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EXHIBIT 10.10
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REVOLVING CREDIT AGREEMENT
dated as of August 5, 1997
among
CHOICEPOINT INC.,
THE LENDERS LISTED HEREIN,
and
WACHOVIA BANK, N.A.
as Administrative Agent,
and
SUNTRUST BANK, ATLANTA
as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.02. Accounting Terms and Determination . . . . . . . . . . . . . . . . . . . . . . .
Section 1.03. Other Definitional Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.04. Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II. SYNDICATED LOANS, BID RATE LOANS
AND SWING LINE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.01. Description of Revolving Credit Facilities; Use of Proceeds . . . . . . . . . .
Section 2.02. Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.03. Syndicated Notes; Repayment of Principal . . . . . . . . . . . . . . . . . . . .
Section 2.04. Voluntary Reduction of Syndicated Loan Commitments . . . . . . . . . . . . . . .
Section 2.05. Bid Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.06. Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.07. Increase of Syndicated Loan Commitments . . . . . . . . . . . . . . . . . . . .
Section 2.08. Funding Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III. GENERAL LOAN TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.01. Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.02. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.03. Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.05. Voluntary Prepayments of Borrowings . . . . . . . . . . . . . . . . . . . . . .
Section 3.06. Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.07. Interest Rate Not Ascertainable, etc. . . . . . . . . . . . . . . . . . . . . .
Section 3.08. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.09. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.10. Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.11. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.12. Assumptions Concerning Funding of Eurodollar Advances . . . . . . . . . . . . .
Section 3.13. Apportionment of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.14. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3.15. Benefits to Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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ARTICLE IV. CONDITIONS TO BORROWINGS . . . . . . . . . . . . . . . . . .
Section 4.01. Conditions Precedent to Initial Loans . . . . . . . . . . .
Section 4.02. Conditions to All Loans . . . . . . . . . . . . . . . . . .
ARTICLE V. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . .
Section 5.01. Corporate Existence; Compliance with Law . . . . . . . . . .
Section 5.02. Corporate Power; Authorization . . . . . . . . . . . . . . .
Section 5.03. Enforceable Obligations . . . . . . . . . . . . . . . . . .
Section 5.04. No Contractual or Legal Bar . . . . . . . . . . . . . . . .
Section 5.05. No Material Litigation or Investigations . . . . . . . . . .
Section 5.06. Investment Company Act, Etc. . . . . . . . . . . . . . . . .
Section 5.07. Margin Regulations . . . . . . . . . . . . . . . . . . . . .
Section 5.08. Compliance with Environmental Laws . . . . . . . . . . . . .
Section 5.09. Insurance . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.10. No Default . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.11. No Burdensome Restrictions . . . . . . . . . . . . . . . . .
Section 5.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.13. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.14. Financial Statements . . . . . . . . . . . . . . . . . . . .
Section 5.15. ERISA . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5.16. Possession of Franchises, Licenses, Etc.. . . . . . . . . .
Section 5.17. Patents, Trademarks, Licenses, Etc. . . . . . . . . . . . .
Section 5.18. Ownership of Property . . . . . . . . . . . . . . . . . . .
Section 5.19. Financial Condition . . . . . . . . . . . . . . . . . . . .
Section 5.20. Labor Matters . . . . . . . . . . . . . . . . . . . . . . .
Section 5.21. Payment or Dividend Restrictions . . . . . . . . . . . . . .
Section 5.22. Outstanding Indebtedness . . . . . . . . . . . . . . . . .
Section 5.23. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . .
Section 6.01. Corporate Existence, Etc. . . . . . . . . . . . . . . . . .
Section 6.02. Compliance with Laws, Etc. . . . . . . . . . . . . . . . . .
Section 6.03. Payment of Taxes and Claims, Etc. . . . . . . . . . . . . .
Section 6.04. Keeping of Books . . . . . . . . . . . . . . . . . . . . . .
Section 6.05. Visitation, Inspection, Etc. . . . . . . . . . . . . . . . .
Section 6.06. Insurance; Maintenance of Properties . . . . . . . . . . . .
Section 6.07. Reporting Covenants . . . . . . . . . . . . . . . . . . . .
Section 6.08. Financial Covenants . . . . . . . . . . . . . . . . . . . .
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Section 6.09. Additional Credit Parties . . . . . . . . . . . . . . . . .
Section 6.10. Intellectual Property . . . . . . . . . . . . . . . . . . .
ARTICLE VII. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . .
Section 7.01. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.02. Guarantees . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.03. Mergers, Consolidations. . . . . . . . . . . . . . . . . . .
Section 7.04. Asset Sales. . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.05. Debt of Subsidiaries . . . . . . . . . . . . . . . . . . .
Section 7.06. Investments, Loans, Etc. . . . . . . . . . . . . . . . . . .
Section 7.07. Sale and Leaseback Transactions . . . . . . . . . . . . . .
Section 7.08. Transactions with Affiliates . . . . . . . . . . . . . . . .
Section 7.09. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.10. Additional Negative Pledges . . . . . . . . . . . . . . . .
Section 7.11. Changes in Business . . . . . . . . . . . . . . . . . . . .
Section 7.12. Limitation on Payment Restrictions Affecting Consolidated. .
Companies . . . . . . . . . . . . . . . . . . . . . . . . .
Section 7.13. Actions Under Certain Documents . . . . . . . . . . . . . .
Section 7.14. Change in Fiscal Year . . . . . . . . . . . . . . . . . . .
ARTICLE VIII. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . .
Section 8.01. Payments . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 8.02. Covenants Without Notice . . . . . . . . . . . . . . . . . .
Section 8.03. Other Covenants . . . . . . . . . . . . . . . . . . . . . .
Section 8.04. Representations . . . . . . . . . . . . . . . . . . . . . .
Section 8.05. Non-Payments of Other Indebtedness . . . . . . . . . . . . .
Section 8.06. Defaults Under Other Agreements . . . . . . . . . . . . . .
Section 8.07. Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . .
Section 8.08. Money Judgment . . . . . . . . . . . . . . . . . . . . . . .
Section 8.09. Change in Control of Borrower . . . . . . . . . . . . . . .
Section 8.10. Default Under Other Credit Documents . . . . . . . . . . . .
Section 8.11. Attachments . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9.01. Appointment of Administrative Agent . . . . . . . . . . . .
Section 9.02. Appointment of Documentation Agent . . . . . . . . . . . . .
Section 9.03. Nature of Duties of Agents . . . . . . . . . . . . . . . . .
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Section 9.04. Lack of Reliance on the Agents . . . . . . . . . . . . . . .
Section 9.05. Certain Rights of the Agents . . . . . . . . . . . . . . . .
Section 9.06. Reliance by the Agents . . . . . . . . . . . . . . . . . . .
Section 9.07. Indemnification of the Agents . . . . . . . . . . . . . . .
Section 9.08. The Agents in their Individual Capacities . . . . . . . . .
Section 9.09. Holders of Notes . . . . . . . . . . . . . . . . . . . . . .
Section 9.10. Successor Agents . . . . . . . . . . . . . . . . . . . . . .
ARTICLE X. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .
Section 10.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . .
Section 10.02. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . .
Section 10.03. No Waiver; Remedies Cumulative . . . . . . . . . . . . . . .
Section 10.04. Payment of Expenses, Etc. . . . . . . . . . . . . . . . . .
Section 10.05. Right of Setoff . . . . . . . . . . . . . . . . . . . . . .
Section 10.06. Benefit of Agreement . . . . . . . . . . . . . . . . . . . .
Section 10.07. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 10.08. Independent Nature of Lenders' Rights . . . . . . . . . . .
Section 10.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .
Section 10.10. Effectiveness; Survival . . . . . . . . . . . . . . . . . .
Section 10.11. Severability . . . . . . . . . . . . . . . . . . . . . . . .
Section 10.12. Independence of Covenants . . . . . . . . . . . . . . . . .
Section 10.13. Headings Descriptive; Entire Agreement . . . . . . . . . . .
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SCHEDULES
SCHEDULE 5.13 Organization and Ownership of Subsidiaries
SCHEDULE 5.22 Outstanding Indebtedness
SCHEDULE 7.01 Existing Liens
EXHIBITS
EXHIBIT A - Form of Syndicated Note
EXHIBIT B - Form of Bid Facility Note
EXHIBIT C - Form of Swing Line Note
EXHIBIT D - Bid Request
EXHIBIT E - Bid Request Invite
EXHIBIT F - Bid Rate Bid
EXHIBIT G - Bid Rate Accept/Reject Letter
EXHIBIT H - Form of Guaranty Agreement
EXHIBIT I - Form of Contribution Agreement
EXHIBIT J - Form of Closing Certificate
EXHIBIT K - Form of Opinion
EXHIBIT L - Form of Assignment and Acceptance Agreement
EXHIBIT M - Form of Compliance Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT made and entered into as of
August 5, 1997, by and among CHOICEPOINT INC., a Georgia corporation
("Borrower"), WACHOVIA BANK, N.A., a national banking association ("Wachovia"),
SUNTRUST BANK, ATLANTA, a Georgia banking corporation ("SunTrust"), the other
banks and lending institutions listed on the signature pages hereof, and any
assignees of Wachovia, SunTrust, or such other banks and lending institutions
which become "Lenders" as provided herein (Wachovia, SunTrust, and such other
banks, lending institutions and assignees are referred to collectively herein
as the "Lenders"), WACHOVIA BANK, N.A., in its capacity as Administrative Agent
for the Lenders and each successor Administrative Agent for such Lenders as may
be appointed from time to time pursuant to Article IX hereof (the
"Administrative Agent"), and SUNTRUST BANK, ATLANTA, in its capacity as
Documentation Agent for the Lenders and each successor Documentation Agent for
such Lenders as may be appointed from time to time pursuant to Article IX
hereof (the "Documentation Agent");
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders extend to
Borrower a $250,000,000 revolving credit facility, and the Lenders are willing
to extend such revolving credit facility, on the terms and subject to the
conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Borrower, the Lenders, the Administrative
Agent and the Documentation Agent agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
"Administrative Agent" shall mean Wachovia Bank, N.A., a
national banking association, and any successor Administrative Agent appointed
pursuant to Section 9.10.
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under (i) the Syndicated Loans, which
Advances shall be made or outstanding as Base Rate Advances or Eurodollar
Advances, as the case may be, (ii) the Bid Rate
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Loans, which Advances shall be made or outstanding as Bid Rate Advances,
and (iii) the Swing Line Loans, which Advances shall be made or outstanding as
Swing Rate Advances.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agents" shall mean, collectively, the Administrative Agent
and the Documentation Agent.
"Agreement" shall mean this Revolving Credit Agreement, as
amended, modified, restated, or supplemented from time to time.
"Applicable Commitment Percentage" shall mean the percentage
designated on the chart set forth below based on Borrower's ratio of Funded
Debt to Consolidated EBITDA, measured quarterly, effective in the second fiscal
quarter immediately following the date of delivery of the Compliance
Certificate to the Administrative Agent:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO COMMITMENT PERCENTAGE
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Greater than 3.0:1.0 .20%
Less than or Equal to 3.0:1.0
and Greater than 2.5:1.0 .15%
Less than or Equal to 2.50:1.0
and Greater than 2.0:1.0 .125%
Less than or Equal to 2.0:1.0
but Greater than 1.5:1.0 .11%
Less than or Equal to 1.5:1.0
but Greater than 1.0:1.0 .10%
Less than or Equal to 1.0:1.0 .09%
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For purposes of the foregoing, (i) the Applicable Commitment Percentage on the
Closing Date is 0.11% and shall remain 0.11% through and including December 31,
1997 (By way of example, as of the first day of the fourth fiscal quarter of
Borrower, the Applicable Commitment Percentage shall be calculated based upon
the ratio of Funded Debt to Consolidated EBITDA of Borrower reported in the
Compliance Certificate delivered by the Borrower for the first fiscal quarter
of such fiscal year of Borrower.); and (ii) if the Borrower fails to provide
the Compliance Certificate and related financial statements required by Section
6.07 within the applicable time period set forth therein, the Applicable
Commitment Percentage shall be adjusted to .20% on the first day of the
following fiscal quarter until such Compliance Certificate and related
financial statements are delivered.
"Applicable Margin" shall mean the percentage designated on
the chart set forth below based on Borrower's ratio of Funded Debt to
Consolidated EBITDA, measured quarterly, effective in the second fiscal quarter
immediately following the date of delivery of the Compliance Certificate to the
Administrative Agent:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
------------ -----------
Greater than 3.0:1.0 0.45%
Less than or Equal to 3.0:1.0
and Greater than 2.5:1.0 0.375%
Less than or Equal to 2.5:1.0
and Greater than 2.0:1.0 0.275%
Less than or Equal to 2.0:1.0
and Greater than 1.5:1.00 0.24%
Less than or Equal to 1.5:1.0
but Greater than 1.0:1.0 0.20%
Less than or Equal to 1.0:1.0 0.16%
For purposes of the foregoing, (i) the Applicable Margin on the Closing
Date is 0.24% and shall remain 0.24% through and including December 31, 1997
(By way of example, as of the first day of the fourth fiscal quarter of
Borrower, the Applicable Margin shall be calculated based upon the ratio of
Funded Debt to Consolidated EBITDA of Borrower reported in the Compliance
Certificate delivered by the Borrower for the first fiscal quarter of such
fiscal year of Borrower.); and (ii) if the Borrower fails to provide the
Compliance Certificate and related financial
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statements required by Section 6.07 within the applicable time period set forth
therein, the Applicable Margin shall be adjusted to .45% on the first day of
the following fiscal quarter until such Compliance Certificate and related
financial statements are delivered.
"Arrangement Fee" shall mean the arrangement fee previously
agreed in writing by Borrower and the Documentation Agent.
"Asset Sale" shall mean any sale or other disposition (or a
series of related sales or other dispositions), including without limitation,
loss, damage, destruction or taking to the extent not covered by insurance, by
any Consolidated Company to any Person other than a Consolidated Company, of
any property or asset (including Capital Stock but excluding the issuance and
sale by Borrower of its own Capital Stock), other than sales or other
dispositions made in the ordinary course of business of any Consolidated
Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of Exhibit L.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. Section 101 et seq.).
"Base Rate" shall mean the higher of (with any change in
the Base Rate to be effective as of the date of change of either of the
following rates):
(a) the rate which the Administrative Agent so
denominates and sets from time to time to be its prime lending rate,
as in effect from time to time, and
(b) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (0.50%) per annum.
The Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers; the
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or
outstanding as (i) a Syndicated Loan bearing interest based on the Base Rate or
(ii) an Advance bearing interest at the rate agreed upon between Borrower and
the Lenders pursuant to Section 3.07, Section 3.08 or Section 3.09.
"Bid Accept/Reject Letter" shall mean a notification made by
Borrower pursuant to Section 2.07 substantially in the form of Exhibit G.
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"Bid Facility Note" shall mean a promissory note of Borrower
payable to the order of any Lender, in substantially the form of Exhibit B
hereto, evidencing the maximum aggregate principal indebtedness of Borrower to
such Lender with respect to outstanding Bid Rate Advances made by such Lender
pursuant to this Agreement, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Bid Rate" shall mean, as to any Bid Rate Bid made by a
Syndicated Lender pursuant to Section 2.07, the fixed rate of interest per
annum offered by the Lender making the Bid Rate Bid for the relevant Interest
Period.
"Bid Rate Advance" shall mean an Advance made by a
Syndicated Lender to Borrower pursuant to the bidding procedure described in
Section 2.07.
"Bid Rate Bid" shall mean an offer by a Lender to make a Bid
Rate Loan pursuant to Section 2.07.
"Bid Rate Facility" shall mean the credit facility being
made available by the Syndicated Lenders to Borrower as described in Section
2.07.
"Bid Rate Loan" shall mean a Borrowing made up of Advances
by all of those Lenders whose Bid Rate Bids have been accepted by Borrower
pursuant to the same Bid Request under the bidding procedure described in
Section 2.07 for the same Interest Period and interest rate (with the
understanding that two Bid Rate Loans may be made pursuant to a single Bid
Request).
"Bid Request" shall mean a request made by Borrower pursuant
to Section 2.07 substantially in the form of Exhibit D.
"Borrower" shall mean ChoicePoint Inc., a Georgia
corporation, and its successors.
"Borrowing" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest Period
or the continuation or conversion of an existing Borrowing or Borrowings in
whole or in part.
"Business Day" shall mean any day which is neither a
Saturday or Sunday nor a legal holiday on which banks are required or
authorized to close in Atlanta, Georgia.
"Capital Stock" shall mean, with respect to any Person, all
capital stock of such Person, whether voting or nonvoting, including common
stock and preferred stock of such Person.
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"CDB/Infotek" shall mean CDB/Infotek, a California
corporation.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note, or other agreement or
document evidencing or governing Indebtedness of Borrower evidencing debt or a
commitment to extend loans in excess of $5,000,000 which requires, or permits
the holder(s) of such Indebtedness of Borrower to require that such
Indebtedness of Borrower be redeemed, repurchased, defeased, prepaid or repaid,
either in whole or in part, or the maturity of such Indebtedness of Borrower to
be accelerated in any respect, as a result of a change in ownership of the
Capital Stock of Borrower or voting rights with respect thereto.
"Closing Date" shall mean the date on or before August 5,
1997 on which the initial Loans are made or deemed to have been made hereunder
and the conditions set forth in Section 4.01 are satisfied or waived in
accordance with Section 10.02.
"Commitment" shall mean (i) for any Syndicated Lender at any
time, its Syndicated Loan Commitment, and (ii) for the Swing Line Lender at any
time, its Swing Line Commitment, in each case as the context may require.
"Compliance Certificate" shall have the meaning set forth in
Section 6.07(c).
"Consolidated Companies" shall mean, collectively, Borrower
and all of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of
Borrower, an amount equal to (A) the sum for such fiscal period of Consolidated
Net Income (Loss) and, to the extent deducted in determining such Consolidated
Net Income (Loss), provisions for (i) taxes based on income and (ii)
Consolidated Interest Expense, minus (B) any items of gain (or plus any items
of loss) which were included in determining such Consolidated Net Income (Loss)
and were (x) not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (y) the result of any sale of assets, or (z)
resulting from minority investments, together in the case of (x), (y) or (z),
any related provision for taxes included in Consolidated Net Income (Loss) with
respect thereto, plus (C) non-recurring non-cash charges, including without
limitation, accruals related to any acquisition and earnouts incurred in
connection with any acquisition to the extent not paid in cash.
"Consolidated EBITDA" shall mean, for any four
fiscal-quarter period of Borrower, an amount equal to the sum of (A)
Consolidated EBIT plus (B) depreciation and amortization expense to the extent
deducted in determining Consolidated Net Income (Loss), plus (C) without
duplication, the sum of the following items to the extent not included in
Consolidated EBITDA for such period:
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(1) the net income (or net loss) for such four
fiscal-quarter period of any Person which became a Subsidiary during
such period (a "New Subsidiary");
(2) the net income (or net loss) derived during such four
fiscal-quarter period from any assets acquired by any Consolidated
Company during such period ("New Assets");
(3) the sum of (x) taxes based on income, (y) Consolidated
Interest Expense and (z) depreciation and amortization expense, in
each case to the extent deducted in determining net income of any New
Subsidiary or derived from any New Assets during such four
fiscal-quarter period, minus any items of gain (or plus any items of
loss) which were included in determining such net income and were (aa)
not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (bb) the result of any sale of
assets, or (cc) resulting from minority investments, together in the
case of (aa), (bb) or (cc), any related provision for taxes included
in such net income with respect thereto; and
(4) non-recurring non-cash charges of any New Subsidiary or
derived from any New Assets during such four fiscal-quarter period,
including without limitation, accruals related to any acquisition and
earnouts incurred in connection with any acquisition to the extent not
paid in cash.
"Consolidated EBITR" shall mean, for any fiscal period of
Borrower, an amount equal to the sum of Consolidated EBIT plus Consolidated
Rental Expense for such period.
"Consolidated Fixed Charges" shall mean, for any fiscal
period of Borrower, the sum of (A) Consolidated Interest Expense, plus (B)
Consolidated Rental Expense, plus (C) dividends and distributions on Capital
Stock paid in cash during such fiscal period by Borrower or any other
Consolidated Company, but excluding the one-time dividend paid by Borrower to
Equifax as of the Spin-Off Date and any repurchases of Capital Stock of
Borrower.
"Consolidated Interest Expense" shall mean, for any fiscal
period of Borrower, total interest expense of the Consolidated Companies
(including without limitation, interest expense attributable to capitalized
leases in accordance with GAAP, all commissions, discounts and other fees and
charges owed with respect to bankers acceptance financing, and total interest
expense (whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of the Consolidated Companies for
such period (taken as a single accounting period), but excluding therefrom (to
the extent otherwise included therein) the income of any Consolidated Company
to the extent that the declaration or payment of dividends
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or similar distributions by such Consolidated Company of that income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation; provided that the foregoing exclusion shall not apply to
CDB/Infotek so long as there is at least $1 of outstanding intercompany debt
owed by CDB/Infotek to another Consolidated Company.
"Consolidated Net Worth" shall mean, as of any date of
determination, shareholders' equity of Borrower, determined on a consolidated
basis in conformity with GAAP.
"Consolidated Rental Expense" shall mean, for any fiscal
period of Borrower, the operating lease expense of the Consolidated Companies
determined in accordance with GAAP for leases with an initial term greater than
one year, as disclosed in the notes to Borrower's consolidated financial
statements of the Consolidated Companies, determined on a consolidated basis in
accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of
the property owned by it is bound.
"Contribution Agreements" shall mean, collectively, the
Contribution Agreement, dated as of even date herewith, executed by each of the
Guarantors and the Borrower, in favor of the Lenders and the Agent,
substantially in the form of Exhibit I, as the same may be.
"Credit Documents" shall mean, collectively, this Agreement,
the Notes, the Guaranty Agreements, and all other documents, instruments,
certificates and opinions executed and delivered in connection with the
foregoing.
"Credit Parties" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who from time to time executes a
supplement to the Guaranty Agreements with respect to all or any portion of the
Obligations.
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Documentation Agent" shall mean SunTrust Bank, Atlanta, a
Georgia banking corporation, and any successor Documentation Agent appointed
pursuant to Section 9.10 hereof.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
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"Eligible Assignee" shall mean any of the following (i) a
commercial bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $100,000,000; (ii) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $100,000,000; (iii)
a commercial bank organized under the laws of any other country having total
assets in excess of $100,000,000, provided that such bank is acting through a
branch or agency located in the United States; (iv) a finance company,
insurance company or other financial institution, lender or fund (whether a
corporation, partnership or other entity) which is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business, and having total assets in excess of at least $100,000,000; (v)
any Lender or any Affiliate of any Lender; or (vi) any other Person consented
to by the Borrower and the Agent, such consent not unreasonably to be withheld.
"Environmental Laws" shall mean all federal, state, local
and foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health and
safety, relating to (i) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals or industrial toxic or hazardous
constituents, substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law into the environment (including without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation (i) the Clean Air Act (42 U.S.C. Section 7401 et seq.),
(ii) the Clean Water Act (33 U.S.C. Section 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. Section 9601 et seq.),
and (vi) all applicable national and local laws or regulations with respect to
environmental control (including applicable laws of the Federal Republic of
Germany or any applicable international agreements).
"Equifax" shall mean Equifax Inc., a Georgia corporation.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended and in effect from time to time.
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"ERISA Affiliate" shall mean, with respect to any Person,
each trade or business (whether or not incorporated) which is a member of a
group of which that Person is a member and which is under common control within
the meaning of the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or
outstanding as a Syndicated Loan bearing interest based on LIBOR.
"Eurodollar Business Day" shall mean a Business Day on which
trading is carried on by and between banks in deposits of Dollars in the London
interbank market.
"Eurodollar Reserve Percentage" shall mean, for any Bank
which is a member bank of the Federal Reserve System, on any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirement for such Bank in respect of
"Eurocurrency liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Advances is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to the United
States residents).
"Event of Default" shall have the meaning provided in
Article VIII.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean, with respect to any Person,
Chief Executive Officer, President, Chief Financial Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer and any Person holding
comparable offices or duties.
"Facility" or "Facilities" shall mean the credit facilities
made available to the Borrower pursuant to the Syndicated Loan Commitments, the
Swing Line Commitment, and the Bid Rate Facility, as the context may indicate.
"Facility Fee" shall have the meaning assigned to such term
in Section 3.04.
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.
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"Fixed Charge Coverage Ratio" shall mean, as of the last day
of any fiscal quarter of Borrower, the ratio of (A) Consolidated EBITR to (B)
Consolidated Fixed Charges, in each case calculated with respect to the
immediately preceding four fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or arrangement
maintained by any Foreign Subsidiary which, under applicable local law, is
required to be funded through a trust or other funding vehicle, but shall not
include any benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company
that is organized under the laws of a jurisdiction other than the United States
of America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money
borrowed, Indebtedness evidenced or secured by purchase money Liens,
capitalized leases, outstandings under asset securitization vehicles,
conditional sales contracts and similar title retention debt instruments,
including any current maturities of the foregoing, which by its terms matures
more than one year from the date of any calculation thereof or which is
renewable or extendable at the option of the obligor to a date beyond one year
from such date. The calculation of Funded Debt shall include (i) all Funded
Debt of the Consolidated Companies, plus (ii) all Funded Debt of other Persons
to the extent guaranteed by a Consolidated Company, to the extent supported by
a letter of credit issued for the account of a Consolidated Company, or as to
which and to the extent which a Consolidated Company or its assets otherwise
have become liable for payment thereof, plus (iii) the redemption amount with
respect to the stock of the Borrower required to be redeemed during the next
succeeding twelve months at the option of the holder or its Subsidiaries.
Notwithstanding the foregoing, "Funded Debt" shall exclude the Lease Documents
and all operating lease obligations.
"GAAP" shall mean generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, ChoicePoint Services
Inc., a Georgia corporation, Xxxxxx Laboratories, Inc., a Delaware corporation,
and all other Material Subsidiaries formed, acquired or existing after the
Closing Date, but excluding (i) all Foreign Subsidiaries and (ii) CDB/Infotek
so long as it is not directly or indirectly wholly owned by other Consolidated
Companies.
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"Guaranty" shall mean any contractual obligation, contingent
or otherwise, of a Person with respect to any Indebtedness or other obligation
or liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreements" shall mean, collectively, (i) the
Guaranty Agreement, dated as of even date herewith, executed by each of the
Guarantors in favor of the Lenders and the Agents, substantially in the form of
Exhibit H, as the same may be amended, restated or supplemented from time to
time and (ii) the Contribution Agreement, dated as of even date herewith,
executed by each of the Guarantors and the Borrower in favor of the Lenders and
the Agents, substantially in the form of Exhibit I, as the same may be amended,
restated or supplemented from time to time.
"Hazardous Substances" shall have the meaning assigned to
that term in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986.
"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all rental obligations under leases
required to be capitalized under GAAP; (iii) all Guaranties of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar
agreements or combinations thereof to the extent required to be disclosed in
such Person's financial statements in accordance with GAAP.
"Interest Period" shall mean (i) as to any Eurodollar
Advances, the interest period selected by Borrower pursuant to Section 3.03(a),
(ii) as to any Bid Rate Advances, the interest period requested by Borrower and
agreed to by the participating Lenders pursuant to
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Section 3.03(b), and (iii) as to any Swing Rate Advances, the interest period
requested by Borrower and agreed to by the Swing Line Lender pursuant to
Section 2.08(c).
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension of credit
(other than the creation of receivables in the ordinary course of business) or
capital contribution by such Person (by means of transfers of property to
others or payments for property or services for the account or use of others,
or otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, Capital Stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person. Each Investment shall be valued as of the date made;
provided that any Investment or portion of an Investment consisting of Debt
shall be valued at the outstanding principal balance thereof as of the date of
determination.
"Lease Documents" shall mean, collectively, (i) that certain
Lease Agreement, dated as of July 31, 1997, by and between Borrower as lessee
and SunTrust Banks, Inc., as lessor, pursuant to which the Borrower has leased
its office building, (ii) that certain Master Agreement, dated as of July 31,
1997, by and among Borrower as lessee, SunTrust Banks, Inc., as lessor and
SunTrust Bank, Atlanta, as Agent, and (iii) all other documents, instruments
and agreements executed in connection therewith.
"Lender" or "Lenders" shall mean SunTrust, Wachovia the
other banks and lending institutions listed on the signature pages hereof, and
each assignee thereof, if any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the
Administrative Agent with respect to each Type of Loan.
"LIBOR" shall mean, for any Interest Period, with respect to
Eurodollar Advances under the Syndicated Loan Commitments, the offered rate for
deposits in Dollars, for a period comparable to the Interest Period and in an
amount comparable to the Administrative Agent's portion of such Advances,
appearing on Telerate Page 3750 as of 11:00 AM (London, England time) on the
day that is two Eurodollar Business Days prior to the first day of the Interest
Period. If two or more of such rates appear on such Telerate Page, the rate
shall be the arithmetic mean of such rates. If the foregoing rate is
unavailable from Telerate for any reason, then such rate shall be determined by
the Administrative Agent from the Reuters Screen LIBO Page or, if such rate is
also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Administrative
Agent to Borrower and the other Lenders; in any such case rounded, if
necessary, to the next higher 1/100 of 1.0%, if the rate is not such a
multiple.
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"Lien" shall mean any mortgage, pledge, security interest,
lien, charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title
retention agreement.
"Loans" shall mean, collectively, the Syndicated Loans, the
Bid Rate Loans and the Swing Line Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
"Margin Stock" shall have the meaning set forth in the
Margin Regulations.
"Materially Adverse Effect" shall mean any materially
adverse change in (i) the business, assets, liabilities, financial condition or
results of operations of the Consolidated Companies, taken as a whole, (ii) the
ability of Borrower to perform its obligations under this Agreement, or (iii)
the ability of the other Credit Parties (taken as a whole) to perform their
respective obligations under the Credit Documents.
"Material Subsidiary" shall mean each Subsidiary of
Borrower, now existing or hereafter established or acquired, that at any time
prior to the Maturity Date (i) has or acquires assets which constitute fifteen
percent (15%) or more of the Total Assets or (ii) accounts for or produces
fifteen percent (15%) or more of Consolidated EBITDA during the most recently
completed fiscal year of Borrower.
"Maturity Date" shall mean the earlier of (i) August 4,
2002, and (ii) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable pursuant to the
provisions of Article VIII.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Syndicated Notes, the
Bid Facility Notes and the Swing Line Note.
"Notice of Borrowing" shall have the meaning provided in
Section 2.06(a).
"Notice of Continuation/Conversion" shall have the meaning
provided in Section 2.08(b).
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"Obligations" shall mean all amounts owing to either Agent
or any Lender pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Loans (including all principal and
interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renewals,
extensions, modifications or refinancings thereof.
"Payment Office" shall mean the office specified as the
"Payment Office" for the Administrative Agent on the signature page of the
Administrative Agent, or such other location as to which the Administrative
Agent shall have given written notice to Borrower and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted
by Section 7.01.
"Person" shall mean any individual, limited liability
company, partnership, firm, corporation, association, joint venture, trust or
other entity, or any government or political subdivision or agency, department
or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits, but shall exclude any Foreign Plan.
"Pro Rata Share" shall mean, with respect to each of the
Syndicated Loan Commitments of each Syndicated Lender and each Syndicated Loan
to be made by and each payment (including, without limitation, any payment of
principal, interest or fees) to be made to each such Lender, the percentage
designated as such Lender's Pro Rata Share of such Commitments, such Loans or
such payments, as applicable, set forth under the name of such Lender on the
respective signature page for such Lender, as such percentage may change based
upon amendments, assignments or reductions made pursuant to this Agreement.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Required Lenders" shall mean at any time prior to the
termination of the Syndicated Loan Commitments, Lenders holding at least 60% of
the then aggregate amount of
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the Syndicated Loan Commitments, or, following the termination of the
Syndicated Loan Commitments hereunder, Lenders holding at least 60% of the sum
of the aggregate outstanding Loans.
"Requirement of Law" for any person shall mean the articles
or certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reuters Screen" shall mean, when used in connection with
any designated page and LIBOR, the display page so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on
that service for the purpose of displaying rates comparable to LIBOR).
"Solvent" shall mean, as to Borrower or any Guarantor at any
time, that (i) each of the fair value and the present fair saleable value of
such Person's assets (including any rights of subrogation or contribution to
which such Person is entitled, under any of the Loan Documents or otherwise) is
greater than such Person's debts and other liabilities (including contingent,
unmatured and unliquidated debts and liabilities) and the maximum estimated
amount required to pay such debts and liabilities as such debts and liabilities
mature or otherwise become payable; (ii) such Person is able and expects to be
able to pay its debts and other liabilities (including, without limitation,
contingent, unmatured and unliquidated debts and liabilities) as they mature;
and (iii) such Person does not have unreasonably small capital to carry on its
business as conducted and as proposed to be conducted.
"SpinOff" shall mean the spinoff of stock of the Borrower by
Equifax to shareholders of Equifax.
"SpinOff Date" shall mean the date on which the SpinOff is
consummated.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all
classes of voting stock or other ownership interests of which shall, at the
time as of which any determination is being made, be owned by such Person,
either directly or indirectly through one or more other Subsidiaries.
"Swing Line Advance" shall mean a Borrowing pursuant to
Section 2.08 consisting of a Swing Line Loan made by the Swing Line Lender to
Borrower on the same date and interest rate basis.
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"Swing Line Borrowing" shall mean a Borrowing consisting or
to consist of a Swing Line Advance.
"Swing Line Borrowing Notice" shall mean the notice given by
Borrower to the Administrative Agent requesting a Swing Line Advance as
provided in Section 2.08(c).
"Swing Line Commitment" shall mean the commitment of the
Swing Line Lender to make Swing Line Loans in an aggregate principal amount at
any time outstanding not to exceed $10,000,000.
"Swing Line Facility" shall mean the credit facility
described in Section 2.08.
"Swing Line Lender" shall mean Wachovia or any successor
Lender extending to Borrower the Swing Line Commitment hereunder.
"Swing Line Loans" shall mean, collectively, the loans made
to Borrower by the Swing Line Lender pursuant to Section 2.08.
"Swing Line Note" shall mean the promissory note evidencing
the Swing Line Loans substantially in the form of Exhibit C and duly completed
in accordance with the terms hereof.
"Swing Rate" shall mean the rate of interest specified by
the Swing Line Lender to Borrower as being applicable to a Swing Line Loan
requested by Borrower pursuant to Section 2.08(c).
"Swing Rate Advance" shall mean an Advance made or
outstanding as a Swing Line Loan bearing interest based on the Swing Rate as
provided in Section 3.02.
"Swing Rate Quote" shall mean an offer by the Swing Line
Lender to make a Swing Line Loan to Borrower at the Swing Rate specified
therein for the interest period to be applicable to the Swing Line Loan as
specified therein, pursuant to Section 2.08(c).
"Syndicated Advance" shall mean a Borrowing pursuant to
Section 2.02 consisting of the aggregate amount of Syndicated Loans made by the
Syndicated Lenders to Borrower at the same time, on the same interest rate
basis and, if made as a Eurodollar Advance, for the same Interest Period.
"Syndicated Borrowing" shall mean a Borrowing consisting or
to consist of a Syndicated Advance.
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"Syndicated Facility" shall mean the credit facility made
available by the Syndicated Lenders to Borrower as described in Section
2.02(a).
"Syndicated Lenders" shall mean, collectively, the Lenders
extending the Syndicated Loan Commitments to Borrower pursuant to Section
2.02(a).
"Syndicated Loan Commitments" shall mean, at any time for
any Syndicated Lender, the amount of such commitment set forth opposite such
Syndicated Lender's name on the signature pages of this Agreement, as the same
may be increased or decreased from time to time as a result of any reduction
thereof pursuant to Section 2.04, any assignment thereof pursuant to Section
10.06, or any amendment thereof pursuant to Section 10.02.
"Syndicated Loans" shall mean, collectively, the loans made
to Borrower by the Syndicated Lenders pursuant to Section 2.02.
"Syndicated Notes" shall mean, collectively, the promissory
notes evidencing the Syndicated Loans in the form attached hereto as Exhibit A
duly completed in accordance with the terms hereof, either as originally
executed or as hereafter amended, modified or substituted.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges
of whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or any
state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Dow Xxxxx
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the
Consolidated Companies, determined in accordance with GAAP.
"Type" of Borrowing shall mean a Borrowing consisting of
Base Rate Advances, Eurodollar Advances, Bid Rate Advances and Swing Rate
Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, all financial
statements required to be delivered
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hereunder shall be prepared, and all financial records shall be
maintained in accordance with, GAAP, except that financial records of Foreign
Subsidiaries may be maintained in accordance with generally accepted accounting
principles in effect from time to time in the jurisdiction of organization of
such Foreign Subsidiary; provided, however, that compliance with the financial
covenants and calculations set forth in Section 6.08, Article VII and elsewhere
herein, and in the definitions used in such covenants and calculations, shall
be calculated, made and applied in accordance with GAAP and such generally
accepted accounting principles in such foreign jurisdictions, as the case may
be, as in effect on the date of this Agreement applied on a basis consistent
with the preparation of the financial statements referred to in Section 5.14
unless and until Borrower and the Required Lenders enter into an agreement with
respect thereto in accordance with Section 10.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, Schedule, Exhibit
and like references are to this Agreement unless otherwise specified. Any of
the terms defined in Section 1.01 may, unless the context otherwise requires,
be used in the singular or the plural depending on the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II.
SYNDICATED LOANS, BID RATE LOANS AND SWING LINE LOANS
SECTION 2.01. DESCRIPTION OF REVOLVING CREDIT FACILITIES;
USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions
herein set forth, (i) the Syndicated Lenders hereby establish in favor of
Borrower a revolving credit facility pursuant to which such Syndicated Lenders
agree to make Syndicated Loans to Borrower in accordance with Section 2.02,
(ii) each Syndicated Lender may, in its sole discretion, submit bids to make
Bid Rate Loans to Borrower in accordance with Section 2.07 and (iii) the Swing
Line Lender hereby establishes in favor of Borrower a swing line credit
facility pursuant to which the Swing Line Lender agrees to make Swing Line
Loans to Borrower in accordance with Section 2.08 provided, however, that (i)
in no event may the aggregate principal amount of all outstanding Loans exceed
at any time the total Syndicated Loan Commitments from time to time in effect
and (ii) in no event shall the outstanding principal amount of the Syndicated
Loans of each Syndicated Lender exceed each Syndicated Lender's Pro Rata Share
of the Syndicated Loan Commitments.
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(b) The proceeds of the Syndicated Loans, the Bid Rate
Loans and the Swing Line Loans shall be used as working capital and for other
general corporate purposes of Borrower and its Consolidated Subsidiaries,
including without limitation, acquisitions of the assets of, or the Capital
Stock of, any other Person.
(c) At no time shall the number of outstanding
Borrowings comprised of Eurodollar Advances and Bid Rate Advances exceed eight.
SECTION 2.02. SYNDICATED LOANS.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section 2.01), each
Syndicated Lender severally agrees to make to Borrower, from time to time on
and after the Closing Date, but prior to the Maturity Date, Syndicated Loans in
an aggregate principal amount outstanding at any time not to exceed an amount
equal to such Syndicated Lender's Syndicated Loan Commitment. For purposes of
calculating the amount of allowable Syndicated Loans, Bid Rate Loans shall not
be included, provided the total principal amount of all Loans which may be made
hereunder shall not exceed $250,000,000.00. Borrower shall be entitled to
repay and reborrow Syndicated Loans in accordance with the provisions, and
subject to the limitations, set forth herein (including the limitation set
forth in Section 2.01).
(b) Each Syndicated Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one or more
Borrowings that shall consist entirely of Base Rate Advances or Eurodollar
Advances. The aggregate principal amount of each Borrowing of Syndicated Loans
shall be not less than $5,000,000 or a greater integral multiple of $500,000,
provided that each Borrowing of Syndicated Loans comprised of Base Rate
Advances shall be not less than $1,000,000 or a greater integral multiple of
$100,000.
SECTION 2.03. SYNDICATED NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of,
and interest on, the Syndicated Loans to each Syndicated Lender shall be
evidenced by the records of the Administrative Agent and such Lender and by the
Syndicated Note payable to such Lender (or the assignor of such Lender)
completed in conformity with this Agreement.
(b) All outstanding principal amounts under the
Syndicated Loan Commitments shall be due and payable in full on the Maturity
Date.
SECTION 2.04. VOLUNTARY REDUCTION OF SYNDICATED LOAN
COMMITMENTS. Upon at least three (3) Business Days' prior written notice
(promptly confirmed in writing) to the Administrative Agent, Borrower shall
have the right, without premium or penalty, to terminate the unutilized
Syndicated Loan Commitments, in part or in whole, provided that (i) any such
termination shall apply to proportionately and permanently reduce the
Syndicated Loan
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Commitments of each of the Syndicated Lenders, and (ii) any partial termination
pursuant to this Section 2.03 shall be in an amount of at least $5,000,000 and
integral multiples of $1,000,000. Any portion of the Syndicated Loan
Commitments terminated pursuant to this Section 2.04 may not be reinstated.
SECTION 2.05. INCREASE OF SYNDICATED LOAN COMMITMENTS.
(a) Borrower may, at any time by written notice to the
Syndicated Lenders, request that the Syndicated Loan Commitments be increased
up to an amount not to exceed $300,000,000 in the aggregate (the "Requested
Commitment Amount") on a pro rata basis based on the Pro Rata Shares of the
Syndicated Lenders. No Syndicated Lender (or any successor thereto) shall have
any obligation to increase its Syndicated Loan Commitment or its other
obligations under this Agreement and the other Credit Documents, and any
decision by a Syndicated Lender to increase its Syndicated Loan Commitment
shall be made in its sole discretion independently from any other Syndicated
Lender or the Agents. Within fifteen (15) Business Days from each Syndicated
Lender's receipt of such request from the Borrower, each Syndicated Lender
shall notify the Documentation Agent in writing of whether or not it will agree
to increase its Syndicated Loan Commitment and by what amount it will agree to
increase its Syndicated Loan Commitment, up to its Pro Rata Share of the
Requested Commitment Amount. Decisions to increase a Syndicated Loan
Commitment must be affirmatively communicated in writing and shall not be
presumed based upon a failure to respond to Borrower's request.
(b) In the event that the aggregate amount to which
the Syndicated Lenders are willing to increase their Syndicated Loan
Commitments is less than the Requested Commitment Amount based on the written
notices delivered by the Syndicated Lenders to the Documentation Agent, the
Documentation Agent shall first offer to the Syndicated Lenders who have agreed
to increase their Syndicated Loan Commitments the opportunity to further
increase their Syndicated Loan Commitments up to an amount equal to the
Requested Commitment Amount. Such Syndicated Lenders shall promptly respond
in writing to the Documentation Agent of whether or not it will agree to
further increase its Syndicated Loan Commitment and by what amount it will
agree to further increase its Syndicated Loan Commitment. Within five (5)
Business Days after receipt of all responses from such Syndicated Lenders, the
Documentation Agent shall inform the Borrower and all Syndicated Lenders in
writing of the amount by which each Syndicated Lender will increase its
Syndicated Loan Commitment.
(c) In the event that the aggregate amount to which
the Syndicated Lenders are willing to increase their Syndicated Loan
Commitments is less than the Requested Commitment Amount based on the notice
from the Documentation Agent to the Borrower and all Syndicated Lenders, the
Borrower shall have the right, within sixty days (60) after receipt of such
notice from the Documentation Agent, to obtain commitments from new banks or
financial institutions in an aggregate amount such that the existing Syndicated
Loan Commitments, plus
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the aggregate principal amount by which the Syndicated Lenders are willing to
increase their Syndicated Loan Commitments, plus the aggregate principal amount
of the new commitments by the new banks or financial institutions does not
exceed the Requested Commitment Amount; provided, however, that (1) the new
banks or financial institutions must be acceptable to the Agents in their sole
discretion, which acceptance will not be unreasonably withheld or delayed, and
(2) the new banks or financial institutions must become parties to this
Agreement pursuant to a joinder agreement in form and substance satisfactory to
the Agents and the Required Lenders, pursuant to which (x) they shall be
granted all of the rights that existing Lenders have under this Agreement and
the other Credit Documents and (y) they shall assume the same liabilities and
obligations that the existing Lenders have under this Agreement.
SECTION 2.06. SYNDICATED LOAN FUNDING NOTICES.
(a) Whenever Borrower desires to obtain a Syndicated
Loan with respect to the Syndicated Loan Commitments (other than one resulting
from a conversion or continuation pursuant to Section 2.06(b)), it shall give
the Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of Borrowing"), such Notice
of Borrowing to be given prior to 11:00 AM (Atlanta, Georgia time) at its
Payment Office (x) three Eurodollar Business Days prior to the requested date
of such Borrowing in the case of Eurodollar Advances, and (y) on the date of
such Borrowing (which shall be a Business Day) in the case of a Borrowing
consisting of Base Rate Advances. Notices received after 11:00 AM shall be
deemed received on the next Business Day. Each Notice of Borrowing shall be
irrevocable and shall specify the aggregate principal amount of the Borrowing,
the date of Borrowing (which shall be a Business Day), and whether the
Borrowing is to consist of Base Rate Advances or Eurodollar Advances and (in
the case of Eurodollar Advances) the interest period to be applicable thereto.
(b) Whenever Borrower desires to convert all or a
portion of an outstanding Borrowing under the Syndicated Loan Commitments,
consisting of Base Rate Advances into one or more Borrowings consisting of
Eurodollar Advances, or to continue outstanding a Borrowing consisting of
Eurodollar Advances for a new Interest Period, it shall give the Administrative
Agent at least three Eurodollar Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each such Borrowing to be
converted into or continued as Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 AM (Atlanta, Georgia
time) on the date specified at the Payment Office of the Administrative Agent.
Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the Advances
are being converted into or continued as Eurodollar Advances and the Interest
Period applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Borrower shall have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So
long as any Default or Event of Default shall have occurred and be continuing,
no Borrowing may be converted into or continued
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as (upon expiration of the current Interest Period) Eurodollar Advances unless
the Administrative Agent and each of the Syndicated Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of Eurodollar
Advances shall be permitted except on the last day of the Interest Period in
respect thereof.
(c) Without in any way limiting Borrower's obligation
to confirm in writing any telephonic notice, the Administrative Agent may act
without liability upon the basis of telephonic notice believed by the
Administrative Agent in good faith to be from Borrower prior to receipt of
written confirmation. In each such case, Borrower hereby waives the right to
dispute the Administrative Agent's records of the terms of such telephonic
notice, absent manifest error.
(d) The Administrative Agent shall promptly give each
Syndicated Lender notice by telephone (confirmed in writing) or by telex,
telecopy or facsimile transmission of the matters covered by the notices given
to the Administrative Agent pursuant to this Section 2.06 with respect to the
Syndicated Loan Commitments.
SECTION 2.07. BID RATE LOANS. Subject to and upon the
terms and conditions herein set forth (including the limitation set forth in
Section 2.01), Borrower may request, and each Syndicated Lender, in its sole
discretion, may agree to make, Bid Rate Advances in accordance with the
following procedure:
(a) In order to request Bid Rate Bids, Borrower shall
telecopy to the Administrative Agent a duly completed Bid Request in the form
of Exhibit D attached hereto (which may request not more than three Bid Rate
Bids), to be received by the Administrative Agent not later than 11:00 A.M.
(Atlanta, Georgia time) at least one Business Day prior to the Business Day of
the proposed Bid Rate Loan or Loans; provided that, such Bid Request shall not
be deemed to have been received by the Administrative Agent in a timely manner
unless Borrower shall also have notified the Administrative Agent by telephone
(excluding voice mail notification) of such Bid Request by the time specified
above. A Bid Request that does not conform substantially to the format of
Exhibit D may be rejected in the Administrative Agent's sole discretion, and
the Administrative Agent shall notify Borrower of such rejection by telecopy
not later than 12:00 Noon (Atlanta, Georgia time) on the date of receipt. Such
request shall in each case refer to this Agreement and specify (i) the date of
such Borrowing or Borrowings (which shall be a Business Day) and (ii) the
aggregate principal amount thereof which shall be in a minimum principal amount
of $5,000,000 and in an integral multiple of $1,000,000, and (iii) the Interest
Period with respect thereto. Promptly after its receipt of a Bid Request that
is not rejected as aforesaid, the Administrative Agent shall invite by telecopy
(substantially in the form set forth in Exhibit E attached hereto) the
Syndicated Lenders to bid, on the terms and conditions of this Agreement, to
make Bid Rate Advances pursuant to the Bid Request.
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(b) Each Syndicated Lender may, in its sole
discretion, make one or more Bid Rate Bids (but not more than three) to
Borrower responsive to a Bid Request. Each Bid Rate Bid by a Syndicated Lender
must be received by the Administrative Agent via telecopy, substantially in the
form of Exhibit F attached hereto, not later than 10:00 A.M. (Atlanta, Georgia
time) on the Business Day of the proposed Bid Rate Loan. Multiple bids (not to
exceed three per Syndicated Lender) will be accepted by the Administrative
Agent. Bid Rate Bids that do not conform substantially to the format of
Exhibit F may be rejected by the Administrative Agent acting in consultation
with Borrower, and the Administrative Agent shall notify the Syndicated Lender
making such nonconforming bid of such rejection as soon as practicable. Each
Bid Rate Bid shall refer to this Agreement and specify (i) the principal amount
(which shall be in a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Bid Rate Loan requested by Borrower) of the Bid Rate Advance or Advances that
the Syndicated Lender is willing to make to Borrower, (ii) the Bid Rate or
Rates at which the Syndicated Lender is prepared to make the Bid Rate Advance
or Advances, and (iii) the Interest Period and the last day thereof. If any
Syndicated Lender shall elect not to make a Bid Rate Bid, such Syndicated
Lender shall so notify the Administrative Agent via telecopy by the time
specified above for submitting a Bid Rate Bid; provided, however, that failure
by any Syndicated Lender to give such notice shall not cause such Syndicated
Lender to be obligated to make any Bid Rate Advance as part of such Bid Rate
Loan. A Bid Rate Bid submitted by a Syndicated Lender pursuant to this
paragraph (b) shall be irrevocable (absent manifest error).
(c) The Administrative Agent shall promptly notify
Borrower by telecopy of all the Bid Rate Bids made, the Bid Rate and the
principal amount of each Bid Rate Advance in respect of which a Bid Rate Bid
was made and the identity of the Syndicated Lender that made each bid. The
Administrative Agent shall send a copy of all Bid Rate Bids to Borrower for its
records as soon as practicable after completion of the bidding process set
forth in this Section 2.07.
(d) Borrower may, in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any Bid
Rate Bid referred to in paragraph (c) above. Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Reject Letter, whether and to what extent it has decided to accept or reject
any of or all the bids referred to in paragraph (c) above not later than 11:00
A.M. (Atlanta, Georgia time) on the Business Day of the proposed Bid Rate
Loan; provided, however, that (i) the failure by Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in paragraph (c)
above, (ii) Borrower shall not accept a bid made at a particular Bid Rate if
Borrower has decided to reject a bid made at a lower Bid Rate, and if two or
more Syndicated Lenders have bid the same Bid Rate, the Borrower shall accept
all bids made at such Bid Rate, subject to allocation on a pro rata basis, if
necessary, pursuant to clause (iv) below, (iii) the aggregate amount of the Bid
Rate Bids accepted by Borrower shall not exceed the principal amount specified
in the Bid Request, (iv) if Borrower shall accept a bid or bids made at a
particular Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by
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Borrower to exceed the amount specified in the Bid Request, then Borrower shall
accept a portion of such bid or bids in an amount equal to the amount specified
in the Bid Request less the amount of all other Bid Rate Bids accepted with
respect to such Bid Request, which acceptance, in the case of multiple bids at
the same Bid Rate, shall be made pro rata in accordance with the amount of each
such bid at such Bid Rate, and (v) except pursuant to clause (iv) above, no bid
shall be accepted for a Bid Rate Loan unless such Bid Rate Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000; provided
further, however, that if a Bid Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Bid Loan may be for a
minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple bids at a particular
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner which shall be in the discretion of
Borrower. A notice given by Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Syndicated Lender whether or not its Bid Rate Bid has been
accepted (and if so, in what amount and at what Bid Rate) and shall notify each
Syndicated Lender as to the amount, Interest Period and Bid Rate of each Bid
Rate Bid accepted by Borrower by telecopy sent by the Administrative Agent, and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Bid Rate Loan in respect of which its
bid has been accepted by noon on the day of the acceptance of the Bid Rate Bid.
(f) Borrower shall not submit a Bid Request more than
twice in any seven day period.
(g) If the Administrative Agent shall elect to submit
a Bid Rate Bid in its capacity as a Syndicated Lender, it shall submit such bid
directly to Borrower one half of an hour earlier than the earliest time at
which the other Syndicated Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) The Bid Rate Advances of each Syndicated Lender
shall be evidenced by its Bid Facility Note and shall be due and payable in
full on the Maturity Date unless sooner accelerated pursuant to Article VIII
hereof.
SECTION 2.08. SWING LINE LOANS.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section 2.01), the
Swing Line Lender agrees to make to Borrower, from time to time prior to the
Maturity Date, Swing Line Loans for periods of up to ninety (90) days in an
aggregate principal amount outstanding at any time not to exceed the Swing Line
Commitment then in effect. Borrower shall be entitled to repay and reborrow
Swing Line Loans
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in accordance with the provisions, and subject to the limitations, set forth
herein (including the limitation set forth in Section 2.01).
(b) Each Swing Line Loan shall be made as a Swing
Rate Advance.
(c) Whenever Borrower desires to make a Swing Line
Borrowing, it shall give the Swing Line Lender (with a copy to the
Administrative Agent, unless the Administrative Agent is also the Swing Line
Lender) prior written notice (or telephonic notice promptly confirmed in
writing) of such Swing Line Borrowing (each a "Swing Line Borrowing Notice")
prior to 11:00 a.m. (Atlanta, Georgia time) on the date of such Swing Line
Borrowing. Each Swing Line Borrowing Notice shall specify the aggregate
principal amount of the Swing Line Borrowing, the date of such Swing Line
Borrowing (which shall be a Business Day) and the interest period to be
applicable thereto. Prior to 12:00 noon (Atlanta, Georgia time) on such date,
the Swing Line Lender shall furnish Borrower (with a copy to the Administrative
Agent, unless the Administrative Agent is also the Swing Line Lender) with a
quotation of the interest rate being offered with respect to such Swing Line
Borrowing (the "Swing Rate Quote") by telephone (promptly confirmed in writing)
or by facsimile transmission. Borrower shall immediately inform the Swing Line
Lender (with a copy to the Administrative Agent, unless the Administrative
Agent is also the Swing Line Lender) of its decision as to whether to accept
the Swing Rate Quote and to confirm the Swing Line Borrowing (which may be done
by telephone, promptly confirmed in writing, and which decision shall be
irrevocable).
(d) Borrower's obligations to pay the principal of,
and interest on, the Swing Line Loans shall be evidenced by the records of the
Administrative Agent and the Swing Line Lender and by the Swing Line Note
payable to the Swing Line Lender (or the assignor of such Swing Line Lender)
completed in conformity with this Agreement.
(e) The outstanding principal amount under each Swing
Line Loan shall be due and payable in full on the Maturity Date.
(f) At any time on the request of the Swing Line
Lender, each Syndicated Lender other than the Swing Line Lender shall purchase
a participating interest in all outstanding Swing Line Loans in an amount equal
to its Pro Rata Share (based upon on its respective Syndicated Loan Commitment)
of such Swing Line Loans, and the Swing Line Lender shall furnish each
Syndicated Lender with a certificate evidencing such participating interest.
Such purchase shall be made on the third Business Day after such request is
made; provided, however, that unless an Event of Default has occurred and is
continuing on the date such request is made, the purchase of a participating
interest in any Swing Line Loan outstanding as a Swing Rate Advance shall not
be required to be made until the expiration of the current interest period in
effect for such Swing Line Loan. On the date of such required purchase, each
Syndicated Lender will immediately transfer to the Swing Line Lender, in
immediately available funds, the amount of its participation. Whenever, at any
time after the Swing Line Lender has received from any such Syndicated Lender
the funds for its participating interest in a Swing Line Loan, the
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Administrative Agent receives any payment on account thereof, the
Administrative Agent will distribute to such Syndicated Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Syndicated
Lender's participating interest was outstanding and funded); provided, however,
that if such payment received by the Administrative Agent is required to be
returned, such Syndicated Lender will return to the Administrative Agent any
portion thereof previously distributed by the Administrative Agent to it. Each
Syndicated Lender's obligation to purchase such participating interests shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Syndicated Lender or any other Person may have against
the Swing Line Lender requesting such purchase or any other Person for any
reason whatsoever, (ii) the occurrence or continuation of a Default or an Event
of Default or the termination of any of the Commitments, (iii) any adverse
change in the condition (financial or otherwise) of Borrower, any of its
Consolidated Subsidiaries, or any other Person, (iv) any breach of this
Agreement by Borrower, any other Borrower, or any other Lender, or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; provided, however, that no such obligation shall exist
(A) to the extent that the aggregate Swing Line Loans were advanced in excess
of the Swing Line Commitment then in effect, or in excess of the limitation set
forth in Section 2.01, or (B) with respect to any Swing Line Loan where the
Swing Line Lender actually advanced to Borrower net proceeds from the Swing
Line Loan (and therefore was not refunding a previous Swing Line Loan) at a
time when (x) the Swing Line Lender had actual knowledge that an Event of
Default had occurred and then existed, and (y) the Required Lenders had not
agreed to waive such Event of Default for purposes of funding such Swing Line
Loan.
ARTICLE III.
GENERAL LOAN TERMS
SECTION 3.01. DISBURSEMENT OF FUNDS.
(a) No later than 12:00 Noon (Atlanta, Georgia time)
on the date of each Syndicated Loan pursuant to the Syndicated Loan Commitments
(other than one resulting from a conversion or continuation pursuant to Section
2.06(b)), each Lender will make available its Pro Rata Share of such Syndicated
Loan in immediately available funds at the Payment Office of the Administrative
Agent. The Administrative Agent will make available to Borrower the aggregate
of the amounts (if any) so made available by the Syndicated Lenders to the
Administrative Agent no later than 2:00 P.M. (Atlanta, Georgia time) by
crediting such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, effecting a wire transfer of such
amounts to an account specified by Borrower, by the close of business on such
Business Day. In the event that the Syndicated Lenders do not make such
amounts available to the Administrative Agent by the time prescribed above, but
such amount is received
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later that day, such amount may be credited to Borrower in
the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(b) No later than 12:00 Noon (Atlanta, Georgia time)
on the date of each Bid Rate Loan, the Syndicated Lenders participating in such
Bid Rate Loan will make available the amount of its Bid Rate Advance in
immediately available funds at the Payment Office of the Administrative Agent
on the date of such Bid Rate Loan. The Administrative Agent will make
available to Borrower the aggregate of the amounts (if any) so made available
by the Syndicated Lenders to the Administrative Agent no later than 2:00 P.M.
(Atlanta, Georgia time) by crediting such amounts to Borrower's demand deposit
account maintained with the Administrative Agent or at Borrower's option,
effecting a wire transfer of such amounts to an account specified by Borrower,
by the close of business on such Business Day. In the event that the
Syndicated Lenders do not make such amounts available to the Administrative
Agent by the time prescribed above, but such amount is received later that day,
such amount may be credited to Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on such amount to
begin accruing hereunder on such next Business Day).
(c) No later than 2:00 p.m. (Atlanta, Georgia time) on
the date of each Swing Line Loan, the Swing Line Lender will make available the
principal amount of the Swing Line Loan available to Borrower by crediting such
amount to Borrower's demand deposit account maintained with the Swing Line
Lender.
(d) Unless the Administrative Agent shall have been
notified by any Syndicated Lender prior to the date of a Syndicated Loan
Borrowing or a Bid Rate Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of such Borrowing
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date and the
Administrative Agent may make available to Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender on the date of such Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest at the Federal Funds Rate. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify Borrower, and
Borrower shall immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such Borrowing. Nothing
in this subsection shall be deemed to relieve any Syndicated Lender from its
obligation to fund its Syndicated Loan Commitment or Bid Rate Loans hereunder
or to prejudice any rights which Borrower may have against any Syndicated
Lender as a result of any default by such Lender hereunder.
(e) All Syndicated Loans under the Syndicated Loan
Commitments shall be loaned by the Lenders on the basis of their Pro Rata Share
of the Syndicated Loan Commitments. All Bid Rate Loans shall be loaned by the
Syndicated Lenders participating therein in accordance
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with their respective pro rata shares thereof as determined in accordance
with Section 2.07 with respect to each Bid Rate Loan. All Swing Line Loans
shall be loaned by the Swing Line Lender in accordance with Section 2.08. No
Lender shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fund its Commitments or Bid Rate Loans hereunder.
SECTION 3.02. INTEREST.
(a) Borrower agrees to pay interest in respect of all
unpaid principal amounts of Syndicated Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum equal to the applicable rates
indicated below:
(i) For Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For Eurodollar Advances--The relevant LIBOR
plus the Applicable Margin; or
(b) Borrower agrees to pay interest in respect of all
unpaid principal amounts of the Bid Rate Loans made to Borrower from the
respective dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at the Bid Rate established
for such Loan pursuant to Section 2.07;
(c) Borrower agrees to pay interest in respect of all
unpaid principal amounts of the Swing Line Loans made to Borrower from the
respective dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at the Swing Rate established
for such Loan pursuant to Section 2.08;
(d) Overdue principal and, to the extent not
prohibited by applicable law, overdue interest, in respect of the Loans, and
all other overdue amounts owing hereunder, shall bear interest from each date
that such amounts are overdue:
(i) in the case of overdue principal and interest
with respect to all Loans outstanding as Eurodollar Advances and Bid
Rate Advances, at the rate otherwise applicable for the then-current
Interest Period plus an additional two percent (2.0%) per annum;
thereafter at the rate in effect for Base Rate Advances plus
an additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest
with respect to all other Loans outstanding as Base Rate Advances and
Swing Rate Advances, and all other
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Obligations hereunder (other than Loans), at a rate equal to the
applicable Base Rate plus an additional two percent (2.0%) per annum;
(e) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any repayment
thereof; provided that, if a Loan is repaid on the same day made, one day's
interest shall be paid on such Loan. Interest on all Base Rate Advances and
Swing Rate Advances shall be payable quarterly in arrears on the last calendar
day of each calendar quarter in each year. Interest on all outstanding
Eurodollar Advances and Bid Rate Advances shall be payable on the last day of
each Interest Period applicable thereto, and, in the case of Interest Periods
in excess of three months (in the case of Eurodollar Advances), on each day
which occurs every 3 months, as the case may be, after the initial date of such
Interest Period. Interest on all Loans shall be payable on any conversion of
any Advances comprising such Loans into Advances of another Type, prepayment
(on the amount prepaid), at maturity (whether by acceleration, notice of
prepayment or otherwise) and, after maturity, on demand; and
(f) The Administrative Agent, upon determining LIBOR
for any Interest Period, shall promptly notify by telephone (confirmed in
writing) or in writing Borrower and the other Syndicated Lenders. Any such
determination shall, absent manifest error, be final, conclusive and binding
for all purposes.
SECTION 3.03. INTEREST PERIODS.
(a) In connection with the making or continuation of,
or conversion into, each Borrowing of Eurodollar Advances, Borrower shall
select an Interest Period to be applicable to such Eurodollar Advances, which
Interest Period shall be either a 1, 2, 3 or 6 month period.
(b) In connection with the making of each Bid Rate
Loan, Borrower shall request an Interest Period to be applicable thereto, which
Interest Period shall be for a minimum of seven (7) days and a maximum of one
hundred eighty (180) days, which request may be accepted or rejected by the
Lenders as provided in Section 2.07 hereof.
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any Borrowing
of Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting of
Base Rate Advances) and each Interest Period occurring thereafter in
respect of a continuation of such Borrowing shall commence on the day
on which the immediately preceding Interest Period expires;
(ii) If any Interest Period would otherwise
expire on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day, provided that if
any Interest Period in respect of Eurodollar Advances would otherwise
expire on a day that is not a Business Day but is a day of the month
after which no further
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Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iii) Any Interest Period in respect of
Eurodollar Advances which begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period shall, subject to part (iv) below, expire on the last
Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans
shall extend beyond the Maturity Date.
SECTION 3.04. FEES.
(a) Borrower shall pay to the Administrative Agent,
for the account of and distribution of the respective Pro Rata Share to each
Lender (subject to the last sentence hereof), a facility fee (the "Facility
Fee") for the period commencing on the Closing Date to and including the
Maturity Date, computed at a rate equal to the Applicable Commitment Percentage
per annum multiplied by the aggregate principal amount of the Syndicated Loan
Commitments of the Lenders, such fee being payable quarterly in arrears on the
date which is five days following the last day of each fiscal quarter of
Borrower and on the Maturity Date.
(b) On the Closing Date and on each anniversary of the
Closing Date prior to the Maturity Date, Borrower shall pay to the
Administrative Agent and the Documentation Agent such fees for their respective
services in the respective amounts as previously agreed in writing by Borrower
with the Administrative Agent and the Documentation Agent, respectively.
SECTION 3.05. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings,
other than Bid Rate Loans, at any time in whole, or from time to time in part,
in amounts aggregating $1,000,000 or any greater integral multiple of $100,000,
by paying the principal amount to be prepaid together with interest accrued and
unpaid thereon to the date of prepayment, together with, in the case of
Eurodollar Advances and Bid Rate Advances, all compensation payments pursuant
to Section 3.11 if such prepayment is made on a date other than the last day of
the Interest Period applicable thereto. Each such optional prepayment shall be
applied in accordance with Section 3.05(c) below. Bid Rate Loans may not be
prepaid by Borrower without the written concurrence of the Lender holding the
Bid Rate Loan sought to be prepaid.
(b) Borrower shall give written notice (or telephonic
notice confirmed in writing) to the Administrative Agent of any intended
prepayment of the Loans not less than two Business Days prior to any prepayment
of Borrowings. Such notice, once given, shall be irrevocable. Upon receipt of
such notice of prepayment, the Administrative Agent shall promptly
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notify each Lender of the contents of such notice and of such Lender's
share of such prepayment (provided that notices of prepayments of Bid Rate
Loans shall only be given to the Lenders participating therein).
(c) Borrower, when providing notice of prepayment
pursuant to Section 3.05(b), may designate the Types of Advances and the
specific Borrowing or Borrowings which are to be prepaid provided that each
prepayment made pursuant to a single Borrowing shall be applied pro rata among
the Advances comprising such Borrowing. In the absence of a designation by
Borrower, the Administrative Agent shall, subject to the foregoing, make such
designation in its sole discretion. All voluntary prepayments shall be applied
to the payment of interest on the Borrowings prepaid before application to
principal.
SECTION 3.06. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein,
all payments under this Agreement and the other Credit Documents, other than
the payments specified in clause (ii) below, shall be made without defense,
set-off or counterclaim to the Administrative Agent not later than 12:00 Noon
(Atlanta, Georgia time) on the date when due and shall be made in Dollars in
immediately available funds at its Payment Office.
(b) (i) All such payments shall be made free and
clear of and without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of principal,
interest, fees or other amounts payable hereunder or thereunder (but excluding,
except as provided in paragraph (iii) hereof, any Taxes imposed on the overall
net income of the Lenders pursuant to the laws of the jurisdiction in which the
principal executive office or appropriate Lending Office of such Lender is
located). If any Taxes are so levied or imposed, Borrower agrees (A) to pay
the full amount of such Taxes, and such additional amounts as may be necessary
so that every net payment of all amounts due hereunder and under the Notes and
other Credit Documents, after withholding or deduction for or on account of any
such Taxes (including additional sums payable under this Section 3.06), will
not be less than the full amount provided for herein had no such deduction or
withholding been required, (B) to make such withholding or deduction and (C) to
pay the full amount deducted to the relevant authority in accordance with
applicable law. Borrower will furnish to the Administrative Agent and each
Lender, within 30 days after the date the payment of any Taxes is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
Borrower. Borrower will indemnify and hold harmless the Administrative Agent
and each Lender and reimburse the Administrative Agent and each Lender upon
written request for the amount of any Taxes so levied or imposed and paid by
the Administrative Agent or Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or
not such Taxes were correctly or illegally asserted. A certificate
as to the amount of such payment by such Lender or the Administrative Agent,
absent manifest error, shall be final, conclusive and binding for all purposes.
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(ii) Each Lender that is organized under
the laws of any jurisdiction other than the United States of America or any
State thereof (including the District of Columbia) agrees to furnish to
Borrower and the Administrative Agent, on the Closing Date and otherwise prior
to the time it becomes a Lender hereunder, two copies of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
successor forms thereto (wherein such Lender claims entitlement to complete
exemption from or reduced rate of U.S. Federal withholding tax on interest
paid by Borrower hereunder) and to provide to Borrower and the Administrative
Agent a new Form 4224 or Form 1001 or any successor forms thereto if any
previously delivered form is found to be incomplete or incorrect in any
material respect or upon the obsolescence of any previously delivered form.
(iii) Borrower shall also reimburse the
Administrative Agent and each Lender, upon written request, for any Taxes
imposed (including, without limitation, Taxes imposed on the overall net income
of the Administrative Agent or Lender or its applicable Lending Office pursuant
to the laws of the jurisdiction in which the principal executive office or the
applicable Lending Office of the Administrative Agent or Lender is located) as
the Administrative Agent or Lender shall determine are payable by the
Administrative Agent or Lender in respect of amounts paid by or on behalf of
Borrower to or on behalf of the Administrative Agent or Lender pursuant to
paragraph (i) hereof.
(c) Subject to Section 3.03(ii), whenever any payment
to be made hereunder or under any Note shall be stated to be due on a day which
is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be
made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable (to the extent computed on the
basis of days elapsed), except that interest on Base Rate Advances shall be
computed on the basis of a year of 365/366 days for the actual number of days.
Interest on Base Rate Advances shall be calculated based on the Base Rate from
and including the date of such Loan to but excluding the date of the repayment
or conversion thereof. Interest on Swing Rate Advances shall be calculated
based on the Swing Rate from and including the date of such Loan to but
excluding the date of the repayment or conversion thereof. Interest on
Eurodollar Advances and Bid Rate Advances shall be calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Each determination by the Administrative Agent of
an interest rate or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all purposes.
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(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to Borrower, constitute
payment to the Lenders under this Agreement.
SECTION 3.07. INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Administrative Agent shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that on any date for determining LIBOR
for any Interest Period, by reason of any changes arising after the date of
this Agreement affecting the London interbank market, or the Administrative
Agent's position in such market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of LIBOR then, and in any such event, the Administrative Agent shall
forthwith give notice (by telephone confirmed in writing) to Borrower and to
the Lenders, of such determination and a summary of the basis for such
determination. Until the Administrative Agent notifies Borrower that the
circumstances giving rise to the suspension described herein no longer exist,
the obligations of the Lenders to make or permit portions of the Loans to
remain outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be suspended, and such affected Advances shall bear
interest at the Base Rate (or at such other rate of interest per annum as
Borrower and each of the Administrative Agent and the Lenders shall have agreed
to in writing).
SECTION 3.08. ILLEGALITY.
(a) In the event that any Lender shall have determined
(which determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) at any time that the
making or continuance of any Eurodollar Advance has become unlawful by
compliance by such Lender in good faith with any applicable law, governmental
rule, regulation, guideline or order (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone confirmed in
writing) to Borrower and to the Administrative Agent of such determination and
a summary of the basis for such determination (which notice the Administrative
Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred
to in subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of Eurodollar
Advances, bearing interest at the Base Rate (or at such other rate of interest
per annum as Borrower and each of the Administrative Agent and the Lenders
shall have agreed to in writing), which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing, and (ii) if the affected
Eurodollar Advance or Advances are then outstanding, Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one Business Day's written notice to the
Administrative Agent and the affected Lender, convert each such Advance into an
Advance or Advances of a different Type with an Interest Period ending on the
date on which the Interest Period applicable to the affected
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Eurodollar Advances expires, provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated the same pursuant to
this Section 3.08(b).
SECTION 3.09. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof,
the introduction of or any change (including, without limitation, any change by
way of imposition or increase of reserve requirements) in or in the
interpretation of any law or regulation, or (y) the compliance with any
guideline or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(1) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect to its
Eurodollar Advances, or its obligation to make Eurodollar Advances, or
the basis of taxation of payments to any Lender of the principal of or
interest on its Eurodollar Advances or its obligation to make
Eurodollar Advances shall have changed (except for changes in the tax
on the overall net income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such Lender's principal
executive office or applicable Lending Office is located); or
(2) any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender's
applicable Lending Office shall be imposed or deemed applicable or any
other condition affecting its Eurodollar Advances, or its obligation
to make Eurodollar Advances shall be imposed on any Lender or its
applicable Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances, or
there shall be a reduction in the amount received or receivable by such Lender
or its applicable Lending Office, or
(ii) in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a
central bank or governmental authority or body having jurisdiction, does or
shall have the effect of reducing the rate of return on such Lender's capital
as a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such law, treaty, rule, regulation,
guideline or order, or such change or
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compliance (taking into consideration such Lender's policies with respect
to capital adequacy) by an amount deemed by such Lender to be material;
then, in the case of (i) or (ii) above, upon written notice from and
demand by such Lender on Borrower (with a copy of such notice and demand to the
Administrative Agent), Borrower shall pay to the Administrative Agent for the
account of such Lender within five Business Days after the date of such notice
and demand, additional amounts sufficient to indemnify such Lender against such
increased cost or reduced yield. A certificate as to the amount of such
increased cost or reduced yield submitted to Borrower and the Administrative
Agent by such Lender in good faith and accompanied by a statement prepared by
such Lender describing in reasonable detail the basis for and calculation of
such increased cost, shall, except for manifest error, be final, conclusive and
binding for all purposes.
In addition, if at any time a Euro-Dollar Reserve Percentage
greater than 0% is imposed on any Bank, the Borrower shall pay to such Bank
additional interest on the unpaid principal amount of the Eurodollar Advances
of such Bank until such principal amount is paid in full at an interest rate
per annum equal at all times to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
LIBOR for such Eurodollar Advance for such Interest Period by (ii) 1.00 minus
the Euro-Dollar Reserve Percentage, payable on each date on which interest is
payable on such Eurodollar Advance. Such additional interest, if any, shall be
determined by such Lender and notified to the Borrower through the
Administrative Agent.
(b) If any Lender shall advise the Administrative
Agent that at any time, because of the circumstances described in clauses (x)
or (y) in Section 3.09(a) or any other circumstances beyond such Lender's
reasonable control arising after the date of this Agreement affecting such
Lender or the London interbank market or such Lender's position in such
markets, LIBOR as determined by the Administrative Agent, will not adequately
and fairly reflect the cost to such Lender of funding its Eurodollar Advances,
then, and in any such event:
(i) the Administrative Agent shall
forthwith give notice (by telephone confirmed in writing) to Borrower
and to the other Lenders of such advice;
(ii) Borrower's right to request and
such Lender's obligation to make or permit portions of the Loans to
remain outstanding past the last day of the then current Interest
Periods as Eurodollar Advances shall be immediately suspended; and
(iii) such Lender shall make an Advance
as part of the requested Borrowing of Eurodollar Advances, as the
case may be, bearing interest at the Base Rate (or at such other rate
of interest per annum as Borrower and each of the Administrative Agent
and the Lenders shall have agreed to in writing), which Base Rate
Advance shall, for all other purposes, be considered part of such
Borrowing.
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(c) Each Lender or Administrative Agent shall make
written demand on Borrower for indemnification or compensation pursuant to this
Section 3.09 no later than 60 days after the event giving rise to the claim for
indemnification or compensation occurs. In the event that any Lender or
Administrative Agent fails to give Borrower notice within the time limitations
prescribed in the foregoing sentence, Borrower shall not have any obligation to
pay such claim for compensation or indemnification.
SECTION 3.10. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower,
it will use reasonable efforts (subject to overall policy considerations of
such Lender) to designate an alternate Lending Office with respect to any of
its Eurodollar Advances affected by the matters or circumstances described in
Sections 3.06(b), 3.07, 3.08 or 3.09 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
materially disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 3.10 shall affect or postpone any of
the obligations of Borrower or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of
any jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with respect
to the closing of its lending offices in the United States such that any
withholdings or deductions and additional payments with respect to Taxes may be
required to be made by Borrower thereafter pursuant to Section 3.06(b), such
Lender shall use reasonable efforts to furnish Borrower notice thereof as soon
as practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge Borrower from its
obligations to such Lender pursuant to Section 3.06(b) or otherwise result in
any liability of such Lender.
SECTION 3.11. FUNDING LOSSES. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances or Bid
Rate Advances), in either case to the extent not recoverable by such Lender in
connection with a re-employment of such funds and including loss of anticipated
profits, which the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a borrowing of, or conversion to or continuation of,
Eurodollar Advances or Bid Rate Advances to Borrower does not occur on the date
specified therefor in a Notice of Borrowing, Bid Request or Notice of
Conversion/Continuation, (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
3.08(b)) of any Eurodollar Advances or Bid Rate Advances by Borrower
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occurs on a date which is not the last day of an Interest Period
applicable thereto, or (iii) if, for any reason, Borrower defaults in its
obligation to repay its Eurodollar Advances when required by the terms of this
Agreement. In no circumstance will Borrower be responsible for losses (other
than administrative costs) where interest rates have increased as of the date
of determination of funding losses hereunder.
SECTION 3.12. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article
III shall be made as though that Lender had actually funded its relevant
Eurodollar Advances through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such Eurodollar Advances in an
amount equal to the amount of the Eurodollar Advances and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar Advances from an offshore office of that Lender to a domestic office
of that Lender in the United States of America; provided however, that each
Lender may fund each of its Eurodollar Advances in any manner it sees fit and
the foregoing assumption shall be used only for calculation of amounts payable
under this Article III.
SECTION 3.13. APPORTIONMENT OF PAYMENTS. Aggregate
principal and interest payments in respect of Loans and payments in respect of
the Facility Fee shall be apportioned among all outstanding Commitments and
Loans to which such payments relate, proportionately to the Lenders' respective
pro rata portions of such Commitments and outstanding Loans. The
Administrative Agent shall promptly distribute to each Lender at its Payment
Office set forth beside its name on the appropriate signature page hereof or
such other address as any Lender may request its share of all such payments
received by the Administrative Agent.
SECTION 3.14. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of its
pro rata portion of payments or reductions on account of such obligations
obtained by all the Lenders (other than, prior to the termination of the
Commitments, payments of principal, interest and fees with respect to the Bid
Rate Loans which are payable solely to the Lenders participating therein), such
Lender shall forthwith (i) notify each of the other Lenders and Administrative
Agent of such receipt, and (ii) purchase from the other Lenders such
participations in the affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.14 may, to the fullest extent permitted by
law, exercise all its rights of payment
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(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation.
SECTION 3.15. BENEFITS TO GUARANTORS. In consideration of
the execution and delivery by the Guarantors of the Guaranty Agreements,
Borrower agrees, subject to the terms hereof, to make extensions of credit
hereunder available to the Guarantors.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder is subject to the satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS. On
the Closing Date, all obligations of Borrower hereunder incurred prior to such
date (including, without limitation, Borrower's obligations to pay the
Arrangement Fee and all agency fees due and payable to the Agents on the
Closing Date as previously agreed with Borrower), shall have been paid in full,
and the Documentation Agent shall have received the following, in form and
substance reasonably satisfactory in all respects to the Lenders and (except
for the Notes) in sufficient number for each Lender:
(a) the duly executed counterparts of this Agreement;
(b) the duly executed Syndicated Notes, the duly
executed Bid Facility Notes and the duly executed Swing Line Note;
(c) the duly executed Guaranty Agreements;
(d) a duly executed certificate of Borrower, in
substantially the form of Exhibit J attached hereto and appropriately
completed, certifying that (i) the representations and warranties set forth in
Article 5 hereof are true and correct on and as of such date with the same
effect as though made on and as of such date, (ii) Borrower and the Guarantors
are in compliance with all the terms and provisions set forth in this Agreement
and the other Credit Documents on their respective parts to be observed or
performed, (iii) on the Closing Date, and after giving effect to the
consummation of the SpinOff, no Default or Event of Default, will have occurred
or be continuing and (iv) as of the Closing Date, there has been no materially
adverse change in the financial condition of the Borrower and its Subsidiaries
as reflected in the pro forma financial statements delivered to the Agents
prior to the Closing Date;
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(e) a duly executed solvency certificate of Borrower
and the Guarantors, in form and substance satisfactory to the Lenders;
(f) certificates of the Secretary or Assistant
Secretary of each of the Credit Parties attaching and certifying copies of the
resolutions of the boards of directors of the Credit Parties, authorizing as
applicable the execution, delivery and performance of the Credit Documents;
(g) certificates of the Secretary or an Assistant
Secretary of each of the Credit Parties certifying (i) the name, title and true
signature of each officer of such entities executing the Credit Documents, and
(ii) the bylaws or comparable governing documents of such entities;
(h) certified copies of the certificate or articles of
incorporation of each Credit Party certified by the Secretary of State or the
Secretary or Assistant Secretary of such Credit Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation or organization of such
Credit Party;
(i) copies of all documents and instruments, including
all consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the Credit
Parties, in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, authorizations, filings and orders
shall be in full force and effect and all applicable waiting periods shall have
expired;
(j) a certificate of the chief executive officer of
the Borrower (x) certifying that (1) all conditions to the consummation of the
SpinOff, including without limitation the obtaining of a ruling from the
Internal Revenue Service that the SpinOff may be completed without causing the
recognition of Federal income tax to Equifax, the Borrower or the shareholders
of the Borrower, have been satisfied or waived with the prior written consent
of the Lenders, and (2) the SpinOff has been completed, substantially as
projected and on substantially the terms set forth in the Form S1 filed with
the Securities and Exchange Commission, and (y) attaching true and correct
copies of all documents, agreements and other instruments executed and
delivered in connection with the SpinOff;
(k) certificates of insurance issued on behalf of
insurers of Borrower and the Guarantors, describing in reasonable detail the
types and amounts of insurance (property and liability) maintained by Borrower
and the Guarantors;
(l) the favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel to the Credit Parties, substantially in the form of Exhibit K-1
addressed to the Agents and each of the Lenders and the favorable opinion of
in-house general counsel to the Credit Parties, substantially in the form of
Exhibit K-2 addressed to the Agents and each of the Lenders;
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(m) all corporate proceedings and all other legal
matters in connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably satisfactory in form
and substance to the Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS. At the time of the
making of all Loans (before as well as after giving effect to such Loans and to
the proposed use of the proceeds thereof), the following conditions shall have
been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower
contained herein shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Loans; and
(c) the Loans to be made and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, the Margin Regulations or
any other material law, rule, injunction, or regulation, or determination of
any court of law or other governmental authority applicable to Borrower.
Each request for a new Borrowing and the acceptance by
Borrower of the proceeds thereof (but not the continuation or conversion of an
existing Borrowing) shall constitute a representation and warranty by
Borrower, as of the date of the Loans comprising such Borrowing, that the
applicable conditions specified in Sections 4.01 and 4.02 have been satisfied
or waived in writing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all other Consolidated Companies)
represents and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the Credit Parties is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
Each of the Credit Parties (i) has the corporate power and authority and the
legal right to own and operate its property and to conduct its business,
(ii) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership of property or the conduct of
its business requires such qualification, and (iii) is in compliance with all
Requirements of Law, except where the failure to duly qualify or to comply with
applicable Requirements of Law would not have a Materially Adverse Effect.
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SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the
Credit Parties has the corporate power and authority to make, deliver and
perform the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of such
Credit Documents. No consent or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit Party, or
the validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings which have been
made or obtained.
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement and
each other Credit Document has been duly authorized, executed and delivered by
the respective Credit Parties, and this Agreement and each other Credit
Document constitute legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
SECTION 5.04. NO CONTRACTUAL OR LEGAL BAR. The execution,
delivery and performance by the Borrower and each Guarantor of the Credit
Documents to which it is a party (a) will not contravene any material provision
of any Requirement of Law, (b) will not conflict with or be inconsistent with
or result in any breach of, or constitute a default under, any Contractual
Obligations of any Consolidated Company that would result in liability to any
Credit Party of $500,000 or more in the aggregate or otherwise result in a
Materially Adverse Effect, (c) will not violate any provision of the
certificate of incorporation (or equivalent thereof) or bylaws (or equivalent
thereof) of the Borrower or any Guarantor, (d) will not require the consent,
approval or authorization of any governmental or non-governmental authority or
Person and (e) will not result in the creation of any Lien upon the assets or
properties of the Borrower and its Subsidiaries, other than those Liens
permitted under Section 7.01.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. No
litigation, investigations or proceedings of or before any courts, tribunals,
arbitrators or governmental authorities are pending or, to the knowledge of
Borrower, threatened by or against any of the Consolidated Companies, or
against any of their respective properties or rights, existing or future (a)
with respect to any Credit Document or any of the transactions contemplated
hereby or thereby, or (b) which, if adversely determined, would reasonably be
expected to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the
Consolidated Companies is an "investment company" or a company "controlled" by
an "investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of the Consolidated
Companies is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any foreign, federal or local statute or
regulation limiting its ability to incur indebtedness for money borrowed,
guarantee such
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indebtedness, or pledge its assets to secure such indebtedness, as
contemplated hereby or by any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds
of any of the Loans will be used for any purpose which violates, or which would
be inconsistent or not in compliance with, the provisions of the applicable
Margin Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Consolidated Companies have received no
notices of claims or potential liability under, and are in compliance with, all
applicable Environmental Laws, where such claims and liabilities under, and
failures to comply with, such statutes, regulations, rules, ordinances, laws or
licenses, would reasonably be expected to result in penalties, fines, claims or
other liabilities to the Consolidated Companies having a Materially Adverse
Effect.
(b) None of the Consolidated Companies has received
any notice of violation, or notice of any action, either judicial or
administrative, from any governmental authority (whether United States or
foreign) relating to the actual or alleged violation of any Environmental Law,
including, without limitation, any notice of any actual or alleged spill, leak,
or other release of any Hazardous Substance, waste or hazardous waste by any
Consolidated Company or its employees or agents, or as to the existence of any
contamination on any properties owned by any Consolidated Company, where any
such violation, spill, leak, release or contamination would reasonably be
expected to result in penalties, fines, claims or other liabilities to the
Consolidated Companies having a Materially Adverse Effect.
(c) The Consolidated Companies have obtained all
necessary governmental permits, licenses and approvals which are material to
the operations conducted on their respective properties, including without
limitation, all required material permits, licenses and approvals for (i) the
emission of air pollutants or contaminants, (ii) the treatment or pretreatment
and discharge of waste water or storm water, (iii) the treatment, storage,
disposal or generation of hazardous wastes, (iv) the withdrawal and usage of
ground water or surface water, and (v) the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Credit Parties currently
maintain insurance with respect to their respective properties and businesses,
with financially sound and reputable insurers, having coverages against losses
or damages of the kinds customarily insured against by reputable companies in
the same or similar businesses, such insurance being the types, and in amounts
no less than those amounts which are, customary for such companies under
similar circumstances; provided, however, that the Company may self insure in
amounts satisfactory to management, subject to the provisions of Section
6.06(a). The Consolidated Companies have paid all material amounts of insurance
premiums now due and owing with respect to such insurance policies and
coverages, and such policies and coverages are in full force and effect.
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SECTION 5.10. NO DEFAULT. None of the Consolidated
Companies is in default under or with respect to any material Contractual
Obligation in any respect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. None of the
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has had or would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.12. TAXES. Each of the Consolidated Companies
has filed or caused to be filed all declarations, reports and tax returns which
are required to have been filed, and has paid all taxes, custom duties, levies,
charges and similar contributions ("taxes" in this Section 5.12) shown to be
due and payable on said returns or on any assessments made against it or its
properties, and all other taxes, fees or other charges imposed on it or any of
its properties by any governmental authority (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided in its books or where the aggregate sum of taxes unpaid is less
than $500,000); and no tax liens have been filed and, to the knowledge of
Borrower, no claims are being asserted with respect to any such taxes, fees or
other charges.
SECTION 5.13. SUBSIDIARIES. Schedule 5.13 accurately
describes as of the Closing Date (1) the complete name of each Subsidiary of
the Borrower, (2) the jurisdiction of incorporation or organization of each
Subsidiary of the Borrower, (3) the ownership of all issued and outstanding
Capital Stock of each Subsidiary of the Borrower and (4) whether such
Subsidiary is a Material Subsidiary. Except as disclosed on Schedule 5.13,
Borrower has no Subsidiaries and neither Borrower nor any Subsidiary is a joint
venture partner or general partner in any partnership. Each of the
Subsidiaries that is not a Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to transact business in every jurisdiction
where the failure to so qualify would have a Materially Adverse Effect, and has
all corporate powers and all governmental licenses, authorizations, consents
and approvals required to carry on its business as now as now conducted in each
case where the failure to have the same would have a Materially Adverse Effect.
SECTION 5.14. FINANCIAL STATEMENTS. The unaudited pro
forma balance sheet of the Consolidated Companies as of March 31, 1997 (after
giving effect to the SpinOff), setting forth the pro forma financial position
of the Consolidated Companies, a copy of which has been delivered to the
Lenders, fairly presents, on a pro forma basis, in conformity with generally
accepted accounting principles, the financial position of the Consolidated
Companies as of such date and time. The Consolidated Companies do not have any
material contingent obligations, contingent liabilities or other obligations
which are not reflected in the balance sheet referenced above (the "Pro Forma
Financial Statements"). Since March 31, 1997, there have been no changes with
respect to the Consolidated Companies which has had or would reasonably be
expected to have a Materially Adverse Effect.
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SECTION 5.15. ERISA.
(a)(1) Identification of Plans. (A) None of the
Consolidated Companies nor any of their respective ERISA Affiliates maintains
or contributes to, or has during the past two years maintained or contributed
to, any Plan that is subject to Title IV of ERISA other than the Equifax Inc.
U.S. Retirement Income Plan, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan other than the Equifax Europe
(U.K.) Ltd. Pension Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained
by the Consolidated Companies have at all times been maintained, by their terms
and in operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan maintained
or contributed to by such Consolidated Company or any ERISA Affiliate thereof,
including without limitation, any tax or penalty under Title I or Title IV of
ERISA or under Chapter 43 of the Tax Code, or any tax or penalty resulting from
a loss of deduction under Sections 404, or 419 of the Tax Code, where the
failure to comply with such laws, and such taxes and penalties, together with
all other liabilities referred to in this Section 5.15 (taken as a whole),
would in the aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to
no liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans maintained or contributed to by such Consolidated Companies or
any of their ERISA Affiliates, including without limitation, any liabilities
arising from Titles I or IV of ERISA, other than obligations to fund benefits
under an ongoing such Plan and to pay current contributions, expenses and
premiums with respect to such Plans or Foreign Plans, where such liabilities,
together with all other liabilities referred to in this Section 5.15 (taken as
a whole), would in the aggregate have a Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect
to any Plan which is subject to Title IV of ERISA, each of their respective
ERISA Affiliates, have made full and timely payment of all amounts (A) required
to be contributed by any of them under the terms of each Plan and applicable
law, and (b) required to be paid as expenses by any of them (including PBGC or
other premiums) of each Plan, where the failure to pay such amounts (when taken
as a whole, including any penalties attributable to such amounts) would have a
Materially Adverse Effect. No Plan maintained by a Consolidated Company
subject to Title IV of ERISA has an "amount of unfunded benefit liabilities"
(as defined in Section 4001(a)(18) of ERISA, determined as if such Plan
terminated on any date on which this representation and warranty is deemed
made, in any amount which, together with all other liabilities referred to in
this Section 5.15 (taken as a whole), would have a Materially Adverse Effect if
such amount were then due and payable. The Consolidated Companies are subject
to no liabilities with respect to post-retirement medical benefits other than
those accrued on Borrower's financial statements.
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(b) With respect to any Foreign Plan, reasonable
reserves have been established in accordance with prudent business practice or
where required by ordinary accounting practices in the jurisdiction where the
Foreign Subsidiary maintains its principal place of business or in which the
Foreign Plan is maintained. The aggregate unfunded liabilities, after giving
effect to any reserves for such liabilities, with respect to such Foreign
Plans, together with all other liabilities referred to in this Section 5.15
(taken as a whole), would not have a Materially Adverse Effect.
SECTION 5.16. POSSESSION OF FRANCHISES, LICENSES, ETC.
Each of the Consolidated Companies possesses all franchises, certificates,
licenses, permits and other authorizations from governmental political
subdivisions or regulatory authorities, that are necessary in any material
respect for the ownership, maintenance and operation of its properties and
assets, and none of the Consolidated Companies is in violation of any thereof
in any material respect.
SECTION 5.17. PATENTS, TRADEMARKS, LICENSES, ETC. (i) The
Consolidated Companies have obtained and hold in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions, which are necessary for the
operation of their respective businesses as presently conducted and where the
result of a failure to obtain and hold such patents, trademarks, service marks,
trade names, copyrights, licenses and other such rights would have a Materially
Adverse Effect, and (ii) to the best of Borrower's knowledge, no product,
process, method, service or other item presently sold by or employed by any
Consolidated Company in connection with such business infringes any patents,
trademark, service xxxx, trade name, copyright, license or other right owned by
any other person and there is not presently pending, or to the knowledge of
Borrower, threatened, any claim or litigation against or affecting any
Consolidated Company contesting such Person's right to sell or use any such
product, process, method, substance or other item where the result of such
failure to obtain and hold such benefits or such infringement would have a
Materially Adverse Effect.
SECTION 5.18. OWNERSHIP OF PROPERTY. Each Consolidated
Company has good and marketable fee simple title to or a valid leasehold
interest in all of its real property and good title to, or a valid leasehold
interest in, all of its other material assets, as such properties are reflected
in the most recent financial statements (including the Pro Forma Financial
Statements) delivered by Borrower to the Administrative Agent, other than
properties disposed of in the ordinary course of business since such date or
as otherwise permitted by the terms of this Agreement, subject to no Lien or
title defect of any kind, except Liens permitted under Section 7.01. The
Consolidated Companies enjoy peaceful and undisturbed possession under all of
their respective leases.
SECTION 5.19. FINANCIAL CONDITION. On the Closing Date and
after giving effect to the transactions contemplated by this Agreement, the
Guaranty Agreements and the other
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Credit Documents, including without limitation, the use of the proceeds of the
Loans as provided in Section 2.01(b), each of the Credit Parties is Solvent.
SECTION 5.20. LABOR MATTERS. The Consolidated Companies
have experienced no strikes, labor disputes, slow downs or work stoppages due
to labor disagreements which have had, or would reasonably be expected to have,
a Materially Adverse Effect, and, to the best knowledge of Borrower, there are
no such strikes, disputes, slow downs or work stoppages threatened against any
Consolidated Company which if they occurred, would reasonably be expected to
have a Materially Adverse Effect. The hours worked and payment made to
employees of the Consolidated Companies have not been in violation in any
material respect of the Fair Labor Standards Act (in the case of Consolidated
Companies that are not Foreign Subsidiaries) or any other applicable law
dealing with such matters. All payments due from the Consolidated Companies,
or for which any claim may be made against the Consolidated Companies, on
account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as liabilities on the books of the Consolidated
Companies in all jurisdictions where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse Effect.
SECTION 5.21. PAYMENT OR DIVIDEND RESTRICTIONS. None of
the Consolidated Companies is party to or subject to any agreement or
understanding restricting or limiting the payment of any dividends or other
distributions by any such Consolidated Company, other than CDB/Infotek.
SECTION 5.22. OUTSTANDING INDEBTEDNESS. Schedule 5.22 lists
all outstanding Indebtedness of the Consolidated Companies as of March 31,
1997, and since March 31, 1997, no additional material Indebtedness has been
incurred by the Consolidated Companies. There exists no default under the
provisions of any instrument evidencing or securing Indebtedness of the
Borrower or any of its Subsidiaries or of any agreement otherwise relating
thereto which has had or would reasonably be expected to have a Material
Adverse Effect.
SECTION 5.23. DISCLOSURE. No representation or warranty
contained in this Agreement (including the Schedules attached hereto) or in any
other document furnished from time to time pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
herein or therein not misleading in any material respect as of the date made
or deemed to be made. There is no fact known to Borrower which is having,
or is reasonably expected to have, a Materially Adverse Effect.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid, Borrower will (unless waived in writing by the
Required Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence (except for mergers, divestitures and consolidations
permitted pursuant to Section 7.03), and except where the failure to be so
qualified would reasonably be expected to have a Materially Adverse Effect, its
qualification to do business as a foreign corporation in all jurisdictions
where it conducts business or other activities making such qualification
necessary.
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause
each of its Subsidiaries to comply with, all Requirements of Law (including,
without limitation, the Environmental Laws, ERISA and employee benefit laws)
and Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations
would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and
cause each of its Subsidiaries to pay, (i) all taxes, assessments and
governmental charges imposed upon it or upon its property, and (ii) all claims
(including, without limitation, claims for labor, materials, supplies or
services) which might, if unpaid, become a Lien upon its property, unless, in
each case, the validity or amount thereof is being contested in good faith by
appropriate proceedings and adequate reserves are maintained with respect
thereto or the aggregate sum of taxes unpaid is less than $500,000.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of
its Subsidiaries to keep, proper books of record and account, containing
complete and accurate entries of all their respective financial and business
transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. (a) Prior to
the occurrence of a Default, permit, and cause each of its Subsidiaries to
permit, any representative of any Lender at such Lender's expense after
reasonable notice during regular business hours (which date of visit shall be
mutually agreed upon but shall not be later than 2 weeks after the date
requested by such Lender) to visit and inspect, in the company of any of the
Executive Officers or their designees and their independent public accountants,
any of their respective properties, and to examine and make abstracts from any
of their respective books and records and to discuss with any of the Executive
Officers the respective affairs, finances and accounts of the Borrower and its
Subsidiaries. Prior to the occurrence of a Default, each Lender shall be
entitled to no more than two (2) such visits and inspections per year.
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(b) After the occurrence of a Default, permit, and
cause each of its Subsidiaries to permit, any representative of any Lender at
the Borrower's expense to visit and inspect, in the company of any of the
Executive Officers or their designees and their independent public accountants,
any of their respective properties, and to examine and make abstracts from any
of their respective books and records and to discuss with any of the Executive
Officers the respective affairs, finances and accounts of the Borrower and its
Subsidiaries.
(c) To cooperate and assist, and to cause each of its
Subsidiaries to cooperate and assist, in such visits and inspections set forth
in paragraphs (a) and (b) above in this Section, in each case at such
reasonable times and as often as may reasonably be desired; provided, however,
that (i) in no event shall any Lender have access to information prohibited by
law, and (ii) in the event any Lender desires to inspect confidential matters
(which matters shall in no event include financial information and data of the
Borrower or its Subsidiaries or other information the Lenders may require in
order to determine compliance this Agreement) under this Section, such Lender
shall executed a confidentiality agreement relating to such matters, which
agreement shall contain reasonable terms acceptable to such Lender and its
counsel.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with
financially sound and reputable insurers, insurance with respect to its
properties and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of such types
and in such amounts as are customary for such companies under similar
circumstances; provided, however, that the Credit Parties may self-insure in
amounts satisfactory to management. Upon the request of the Administrative
Agent, Borrower shall file with the Administrative Agent a detailed list of
such insurance then in effect stating the names of the insurance companies, the
limits of liability of insurance, the date of expiration thereof, the Property
and risks covered thereby and the insured with respect thereto, and, within 60
days after notice in writing from the Administrative Agent, obtain such
additional insurance as the Required Lenders may reasonably request as a result
of a material change in the circumstances or conditions affecting Borrower's
business specifically or its type of business generally, provided that such
additional insurance is available at a commercially reasonable cost.
(b) Cause, and cause each of the Consolidated
Companies to cause, all properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section 6.06 shall prevent Borrower from discontinuing the operation or
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maintenance of any such properties if such discontinuance is, in the judgment
of Borrower, desirable in the conduct of its business or the business of any
Consolidated Company.
(c) Maintain in full force and effect all material
patents, trademarks, service marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions, which are necessary for the
operation of the businesses of the Consolidated Companies as presently
conducted, where the result of failure to obtain and hold such benefits would
have a Materially Adverse Effect.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available
and in any event within 105 days after the end of each fiscal year of
Borrower, balance sheets of the Consolidated Companies as at the end
of such year, presented on a consolidated basis, and the related
statements of income, and cash flows of the Consolidated Companies for
such fiscal year, presented on a consolidated basis, setting forth in
each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and accompanied by a report thereon of
the independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern
and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at
the end of such fiscal year on a consolidated basis, and the results
of operations and statements of cash flows of the Consolidated
Companies for such fiscal year in accordance with GAAP and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards;
(b) Quarterly Financial Statements. As soon as
available and in any event within 60 days after the end of each fiscal
quarter of Borrower (other than the fourth fiscal quarter), balance
sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated basis and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of Borrower's
fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and
accompanied by a certification by the chief financial officer of
Borrower that such financial statements fairly present in all material
respects the financial condition of the Consolidated Companies as at
the end of such fiscal quarter on a consolidated basis, and the
results of operations and statements of cash flows of the
Consolidated Companies for such fiscal quarter and such portion of
Borrower's fiscal year, in accordance with GAAP consistently applied
(subject to normal year-end audit adjustments and the absence of
certain footnotes);
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(c) No Default/Compliance Certificate. Together with
the financial statements required pursuant to subsections (a) and (b)
above, a certificate (with supporting details) of the chief financial
officer of Borrower substantially in the form of Exhibit M attached
hereto (the "Compliance Certificate") (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists
no Event of Default and no Default under this Agreement, or if there
exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such
fiscal year or such fiscal quarter with Sections 6.08, 7.01, 7.04 and
7.05;
(d) Auditor's Statement. Together with the financial
statements required pursuant to subsection (a) above, a statement of
the accountants who prepared the report referred to therein, to the
effect that, nothing has come to their attention which would cause
them to believe that a Default or Event of Default existed as of the
date of such financial statements, or if there existed a Default or
Event of Default, specifying the nature thereof;
(e) Notice of Default. Promptly, and no later than
five (5) Business Days after any Executive Officer of Borrower has
notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer of Borrower
specifying the nature thereof and the proposed response thereto;
(f) Litigation and Investigations. Promptly, and no
later than ten (10) Business Days after any Executive Officer of
Borrower has notice or knowledge thereof, notice of the institution of
or any material adverse development in any material action, suit or
proceeding or any governmental investigation or any arbitration,
before any court or arbitrator or any governmental or administrative
body, agency or official, against any Consolidated Company, or any
material property of any thereof, or the threat of any such action,
suit, proceeding, investigation or arbitration;
(g) Environmental Notices. Promptly, and no later
than ten (10) Business Days after any Executive Officer of Borrower
has notice or knowledge thereof, notice of any actual or alleged
violation, or notice of any action, claim or request for information,
either judicial or administrative, from any governmental authority
relating to any actual or alleged claim, notice of potential
responsibility under or violation of any Environmental Law, or any
actual or alleged spill, leak, disposal or other release of any
waste, petroleum product, or hazardous waste or Hazardous Substance by
any Consolidated Company which could result in a Materially Adverse
Effect;
(h) ERISA. (i) Promptly, and no later than ten (10)
Business Days after any Executive Officer of Borrower has notice or
knowledge thereof, (A) with respect to
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any Plan maintained by any Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder, notice of a "reportable
event" described in Section 4043 of ERISA and the regulations issued
from time to time thereunder (other than a "reportable event" not
subject to the provisions for 30-day notice to the PBGC under such
regulations); or (B) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 404 or 419 of the
Tax Code, or any tax, penalty or liability under any Requirement of
Law applicable to any Foreign Plan, where any such taxes, penalties or
liabilities could result in a Material Adverse Effect;
(ii) Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan maintained by any
Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof concerning
the intent of the PBGC or any other governmental authority to
terminate a Plan maintained or contributed to by such Company or
ERISA Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate under Title IV
of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent,
promptly upon the filing thereof with the Internal Revenue Service
("IRS") or the Department of Labor ("DOL"), a copy of IRS Form 5500 or
annual report for each Plan maintained by any Consolidated Company or
ERISA Affiliate thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Administrative Agent,
but no more frequently than twice each calendar year, (A) true and
complete copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan maintained or
contributed to by any Consolidated Company from the IRS, PBGC or DOL,
received within the preceding 12 months, (B) any reports filed with
the IRS, PBGC or DOL with respect to a Plan maintained or contributed
to by the Consolidated Companies or any ERISA Affiliate thereof filed
within the preceding 12 months, or (C) a current statement of
withdrawal liability for each Multiemployer Plan contributed to by any
Consolidated Company or any ERISA Affiliate thereof;
(B) Promptly, and no later than give (5) Business
Days after any Executive Officer has notice of knowledge thereof,
notice that (i) any material contributions to any Foreign Plan have
not been made by the required due date for such contribution and such
default cannot immediately be remedied, (ii) any Foreign Plan is
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not funded to the extent required by the law of the jurisdiction whose
law governs such Foreign Plan based on the actuarial assumptions
reasonably used at any time, or (iii) a material change is anticipated
to any Foreign Plan that may have a Materially Adverse Effect.
(i) Liens. Promptly, and no later than five (5)
Business Days after any Executive Officer of Borrower has notice or
knowledge thereof, notice of the filing of any federal statutory Lien,
tax or other state or local government Lien or any other Lien
affecting their respective properties, other than those Liens
expressly permitted by Section 7.01;
(j) Public Filings, Etc. Promptly upon the filing
thereof or otherwise becoming available, copies of all financial
statements, annual, quarterly and special reports, proxy statements
and notices sent or made available generally by Borrower to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of them
with any securities exchange, and of all press releases and other
statements made available generally to the public containing material
developments in the business or financial condition of Borrower and
the other Consolidated Companies;
(k) New Material Subsidiaries. Within 30 days after
the formation, acquisition or existence of any new Material
Subsidiary, or any other event resulting in the creation of a new
Material Subsidiary, or the domestication of any Foreign Subsidiary,
notice of the formation or acquisition of such Subsidiary or such
occurrence, including a description of the assets of such entity, the
activities in which it will be engaged, and such other information as
the Administrative Agent may request;
(l) Default under Other Debt. Immediately upon its
receipt thereof, copies of any notice received by the Borrower or any
other Consolidated Company from the holder(s) of Indebtedness of the
Consolidated Companies (or from any trustee, agent, attorney, or other
party acting on behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $5,000,000, where such notice states or claims the
existence or occurrence of any default or event of default with
respect to such Indebtedness under the terms of any indenture, loan or
credit agreement, debenture, note, or other document evidencing or
governing such Indebtedness;
(m) Updates of Schedule 5.22. As soon as available
and in any event within 60 days after the end of the June 30, 1997
calendar quarter, a revised Schedule 5.22 listing all outstanding
Indebtedness of the Consolidated Companies as of the end of such
quarter, which shall not be materially different from Schedule 5.22
provided by the Borrower on the Closing Date and which shall
automatically be deemed to amend Schedule 5.22 to this Credit
Agreement, and as soon as available and in any event within
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60 days after the end of the September 30, 1997 calendar quarter, a
revised Schedule 5.22 listing all outstanding Indebtedness of the
Consolidated Companies as of the end of such quarter;
(n) Complete Lien Search Results. As soon as
available and in any event within 30 days after the Closing Date,
copies of all UCC, judgment and tax lien search results for all of the
Borrower's and the Guarantors' locations in the United States other
than field offices at which is located tangible personal property
(having an aggregate value not in excess of $6,000,000);
(o) Other Information. With reasonable promptness,
any other information as the Administrative Agent on behalf of any
Lender may reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. (i) Maintain as of
the last day of each fiscal quarter of 1997 and 1998, a Fixed Charge Coverage
Ratio, calculated for the fiscal quarter then ended and the immediately
preceding three fiscal quarters, equal to or greater than 2.0:1.0, and (ii)
maintain as of the last day of each fiscal quarter of 1999 and thereafter, a
Fixed Charge Coverage Ratio, calculated for the fiscal quarter then ended and
the immediately preceding three fiscal quarters, equal to or greater than
2.5:1.0.
(b) Funded Debt to Consolidated EBITDA. Maintain as
of the last day of each fiscal quarter, a maximum ratio of Funded Debt to
Consolidated EBITDA, calculated for the fiscal quarter then ended and the
immediately preceding three fiscal quarters, of less than or equal to 3.5:1.0.
SECTION 6.09. ADDITIONAL CREDIT PARTIES. If at any time a
U.S. Subsidiary that is not a Credit Party becomes a Material Subsidiary,
Borrower shall cause such subsidiary to execute and deliver to the
Documentation Agent a supplement to each of the Guaranty Agreements in the
forms attached thereto, together with related documents with respect to such
new Subsidiary of the kind described in Section 4.01 (e), (f), (g), (h), (i)
and (p), all in form and substance satisfactory to the Documentation Agent and
the Required Lenders.
SECTION 6.10. INTELLECTUAL PROPERTY. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
rights, franchises, and licenses, and its patents and copyrights (for the
scheduled duration thereof), trademarks, trade names, and service marks,
necessary or desirable in the normal conduct of its business, except where the
failure to maintain such rights, franchises, and licenses, patents, copyrights
trademarks, trade names, and service marks would reasonably be expected to
have a Materially Adverse Effect
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ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid shall remain outstanding, Borrower will not and will
not permit any Subsidiary to (unless waived in writing by the Required
Lenders):
SECTION 7.01. LIENS. Create, incur, assume or suffer to
exist any Lien on any of its property now owned or hereafter acquired to secure
any Indebtedness other than:
(a) Liens existing on the Closing Date (A) securing an
aggregate amount not in excess of $2,400,000 and disclosed on Schedule
7.01, (B) securing obligations of CDB/Infotek owning to the Borrower
or (C) securing an amount not to exceed $250,000 in the aggregate;
(b) Liens on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the
acquisition cost of such property and any refinancing thereof,
provided that such Lien does not extend to any other property and
further provided that the amount of Indebtedness secured by such
Liens does not exceed $10,000,000 in aggregate principal amount at
any one time outstanding;
(c) Liens for taxes not yet due and payable, and Liens for
taxes which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(f) zoning, easements and restrictions on the use of real
property which do not materially impair the use of such property;
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(g) Liens arising under ERISA;
(h) rights in property reserved or vested in any
governmental authority which do not materially impair the use of such
property;
(i) Liens on assets of newly acquired Subsidiaries which
were in existence at the time of acquisition and not created in
contemplation thereof;
(j) Liens granted under the Lease Documents;
(k) Liens granted in favor of the Borrower or any Guarantor
securing intercompany indebtedness owed by another Consolidated
Company;
(l) Liens (other than those permitted by paragraphs (a)
through (j) of this Section 7.01) securing Indebtedness in an
aggregate principal amount outstanding at any time not to exceed
fifteen percent (15%) of the Consolidated Net Worth of the
Consolidated Companies as of the last day of the immediately preceding
fiscal quarter of the Borrower.
SECTION 7.02. GUARANTIES. Create, incur, assume, guarantee,
suffer to exist or otherwise become liable on or with respect to, directly or
indirectly, any Guaranties other than:
(a) endorsements of instruments for deposit or
collection in the ordinary course of business;
(b) guarantees of Indebtedness owed by any
Consolidated Company to another Consolidated Company;
(c) Guaranties of Indebtedness to the extent such
Indebtedness is permitted under Section 6.08(b)
.
SECTION 7.03. MERGERS, CONSOLIDATIONS. Merge or
consolidate with any other Person, except that the foregoing restrictions shall
not be applicable to:
(a) mergers or consolidations of (x) any Subsidiary
with any other Subsidiary which is a Guarantor or (y) any Subsidiary
with Borrower; or
(b) mergers or consolidations in which any Person
engaged in businesses in which Borrower is engaged as of the Closing
Date or substantially related thereto merges or consolidates with
Borrower or any of its Subsidiaries where the surviving corporation is
Borrower or such Subsidiary;
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provided that before and after giving effect to any such merger or
consolidations and any Funded Debt incurred by the Borrower or such Subsidiary
in connection with such merger or consolidation, (x) Borrower is and will be in
compliance with Section 6.08 hereof and if the consideration paid by Borrower
or such Subsidiary in connection with such merger or consolidation is greater
than $75,000,000, Borrower has delivered pro forma financial covenants
calculations demonstrating such compliance, in such detail and using such form
of presentation of historical and forecasted financial information as may be
satisfactory to the Agents with copies provided to each Lender (based on the
projected Fixed Charges or Funded Debt, as the case may be, for the immediately
succeeding four fiscal quarters (including Fixed Charges incurred as a result
of the incurrence of any such Funded Debt) and the historical Consolidated EBIT
(including the Consolidated EBIT of such Person)); (y) no other Default or
Event of Default exists hereunder; and (z) if the surviving Person is a
Material Subsidiary, it promptly complies with Section 6.09 hereof, if
applicable;
SECTION 7.04. ASSET SALES. Sell, lease or otherwise
dispose of its accounts, property, stock of its Subsidiaries or other assets;
provided, however, that the foregoing restrictions on Asset Sales shall not be
applicable to:
(a) sales, leases, transfers or dispositions of assets
of any Consolidated Company to the Borrower or any Guarantor;
(b) sales of inventory in the ordinary course of
business and unneeded, worn out or obsolete equipment;
(c) sales of accounts receivable (or of undivided
ownership interests therein) pursuant to the asset securitization
facilities;
(d) Asset Sales comprised of assets of any
Consolidated Company where, on the date of execution of a binding
obligation to make such Asset Sale, the assets which are the subject
of the proposed Asset Sale, together with all other such Asset Sales
of the Consolidated Companies during the current fiscal year of
Borrower, did not generate ten percent (10%) or more of Consolidated
EBITDA for the immediately preceding fiscal year of Borrower;
provided that notwithstanding the foregoing, no transaction pursuant to
clauses (c) or (d) above shall be permitted if any Default or Event of Default
exists at the time of such transaction or would exist as a result of such
transaction.
SECTION 7.05 INVESTMENTS, LOANS, ETC. Make, permit or hold
any Investments other than:
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(a) Investments in the stock of Subsidiaries of
Borrower existing as of the Closing Date or existing as Subsidiaries
of Borrower immediately prior to the making of such Investment, and
Investments in the form of loans and advances by the Borrower to any
Guarantor;
(b) Investments in the stock or other assets of any
other Person that is engaged in a business permitted by Section 7.10
hereof; provided, that after giving effect to such Investment and any
Funded Debt incurred by the Borrower or such Subsidiary in connection
with making such Investment, (x) Borrower is and will be in compliance
with Section 6.08 hereof and if the Investment is greater than
$75,000,000, the Borrower has delivered pro forma financial covenants
calculations demonstrating such compliance, in such detail and using
such form of presentation of historical and forecasted financial
information as may be satisfactory to the Agents; (y) no other Default
or Event of Default exists hereunder (based on the projected Fixed
Charges or Funded Debt, as the case may be, for the immediately
succeeding four fiscal quarters (including Fixed Charges incurred a
result of the incurrence of any such Funded Debt) and the historical
Consolidated EBIT (including the Consolidated EBIT of such Person));
and (z) as a result of such Investment, such Person becomes a
Subsidiary of Borrower, and promptly complies with Section 6.09 if it
becomes a Material Subsidiary of Borrower;
(c) marketable direct obligations of the United States
or any agency thereof, or obligations guaranteed by the United States
or any agency thereof, in each case supported by the full faith and
credit of the United States and maturing within one year from the date
of creation thereof;
(d) Investments received in settlement of Indebtedness
created in the ordinary course of business, and the endorsement of
negotiable instruments in the ordinary course of business;
(e) commercial paper issued by corporations, each of
which has a consolidated net worth of not less than $500,000,000, and
conducts a substantial portion of its business in the United States of
America, maturing no more than 365 days from the date of acquisition
thereof and having as at any date of determination a rating of P-1,
P-2 or P-3 from Standard & Poor's or a rating of X-0, X-0 or A-3 from
Moody's;
(f) money market or similar depository accounts,
certificates of deposit or bankers acceptances, in each case
redeemable upon demand or maturing within one year from the date of
acquisition thereof, issued by commercial banks incorporated under
the laws of the United States of America or any state thereof or the
District of Columbia, provided (x) each such bank has at any date of
determination combined capital and surplus of not less than
$1,000,000,000 and a rating of its long-term debt of at least A by
Standard & Poor's or at least A by Moody's or a long-term deposit
rating of at least A issued by Standard & Poor's or at least A issued
by Moody's, (y) the aggregate amount of
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all such certificates of deposit issued by such bank are fully insured
at all times by the Federal Deposit Insurance Company;
(g) Loans and advances to officers and employees of
the Consolidated Companies made in the ordinary course of business,
including without limitation, loans to executives for the purchase of
stock of the Borrower pursuant to a program established by the Board
of Directors or a committee thereof from time to time in an amount not
to exceed $15,000,000;
(h) Investments in joint ventures in an aggregate
amount during any fiscal year of Borrower not to exceed an amount
equal to ten percent (10%) of Borrower's Consolidated Net Worth as of
the end of the immediately preceding fiscal year of Borrower; and
(i) Investments (other than those permitted by
paragraphs (a) through (h) above) in an aggregate amount during any
fiscal year of Borrower not to exceed an amount equal to five (5%)
percent of Borrower's Consolidated Net Worth as of the end of the
immediately preceding fiscal year of Borrower.
SECTION 7.07 SALE AND LEASEBACK TRANSACTIONS. Sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which
any Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES. Enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Subsidiary that is directly or
indirectly wholly owned by the Credit Parties), other than on terms and
conditions substantially as favorable to such Consolidated Company as would be
obtained by such Consolidated Company at the time in a comparable arm's-length
transaction with a Person other than an Affiliate; and
SECTION 7.09. ERISA. (a) Take or fail to take any action
with respect to any Plan maintained or contributed to by any Consolidated
Company or, with respect to its ERISA Affiliates, any Plans which are subject
to Title IV of ERISA or to continuation health care requirements for group
health plans under Section 4980B of the Tax Code, including without limitation
(i) establishing any such Plan, (ii) amending any such Plan (except where
required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, or any
unfunded liabilities under any Foreign Plan, without first obtaining the
written approval of the Required Lenders, where such actions or failures
could result in a Material Adverse Effect; or
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(b) Permit a Plan or Foreign Plan maintained by a Consolidated
Company or a Plan subject to Title IV of ERISA of any of its ERISA Affiliates:
(i) to fail to be funded in accordance with the
minimum funding standard required by applicable law, the terms of such
Plan or Foreign Plan, Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such standard is sought or
granted with respect to such Plan or Foreign Plan under applicable
law, the terms of such Plan or Foreign Plan or Section 412 of the Tax
Code or Section 303 of ERISA; or
(ii) to be terminated or the subject of termination
proceedings under applicable law or the terms of such Plan or Foreign
Plan; or
(iii) to require a Consolidated Company to provide
security under applicable law, the terms of such Plan or Foreign Plan,
Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) to result for any reason, in a liability
(including without limitation, withdrawal liability) to a Consolidated
Company under applicable law, the terms of such Plan or Foreign Plan,
or Title IV of ERISA;
if the result from any such failure, waiver, termination or other event a
liability to the PBGC (or any similar Person with respect to any Foreign Plan),
a Plan or any other Person that would have a Materially Adverse Effect.
SECTION 7.10. ADDITIONAL NEGATIVE PLEDGES. Create or
otherwise cause or suffer to exist or become effective, directly or indirectly,
any prohibition or restriction on the creation or existence of any Lien upon
any asset of any Consolidated Company, other than the prohibitions and
restrictions contained in this Agreement.
SECTION 7.11. CHANGES IN BUSINESS. Enter into any
business which is substantially different from that presently conducted by
the Consolidated Companies taken as a whole immediately prior to the SpinOff
from Equifax, which includes providing risk management and fraud prevention
information and related technology solutions to the property and casualty
insurance industry, life and health insurance industry and other industries,
(including, without limitation, (1) providing automated and traditional
underwriting and claim information services to assist U.S. insurance companies
in assessing the insurability of individuals and property and the validity of
insurance claims, (2) providing background investigations, (3) performing
paramedical exams, (4) furnishing access to motor vehicles reports,
(5) maintaining a database of claims histories, (5) providing claim
verification and investigative services to both the property and casualty and
the life and health insurance markets, (6) providing pre-employment background
investigations, pre-employment and regulatory compliance drug testing services
and public record information to other corporate and
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government organizations), unless such business is a strategic extension of the
business of the Consolidated Companies immediately prior to the SpinOff.
SECTION 7.12. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions to
Borrower or any other Subsidiary on such Consolidated Company's stock, provided
that this provision shall not affect CBD/Infotek's payment of dividends or
distributions on its stock to Borrower, or (ii) pay any indebtedness owed to
Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents.
SECTION 7.13. ACTIONS UNDER CERTAIN DOCUMENTS. Without the
prior written consent of the Agents and the Required Lenders, modify, amend or
supplement the Lease Documents to (i) increase the principal amount of the
indebtedness thereunder or the lease payments required thereunder, (ii)
increase the interest rate thereunder, (iii) modify any requirement of
prepayment or repayment thereunder which would shorten the final maturity or
average life of the indebtedness or lease obligations outstanding thereunder or
make the requirement of prepayment more onerous, or (iv) make any more onerous
any other provision thereof.
SECTION 7.14. CHANGES IN FISCAL YEAR. Change the
calculation of the fiscal year of the Borrower.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Borrower shall fail to make
promptly when due (including, without limitation, by mandatory prepayment) any
principal payment with respect to the Loans, or Borrower shall fail to make
within five (5) Business Days after the due date thereof any payment of
interest, fee or other amount payable hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Borrower shall
fail to observe or perform any covenant or agreement (i) contained in Section
7.09 and, if capable of being remedied, such failure shall remain unremedied
for fifteen (15) days after the earlier of (A) an Executive Officer's obtaining
knowledge thereof, (ii) contained in Section 7.05 and, if capable of
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being remedied, such failure shall remain unremedied for ten (10) days after
the earlier of (A) an Executive Officer's obtaining knowledge thereof, or (B)
written notice thereof shall have been given to Borrower by any Agent or any
Lender, or (iii) contained in Sections 2.01(b), 6.01, 6.05, 6.07(e), 6.08, or
7.03.
SECTION 8.03. OTHER COVENANTS. Borrower shall fail to
observe or perform any covenant or agreement contained in this Agreement, other
than those referred to in Sections 8.01 and 8.02, and, if capable of being
remedied, such failure shall remain unremedied for thirty (30) days after the
earlier of (i) an Executive Officer of Borrower's obtaining knowledge thereof,
or (ii) written notice thereof shall have been given to Borrower by any Agent
or any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or
warranty made or deemed to be made by Borrower or any other Credit Party or by
any of its officers under this Agreement or any other Credit Document
(including the Schedules attached thereto), or any certificate or other
document submitted to the Agents or the Lenders by any such Person pursuant to
the terms of this Agreement or any other Credit Document, shall be incorrect in
any material respect when made or deemed to be made or submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity,
by acceleration, on demand or otherwise, and after giving effect to any
applicable grace period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $5,000,000 in the
aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any
Consolidated Company shall fail to observe or perform within any applicable
grace period any covenants or agreements contained in any agreements or
instruments relating to any of its Indebtedness exceeding $5,000,000 in the
aggregate, or any other event shall occur if the effect of such failure or
other event is to accelerate, or to permit the holder of such Indebtedness or
any other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Borrower or any other
Consolidated Company shall commence a voluntary case concerning itself under
the Bankruptcy Code or applicable foreign bankruptcy laws; or an involuntary
case for bankruptcy is commenced against any Consolidated Company and the
petition is not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) or similar official under applicable foreign bankruptcy laws
is appointed for, or takes charge of, all or any substantial part of the
property of any Consolidated Company; or any Consolidated Company commences
proceedings of its own bankruptcy or to be granted a suspension of payments or
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating to any Consolidated
Company or there is commenced against any Consolidated
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Company any such proceeding which remains undismissed for a period of 60 days;
or any Consolidated Company is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is entered; or
any Consolidated Company suffers any appointment of any custodian or the like
for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or any Consolidated Company makes a general
assignment for the benefit of creditors; or any Consolidated Company shall
fail to pay, or shall state that it is unable to pay, or shall be unable to
pay, its debts generally as they become due; or any Consolidated Company shall
call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or any Consolidated Company shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or any corporate action is taken by any Consolidated Company
for the purpose of effecting any of the foregoing;
SECTION 8.08. MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $5,000,000 not covered by insurance or otherwise
having a Materially Adverse Effect shall be rendered against Borrower or any
other Consolidated Company and such judgment or order shall continue
unsatisfied and in effect for a period of 60 days during which execution shall
not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
SECTION 8.09. CHANGE IN CONTROL OF BORROWER. (i) Any
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) other than employees of the Borrower (either directly or through
a retirement or employee benefit plan), shall become the "beneficial owner(s)"
(as defined in said Rule 13d-3) of more than twenty-five percent (25%)
of the shares of the outstanding common stock of Borrower entitled to vote for
members of Borrower's board of directors, or (ii) any event or condition shall
occur or exist which, pursuant to the terms of any Change in Control Provision,
requires or permits the holder(s) of Indebtedness of any Consolidated Company
to require that such Indebtedness be redeemed, repurchased, defeased, prepaid
or repaid, in whole or in part, or the maturity of such Indebtedness to be
accelerated in any respect.
SECTION 8.10. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There
shall exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of Borrower or any other Credit Party, or at any time it is or becomes unlawful
for Borrower or any other Credit Party to perform or comply with its
obligations under any Credit Document, or the obligations of Borrower or any
other Credit Party under any Credit Document are not or cease to be legal,
valid and binding on Borrower or any such Credit Party; or
SECTION 8.11. ATTACHMENTS. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated Company
with an aggregate value (based
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upon the greater of the book value of such assets as established in accordance
with GAAP or the fair market value of such assets as determined in good faith
by such Consolidated Company) exceeding $5,000,000 in aggregate and is not
removed, suspended or enjoined within 60 days of the same being made or any
suspension or injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, with the consent of the
Required Lenders, and upon the written (including telecopied) or telex request
of the Required Lenders, shall, by written notice to Borrower, take any or all
of the following actions, without prejudice to the rights of either Agent, any
Lender or the holder of any Note to enforce its claims against Borrower or any
other Credit Party: (i) declare all Commitments terminated, whereupon the pro
rata Commitments of each Lender shall terminate immediately and any commitment
fee shall forthwith become due and payable without any other notice of any
kind; and (ii) declare the principal of and any accrued interest on the Loans,
and all other Obligations owing hereunder, to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by Borrower; provided, that,
if an Event of Default specified in Section 8.07 shall occur, the result which
would occur upon the giving of written notice by the Administrative Agent to
any Credit Party, as specified in clauses (i) and (ii) above, shall occur
automatically without the giving of any such notice; and (iii) exercise any
rights or remedies under the Security Documents.
ARTICLE IX.
THE ADMINISTRATIVE AGENT AND THE DOCUMENTATION AGENT
SECTION 9.01. APPOINTMENT OF ADMINISTRATIVE AGENT. Each
Lender hereby designates Wachovia as Administrative Agent to administer all
matters concerning the Loans and to act as herein specified. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
a Note shall be deemed irrevocably to authorize, the Administrative Agent to
take such actions on its behalf under the provisions of this Agreement, the
other Credit Documents, and all other instruments and agreements referred to
herein or therein, and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Administrative Agent may perform any of
its duties hereunder by or through its agents or employees.
SECTION 9.02. APPOINTMENT OF DOCUMENTATION AGENT. Each
Lender hereby designates SunTrust as Documentation Agent and acknowledges that
it shall have no duties under this Agreement or any other Credit Document
whatsoever except as explicitly set forth herein. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of a Note
shall be deemed irrevocably to authorize, the Documentation Agent to take such
actions on its behalf under the provisions of this Agreement, the other Credit
Documents
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and all other instruments and agreements referred to herein or therein, and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Documentation Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Documentation Agent may perform any of its duties hereunder by or
through its agents or employees.
SECTION 9.03. NATURE OF DUTIES OF AGENTS. The Agents shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Agents nor any of their
respective officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful misconduct. The
duties of the Agents shall be ministerial and administrative in nature; the
Agents shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement, express or implied, is
intended to or shall be so construed as to impose upon any Agent any
obligations in respect of this Agreement or the other Credit Documents except
as expressly set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENTS.
(a) Independently and without reliance upon either
Agent, each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking or
not taking of any action in connection herewith, and (ii) its own appraisal of
the creditworthiness of the Credit Parties, and, except as expressly provided
in this Agreement, neither Agent shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter.
(b) Neither Agent shall be responsible to any Lender
for any recitals, statements, information, representations or warranties herein
or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement, the
Notes, the Guaranty Agreements or any other documents contemplated hereby or
thereby, or the financial condition of the Credit Parties, or be required to
make any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement, the Notes, the Guaranty
Agreements or the other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties, or the existence or possible
existence of any Default or Event of Default.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENTS. If either
Agent shall request instructions from the Required Lenders with respect to any
action or actions (including the failure to act) in connection with this
Agreement, such Agent shall be entitled to refrain from such act or
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taking such act, unless and until such Agent shall have received instructions
from the Required Lenders; and such Agent shall not incur liability in any
Person by reason of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against either Agent as a result of
such Agent's acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
SECTION 9.06. RELIANCE BY THE AGENTS. The Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Agents may
consult with legal counsel (including counsel for any Credit Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF THE AGENTS. To the extent
either Agent is not reimbursed and indemnified by the Credit Parties, each
Lender will reimburse and indemnify such Agent, ratably according to the
respective amounts of the Loans outstanding under all Facilities (or if no
amounts are outstanding, ratably in accordance with the aggregate Commitments),
in either case, for and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against
such Agent in performing its duties hereunder, in any way relating to or
arising out of this Agreement or the other Credit Documents; provided that no
Lender shall be liable to either Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
SECTION 9.08. THE AGENTS IN THEIR INDIVIDUAL CAPACITIES.
With respect to its obligation to lend under this Agreement, the Loans made by
it and the Notes issued to it, each Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Each Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agents may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have
been filed with the Administrative Agent. Any request,
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authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of
such Note or of any Note or Notes issued in exchange therefor.
SECTION 9.10. SUCCESSOR AGENTS.
(a) Each Agent may resign at any time by giving
written notice thereof to the Lenders and Borrower and may be removed at any
time with or without cause by the Required Lenders; provided, however, neither
Agent may resign or be removed until a successor Administrative Agent or
Documentation Agent, as the case may be, has been appointed and shall have
accepted such appointment. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent or
Documentation Agent, as the case may be, with the consent of the Borrower so
long as no Default or Event of Default has occurred and is continuing, which
consent shall not be unreasonably withheld or delayed. If no successor
Administrative Agent or Documentation Agent, as the case may be shall have been
so appointed by the Required Lenders with the consent of the Borrower, and shall
have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint
a successor Administrative Agent or Documentation Agent, as the case may be,
which shall be a bank which maintains an office in the United States, or a
commercial bank organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the
Administrative Agent or the Documentation Agent, as the case may be, hereunder
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 under this Agreement. After any retiring Agent's resignation or
removal hereunder as Administrative Agent or Documentation Agent, as the case
may be, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on
the signature pages hereof, or such other address or applicable
teletransmission number as such party may hereafter specify by notice to the
Agents
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and Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, (iii) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and the appropriate confirmation is received, or (iv) if given
by any other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section; provided that
notices to the Agents shall not be effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of
any provision of this Agreement or the other Credit Documents, nor consent to
any departure by any Credit Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by Borrower and the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that
no amendment, waiver or consent shall, unless in writing and signed by Borrower
and all the Lenders do any of the following: (i) waive any of the conditions
specified in Section 4.01 or 4.02, (ii) increase the Commitments or other
contractual obligations to Borrower under this Agreement, (iii) reduce the
principal of, or interest on, the Notes or any fees hereunder, (iv) postpone
any date fixed for the payment in respect of principal of, or interest on,
the Notes or any fees hereunder, (v) change the percentage of the Syndicated
Loan Commitments or of the aggregate unpaid principal amount of the Notes, or
the number or identity of Lenders which shall be required for the Lenders or
any of them to take any action hereunder, (vi) agree to release any Guarantor
from its obligations under any Guaranty Agreement, (vii) modify the definition
of "Required Lenders," or (viii) modify this Section 10.02. Notwithstanding
the foregoing, no amendment, waiver or consent shall, unless in writing and
signed by Borrower and the Agents in addition to the Lenders required
hereinabove to take such action, affect the rights or duties of the Agents
under this Agreement or under any other Credit Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of the Agents, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document,
and no course of dealing between any Credit Party and the Agents, any Lender or
the holder of any Note shall operate as a waiver thereof, nor shall any single
or partial exercise of any right or remedy hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right or remedy hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Agents, any Lender or the holder of any Note would otherwise have.
No notice to or demand on any Credit Party not required hereunder or under any
other Credit Document in any case shall entitle any Credit Party to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Agents, the Lenders or the holder of any Note to
any other or further action in any circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Borrower shall:
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(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-pocket costs
and expenses of both Agents in the administration (both before and
after the execution hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights and duties of
the Agents and the Lenders with respect thereto) of, and in connection
with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of
Default, refinancing, renegotiation or restructuring of, this
Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Agents), and in
the case of enforcement of this Agreement or any Credit Document after
an Event of Default, all such reasonable, out-of-pocket costs and
expenses (including, without limitation, the reasonable fees actually
incurred and disbursements of counsel), for both Agents and the
Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.06(b), pay and hold each of the
Agents and the Lenders harmless from and against any and all present
and future stamp, documentary, and other similar Taxes with respect to
this Agreement, the Notes and any other Credit Documents, any
collateral described therein, or any payments due thereunder, and save
each of the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such
Taxes; and
(iii) indemnify the Agents and each
Lender, and their respective officers, directors, employees,
representatives and agents from, and hold each of them harmless
against, any and all costs, losses, liabilities, claims, damages or
expenses incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to
any actual or proposed use of the proceeds of any of the Loans or any
Credit Party's entering into and performing of the Agreement, the
Notes, or the other Credit Documents, including, without limitation,
the reasonable fees actually incurred and disbursements of counsel
(including foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding; provided, however,
Borrower shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct;
(iv) without limiting the indemnities set forth
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the
cost of investigating or defending any claim and whether or not such
claim is ultimately defeated, and whether such claim arose before,
during or after any Credit Party's ownership,
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operation, possession or control of its business, property or
facilities or before, on or after the date hereof, and including
also any amounts paid incidental to any compromise or settlement by
the Indemnitee or Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without
limitation damages for contamination or destruction of natural
resources), penalties and fines of any kind or nature whatsoever
(including without limitation in all cases the reasonable fees
actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws
based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related
documents.
If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a Note
may have under applicable law, each Lender or other holder of a Note shall,
upon the occurrence of any Event of Default and whether or not such Lender or
such holder has made any demand or any Credit Party's obligations are matured,
have the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or final) then or
thereafter held by and other indebtedness or property then or thereafter owing
by such Lender or other holder to any Credit Party, whether or not related to
this Agreement or any transaction hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, provided that Borrower may not assign or transfer any of
its interest hereunder without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at,
to or for the account of, any of its branch offices or the office of an
Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of any of its Commitments and the Loans at the time owing to it and the
Notes held by it) to any other Lender or any financial institution; provided,
however, that (i) the Agents and Borrower must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld or
delayed) unless such assignment is to an Affiliate of the assigning Lender or,
in the case of Borrower, unless an
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Event of Default has occurred and is continuing, (ii) the amount of the
Commitments or Loans of the assigning Lender subject to each assignment
(determined as of the date the assignment and acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 and in integrals of $5,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $3,000, (iv) no Lender may make more than two (2)
assignments to any Person which is not then a Lender or affiliate thereof
(unless a Default or Event of Default has occurred and is continuing), (v) the
assignee Lender must be an Eligible Assignee, and (vi) if the assignee Lender
is not a United States citizen or resident (or the assignee Lender is filing as
a foreign corporation, partnership, estate or trust), the assignee Lender
delivers the Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, to the Borrower and
the Administrative Agent, as required by Section 3.06(b)(ii) of this Agreement.
Borrower shall not be responsible for such processing and recordation fee or
any costs or expenses incurred by any Lender or the Administrative Agent in
connection with such assignment. From and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, the assignee thereunder shall be
a party hereto and to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement. Within five (5) Business Days after receipt of the notice and the
Assignment and Acceptance, Borrower, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Note or
Notes, a new Note or Notes to the order of such assignee in a principal amount
equal to the applicable Commitments assumed by it pursuant to such Assignment
and Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the surrendered Note or
Notes which they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may, without the consent of Borrower
or the Agents, sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans owing to it and the Notes
held by it), provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating bank or other entity shall not be entitled
to the benefit (except through its selling Lender) of the cost protection
provisions contained in Article III of this Agreement, and (iv) Borrower, the
Agents and other Lenders shall continue to deal solely and directly with each
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and such Lender shall retain the sole
right to enforce the obligations of Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provisions of this
Agreement. No Lender shall be entitled to create in favor of any Participant,
in the participation agreement
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pursuant to which such Participant's participating interest shall be created
or otherwise, any right to vote on, consent to or approve any matter relating
to this Agreement or any other Loan Document except for those matters
specified in clauses (i) through (viii) of the proviso to Section 10.02.
(f) Any Lender may at any time assign or pledge all or
any portion of its rights in this Agreement and the Notes issued to it to a
Federal Reserve Bank.
(g) If (i) any Taxes referred to in Section 3.06(b)
have been levied or imposed so as to require withholdings or deductions by
Borrower and payment by Borrower of additional amounts to any Lender as a
result thereof, or (ii) any Lender shall make demand for payment of increased
costs or reduced rate of return pursuant to Section 3.09 or any Lender
determines that LIBOR is unascertainable or illegal pursuant to Section 3.07 or
Section 3.08, or any Lender makes a claim for increased costs pursuant to
Section 3.08, then and in such event, upon request from Borrower delivered to
such Lender and the Administrative Agent, such Lender shall assign, in
accordance with the provisions of Section 10.06(c), all of its rights and
obligations under this Agreement and the other Credit Documents to another
Lender or another financial institution selected by Borrower and acceptable to
the Agents, which acceptance will not be unreasonably withheld or delayed, in
consideration for the payment by such assignee to the Lender of the principal
of, and interest on, the outstanding Loans accrued to the date of such
assignment, and the assumption of such Lender's Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions of
this Agreement or the other Credit Documents accrued to the date of such
assignment; provided, however, Lenders subject to this Section 10.06 shall be
treated in a substantially identical manner.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE
SUPERIOR COURT OF XXXXXX COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF
GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING,
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WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(C) BORROWER HEREBY IRREVOCABLY DESIGNATES ITS GENERAL
COUNSEL (PRESENTLY XXXXXXX XX XXXXX), AS ITS DESIGNEE, APPOINTEE AND LOCAL
AGENT TO RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD
THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY
FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS BY MAIL TO
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT THE
FAILURE OF BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of any
Lender, any holder of a Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Borrower in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by the 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.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date
(the "Effective Date") on which all of the parties hereto shall have signed a
copy hereof (whether the same or
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different copies) and shall have delivered the same to the Documentation Agent
pursuant to Section 10.01 or, in the case of the Lenders, shall have given to
the Documentation Agent written or telex notice (actually received) that the
same has been signed and mailed to them.
(b) The obligations of Borrower under Sections
3.06(b), 3.09, 3.11, 3.12 and 10.04 hereof shall survive the payment in full of
the Notes and all other Obligations after the Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement, the other Credit Documents, and
such other agreements and documents, the making of the Loans hereunder, and the
execution and delivery of the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or in part, in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.13. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. This Agreement, the other
Credit Documents, and the agreements and documents required to be delivered
pursuant to the terms of this Agreement constitute the entire agreement among
the parties hereto and thereto regarding the subject matters hereof and thereof
and supersede all prior agreements, representations and understandings related
to such subject matters.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and to be delivered in Atlanta, Georgia, by their
duly authorized officers as of the day and year first above written.
Address for Notices: CHOICEPOINT INC.
0000 Xxxxxxxx Xxxxx By:/s/ Xxxx Curling
Xxxxxxxxxx, Xxxxxxx 00000 ------------------------------------
Xxxx Curling
Executive Vice President
Attn: Xx. Xxxxxxx X. Xxxx
Attest: /s/Xxxxxxx xx Xxxxx
--------------------------------
Telephone: (000) 000-0000 Xxxxxxx xx Xxxxx
Telecopy: (000) 000-0000 Assistant Secretary
[CORPORATE SEAL]
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Address for Notices: WACHOVIA BANK, N.A.,
AS ADMINISTRATIVE AGENT
000 Xxxxxxxxx Xx., X.X. By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx, XX 00000 ----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: SVP
Attn: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Payment Office:
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
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Address for Notices: SUNTRUST BANK, ATLANTA,
AS DOCUMENTATION AGENT
00 Xxxx Xxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 By:/s/ J. Xxxxxxxxxxx Xxxxxxx
Attn: Mr. J. Xxxxxxxxxxx Xxxxxxx -------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: First Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Banking Officer
Payment Office:
00 Xxxx Xxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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Address for Notices: WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xx., X.X. By: /s/ Xxxxxxx X Xxxxxx
Xxxxxxx, Xxxxxxx 00000 ----------------------
Attention: Xx. Xxxx Xxxxxx Name: Xxxxxxx X Xxxxxx
Title: SVP
Telephone No.: (000) 000-0000
Telecopy No. (000) 000-0000
Lending Office and Payment Office:
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
SYNDICATED LOAN COMMITMENT: $60,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 24%
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Address for Notices: SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx, X.X., 00xx Xxxxx By:/s/ Xxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000 ---------------------------
Attention: Mr. J. Xxxxxxxxxxx Xxxxxxx Name:Xxxxxxxxxxx Xxxxxxx
Title: First Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Banking Officer
Lending Office and Payment Office:
00 Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
SYNDICATED LOAN COMMITMENT: $60,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 24%
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Address for Notices: FIRST UNION NATIONAL BANK
OF GEORGIA
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000 By:/s/ Xxxxx Xxxxxxx
Attention: Mr. Xxxxxxxx Xxxx ------------------------
Name: Xxxxx Xxxxxxx
Title: SVP
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Lending Office and Payment Office:
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
SYNDICATED LOAN COMMITMENT: $40,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 16%
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Address for Notices: BANK OF AMERICA NT & SA
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 By: /s/ Xxxxxxxx X. Xxxxxxxx
Attention: Xx. Xxxxxxxx Xxxxxxxx --------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Lending Office and Payment Office:
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxx
Account Administration
SYNDICATED LOAN COMMITMENT: $35,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 14%
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Address for Notices: CIBC INC.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 By:/s/ Xxxxx Xxxxxx
Attention: Xxxxx Xxxxxx -------------------------------
Name: Xxxxx Xxxxxx
Title: Director, CIBC Wood Gubdy
Telephone No.: (000) 000-0000 Securities Corp. AS AGENT
Telecopy No.: (000) 000-0000
Lending Office and Payment Office:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
SYNDICATED LOAN COMMITMENT: $30,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 12%
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Address for Notices: THE FIRST NATIONAL BANK OF
CHICAGO
One First Xxxxxxxx Xxxxx - XX 0000
Xxxxxxx, Xxxxxxxx 00000-0000 By:/s/ Xxxxx X. Xxxxxxx
Attention: Xxxxxxx Xxxx ---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Lending Office and Payment Office:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
SYNDICATED LOAN COMMITMENT: $25,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 10%
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