General Atlantic Partners, LLC and its
Affiliates) shall become the "beneficial owner" (within the meaning of such
term under Rule 13d-3 under the Exchange Act) of securities of the Borrower
representing 25% or more of the combined voting power of the then outstanding
securities of the Borrower ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the election of directors.
9.2 Remedies: Termination of Revolving Credit Commitments,
Swingline Commitment, Acceleration, etc. Upon and at any time after the
occurrence and during the continuance of any Event of Default, the Agent shall
at the direction, or may with the consent, of the Required Lenders, take any or
all of the following actions at the same or different times:
(a) Declare the Revolving Credit Commitments, the Swingline
Commitment and the Issuing Lender's obligation to issue Letters of Credit, to
be terminated, whereupon the same shall terminate (provided that, upon the
occurrence of an Event of Default pursuant to SECTION 9.1(g)
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or SECTION 9.1(h), the Revolving Credit Commitments, the Swingline Commitment
and the Issuing Lender's obligation to issue Letters of Credit shall
automatically be terminated);
(b) Declare all or any part of the outstanding principal amount of
the Loans to be immediately due and payable, whereupon the principal amount so
declared to be immediately due and payable, together with all interest accrued
thereon and all other amounts payable under this Agreement, the Notes and the
other Credit Documents, shall become immediately due and payable without
presentment, demand, protest, notice of intent to accelerate or other notice or
legal process of any kind, all of which are hereby knowingly and expressly
waived by the Borrower (provided that, upon the occurrence of an Event of
Default pursuant to SECTION 9.1(g) or SECTION 9.1(h), all of the outstanding
principal amount of the Loans and all other amounts described in this
subsection (b) shall automatically become immediately due and payable without
presentment, demand, protest, notice of intent to accelerate or other notice or
legal process of any kind, all of which are hereby knowingly and expressly
waived by the Borrower);
(c) Direct the Borrower to deposit (and the Borrower hereby
agrees, forthwith upon receipt of notice of such direction from the Agent, to
deposit) with the Agent from time to time such additional amount of cash as is
equal to the aggregate Stated Amount of all Letters of Credit then outstanding
(whether or not any beneficiary under any Letter of Credit shall have drawn or
be entitled at such time to draw thereunder), such amount to be held by the
Agent in the Cash Collateral Account as security for the Letter of Credit
Exposure as described in SECTION 3.8; and
(d) Exercise all rights and remedies available to it under this
Agreement, the other Credit Documents and applicable law.
9.3 Remedies: Set-Off. In addition to all other rights and
remedies available under the Credit Documents or applicable law or otherwise,
upon and at any time after the occurrence and during the continuance of any
Event of Default, each Lender may, and each is hereby authorized by the
Borrower, at any such time and from time to time, to the fullest extent
permitted by applicable law, without presentment, demand, protest or other
notice of any kind, all of which are hereby knowingly and expressly waived by
the Borrower (to the fullest extent permitted by applicable law), to set off
and to apply any and all deposits (general or special, time or demand,
provisional or final) at any time held (including at any branches or agencies,
wherever located), and any other indebtedness at any time owing, by such Lender
to or for the credit or the account of the Borrower against any or all of the
Obligations to such Lender now or hereafter existing, whether or not such
Obligations may be contingent or unmatured, the Borrower hereby granting to
each Lender a continuing security interest in and Lien upon all such deposits
and other property as security for such Obligations. Each Lender agrees to
notify the Borrower promptly after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
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ARTICLE X
THE AGENT
10.1 Appointment. Each Lender hereby irrevocably appoints and
authorizes First Union to act as Agent hereunder and under the other Credit
Documents and to take such actions as agent on its behalf hereunder and under
the other Credit Documents, and to exercise such powers and to perform such
duties, as are specifically delegated to the Agent by the terms hereof or
thereof, together with such other powers and duties as are reasonably
incidental thereto.
10.2 Nature of Duties. The Agent shall have no duties or
responsibilities other than those expressly set forth in this Agreement and the
other Credit Documents. The Agent shall not have, by reason of this Agreement
or any other Credit Document, a fiduciary relationship in respect of any
Lender; and nothing in this Agreement or any other Credit Document, express or
implied, is intended to or shall be so construed as to impose upon the Agent
any obligations or liabilities in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein. The Agent may
execute any of its duties under this Agreement or any other Credit Document by
or through agents or attorneys-in-fact and shall not be responsible to any
Lender for the negligence or misconduct of any agents or attorneys-in-fact that
it selects with reasonable care. The Agent shall be entitled to consult with
legal counsel, independent public accountants and other experts selected by it
with respect to all matters pertaining to this Agreement and the other Credit
Documents and its duties hereunder and thereunder and shall not be liable to
any Lender for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts. The
Lenders hereby acknowledge that the Agent shall not be under any duty to take
any discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Credit Document unless it shall be requested in
writing to do so by the Required Lenders (or, where a higher percentage of the
Lenders is expressly required hereunder, such Lenders).
10.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action taken or omitted to be taken by it or such Person
under or in connection with the Credit Documents, except for its or such
Person's own gross negligence or willful misconduct, (ii) responsible in any
manner to any Lender for any recitals, statements, information, representations
or warranties herein or in any other Credit Document or in any document,
instrument, certificate, report or other writing delivered in connection
herewith or therewith, for the execution, effectiveness, genuineness, validity,
enforceability or sufficiency of this Agreement or any other Credit Document,
or for the financial condition of the Borrower, its Subsidiaries or any other
Person, or (iii) required to ascertain or make any inquiry concerning the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document or the existence or possible existence
of any Default or Event of Default, or to inspect the properties, books or
records of the Borrower or any of its Subsidiaries.
10.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any notice, statement, consent or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it in
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good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons. The Agent may deem and treat each Lender as the
owner of its interest hereunder for all purposes hereof unless and until a
written notice of the assignment, negotiation or transfer thereof shall have
been given to the Agent in accordance with the provisions of this Agreement.
The Agent shall be entitled to refrain from taking or omitting to take any
action in connection with this Agreement or any other Credit Document (i) if
such action or omission would, in the reasonable opinion of the Agent, violate
any applicable law or any provision of this Agreement or any other Credit
Document or (ii) unless and until it shall have received such advice or
concurrence of the Required Lenders (or, where a higher percentage of the
Lenders is expressly required hereunder, such Lenders) as it deems appropriate
or it shall first have been indemnified to its satisfaction by the Lenders
against any and all liability and expense (other than liability and expense
arising from its own gross negligence or willful misconduct) that may be
incurred by it by reason of taking, continuing to take or omitting to take any
such action. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent's acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders (or, where a higher
percentage of the Lenders is expressly required hereunder, such Lenders), and
such instructions and any action taken or failure to act pursuant thereto shall
be binding upon all of the Lenders (including all subsequent Lenders).
10.5 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representation or warranty to it and that no act by the Agent or any such
Person hereafter taken, including any review of the affairs of the Borrower and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Agent to any Lender. Each Lender represents to the Agent that (i) it
has, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of the Borrower
and its Subsidiaries and made its own decision to enter into this Agreement and
extend credit to the Borrower hereunder, and (ii) it will, independently and
without reliance upon the Agent 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 analysis, appraisals and decisions in taking or not taking action
hereunder and under the other Credit Documents and to make such investigation
as it deems necessary to inform itself as to the business, prospects,
operations, properties, financial and other condition and creditworthiness of
the Borrower and its Subsidiaries. Except as expressly provided in this
Agreement and the other Credit Documents, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information concerning the business, prospects,
operations, properties, financial or other condition or creditworthiness of the
Borrower, its Subsidiaries or any other Person that may at any time come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.6 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Agent shall have received written notice from the Borrower or a Lender
referring to this Agreement, describing such Default or
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Event of Default and stating that such notice is a "notice of default." In the
event that the Agent receives such a notice, the Agent will give notice thereof
to the Lenders as soon as reasonably practicable; provided, however, that if
any such notice has also been furnished to the Lenders, the Agent shall have no
obligation to notify the Lenders with respect thereto. The Agent shall
(subject to SECTIONS 10.4 and 11.6) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders; provided that, unless and until the Agent shall have received such
directions, 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 in the best interests of the Lenders.
10.7 Indemnification. To the extent the Agent is not reimbursed by
or on behalf of the Borrower, and without limiting the obligation of the
Borrower to do so, the Lenders agree (i) to indemnify the Agent and its
officers, directors, employees, agents, attorneys-in-fact and Affiliates,
ratably in proportion to their respective percentages as used in determining
the Required Lenders as of the date of determination, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, attorneys' fees and
expenses) or disbursements of any kind or nature whatsoever that may at any
time (including, without limitation, at any time following the repayment in
full of the Revolving Loans and the termination of the Revolving Credit
Commitments) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of this Agreement or any other Credit Document
or any documents contemplated by or referred to herein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing, and (ii) to reimburse the
Agent upon demand, ratably in proportion to their respective percentages as
used in determining the Required Lenders as of the date of determination, for
any expenses incurred by the Agent in connection with the preparation,
negotiation, execution, delivery, administration, amendment, modification,
waiver or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or any of the other Credit Documents (including, without
limitation, reasonable attorneys' fees and expenses and compensation of agents
and employees paid for services rendered on behalf of the Lenders); provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the gross negligence or
willful misconduct of the party to be indemnified.
10.8 The Agent in its Individual Capacity. With respect to its
Revolving Credit Commitment, the Swingline Commitment, the Loans made by it,
the Letters of Credit issued or participated in by it and the Note or Notes
issued to it, the Agent in its individual capacity and not as Agent shall have
the same rights and powers under the Credit Documents as any other Lender and
may exercise the same as though it were not performing the agency duties
specified herein; and the term "Lenders," "Required Lenders," "holders of
Notes" and any similar terms shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent and its
Affiliates may accept deposits from, lend money to, make investments in, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Borrower, any of its Subsidiaries or any of their respective
Affiliates as if the Agent were not performing the agency duties specified
herein, and may accept fees and other consideration from
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any of them for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
10.9 Successor Agent. The Agent may resign at any time by giving
ten (10) days' prior written notice to the Borrower and the Lenders. Upon any
such notice of resignation, the Required Lenders will, with the prior written
consent of the Borrower (which consent shall not be unreasonably withheld),
appoint from among the Lenders a successor to the Agent (provided that the
Borrower's consent shall not be required in the event a Default or Event of
Default shall have occurred and be continuing). If no successor to the Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within such ten-day period, then the retiring Agent may, on
behalf of the Lenders and after consulting with the Lenders and the Borrower,
appoint a successor Agent from among the Lenders. Upon the acceptance of any
appointment as Agent by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Credit Documents. After
any retiring Agent's resignation as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent. If no successor to the Agent has accepted appointment as Agent
by the thirtieth (30th) day following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective,
and the Lenders shall thereafter perform all of the duties of the Agent
hereunder and under the other Credit Documents until such time, if any, as the
Required Lenders appoint a successor Agent as provided for hereinabove.
10.10 Collateral Matters.
(a) The Agent is hereby authorized on behalf of the Lenders,
without the necessity of any notice to or further consent from the Lenders,
from time to time (but without any obligation) to take any action with respect
to the Collateral and the Security Documents that may be necessary to perfect
and maintain perfected the Liens upon the Collateral granted pursuant to the
Security Documents.
(b) The Lenders hereby irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Agent upon any Collateral (i) upon termination of the Revolving Credit
Commitments and the Swingline Commitments, termination or expiration of all
outstanding Letters of Credit and payment in full of all of the Obligations,
(ii) constituting property sold or to be sold or disposed of as part of or in
connection with any disposition expressly permitted hereunder or under any
other Credit Document or to which the Required Lenders have consented or (iii)
otherwise pursuant to and in accordance with the provisions of any applicable
Credit Document. Upon request by the Agent at any time, the Lenders will
confirm in writing the Agent's authority to release Collateral pursuant to this
subsection (b).
10.11 Issuing Lender and Swingline Lender. The provisions of this
ARTICLE X (other than SECTION 10.9) shall apply to the Issuing Lender and the
Swingline Lender mutatis mutandis to the same extent as such provisions apply
to the Agent.
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ARTICLE XI
MISCELLANEOUS
11.1 Fees and Expenses. The Borrower agrees (i) whether or not the
transactions contemplated by this Agreement shall be consummated, to pay upon
demand all reasonable out-of-pocket costs and expenses of the Agent (including,
without limitation, the reasonable fees and expenses of counsel to the Agent
but excluding the allocated costs of internal counsel) in connection with the
preparation, negotiation, execution, delivery and syndication of this Agreement
and the other Credit Documents, and all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Agent, but excluding the allocated costs of internal
counsel) in connection with any amendment, modification or waiver hereof or
thereof or consent with respect hereto or thereto, (ii) to pay upon demand all
reasonable out-of-pocket costs and expenses of the Agent and each Lender
(including, without limitation, the reasonable fees and expenses of counsel to
the Agent or any Lender, but excluding the allocated costs of internal counsel)
in connection with (y) any refinancing or restructuring of the credit
arrangement provided under this Agreement, whether in the nature of a
"work-out," in any insolvency or bankruptcy proceeding or otherwise and whether
or not consummated, and (z) the enforcement, attempted enforcement or
preservation of any rights or remedies under this Agreement or any of the other
Credit Documents, whether in any action, suit or proceeding (including any
bankruptcy or insolvency proceeding) or otherwise, and (iii) to pay and hold
harmless the Agent and each Lender from and against all liability for any
intangibles, documentary, stamp or other similar taxes, fees and excises, if
any, including any interest and penalties, and any finder's or brokerage fees,
commissions and expenses (other than any fees, commissions or expenses of
finders or brokers engaged by the Agent or any Lender), that may be payable in
connection with the transactions contemplated by this Agreement and the other
Credit Documents.
11.2 Indemnification. The Borrower agrees, whether or not the
transactions contemplated by this Agreement shall be consummated, to indemnify
and hold harmless the Agent and each Lender and each of their respective
directors, officers, employees, agents and Affiliates, other than any such
Affiliate solely in its capacity as an equity investor in the Borrower (each,
an "Indemnified Person") from and against any and all claims, losses, damages,
obligations, liabilities, penalties, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses but excluding the allocated
costs of internal counsel of the Agent or any Lender) of any kind or nature
whatsoever, whether direct, indirect or consequential (collectively,
"Indemnified Costs"), that may at any time be imposed on, incurred by or
asserted against any such Indemnified Person as a result of, arising from or in
any way relating to the preparation, execution, performance or enforcement of
this Agreement, any of the other Credit Documents, any of the transactions
contemplated herein or therein or any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds of any Revolving
Loans or Letters of Credit, or any action, suit or proceeding (including any
inquiry or investigation) by any Person, whether threatened or initiated,
related to any of the foregoing (including, without limitation, in connection
with the actual or alleged presence or release of Hazardous Substances in or
upon any real property owned or occupied by the Borrower or any of
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its Subsidiaries, and all other Environmental Claims), and in any case whether
or not such Indemnified Person is a party to any such action, proceeding or
suit or a subject of any such inquiry or investigation; provided, however, that
no Indemnified Person shall have the right to be indemnified hereunder for any
Indemnified Costs to the extent resulting primarily from the gross negligence
or willful misconduct of such Indemnified Person. All of the foregoing
Indemnified Costs of any Indemnified Person shall be paid or reimbursed by the
Borrower, as and when incurred and upon demand.
11.3 Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND
THE OTHER CREDIT DOCUMENTS HAVE BEEN EXECUTED, DELIVERED AND ACCEPTED IN, AND
SHALL BE DEEMED TO HAVE BEEN MADE IN, NORTH CAROLINA AND (UNLESS OTHERWISE
EXPRESSLY PROVIDED IN ANY SECURITY DOCUMENTS) SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED
THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT OR, IF NO
SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICES FOR
DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE, AS IN EFFECT FROM TIME
TO TIME (THE "UNIFORM CUSTOMS"), AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM
CUSTOMS, THE LAWS OF THE STATE OF NORTH CAROLINA (WITHOUT REGARD TO THE
CONFLICTS OF LAW PROVISIONS THEREOF). EACH OF THE PARTIES HERETO HEREBY
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG
COUNTY, NORTH CAROLINA OR ANY FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT
OF THE STATE OF NORTH CAROLINA FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER
ANY OF THE OTHER CREDIT DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH THE
AGENT OR ANY LENDER OR THE BORROWER IS A PARTY, INCLUDING ANY ACTIONS BASED
UPON, ARISING OUT OF, OR IN CONNECTION WITH, ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT OR ANY
LENDER OR THE BORROWER. EACH OF THE PARTIES HERETO AGREES TO BE BOUND (SUBJECT
TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT RENDERED OR RELIEF GRANTED
THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF
JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
SUCH PROCEEDING. EACH OF THE PARTIES HERETO CONSENTS THAT ALL SERVICE OF
PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS
SET FORTH HEREINBELOW, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
THE EARLIER OF ACTUAL RECEIPT THEREOF OR (3) DAYS AFTER DEPOSIT IN THE UNITED
STATES MAILS, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN THIS
SECTION SHALL AFFECT THE
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RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF ANY PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.
11.4 Arbitration; Preservation and Limitation of Remedies.
(a) Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Agreement or any other
Credit Document ("Disputes") between or among the Borrower, the Agent and the
Lenders, or any of them, shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive the
right of that party to demand arbitration hereunder. Disputes may include,
without limitation, tort claims, counterclaims, disputes as to whether a matter
is subject to arbitration, claims brought as class actions, claims arising from
documents executed in the future, or claims arising out of or connected with
the transactions contemplated by this Agreement and the other Credit Documents.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA"), as in effect from time to time, and Title
9 of the U.S. Code, as amended. All arbitration hearings shall be conducted in
the city in which the principal office of the Agent is located. A hearing
shall begin within 90 days of demand for arbitration and all hearings shall be
concluded within 120 days of demand for arbitration. These time limitations
may not be extended unless a party shows cause for extension and then for no
more than a total of 60 days. The expedited procedures set forth in Rule 51 et
seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute.
A judgment upon the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
AAA. The single arbitrator selected for expedited procedure shall be a retired
judge from the highest court of general jurisdiction, state or federal, of the
state where the hearing will be conducted. Notwithstanding the foregoing, this
arbitration provision does not apply to Disputes under or related to Hedge
Agreements.
(b) Notwithstanding the preceding binding arbitration provisions,
the parties hereto agree to preserve, without diminution, certain remedies that
any party hereto may employ or exercise freely, either alone, in conjunction
with or during a Dispute. The Agent, on behalf of the Lenders, shall have the
right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any Collateral by exercising a power of sale granted pursuant
to any of the Credit Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all
rights of self-help, including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies, including injunctive relief,
sequestration, garnishment, attachment, appointment of a receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the
power of an arbitrator to grant similar remedies that may be requested by a
party in a Dispute. The parties hereto agree that no party shall have a remedy
of punitive or exemplary
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damages against any other party in any Dispute, and each party hereby waives
any right or claim to punitive or exemplary damages that it has now or that may
arise in the future in connection with any Dispute, whether such Dispute is
resolved by arbitration or judicially.
11.5 Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered to the party to be notified at the following
addresses:
(a) if to the Borrower, to Eclipsys Corporation, 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, Telecopy No. (000) 000-0000 with a copy to Xxxx and Xxxx
LLP, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000; Attention: Xxxxx
X. Xxxxx, Esq.; Telecopy No. (000) 000-0000;
(b) if to the Agent, to First Union National Bank, Xxx Xxxxx Xxxxx
Xxxxxx, XX-00, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
Attention: Syndication Agency Services, Telecopy No. (000) 000-0000; and
(c) if to any Lender, to it at the address for notices set forth
on its signature page hereto (or if to any Lender not a party hereto as of the
date hereof, at the address for notices set forth in its Assignment and
Acceptance);
or in each case, to such other address as any party may designate for
itself by like notice to all other parties hereto. All such notices and
communications shall be deemed to have been given (i) if mailed as provided
above by any method other than overnight delivery service, on the third
Business Day after deposit in the mails, (ii) if mailed by overnight delivery
service, telegraphed, telexed, telecopied or cabled, when delivered for
overnight delivery, delivered to the telegraph company, confirmed by telex
answerback, transmitted by telecopier or delivered to the cable company,
respectively, or (iii) if delivered by hand, upon delivery; provided that
notices and communications to the Agent shall not be effective until received
by the Agent.
11.6 Amendments, Waivers, etc. No amendment, modification, waiver
or discharge or termination of, or consent to any departure by the Borrower
from, any provision of this Agreement or any other Credit Document, shall be
effective unless in a writing signed by the Required Lenders (or by the Agent
at the direction or with the consent of the Required Lenders and the Borrower),
and then the same shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i)
reduce or forgive the principal amount of any Loan, reduce the rate of or
forgive any interest thereon, or reduce or forgive any fees or other
Obligations (other than fees payable to the Agent for its own account), or (ii)
extend the Revolving Credit Maturity Date, the Swingline Maturity Date or any
other date fixed for the payment of any principal of or interest on any
Revolving Loan or Swingline Loan (other than additional interest payable under
Section 2.8(b) at the election of the Required
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Lenders, as provided therein), any fees (other than fees payable to the Agent
for its own account) or any other Obligations;
(b) unless agreed to by all of the Lenders, (i) increase or extend
any Revolving Credit Commitment or Swingline Commitment of any Lender (it being
understood that a waiver of any Event of Default, if agreed to by the requisite
Lenders hereunder, shall not constitute such an increase or extension), (ii)
change the percentage of the Total Revolving Credit Commitments, the Swingline
Commitment or of the aggregate unpaid principal amount of the Loans, or the
number or percentage of Lenders, that shall be required for the Lenders or any
of them to take or approve, or direct the Agent to take or approve, any action
hereunder (including as set forth in the definition of "Required Lenders"),
(iii) except as may be otherwise specifically provided in this Agreement or in
any other Credit Document, release all or substantially all of the Collateral,
or release any material Subsidiary from the Subsidiary Guaranty, or (iv) change
any provision of SECTION 2.15 or this SECTION 11.6;
(c) unless agreed to by (i) all of the Lenders, extend the expiry
date of any Letter of Credit beyond the seventh day prior to the Revolving
Credit Maturity Date or reduce or forgive any Reimbursement Obligation, or (ii)
Lenders having more than sixty-six and two-thirds percent (66-2/3%) of the
Revolving Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, Lenders holding more than sixty-six and two-thirds percent
(66-2/3%) of the aggregate outstanding principal amount of the Revolving Loans
and Letter of Credit Exposure), change any other provision of ARTICLE III; and
(d) unless agreed to by the Issuing Lender, the Swingline Lender
or the Agent in addition to the Lenders required as provided hereinabove to
take such action, affect the respective rights or obligations of the Issuing
Lender, the Swingline Lender or the Agent, as applicable, hereunder or under
any of the other Credit Documents.
11.7 Assignments, Participations.
(a) Each Lender may assign to one or more other Eligible Assignees
(each, an "Assignee") all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of any of its
Revolving Credit Commitments or Swingline Commitment, the outstanding Loans
made by it, the Note or Notes held by it and its participations in Letters of
Credit); provided, however, that (i) any such assignment (other than an
assignment to a Lender) shall not be made without the prior written consent of
the Agent and the Borrower (to be evidenced by their counterexecution of the
relevant Assignment and Acceptance), which consents shall not be unreasonably
withheld, provided that the Borrower's consent shall not be required in the
event a Default or Event of Default shall have occurred and be continuing, and
provided further that in the case of an assignment of a Revolving Credit
Commitment, the Issuing Lender must also give its prior written consent thereto
(which consent shall not be unreasonably withheld), (ii) each such assignment
by a Lender of any of its interests relating to Loans shall be made in such
manner so that the same portion of its Revolving Credit Commitment, Swingline
Commitment, Loans, Note or Notes and other interests thereunder is assigned to
the relevant Assignee, (iii) except in the case of an assignment to a Lender or
an Affiliate of a Lender, no such assignment shall be in an aggregate principal
amount (determined
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as of the date of the Assignment and Acceptance with respect to such
assignment) less than $5,000,000, determined by combining the amount of the
assigning Lender's, outstanding Revolving Loans, L/C Exposure and Unutilized
Revolving Credit Commitment being assigned pursuant to such assignment (or, if
less, the full amount of the assigning Lender's Revolving Credit Commitment of
the assigning Lender), and (iv) the parties to each such assignment will
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment, and will pay a nonrefundable processing fee of $3,000 to
the Agent for its own account. Upon such execution, delivery, acceptance and
recording of the Assignment and Acceptance, from and after the effective date
specified therein, which effective date shall be at least five Business Days
after the execution thereof (unless the Agent shall otherwise agree), (A) the
Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of the assigning Lender
hereunder with respect thereto and (B) the assigning Lender shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than rights
under the provisions of this Agreement and the other Credit Documents relating
to indemnification or payment of fees, costs and expenses, to the extent such
rights relate to the time prior to the effective date of such Assignment and
Acceptance) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). The terms and provisions of each
Assignment and Acceptance shall, upon the effectiveness thereof, be
incorporated into and made a part of this Agreement, and the covenants,
agreements and obligations of each Lender set forth therein shall be deemed
made to and for the benefit of the Agent and the other parties hereto as if set
forth at length herein.
(b) The Agent will maintain at its address for notices referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitment or Swingline Commitment of, and principal
amount of the Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and each Lender at any reasonable time and from time to time
upon reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an Assignee and counterexecuted by the
Borrower and the Issuing Lender (if required), together with the Note or Notes
subject to such assignment and the processing fee referred to in subsection (a)
above, the Agent will (i) accept such Assignment and Acceptance, (ii) on the
effective date thereof, record the information contained therein in the
Register and (iii) give notice thereof to the Borrower and the Lenders. Within
five (5) Business Days after its receipt of such notice, the Borrower, at its
own expense, will execute and deliver to the Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of the Assignee
(and, if the assigning Lender has retained any portion of its rights and
obligations hereunder, to the order of the assigning Lender), prepared in
accordance with the applicable provisions of
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SECTION 2.4 as necessary to reflect, after giving effect to the assignment, the
Revolving Credit Commitment or Swingline Commitment of the Assignee and (to the
extent of any retained interests) the assigning Lender, dated the date of the
replaced Note or Notes and otherwise in substantially the form of EXHIBITS B-1
and B-2, as applicable. The Agent will return cancelled Notes to the Borrower.
(d) Each Lender may, without the consent of the Borrower, the
Agent or any other Lender, sell to one or more other Persons (each, a
"Participant") participations in any portion comprising less than all of its
rights and obligations under this Agreement (including, without limitation, a
portion of its Revolving Credit Commitment, Swingline Commitment, the
outstanding Loans made by it, the Note or Notes held by it and its
participations in Letters of Credit); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged and such Lender shall
remain solely responsible for the performance of such obligations, (ii) no
Lender shall sell any participation that, when taken together with all other
participations, if any, sold by such Lender, covers all of such Lender's rights
and obligations under this Agreement, (iii) any such participation shall be in
an amount of not less than $3,000,000, (iv) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
no Lender shall permit any Participant to have any voting rights or any right
to control the vote of such Lender with respect to any amendment, modification,
waiver, consent or other action hereunder or under any other Credit Document
(except as to actions that would (x) reduce or forgive the principal amount of
any Loan, reduce the rate of or forgive any interest thereon, or reduce or
forgive any fees or other Obligations, (y) extend the Revolving Credit
Maturity Date, the Swingline Maturity Date or any other date fixed for the
payment of any principal of or interest on any Loan, any fees or any other
Obligations, or (z) increase or extend any Revolving Credit Commitment or
Swingline Commitment of any Lender), and (v) no Participant shall have any
rights under this Agreement or any of the other Credit Documents, each
Participant's rights against the granting Lender in respect of any
participation to be those set forth in the participation agreement, and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not granted such participation. Notwithstanding the foregoing, each
Participant shall have the rights of a Lender for purposes of SECTIONS 2.16(a),
2.16(b), 2.17, 2.18 and 9.3, and shall be entitled to the benefits thereto, to
the extent that the Lender granting such participation would be entitled to
such benefits if the participation had not been made, provided that no
Participant shall be entitled to receive any greater amount pursuant to any of
such Sections than the Lender granting such participation would have been
entitled to receive in respect of the amount of the participation made by such
Lender to such Participant had such participation not been made.
(e) Nothing in this Agreement shall be construed to prohibit any
Lender from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note to any Federal Reserve Bank as security for
borrowings therefrom; provided, however, that no such pledge or assignment
shall release a Lender from any of its obligations hereunder.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the Assignee or Participant or proposed Assignee or Participant any
information relating to the Borrower and its Subsidiaries
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furnished to it by or on behalf of any other party hereto, provided that such
Assignee or Participant or proposed Assignee or Participant agrees in writing
to keep such information confidential to the same extent required of the
Lenders under SECTION 11.13.
11.8 No Waiver. The rights and remedies of the Agent and the
Lenders expressly set forth in this Agreement and the other Credit Documents
are cumulative and in addition to, and not exclusive of, all other rights and
remedies available at law, in equity or otherwise. No failure or delay on the
part of the Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege or be construed
to be a waiver of any Default or Event of Default. No course of dealing
between any of the Borrower and the Agent or the Lenders or their agents or
employees shall be effective to amend, modify or discharge any provision of
this Agreement or any other Credit Document or to constitute a waiver of any
Default or Event of Default. No notice to or demand upon the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the right of the Agent
or any Lender to exercise any right or remedy or take any other or further
action in any circumstances without notice or demand.
11.9 Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, and all references herein to any party shall be
deemed to include its successors and assigns; provided, however, that (i) the
Borrower shall not sell, assign or transfer any of its rights, interests,
duties or obligations under this Agreement or any other Credit Document without
the prior written consent of all of the Lenders and (ii) any Assignees shall
have such rights and obligations with respect to this Agreement and the other
Credit Documents as are provided for under and pursuant to the provisions of
SECTION 11.7.
11.10 Survival. All representations, warranties and agreements made
by or on behalf of the Borrower or any of its Subsidiaries in this Agreement
and in the other Credit Documents shall survive the execution and delivery
hereof or thereof, the making and repayment of the Loans and the issuance and
repayment of the Letters of Credit. In addition, notwithstanding anything
herein or under applicable law to the contrary, the provisions of this
Agreement and the other Credit Documents relating to indemnification or payment
of fees, costs and expenses, including, without limitation, the provisions of
SECTIONS 2.16(a), 2.16(b), 2.17, 2.18, 10.7, 11.1 and 11.2, shall survive the
payment in full of all Loans and Letters of Credit, the termination of the
Revolving Credit Commitments, the Swingline Commitment and all Letters of
Credit, and any termination of this Agreement or any of the other Credit
Documents.
11.11 Severability. To the extent any provision of this Agreement
is prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
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11.12 Construction. The headings of the various articles, sections
and subsections of this Agreement have been inserted for convenience only and
shall not in any way affect the meaning or construction of any of the
provisions hereof. Except as otherwise expressly provided herein and in the
other Credit Documents, in the event of any inconsistency or conflict between
any provision of this Agreement and any provision of any of the other Credit
Documents, the provision of this Agreement shall control.
11.13 Confidentiality. Each Lender agrees to keep confidential,
pursuant to its customary procedures for handling confidential information of a
similar nature and in accordance with safe and sound banking practices, all
nonpublic information provided to it by or on behalf of the Borrower or any of
its Subsidiaries in connection with this Agreement or any other Credit
Document; provided, however, that any Lender may disclose such information (i)
to its directors, employees and agents and to its auditors, counsel and other
professional advisors, (ii) at the demand or request of any bank regulatory
authority, court or other Governmental Authority having or asserting
jurisdiction over such Lender, as may be required pursuant to subpoena or other
legal process, or otherwise in order to comply with any applicable Requirement
of Law, (iii) in connection with any proceeding to enforce its rights hereunder
or under any other Credit Document or any other litigation or proceeding
related hereto or to which it is a party, (iv) to the Agent or any other
Lender, (v) to the extent the same has become publicly available other than as
a result of a breach of this Agreement and (vi) to facilitate assignments and
participations contemplated by SECTION 11.7(f).
11.14 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. This Agreement shall
become effective upon the execution of a counterpart hereof by each of the
parties hereto and receipt by the Agent and the Borrower of written or
telephonic notification of such execution and authorization of delivery
thereof.
11.15 Entire Agreement. THIS AGREEMENT AND THE OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH (A) EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND THERETO RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF, (B) SUPERSEDE ANY AND ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, ORAL OR WRITTEN, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF, EXCLUDING THE FEE LETTER, AND (C) MAY NOT BE
AMENDED, SUPPLEMENTED, CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
99
106
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first above
written.
ECLIPSYS CORPORATION
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
107
FIRST UNION NATIONAL BANK, as Agent,
Swingline Lender, Issuing Bank and Lender
By:
---------------------------------------
Xxxxxx X. Xxxxxx, Senior Vice President
Revolving Credit Commitment:
$30,000,000 Instructions for wire transfers to the Agent:
First Union National Bank
ABA Routing Xx. 000000000
Xxxxxxxxx, Xxxxx Xxxxxxxx
General Ledger No. 465906, RC No. 5007
Attention: Syndication Agency Services
Re: Eclipsys Corporation
Address for notices (as a Lender):
First Union National Bank of North Carolina
One First Union Center, 5th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Lending Office:
First Union National Bank of North Carolina
One First Union Center, 5th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
108
BANKBOSTON, N.A., as Co-Agent and Lender
By:
---------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Revolving Credit Commitment:
$20,000,000 Instructions for wire transfers to the Agent:
First Union National Bank
ABA Routing Xx. 000000000
Xxxxxxxxx, Xxxxx Xxxxxxxx
General Ledger No. 465906, RC No. 5007
Attention: Syndication Agency Services
Re: Eclipsys Corporation
Address for notices (as a Lender):
BankBoston, N.A.
000 Xxxxxxx Xxxxxx, Mail Code 01-08-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy:(000) 000-0000
Reference: Eclipsys Corporation
Lending Office:
000 Xxxxxxx Xxxxxx
Mail Code 01-08-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
2
109
Annex I
to First Amended and Restated Credit Agreement
First Union National Bank of North Carolina, as
Agent Eclipsys Corporation
May , 1998
---------------------------------------------
ANNEX I
A. APPLICABLE MARGIN PERCENTAGES (Prior to Qualified Public Offering)
Applicable Margin Applicable Margin
Ratio of Consolidated Funded Debt Percentage for Percentage for
to Annualized EBITDA ABR Loans LIBOR Loans
---------------------------------------- ------------------- --------------------
Greater than or equal to 3.5 to 1.0 1.75% 3.00%
Greater than or equal to 3.0 to 1.0 1.25% 2.50%
but less than 3.5 to 1.0
Greater than or equal to 2.5 to 1.0 0.75% 2.00%
but less than 3.0 to 1.0
Greater than or equal to 2.0 to 1.0 0.25% 1.50%
but less than 2.5 to 1.0
Greater than or equal to 1.5 to 1.0 0.00% 1.25%
but less than 2.0 to 1.0
Less than 1.5 to 1.0 0.00% 1.00%
B. APPLICABLE MARGIN PERCENTAGES (After Qualified Public Offering)
Applicable Margin Applicable Margin
Ratio of Consolidated Funded Debt Percentage for Percentage for
to Annualized EBITDA ABR Loans LIBOR Loans
---------------------------------------- ------------------- --------------------
Greater than or equal to 2.5 to 1.0 0.50% 1.75%
Greater than or equal to 2.0 to 1.0 0.25% 1.50%
but less than 2.5 to 1.0
Greater than or equal to 1.5 to 1.0 0.00% 1.25%
but less than 2.0 to 1.0
Less than 1.5 to 1.0 0.00% 1.00%
