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REVOLVING CREDIT AGREEMENT
among
FIRST DATA CORPORATION,
and
The Banks, Swing Line Banks and Other Financial Institutions Parties Hereto
and
BANK ONE, NA,
BANK OF AMERICA, N.A.
and
CITICORP USA, INC.
as Syndication Agents
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
Dated as of November 3, 2000
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS............................................. 1
1.1 Defined Terms............................................. 1
1.2 Other Definitional Provisions............................. 15
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS......................... 15
2.1 Commitments............................................... 15
2.2 Revolving Credit Notes.................................... 16
2.3 Procedure for Borrowing................................... 16
2.4 Fees...................................................... 17
2.5 Termination or Reduction of Commitments................... 17
2.6 Optional Prepayments...................................... 17
2.7 Conversion and Continuation Options....................... 18
2.8 Minimum Amounts of Tranches............................... 18
2.9 Interest Rates and Payment Dates.......................... 19
2.10 Computation of Interest and Fees.......................... 19
2.11 Inability to Determine Interest Rate...................... 20
2.12 Pro Rata Treatment and Payments........................... 20
2.13 Illegality................................................ 21
2.14 Requirements of Law....................................... 21
2.15 Taxes..................................................... 23
2.16 Indemnity................................................. 24
2.17 Action of Affected Banks.................................. 24
2.18 Bid Loans................................................. 25
2.19 Swing Line Commitments.................................... 27
2.20 Increase of Commitments................................... 31
2.21 Payment in Full at Maturity............................... 31
SECTION 3. REPRESENTATIONS AND WARRANTIES......................... 32
3.1 Financial Condition....................................... 32
3.2 No Change................................................. 32
3.3 Corporate Existence; Compliance with Law.................. 32
3.4 Corporate Power; Authorization; Enforceable Obligations... 33
3.5 No Legal Bar.............................................. 33
3.6 No Material Litigation.................................... 33
3.7 No Default................................................ 33
3.8 Taxes..................................................... 33
3.9 Federal Regulations....................................... 33
3.10 ERISA..................................................... 34
3.11 Investment Company Act; Other Regulations................. 34
3.12 Purpose of Loans.......................................... 34
3.13 Disclosure................................................ 34
3.14 Ranking................................................... 34
SECTION 4. CONDITIONS PRECEDENT.................................... 34
4.1 Conditions to Effectiveness............................... 34
4.2 Conditions to Each Loan................................... 36
SECTION 5. AFFIRMATIVE COVENANTS................................... 36
5.1 Financial Statements...................................... 36
5.2 Certificates; Other Information........................... 37
5.3 Conduct of Business and Maintenance of Existence.......... 38
5.4 Inspection of Property; Books, Records and Discussions.... 38
5.5 Notices................................................... 38
SECTION 6. NEGATIVE COVENANTS...................................... 39
6.1 Interest Coverage......................................... 39
6.2 Limitation on Significant Subsidiary Indebtedness......... 39
6.3 Limitation on Liens....................................... 39
6.4 Limitation on Sales and Leasebacks........................ 41
6.5 Limitations on Fundamental Changes........................ 41
6.6 Limitations on Restrictions on Dividends.................. 42
SECTION 7. EVENTS OF DEFAULT....................................... 42
SECTION 8. THE ADMINISTRATIVE AGENT................................ 44
8.1 Appointment............................................... 44
8.2 Delegation of Duties...................................... 44
8.3 Exculpatory Provisions.................................... 45
8.4 Reliance by Administrative Agent.......................... 45
8.5 Notice of Default......................................... 45
8.6 Non-Reliance on Administrative Agent and Other Banks...... 46
8.7 Indemnification........................................... 46
8.8 Administrative Agent in Its Individual Capacity........... 46
8.9 Successor Administrative Agent............................ 47
8.10 Co-Agents, Syndication Agents, Managing Agents etc........ 47
SECTION 9. MISCELLANEOUS........................................... 47
9.1 Amendments and Waivers.................................... 47
9.2 Notices................................................... 48
9.3 No Waiver; Cumulative Remedies............................ 49
9.4 Survival of Representations and Warranties................ 49
9.5 Payment of Expenses and Taxes............................. 49
9.6 Successors and Assigns; Participations; Purchasing Banks.. 50
9.7 Adjustments; Set-off...................................... 53
9.8 Confidentiality........................................... 54
9.9 Counterparts.............................................. 54
9.10 Severability.............................................. 54
9.11 Integration............................................... 54
9.12 GOVERNING LAW............................................. 54
9.13 Submission To Jurisdiction; Waivers....................... 55
ii
9.14 Acknowledgements.......................................... 55
9.15 WAIVERS OF JURY TRIAL..................................... 55
Schedules
Schedule 1.1 Banks and Commitments
Schedule 3.6 Material Litigation
Exhibits
Exhibit A Revolving Credit Note
Exhibit B Borrowing Certificate
Exhibit C Opinion of Associate General Counsel
Exhibit D Commitment Transfer Supplement
Exhibit E Bid Note
Exhibit F Bid Quote
Exhibit G Bid Loan Confirmation
Exhibit H Bid Loan Request
Exhibit I Form of Swing Line Note
Exhibit J Form of Commitment Increase Supplement
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REVOLVING CREDIT AGREEMENT, dated as of November 3, 2000, among FIRST
DATA CORPORATION, a Delaware corporation (the "Company"), the several banks and
other financial institutions from time to time parties to this Agreement (the
"Banks"), THE CHASE MANHATTAN BANK, BANK ONE, N.A., BANK OF AMERICA, N.A., THE
BANK OF NEW YORK, THE SUNTRUST BANK, ATLANTA and WACHOVIA BANK OF GEORGIA, N.A.,
each in its capacity as a swing line bank under subsection 2.19 (in such
capacity, together with their respective successors in such capacity,
individually, a "Swing Line Bank" and, collectively, the "Swing Line Banks"),
BANK OF AMERICA, N.A., a national banking association, BANK ONE, NA, a national
banking association, and CITICORP USA, INC., a national banking association, as
syndication agents (in such capacity, the "Syndication Agents") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as administrative agent for the
Banks hereunder (in such capacity, the "Administrative Agent").
WHEREAS, the Company has requested the Banks to make, and the Banks
are willing to make, subject to the terms and conditions hereof, Loans (as
hereinafter defined) to the Company;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": Alternate Base Rate, which shall be, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1% ) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the C/D Base Rate
adjusted for reserves and FDIC assessments plus 1% per annum and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors); "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. "C/D Base
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; and "Three-Month Secondary CD Rate" shall mean,
for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not
be a Business Day, the next preceding Business Day) by the Federal Reserve
Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative
Agent from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the ABR shall be determined without regard to clause (c) of
the first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the ABR due to a change in
the Prime Rate, the C/D Base Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such
change in the Prime Rate, the C/D Base Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities 3 having ordinary voting
power for the election of directors (or persons per forming similar
functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Revolving Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each day for each Type of Loan,
the rate per annum based on the Ratings in effect on such day, as set forth
under the relevant column heading below:
Eurodollar
Rating Loans
--------- ------------
Rating I .0900%
Rating II .1300%
Rating III .1800%
Rating IV .2400%
Rating V .5250%
Rating VI .5750%
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"Available Commitment": as to any Bank at any time, an amount equal to
the excess, if any, of (a) the amount of such Bank's Commitment over (b)
the aggregate principal amount of all Loans made by such Bank then
outstanding.
"Bid Loan": each advance made to the Company pursuant to subsection
2.18.
"Bid Loan Confirmation": a bid loan confirmation, substantially in the
form of Exhibit G, to be delivered by the Company to the Administrative
Agent in accordance with subsection 2.18(b)(iv).
"Bid Loan Request": a bid loan request, substantially in the form of
Exhibit H, to be delivered by the Company to the Administrative Agent in
accordance with subsection 2.18(b)(i) in writing, by facsimile
transmission, or by telephone immediately confirmed by facsimile
transmission.
"Bid Note": as defined in subsection 2.18.
"Bid Quote": a bid quote substantially in the form of Exhibit F, to be
delivered by a Bank to the Administrative Agent in accordance with
subsection 2.18(b) in writing, by facsimile transmission, or by telephone
immediately confirmed by facsimile transmission.
"Borrowing Certificate": a notice of borrowing and certificate of the
Company substantially in the form of Exhibit B.
"Borrowing Date": any Business Day specified in a notice furnished
pursuant to subsection 2.3, 2.18 or 2.19 as a date on which the Company
requests the Banks or the Swing Line Banks, as the case may be, to make
Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close; provided, however, that when used to describe the date of any
borrowing of, or any payment or interest rate determination in respect of,
a Eurodollar Loan or a LIBOR Bid Loan, the term "Business Day" shall also
exclude any day on which commercial banks are not open for dealings in
Dollar deposits in the London interbank market.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"C/D Assessment Rate": for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of
12 C.F.R. Sect. 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
3
"C/D Reserve Percentage": for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Federal
Reserve Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Federal Reserve
Board as in effect from time to time) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Change of Control": any acquisition by any Person or Group of
Persons, either directly or indirectly, of (a) the power to elect, appoint
or cause the election or appointment of at least a majority of the members
of the Board of Directors of the Company (or any other Person to which all
or substantially all of the proper ties and assets of the Company have been
transferred), through beneficial ownership of the Capital Stock of the
Company (or such other Person) or through contract, agreement, arrangement
or proxy, or (b) all or substantially all of the properties and assets of
the Company.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Closing Date": the date on which this Agreement becomes effective in
accordance with subsection 4.1.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Bank, the obligation of such Bank (a) to make
Revolving Credit Loans to the Company hereunder and (b) to participate in
Swing Line Loans made to the Company hereunder, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Bank's name on Schedule 1.1 or in the Commitment Transfer
Supplement pursuant to which it became a Bank, as such amount may be
reduced pursuant to subsection 2.5 or subsection 9.6 or increased pursuant
to subsection 2.20 or subsection 9.6.
"Commitment Percentage": as to any Bank at any time, the percentage of
the aggregate Commitments then constituted by such Bank's Commitment.
"Commitment Period": the period from and including the Closing Date to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Committed Swing Line Loan": as defined in subsection 2.19(a).
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Competitor": any Person significantly and directly engaged in the
business of (x) providing information or processing services to third
parties particularly in the transaction card (such as credit cards, debit
cards and retail cards) processing or mutual fund business or (y) payment
instruments or consumer funds transfers.
4
"Consolidated Net Assets": the gross book value of the assets of the
Company and its Subsidiaries (which under GAAP would appear on the
consolidated balance sheet of the Company and its Subsidiaries) less all
reserves (including, without limitation, depreciation, depletion and
amortization) applicable thereto and less (i) minority interests and (ii)
liabilities which, under GAAP, would be classified as current liabilities.
"Consolidated Net Income": the net income of the Company and its
Subsidiaries (which under GAAP would appear on the consolidated income
statement of the Company and its Subsidiaries), excluding, however, (i) any
equity of the Company or a Subsidiary in the unremitted earnings of any
corporation which is not a Subsidiary, (ii) gains from the write-up in the
book value of any asset subsequent to December 31, 1999 and (iii) in the
case of an acquisition of any Person which is accounted for on a purchase
basis, earnings of such Person prior to its becoming a Subsidiary.
"Consolidated Net Worth": the sum of (i) the par value (or value
stated on the books of such corporation) of the capital stock of all
classes of the Company and its Subsidiaries, plus (or minus in the case of
a deficit) (ii) the amount of the consolidated surplus, whether capital or
earned, of the Company and its Subsidiaries, and plus (or minus in the case
of a deficit) (iii) retained earnings of the Company and its Subsidiaries,
all as determined in accordance with GAAP; provided, however, that
Consolidated Net Worth shall exclude the effects of currency translation
adjustments and the application of FAS 115.
"Consolidated Operating Income": the sum of (i) Consolidated Net
Income, (ii) provisions for federal, state and local income taxes of the
Company and its Subsidiaries determined in accordance with GAAP and (iii)
Interest Expense of the Company and its Subsidiaries.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Dollar Loans": the collective reference to Fixed Rate Bid
Loans and ABR Loans.
"Engagement Letter": the Engagement and Commitment letter, dated
September 29, 2000, among Chase, Chase Securities Inc. and the Company.
"Environmental Laws": any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental
protection matters.
5
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Administrative Agent by each of the Reference Banks
as the rate at which such Reference Bank is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the inter bank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of its Eurodollar Loan to be outstanding
during such Interest Period.
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Excluded Individuals": with respect to any Person, the officers,
directors, employees, agents and representatives of such Person involved,
directly or indirectly, in (a) any aspect of its transaction card business,
such as credit cards, debit cards or retail cards, (b) the securities
investment decisions of such Person whether made for its own account or the
accounts of others, (c) the payment instruments and consumer funds transfer
business of such Person or (d) the transfer agent services and custodial
accounts business of such Person.
"Existing Credit Agreement": the Revolving Credit Agreement, dated as
of April 1, 1997, among the Company, the several banks and other financial
institutions parties thereto and Chase (formerly known as Chemical Bank),
as administrative agent thereunder.
6
"Facility Fee Rate": for each day during each calculation period, a
rate per annum based on the Ratings in effect on such day, as set forth
below:
Facility
Rating Fee Rate
------ --------
Rating I .0600%
Rating II .0700%
Rating III .0800%
Rating IV .0900%
Rating V .1250%
Rating VI .1750%
"Federal Reserve Board": the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its principal
functions.
"FFB": First Financial Bank, a banking corporation duly organized and
validly existing under the laws of the State of Georgia and an indirect
wholly-owned Subsidiary of the Company.
"FFB Account": a deposit account established by FFB with Chase with
the Account No. 9102684983 and any successor deposit account of FFB
designated in writing to the Administrative Agent by the Company.
"FFB Advances": as defined in subsection 2.19(a).
"FFB Representative": such Person or Persons from time to time
designated in writing to the Administrative Agent by an officer of the
Company for purposes of delivering a notice of borrowing pursuant to
subsection 2.19(a).
"Federal Funds Rate": for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b)
if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Chase on such day on such
transactions as determined by the Administrative Agent.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate Bid Loan": any Bid Loan made at a fixed rate (as opposed
to a rate based upon the LIBOR Rate).
7
"Fixed Rate Bid Loan Request": any Bid Loan Request requesting the
Banks to offer to make Fixed Rate Bid Loans.
"Funded Debt": any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with GAAP, be
classified as long-term debt, but in any event including all indebtedness
for money borrowed, whether secured or unsecured, maturing more than one
year, or extendible at the option of the obligor to a date more than one
year, after the date of determination thereof (excluding any amount thereof
included in current liabilities).
"GAAP": as to a particular Person, such accounting principles as, in
the opinion of the independent public accountants regularly retained by
such Person, conform at the time to United States generally accepted
accounting principles.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Group of Persons" means any related Persons that would constitute a
"group" for purposes of Section 13(d) and Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (as such Section and Rule are in effect as
of the date of this Agreement).
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
and without duplication, any obligation of (a) the guaranteeing person or
(b) another Person (including, without limitation, any bank under any
letter of credit) to induce the creation of which the guaranteeing person
has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness (the
"primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or other wise to
maintain the net worth or solvency of the primary obligor or (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation; provided,
however, that the term Guarantee Obligation shall not include (x)
endorsements of instruments for deposit or collection in the ordinary
course of business, (y) any bond or guarantee given by the Company or any
Subsidiary on behalf of any Subsidiary solely for the performance of
contractual obligations with customers or on behalf of customers in the
ordinary course of business or (z) leasehold guarantees provided by the
Company in connection with properties leased in the United Kingdom. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the
8
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in
good faith.
"Indebtedness": of any Person at any date and without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices or endorsements for the purpose of
collection in the ordinary course of business and excluding the deferred
purchase price of property or services to be repaid through earnings of the
purchaser to the extent such amount is not characterized as indebtedness in
accordance with GAAP), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the account of
such Person and (e) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof. For the purposes of this
definition, (i) the issuance of payment instruments, consumer funds
transfers, mutual fund dividend payments or redemption amounts, or other
amounts paid to or received by the Company, any of its Subsidiaries or any
agent thereof in the ordinary course of business in order for the Company
or such Subsidiary to make further distribution to a third party shall not
constitute "Indebtedness", in each case to the extent payment in respect
thereof has been received by the Company, such Subsidiary or any agent
thereof and (ii) temporary overdraft obligations incurred in the ordinary
course of business in connection with settlement procedures between
merchants and transaction card issuers shall not constitute "Indebtedness".
"Information Materials": the Confidential Information Memorandum dated
October 2000 in respect of the transactions contemplated hereby sent by
Chase to each of the Banks, including all supplements and amendments
thereto.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Expense": with respect to the Indebtedness of the Company
and its Subsidiaries for the applicable period, all amounts which would, in
accordance with GAAP, be incurred or expensed during such period with
respect to interest on such Indebtedness, including, without limitation,
(i) imputed interest in respect of Financing Leases, (ii) amortization of
debt discount expense and (iii) capitalized interest expense, but
excluding, in any event, any amounts included therein with respect to
Purchased Receivables Financings.
"Interest Payment Date": (a) as to any ABR Loan other than a Swing
Line Loan, the last day of each March, June, September and December and the
Termination Date,
9
(b) as to any Eurodollar Loan or LIBOR Bid Loan having an Interest Period
of three months or less or any Fixed Rate Bid Loan having an Interest
Period of 90 days or less, the last day of such Interest Period, (c) as to
any Eurodollar Loan, LIBOR Bid Loan, or Fixed Rate Bid Loan having an
Interest Period longer than three months or 90 days, respectively, each day
which is three months or 90 days, respectively, or a whole multiple
thereof, after the first day of such Interest Period and the last day of
such Interest Period and (d) as to any Swing Line Loan, each of the dates
occurring at thirty day intervals after the Borrowing Date of such Swing
Line Loan and the date of payment of principal thereof.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Company in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Company by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto; and
(b) with respect to any Bid Loan, the period specified in the Bid Loan
Confirmation with respect to such Bid Loan;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or a
LIBOR Bid Loan would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(B) if any Interest Period pertaining to a Fixed Rate Bid Loan
would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day;
(C) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(D) any Interest Period pertaining to a Eurodollar Loan or LIBOR
Bid Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
10
"LIBOR Bid Loan": any Bid Loan made and/or being maintained at a rate
of interest based upon the LIBOR Rate.
"LIBOR Bid Loan Request": any Bid Loan Request requesting the Banks to
offer to make LIBOR Bid Loans.
"LIBOR Rate": in respect of any Bid Loan requested pursuant to a LIBOR
Bid Loan Request, the London interbank offered rate for deposits in Dollars
for the period commencing on the date of such Bid Loan and ending on the
maturity date thereof which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing), it being understood that the holding of money or
investments for the purpose of honoring payment instruments shall not be
considered a "Lien" for the purposes of this definition.
"Loan Documents": this Agreement and the Notes.
"Loans": Revolving Credit Loans, Swing Line Loans and Bid Loans.
"Majority Banks": at any time, the Banks holding more than 50% of the
aggregate amount of the Commitments or, if no Commitments are then in
effect, the Banks holding (or under Subsection 2.19(e) participating in)
more than 50% of the aggregate unpaid principal amount of the Loans.
"Material Adverse Effect": a material adverse effect on the ability of
the Company to perform its obligations under this Agreement or the Notes.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to the Revolving Credit Notes, the
Swing Line Notes and Bid Notes.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Participant": as defined in subsection 9.6(b).
11
"Person": an individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Principal Facility": the real property, fixtures, machinery and
equipment relating to any facility owned by the Company or any Subsidiary,
except for any facility that, in the opinion of the Board of Directors of
the Company, is not of material importance to the business conducted by the
Company and its Subsidiaries, taken as a whole.
"Purchased Receivables": accounts receivable purchased by the Company
or any of its Subsidiaries from third parties and not originally created by
the sale of goods or services by the Company or any of its Subsidiaries.
"Purchased Receivables Financing": any financing transaction pursuant
to which Purchased Receivables are sold, transferred, securitized or
otherwise financed by any Receivables Subsidiary and as to which there is
no recourse to the Company or any of its other Subsidiaries (other than
customary representations and warranties made in connection with the sale
or transfer of Purchased Receivables).
"Purchasing Banks": as defined in subsection 9.6(c).
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt of
the Company, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Xxxxx'x.
"Rating Category": each of Rating I, Rating II, Rating III, Rating IV,
Rating V and Rating VI.
"Rating I", "Rating II", "Rating III", "Rating IV", "Rating V" and
"Rating VI": the respective Ratings set forth below:
Rating
Category S&P Xxxxx'x
-------- --- -------
Rating I greater than or greater than or
equal to AA- equal to Aa3
Rating II equal to A+ equal to A1
Rating III equal to A equal to A2
Rating IV equal to A- equal to A3
Rating V equal to BBB+ equal to Baa1
Rating VI equal to or equal to or
less than BBB less than Baa2
12
; provided, that (i) if on any day the Ratings of the Rating Agencies do
not fall in the same Rating Category, and the lower of such Ratings (i.e.,
the Rating Category designated by a numerically higher Roman numeral) is
one Rating Category lower than the higher of such Ratings, then the Rating
Category of the higher of such Ratings shall be applicable for such day,
(ii) if on any day the Ratings of the Rating Agencies do not fall in the
same Rating Category, and the lower of such Ratings is more than one Rating
Category lower than the higher of such Ratings, then the Rating Category
next lower from that of the higher of such Ratings shall be applicable for
such day, (iii) if on any day the Rating of only one of the Rating Agencies
is available, then the Rating Category determined by such Rating shall be
applicable for such day and (iv) if on any day a Rating is available from
neither of the Rating Agencies, then Rating VI shall be applicable for such
day. Any change in the applicable Rating Category resulting from a change
in the Rating of a Rating Agency shall become effective on the date such
change is publicly announced by such Rating Agency.
"Receivables Subsidiary": any Subsidiary of the Company which
purchases Purchased Receivables directly or to which Purchased Receivables
are transferred by the Company or any of its Subsidiaries, in either case
with the intention of engaging in a Purchased Receivables Financing.
"Reference Banks": Chase, Bank of America, N.A. and The Bank of New
York.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System.
"Regulation X": Regulation X of the Board of Governors of the Federal
Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg.
(S)2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law (including, without limitation, Environmental
Laws), 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.
13
"Responsible Officer": the chairman and the chief executive officer of
the Company, the chief financial officer of the Company, the treasurer of
the Company or the senior vice president-finance of the Company.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"S&P": Standard & Poor's Ratings Services.
"Short-Term Ratings": with respect to any Person, the short-term debt
ratings of such Person issued by the Rating Agencies.
"Significant Subsidiary": at any date, any Subsidiary of the Company
which, together with its Subsidiaries, (i) has a proportionate share of
Consolidated Net Assets that exceeds 10% at the time of determination or
(ii) has equity in the Consolidated Net Income that exceeds 10% for the
period of the four most recently completed fiscal quarters preceding the
time of determination.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Swing Line Commitment": the obligation of each Swing Line Bank to
make Committed Swing Line Loans pursuant to subsection 2.19 in an aggregate
amount at any one time outstanding up to but not exceeding the amount set
opposite such Swing Line Bank's name on Schedule 1.1 hereto under the
caption "Swing Line Commitment" (as the same may be reduced at any time or
from time to time pursuant to subsection 2.5).
"Swing Line Loan": as defined in subsection 2.19(a).
"Swing Line Margin": as defined in subsection 2.19(c).
"Swing Line Note": as defined in subsection 2.19(b).
"Swing Line Quote": shall mean an offer in accordance with Section
2.19(c) hereof by a Swing Line Bank to make an Uncommitted Swing Line Loan
with a specified Swing Line Margin.
"Swing Line Request": as defined in subsection 2.19(c).
14
"Termination Date": November 3, 2005.
"Tranche": the reference to Eurodollar Loans the Interest Periods with
respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day); Tranches may be identified as "Eurodollar Tranches".
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uncommitted Swing Line Loan": as defined in subsection 2.19(c).
"Unrefunded Swing Line Loans": as defined in subsection 2.19(e).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) 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 Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof, each
Bank severally agrees to make revolving credit loans (each, a "Revolving Credit
Loan"; collectively, the "Revolving Credit Loans") to the Company from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to the amount of such Bank's Commitment
Percentage of the aggregate principal amount of all Swing Line Loans then
outstanding, shall not exceed the amount of such Bank's Commitment; provided
that, after giving effect to the use of proceeds of Revolving Credit Loans to
repay any Swing Line Loans, the aggregate principal amount of Revolving Credit
Loans, Swing Line Loans and Bid Loans outstanding at any one time shall not
exceed the aggregate amount of the Commitments at such time and provided further
that the aggregate unpaid principal amount of all Swing Line Loans and Revolving
Credit Loans made by any Swing Line Bank shall not exceed (i) the greater of the
Commitment of such Swing Line Bank and (ii) the Swing Line Commitment of such
Swing Line Bank. During the Commitment Period the Company may use the
Commitments by
15
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans, or (iii) a combination thereof, as determined by the
Company and notified to the Administrative Agent in accordance with subsections
2.3 and 2.7, provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
Bank shall be evidenced by a promissory note of the Company, substantially in
the form of Exhibit A with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of such Bank
and in a principal amount equal to the aggregate unpaid principal amount of all
Revolving Credit Loans made by such Bank. Each Bank is hereby authorized to
record the date, Type and amount of each Revolving Credit Loan made by such
Bank, each continuation thereof, each conversion of all or a portion thereof to
another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto, on the schedule annexed to and constituting a part of its
Revolving Credit Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded, provided that the
failure of any Bank to make any such recordation (or any error in such
recordation) shall not affect the obligations of the Company hereunder or under
any Revolving Credit Note in respect of the Revolving Credit Loans. Each
Revolving Credit Note shall (x) be dated the Closing Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of interest in
accordance with subsection 2.9.
2.3 Procedure for Borrowing. The Company may borrow under the
Commitments during the Commitment Period on any Business Day, provided that the
Company shall deliver to the Administrative Agent a Borrowing Certificate (which
certificate to be effective on the requested Borrowing Date must be received by
the Administrative Agent (a) prior to noon, New York City time, three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, (b) prior to noon,
New York City time, on the requested Borrowing Date, otherwise), specifying (i)
the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
aggregate amount of such Eurodollar Loans and the amounts of each such
Eurodollar Loan and the respective length of the initial Interest Period
therefor. Each borrowing under the Commitments shall be in an amount equal to
(x) in the case of ABR Loans other than a Swing Line Loan, $5,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Available Commitments
are less than $5,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of a Borrowing Certificate, the Administrative Agent shall promptly
notify each Bank thereof. Each Bank will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the
Company at the office of the Administrative Agent specified in subsection 9.2
prior to 2:00 P.M., New York City time in the case of ABR Loans and 11:00 A.M.,
New York City time in the case of Eurodollar Loans, on the Borrowing Date
requested by the Company in funds
16
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Company by the Administrative Agent crediting the account
of the Company on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Banks and in like funds as
received by the Administrative Agent.
2.4 Fees. (a) The Company agrees to pay to the Administrative Agent,
for the account of each Bank, a facility fee for the period from and including
the Closing Date through the Termination Date, calculated as an amount equal to
the product of (i) the Facility Fee Rate and (ii) the average daily amount of
the Commitment of such Bank (regardless of usage) during the period for which
such facility fee is calculated, payable in arrears on the last day of each
December, March, June and September (for the quarterly period ended on such
date) and on the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein (for the period from the last quarterly
payment date to the Termination Date or such other date, as applicable). Such
payments shall commence on December 31, 2000, and such first payment shall be
for the period from the Closing Date through December 31, 2000.
(b) The Company agrees to pay to the Administrative Agent for its own
account or the account of Chase or Chase Securities Inc., as the case may be,
the fees in the respective amounts and at the respective times set forth in the
Engagement Letter, dated September 29, 2000, and the Fee Letter, dated September
26, 2000, among Chase, Chase Securities Inc. and the Company.
(c) If on any date the aggregate outstanding principal amount of Loans
hereunder exceeds 50% of the aggregate Commitments of all Lenders hereunder, the
Company will pay to the Administrative Agent for the ratable benefit of the
Lenders a utilization fee (the "Utilization Fee") at a per annum rate equal to
10.0 basis points on the outstanding principal amount of Revolving Credit Loans
and Swing Line Loans, payable in arrears on the last day of each December,
March, June and September (for the quarterly period ended on such date) and on
the Termination Date.
2.5 Termination or Reduction of Commitments. The Company shall have
the right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate the Commitments or, from time to time, to reduce the amount
of the Commitments, provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the aggregate principal amount of the Loans
then outstanding would exceed the Commitments then in effect. Upon receipt of
any such notice the Administrative Agent shall promptly notify each Bank
thereof. Any such reduction shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently the
Commitments then in effect. Any reduction (to the extent that, after such
reduction, the Commitment of such Swing Line Bank shall be less than the Swing
Line Commitment of such Swing Line Bank) or termination of the Commitment of any
Swing Line Bank shall automatically result in a termination or reduction in an
equal amount of the Swing Line Commitment of such Swing Line Bank.
2.6 Optional Prepayments. Subject to subsection 2.16, the Company may
at any time and from time to time prepay the Revolving Credit Loans, in whole or
in part, without premium or penalty, upon irrevocable notice to the
Administrative Agent given prior to
17
10:00 A.M., New York City time, at least three Business Days in advance in the
case of Eurodollar Loans and on the requested prepayment date in the case of ABR
Loans, specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Bank thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. The Company shall not have the right to prepay any principal
amount of any Bid Loan without the prior written consent of the applicable Bank
then making such Bid Loan.
2.7 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert Eurodollar Loans to ABR Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Company may
elect from time to time to convert ABR Loans to Eurodollar Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Loans shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Bank thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may
be converted as provided herein, provided that (i) no Loan may be converted into
a Eurodollar Loan when any Event of Default has occurred and is continuing and
the Administrative Agent or the Majority Banks have determined that such a
conversion is not appropriate, (ii) any such conversion may only be made if,
after giving effect thereto, subsection 2.8 shall not have been contravened and
(iii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Company giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Banks have deter-mined
that such a continuation is not appropriate, (ii) if, after giving effect
thereto, subsection 2.8 would be contravened or (iii) after the date that is one
month prior to the Termination Date and provided, further, that if the Company
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Bank thereof. For purposes of this subsection,
any reference to an ABR Loan shall be deemed to exclude any Swing Line Loan.
2.8 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
18
2.9 Interest Rates and Payment Dates. (a) Each ABR Loan shall bear
interest at a rate per annum equal to the ABR.
(b) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin.
(c) Each Bid Loan shall bear interest as provided in subsection 2.18.
(d) Each Uncommitted Swing Line Loan shall bear interest as provided
in subsection 2.19; provided that upon any Bank acquiring a participation or a
direct interest in such Uncommitted Swing Line Loan pursuant to subsection
2.19(e), such Uncommitted Swing Line Loan shall bear interest at a rate per
annum equal to the ABR.
(e) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue interest,
the rate described in paragraph (a) of this subsection plus 2%, in each case
from the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(f) Interest on each Revolving Credit Loan and each Swing Line Loan
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (f) of this subsection shall be payable
on demand. Interest on each Bid Loan shall be payable as set forth in the
applicable Bid Note.
2.10 Computation of Interest and Fees. (a) Facility fees and, whenever
it is calculated on the basis of the Prime Rate, interest on ABR Loans shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed; otherwise, interest shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR shall become effective as of the opening of business on the
day on which such change in the ABR is announced or such change in the C/D
Assessment Rate or the C/D Reserve Percentage becomes effective, as the case may
be. The Administrative Agent shall as soon as practicable notify the Company and
the Banks of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error. The Administrative
Agent shall, at the request of the Company, deliver to the Company a statement
showing the quotations used by the Administrative Agent in determining any
interest rate pursuant to subsection 2.9(b) or (c).
19
2.11 Inability to Determine Interest Rate. In the event that prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
LIBOR Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Banks that the Eurodollar Rate or the LIBOR Rate determined or to
be determined for such Interest Period will not adequately and fairly
reflect the cost to such Banks (as conclusively certified by such Banks) of
making or maintaining their affected Loans during such Interest Period, the
Administrative Agent shall give telecopy or telephonic (confirmed in
writing) notice thereof to the Company and the Banks as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans or LIBOR Bid
Loans, as the case may be, requested to be made on the first day of such
Interest Period shall be made as ABR Loans or Fixed Rate Bid Loans based
upon the ABR, (y) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be converted to or
continued as ABR Loans and (z) any Loans that pursuant to subsection 2.7(b)
were to have been continued on the first day of such Interest Period as
Eurodollar Loans shall be converted to ABR Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans or
LIBOR Bid Loans, as the case may be, shall be made or continued as such,
nor shall the Company have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing of
Revolving Credit Loans by the Company from the Banks hereunder, each payment by
the Company on account of any fees payable to the Banks hereunder and any
reduction of the Commitments of the Banks shall be made pro rata according to
the respective Commitment Percentages of the Banks. Each payment (including
each prepayment) by the Company on account of principal of and interest on the
Revolving Credit Loans shall be made pro rata according to the respective
aggregate amounts of principal and interest then due and owing in respect of the
Revolving Credit Loans. Except as otherwise provided in subsection 2.19, all
payments (including prepayments) to be made by the Company hereunder and under
the Notes, whether on account of principal, interest, fees or otherwise, shall
be made without set off, counterclaim or any other deduction whatsoever and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Banks, at the Administrative
Agent's office specified in subsection 9.2, in Dollars and in immediately
available funds, and upon receipt by the Administrative Agent of any payment
made by the Company in accordance with the terms of this Agreement and the
Notes, the Company shall have satisfied its payment obligation with respect to
the obligation on account of which such payment was made. Except as other wise
provided in subsection 2.19, any such payment made at or after 12:00 Noon, New
York City time, on such day shall be deemed made on the following Business Day.
The Administrative Agent shall distribute such payments to the Banks promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon
20
shall be payable at the then applicable rate during such extension. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make the
amount that would constitute its Commitment Percentage of the borrowing of a
Revolving Credit Loan on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such Borrowing Date, and the Administrative Agent
may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such Borrowing Date, such Bank shall pay to the
Administrative Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate (as defined in the definition of "ABR")
during such period as quoted by the Administrative Agent, (ii) the amount of
such Bank's Commitment Percentage of such borrowing, and (iii) a fraction the
numerator of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Bank's Commitment Percentage of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Bank with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Bank's Commitment
Percentage of such borrowing is not in fact made available to the Administrative
Agent by such Bank within three Business Days of such Borrowing Date, the
Administrative Agent shall be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from
the Company.
2.13 Illegality. Notwithstanding any other provision herein, if any
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Bank to make or maintain Eurodollar Loans or
LIBOR Bid Loans as contemplated by this Agreement, (a) the commitment of such
Bank hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Domestic Dollar Loans to Eurodollar Loans shall forthwith be cancelled
and (b) such Bank's Loans then outstanding as Eurodollar Loans or LIBOR Bid
Loans, if any, shall be converted automatically to ABR Loans or Fixed Rate Bid
Loans based upon the ABR on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan or LIBOR Bid Loans
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Company shall pay to such Bank such amounts, if any,
as may be required pursuant to subsection 2.16.
2.14 Requirements of Law. (a) In the event that Eurocurrency Reserve
Requirements or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
21
(i) shall subject any Bank to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan or LIBOR
Bid Loan made by it, or change the basis of taxation of payments to
such Bank in respect thereof (except for taxes covered by subsection
2.15 and changes in franchise taxes or the rate of tax on the overall
net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Bank which is not otherwise included in
the determination of the Eurodollar Rate or the interest rate
applicable to any Bid Loan hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Bid Loans, or to reduce any amount
receivable hereunder in respect thereof then, in any such case, the Company
shall promptly pay such Bank, upon its demand, any additional amounts necessary
to compensate such Bank for such increased cost or reduced amount receivable.
If any Bank becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Company, through the Administrative
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Bank, through the Administrative Agent, to the Company in good faith and
setting forth in reasonable detail the calculation of such amounts shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the second anniversary of such payment and termination.
(b) In the event that any Bank or corporation controlling such Bank
shall have determined that any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof or
compliance by such Bank or such corporation with any request or directive
regarding capital adequacy (whether or not having the force of law) from
any Governmental Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such
Bank could have achieved but for such change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, after
submission by such Bank in good faith to the Company (with a copy to the
Administrative Agent) of a written request therefor setting forth in
reasonable detail the calculation of such amount (which request shall be
conclusive in the absence of manifest error), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank for
such reduction. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable
hereunder until the second anniversary of such payment and termination.
22
2.15 Taxes. (a) Subject to subsection 2.15(b) or 9.6(g), as
appropriate, all payments made by the Company under this Agreement and the Notes
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding, in the case of the Administrative Agent and each Bank, net income
taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or such Bank, as the case may be, as a result of a present
or former connection between the jurisdiction of the government or taxing
authority imposing such tax and the Administrative Agent or such Bank (excluding
a connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Bank hereunder or under the Notes, the amounts
so payable to the Administrative Agent or such Bank (so long as such Bank is in
compliance with subsection 2.15(b) or 9.6(g), as appropriate and if applicable)
shall be increased to the extent necessary to yield to the Administrative Agent
or such Bank (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes. Whenever any Taxes are payable by the Company, as promptly as
possible thereafter the Company shall send to the Administrative Agent for its
own account or for the account of such Bank, as the case may be, a certified
copy of an original official receipt received by the Company showing payment
thereof. If the Company fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Company shall indemnify the
Administrative Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Bank as a
result of any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
(b) Each Bank party to this Agreement on the Closing Date that is not
incorporated under the laws of the United States of America or a state thereof
agrees that, on or prior to the Closing Date, it will deliver to the Company and
the Administrative Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Bank also agrees to deliver to the Company and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company, and such extensions or
renewals thereof as may reasonably be requested by the Company or the
Administrative Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank so advises the
Company and the Administrative Agent. Such Bank shall certify (i) in the case
of a Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without
23
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax.
2.16 Indemnity. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Company in payment when due of the
principal amount of or interest on any Eurodollar Loan or Bid Loan, (b) default
by the Company in making a borrowing or conversion after the Company has given
(or is deemed to have given) a notice in accordance with subsection 2.18 (so
long as the Company shall have accepted a Bid Loan offered in connection with
any such notice), (c) default by the Company in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Company has given
a notice requesting the same in accordance with the provisions of this
Agreement, (d) default by the Company in making any prepayment of Eurodollar
Loans after the Company has given a notice thereof in accordance with the
provisions of this Agreement or (e) the making of a prepayment or conversion, or
the purchase pursuant to subsection 2.17, of Eurodollar Loans, LIBOR Bid Loans
or Fixed Rate Bid Loans on a day which is not the last day of an Interest Period
with respect thereto, including, without limitation, in each case, any such loss
(other than non-receipt of the Applicable Margin or, without duplication,
anticipated profits) or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained (it being understood that any such calculation will be made on notional
amounts as the Banks are not required to show that they matched deposits
specifically). A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Bank, through the Administrative Agent, to the
Company in good faith shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Notes and all other amounts payable hereunder.
2.17 Action of Affected Banks. Each Bank agrees to use reasonable
efforts (including reasonable efforts to change the booking office for its
Loans) to avoid or minimize any illegality pursuant to subsection 2.13 or any
amounts which might otherwise be payable pursuant to subsection 2.14(a) or 2.15;
provided, however, that such efforts shall not cause the imposition on such Bank
of any additional costs or legal or regulatory burdens deemed by such Bank to be
material and shall not be deemed by such Bank to be otherwise contrary to its
policies. In the event that such reasonable efforts are insufficient to avoid
all such illegality or all amounts that might be payable pursuant to subsection
2.14(a) or 2.15, then such Bank (the "Affected Bank") shall use its reasonable
efforts to transfer to any other Bank (which itself is not then an Affected
Bank) its Loans and Commitment subject to the provisions of subsection 9.6(c);
provided, however, that such transfer shall not be deemed by such Affected Bank,
in its sole discretion, to be disadvantageous to it or contrary to its policies.
In the event that the Affected Bank is unable, or otherwise is unwilling, so to
transfer its Loans and Commitment, the Company may designate an alternate lender
(reasonably acceptable to the Administrative Agent) to purchase the Affected
Bank's Loans and Commitment, at par and including accrued interest, and, subject
to the provisions of subsection 9.6(c), the Affected Bank shall transfer its
Commitment to such alternate lender and such alternate lender shall become a
Bank hereunder. Any fee payable to the Administrative Agent pursuant to
subsection 9.6(e) in connection with such transfer shall be for the account of
the Company.
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2.18 Bid Loans. (a) The Company may request one or more Banks to
make offers to make Bid Loans from time to time on any Business Day during the
period from the Closing Date until the date seven days prior to the Termination
Date in the manner set forth in this subsection 2.18, provided that the
aggregate principal amount of all Revolving Credit Loans, Swing Line Loans and
Bid Loans outstanding at any one time shall not exceed the aggregate amount of
the Commitments at such time. Each Bank may, but shall have no obligation to,
make such offers, and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth herein.
(b)(i) The Company may request Bid Loans by delivering a Bid Loan
Request to the Administrative Agent, not later than 10:00 A.M. (New York City
time) four Business Days prior to the proposed Borrowing Date (in the case of a
LIBOR Bid Loan Request), and not later than 3:00 p.m. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
Bid Loan Request). Each Bid Loan Request shall solicit Bid Quotes for Bid Loans
in an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and for not more than four alternative maturity
dates for such Bid Loans, none of which shall be earlier than seven days from
the respective requested Borrowing Date or later than the earlier of (A) the
date (1) 180 days from the respective requested Borrowing Date in the case of a
Fixed Rate Bid Loan Request and (2) 6 months from the respective requested
Borrowing Date in the case of a LIBOR Bid Loan Request and (B) the Termination
Date. Bid Loan Requests may be submitted no more frequently than once during any
period of three successive Business Days. The Administrative Agent shall
promptly notify each Bank by facsimile transmission of the contents of each Bid
Loan Request received by it.
(ii) In the case of a LIBOR Bid Loan Request, upon receipt of notice
from the Administrative Agent of the contents of such Bid Loan Request, any Bank
that elects, in its sole discretion, to do so, may irrevocably offer to make one
or more Bid Loans at the LIBOR Rate plus or minus a margin for each such Bid
Loan determined by such Bank in its sole discretion. Any such irrevocable offer
shall be made by delivering a Bid Quote to the Administrative Agent, before
10:00 a.m. (New York City time) three Business Days before the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans for each maturity
date which such Bank would be willing to make (which amount may, subject to
subsection 2.1(a), exceed such Bank's Commitment) and the margin above or below
the LIBOR Rate at which such Bank is willing to make each such Bid Loan; the
Administrative Agent shall advise the Company before 10:30 a.m. (New York City
time) three Business Days before the proposed Borrowing Date, of the contents of
each such Bid Quote received by it. If the Administrative Agent in its capacity
as a Bank shall, in its sole discretion, elect to make any such offer, it shall
advise the Company of the contents of its Bid Quote before 9:45 a.m. (New York
City time) three Business Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate Bid Loan Request, upon receipt of
notice from the Administrative Agent of the contents of such Bid Loan Request,
any Bank that elects, in its sole discretion, to do so, may irrevocably offer to
make one or more Bid Loans at a rate or rates of interest for each such Bid Loan
determined by such Bank in its sole discretion. Any such irrevocable offer shall
be made by delivering a Bid Quote to the Administrative Agent, before 9:30 a.m.
(New York City time) on the proposed Borrowing Date, setting forth the maximum
amount of Bid Loans for each maturity date which such Bank would be willing to
make (which
25
amount may, subject to subsection 2.1(a), exceed such Bank's Commitment) and the
rate or rates of interest therefor; the Administrative Agent shall advise the
Company before 10:00 a.m. (New York City time) on the proposed Borrowing Date of
the contents of each such Bid Quote received by it. If the Administrative Agent
in its capacity as a Bank shall, in its sole discretion, elect to make any such
offer, it shall advise the Company of the contents of its Bid Quote before 9:15
a.m. (New York City time) on the proposed Borrowing Date.
(iv) The Company shall before 11:30 a.m. (New York City time) three
Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan
Request and before 10:30 a.m. (New York City time) on the proposed Borrowing
Date in the case of a Fixed Rate Bid Loan Request either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Bank or Banks
pursuant to clause (ii) or clause (iii) above, as the case may be, by
giving telephone notice (immediately confirmed by execution and
facsimile transmission of a Bid Loan Confirmation) to the
Administrative Agent of the amount of Bid Loans to be made by each
Bank (which amount shall be equal to or less than the maximum amount
requested to be made, but in no event less than $5,000,000 and in
integral multiples of $1,000,000 in excess thereof, notified to the
Company by the Administrative Agent on behalf of such Bank for such
Bid Loans pursuant to clause (ii) or clause (iii) above, as the case
may be), provided that the Company may not accept offers for Bid Loans
in an aggregate principal amount in excess of the maximum principal
amount requested in the related Bid Loan Request.
(v) If the Company notifies the Administrative Agent that a Bid Loan
Request is cancelled pursuant to clause (iv)(A) above, the Administrative Agent
shall give prompt telephone notice thereof to the Banks, and the Bid Loans
requested thereby shall not be made.
(vi) If the Company accepts one or more of the offers made by any
Bank or Banks pursuant to clause (iv)(B) above, the Administrative Agent shall
as promptly as practicable following receipt of the Company's acceptance, three
Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan
Request and on the proposed Borrowing Date in the case of a Fixed Rate Bid Loan
Request, notify each Bank which has made such an offer, of the aggregate amount
of such Bid Loans to be made on such Borrowing Date for each maturity date and
of the acceptance of any offers for each maturity date to make such Bid Loans
made by such Bank. Each Bank which is to make a Bid Loan shall, before 12:00
noon (New York City time) on the Borrowing Date specified in the Bid Loan
Request applicable thereto, make available to the Administrative Agent at its
office set forth in subsection 9.2 the amount of such Bank's Bid Loans, in
immediately available funds. The Administrative Agent will make such funds
available to the Company as soon as practicable on such date at the
Administrative Agent's aforesaid address.
(vii) Each Bid Loan shall be evidenced by a promissory note of the
Company, substantially in the form of Exhibit E, with appropriate insertions (a
"Bid Note"), payable to the
26
order of the applicable Bank and representing the obligation of the Company to
pay the unpaid principal amount of all Bid Loans made by such Bank, and to pay
interest thereon as prescribed in subsection 2.18(e). Each such Bank is hereby
authorized to record the date and amount of each Bid Loan made by such Bank, the
maturity date thereof, the date and amount of each payment of principal thereof
and the interest rate with respect thereto on the schedule annexed to and
constituting part of its Bid Note or in the books and records of such Bank in
such manner as is reasonable and customary, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided that the failure to make any such recordation shall not affect the
obligations of the Company hereunder or under any Bid Note. Each Bid Note shall
be dated the Closing Date and each Bid Loan evidenced thereby shall bear
interest for the period from and including the Borrowing Date thereof on the
unpaid principal amount thereof from time to time outstanding at the applicable
rate per annum determined as provided in, and such interest shall be payable as
specified in, subsection 2.18(e).
(c) Within the limits and on the conditions set forth in this
subsection 2.18, the Company may from time to time borrow under this subsection
2.18, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.18.
(d) The Company shall repay to the Administrative Agent for the
account of each Bank which has made a Bid Loan on the maturity date of each Bid
Loan (such maturity date being that specified by the Company for repayment of
such Bid Loan in the related Bid Loan Request) the then unpaid principal amount
of such Bid Loan. The Company shall not have the right to prepay any principal
amount of any Bid Loan without the prior written consent of the applicable Bank
then making such Bid Loan.
(e) The Company shall pay interest on the unpaid principal amount of
each Bid Loan from the date of such Bid Loan to the stated maturity date
thereof, at the rate of interest for such Bid Loan determined pursuant to
paragraph (b) above (calculated on the basis of a 360 day year for actual days
elapsed), payable on the Interest Payment Date specified by the Company for such
Bid Loan in the related Bid Loan Request as provided in the Bid Note evidencing
such Bid Loan.
2.19 Swing Line Commitments. (a) Subject to the terms and conditions
hereof and provided no Default or Event of Default shall have occurred and be
continuing, each Swing Line Bank hereby agrees to make swing line loans to the
Company (individually, a "Committed Swing Line Loan"; collectively the
"Committed Swing Line Loans" and together with the Uncommitted Swing Line Loans,
the "Swing Line Loans") from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed the Swing
Line Commitment of such Swing Line Bank; provided that the aggregate unpaid
principal amount of all Swing Line Loans, together with the aggregate unpaid
principal amount of all Revolving Credit Loans and all Bid Loans at any one time
outstanding, may not exceed the aggregate amount of the Commitments and provided
further that the aggregate unpaid principal amount of all Swing Line Loans and
Revolving Credit Loans made by any Swing Line Bank shall not exceed the
Commitment of such Swing Line Bank. Amounts borrowed by the Company under this
subsection 2.19 may be repaid and, through but excluding the Termination Date,
reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may
not be converted into Eurodollar Loans. Each borrowing of Swing Line Loans shall
be in an amount
27
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The
Company shall give the Administrative Agent (which shall promptly notify each
Swing Line Bank) irrevocable notice (which notice must be received by the
Administrative Agent prior to 3:00 p.m., New York City time) on the requested
Borrowing Date specifying the amount of the requested Committed Swing Line Loan
to be made by such Swing Line Bank; provided that the Company hereby irrevocably
authorizes the FFB Representative as agent of the Company to deliver such
notices to the Administrative Agent on behalf of the Company in respect of
Committed Swing Line Loans and any notices in respect of, and accept offers in
respect of, Uncommitted Swing Line Loans pursuant to subsection 2.19(c) (any
Swing Line Loans made pursuant to any such notice from FFB, "FFB Advances") in
the aggregate principal amount at any one time outstanding not in excess of
$25,000,000. The proceeds of each Committed Swing Line Loan shall be made
available by each Swing Line Bank to the Administrative Agent for the account of
the Company at the office of the Administrative Agent specified prior to 4:30
p.m. on the requested Borrowing Date; provided that the proceeds of FFB Advances
shall be made available by each Swing Line Bank by directly crediting the FFB
Account with such proceeds at the office of the Administrative Agent specified
prior to 4:30 p.m. on the requested Borrowing Date. The Company hereby
irrevocably agrees that any FFB Advance will constitute Swing Line Loans for all
purposes of this Agreement.
(b) The Swing Line Loans made by each Swing Line Bank to the Company
shall be evidenced by a promissory note of the Company substantially in the form
of Exhibit I, with appropriate insertions (the "Swing Line Note"), payable to
the order of such Swing Line Bank and representing the obligation of the Company
to pay the unpaid principal amount of the Swing Line Loans made to the Company,
with interest thereon as prescribed in subsection 2.9. Each Swing Line Bank is
hereby authorized to record the Borrowing Date, the amount of each Swing Line
Loan made to the Company and the date and amount of each payment or prepayment
of principal thereof, on the schedule annexed to and constituting a part of its
Swing Line Note (or any continuation thereof) and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded.
Each Swing Line Note shall (a) be dated the Closing Date, (b) be stated to
mature on the Termination Date and (c) bear interest for the period from the
date thereof to the Termination Date on the unpaid principal amount thereof from
time to time outstanding at the applicable interest rate per annum determined as
provided in, and payable as specified in, subsection 2.9.
(c) In addition to Committed Swing Line Loans made pursuant to
subsection 2.19(a), the Company may, on any Business Day prior to the
Termination Date, request the Swing Line Banks to make offers on such Business
Day to make a Swing Line Loan (an "Uncommitted Swing Line Loan"). The Swing Line
Banks may, but shall have no obligation to, make an offer to make an Uncommitted
Swing Line Loan and the Company may, but shall have no obligation to, accept any
such offer to make an Uncommitted Swing Line Loan; provided, that the FFB
Representative may give such notice and accept such offer to the extent
permitted by subsection 2.19(a). When the Company wishes to request an offer
from the Swing Line Banks to make an Uncommitted Swing Line Loan, on the
proposed Borrowing Date, it shall give the Swing Line Banks, with a copy
simultaneously to the Administrative Agent, notice (a "Swing Line Request"),
which notice shall be effective only if received by the Swing Line Banks (unless
the Swing Line Banks shall otherwise consent) no later than (i) 3:00 p.m. New
York time, in the case of a borrowing in a principal amount up to but not
exceeding $200,000,000,
28
(ii) 2:00 p.m. New York time, in the case of a borrowing in a principal
amount greater than $200,000,000 and up to but not exceeding $300,000,000
and (iii) 1:00 p.m. New York time, in the case of a borrowing in a
principal amount greater than $300,000,000. Each such Swing Line Request
shall specify the principal amount of the Uncommitted Swing Line Loans
requested thereby (which shall be at least $5,000,000 and in larger
multiples of $1,000,000). Upon receipt of a Swing Line Request for an
Uncommitted Swing Line Loan, each Swing Line Bank may, but shall not be
obligated to, submit a Swing Line Quote to the Company, which Swing Line
Quote shall contain an offer to make an Uncommitted Swing Line Loan in
response to such Swing Line Request. Each Swing Line Quote must specify (i)
the principal amount of the Uncommitted Swing Line Loans for which such
offer is being made (which principal amount shall be at least $5,000,000 or
a larger multiple of $1,000,000) and (ii) a quote of a margin (the "Swing
Line Margin") above the Federal Funds Rate which, when added to the Federal
Funds Rate, will be the interest rate per annum applicable to the
Uncommitted Swing Line Loan to be borrowed. Upon receipt of a Swing Line
Quote in response to its Swing Line Request for an Uncommitted Swing Line
Loan, the Company shall within five minutes of receipt of such Swing Line
Quote notify each Swing Line Bank that gave a Swing Line Quote of its
acceptance or nonacceptance of such Swing Line Quote; provided that a
failure of the Company so to notify any Swing Line Bank shall be
nonacceptance of such Swing Line Quote. Swing Line Quotes shall be
accepted, if at all, based on the lowest Swing Line Margins contained
therein and pro rata in the case of equal Swing Line Margins. Promptly upon
the Company's acceptance of a Swing Line Quote from any Swing Line Bank,
such Swing Line Bank shall make the amount of the Uncommitted Swing Line
Loan to be made by it on such date available to the Administrative Agent
for the account of the Company at the office of the Administrative Agent
specified prior to 4:30 p.m. on the requested Borrowing Date; provided that
the amount of any Uncommitted Swing Line Loan constituting an FFB Advance
shall be directly credited to the FFB Account at the office of the
Administrative Agent specified prior to 4:30 p.m. on the requested
Borrowing Date. The Company and each Swing Line Bank that makes an
Uncommitted Swing Line Loan shall thereupon promptly notify the
Administrative Agent (which shall promptly notify the Banks) that a Swing
Line Loan has been made and the amount thereof and the interest rate
thereof.
(d) In the event that the Company has not notified the Administrative
Agent of its intent to repay the Swing Line Loans made on any Borrowing
Date by 12:00 noon New York time on the Business Day immediately following
such Borrowing Date and has not in fact repaid such Swing Line Loans
(including accrued interest thereon) in full by such time, the Company
shall be deemed to have made an irrevocable request to the Administrative
Agent under subsection 2.3 (which for purposes of this subsection shall be
deemed to be timely and sufficient) for a borrowing on such date of
Revolving Credit Loans that are ABR Loans in an aggregate amount equal to
the then unpaid aggregate principal amount of such Swing Line Loans made to
the Company. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay such Swing Line Loans. Any payments in respect
of the Swing Line Loans shall be applied first to the payment in full of
the FFB Advances.
(e) In the event that for any reason whatsoever (including, without
limitation, the occurrence of an event specified in paragraph (g) of
subsection 7 with respect to the Company), the procedures set forth in the
foregoing paragraph (d) are not followed, each Bank shall, upon notice from
the Administrative Agent, promptly purchase from the Swing Line Banks
participations in (or, if and to the extent specified by any Swing Line
Bank, a direct interest in)
29
the Swing Line Loans made by the Swing Line Banks (collectively, the
"Unrefunded Swing Line Loans") in an aggregate amount equal to the amount
of the Revolving Credit Loan it would have been obligated to make pursuant
to the procedures set forth in the foregoing paragraph (d).
(f) Each Bank shall, not later than 4:00 p.m. New York time on the
Business Day on which such notice is received (if such notice is received
by 2:15 p.m. New York time) or 9:00 a.m. New York time on the next
succeeding Business Day (if such notice is received after 2:15 p.m. New
York time), make available the amount of the Revolving Credit Loan to be
made by it (or the amount of the participations or direct interests to be
purchased by it, as the case may be) to the Administrative Agent at the
office of the Administrative Agent specified in subsection 9.2 and the
amount so received by the Administrative Agent shall promptly be made
available to the Swing Line Banks by remitting the same, in immediately
available funds, to the Swing Line Banks, in accordance with the provisions
of paragraph (h) below.
(g) Whenever, at any time after any Swing Line Bank has received from
any Bank such Bank's participating interest in an Unrefunded Swing Line
Loan pursuant to paragraph (e) above, such Swing Line Bank receives any
payment on account thereof, such Swing Line Bank will distribute to such
Bank its participating interest in such amount (appropriately adjusted in
the case of interest payments, to reflect the period of time during which
such Bank's participating interest was outstanding and funded); provided,
however, that in the event that such payment received by such Swing Line
Bank is required to be returned, such Bank will return to such Swing Line
Bank any portion thereof previously distributed by such Swing Line Bank to
it.
(h) Each borrowing of Committed Swing Line Loans by the Company from
the Swing Line Banks hereunder, each payment by the Company on account of
any fees payable to the Swing Line Banks hereunder and any reduction of the
Swing Line Commitments of the Swing Line Banks shall be made equally among
the Swing Line Banks pro rata according to the respective Swing Line
Commitment Percentages of the Swing Line Banks. Each payment (including
each prepayment) by the Company on account of principal of and interest on
the Swing Line Loans shall be made pro rata according to the respective
aggregate amounts of principal and interest then due and owing in respect
of the Swing Line Loans. All payments (including prepayments) to be made by
the Company hereunder and under the Swing Line Notes, whether on account of
principal, interest, fees or otherwise, shall be made without set off,
counterclaim or any other deduction whatsoever and shall be made prior to
1:00 p.m., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Swing Line Banks, at the
Administrative Agent's office specified in subsection 9.2, in Dollars and
in immediately available funds, and upon receipt by the Administrative
Agent of any payment made by the Company in accordance with the terms of
this Agreement and the Swing Line Notes, the Company shall have satisfied
its payment obligation with respect to the obligation on account of which
such payment was made. Any such payment made at or after 1:00 p.m. New York
City time, on any day shall be deemed made on the following Business Day.
The Administrative Agent shall distribute such payments to the Swing Line
Banks promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
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(i) Anything in this Agreement to the contrary notwithstanding
(including, without limitation, in subsection 4.2), the obligation of each
Bank to make its Revolving Credit Loan (or purchase its participation or
direct interest in such Swing Line Loan, as the case may be) pursuant to
this subsection 2.19 is unconditional under any and all circumstances
whatsoever and shall not be subject to set-off, counterclaim or defense to
payment that such Bank may have or have had against the Company, the
Administrative Agent, such Swing Line Bank or any other Bank and, without
limiting any of the foregoing, shall be unconditional irrespective of (i)
occurrence of any Default, (ii) the financial condition of the Company, any
Affiliate, the Administrative Agent, such Swing Line Bank or any other Bank
or (iii) the termination or cancellation of the Commitments. The Company
agrees that any Bank so purchasing a participation (or direct interest) in
such Swing Line Loan may exercise all rights of set-off, bankers' lien,
counter claim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of a Swing Line Loan in the amount of
such participation .
(j) Notwithstanding any of the provisions set forth herein, if any
Swing Line Bank is notified by the Administrative Agent that an Event of
Default has occurred and is continuing, such Swing Line Bank shall not be
permitted to make any Swing Line Loans hereunder.
2.20 Increase of Commitments. (a) At the request of the Company to
the Administrative Agent, the aggregate Commitments hereunder may be
increased after the Closing Date on one or more occasions by not more than
$400,000,000 provided that (i) each such increase is in a minimum amount of
$50,000,000, (ii) the sum of the aggregate Commitments hereunder shall not
exceed $1,500,000,000 after giving effect to such increases, (iii) each
Bank whose Commitment is increased consents and (iv) the consent of the
Administrative Agent is obtained.
(b) In the event that the Company and one or more of the Banks (or
other financial institutions which may elect to participate with the
consent of the Administrative Agent) shall agree, in accordance with
Section 2.20(a), upon such an increase in the aggregate Commitments, the
Company, the Administrative Agent and each financial institution in
question shall enter into a Commitment Increase Supplement (a form of which
is attached hereto as Exhibit J) setting forth the amounts of the increase
in Commitments and providing that the additional financial institutions
participating shall be deemed to be included as Banks for all purposes of
this Agreement. Upon the execution and delivery of such Commitment Increase
Supplement as provided above, and upon satisfaction of such other
conditions as the Administrative Agent may specify (including the delivery
of certificates and legal opinions on behalf of the Company relating to the
amendment and new Notes), this Agreement shall be deemed to be amended
accordingly.
(c) No Bank shall have any obligation to increase its Commitment in
the event of such a request by the Company hereunder.
2.21 Payment in Full at Maturity. The Company shall pay to the
Administrative Agent, for the account of each Bank, the entire outstanding
principal amount owing under the Agreement or under any Notes, together
with accrued but unpaid interest and all
31
other sums owing under the Agreement, on the Termination Date unless accelerated
sooner pursuant to Section 7.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the Loans
the Company hereby represents and warrants to the Administrative Agent and each
Bank as of the Closing Date and as of the date of each Loan that:
3.1 Financial Condition. The consolidated balance sheets of the
Company and its Subsidiaries as at December 31, 1998 and December 31, 1999 and
the related consolidated statements of income, stockholder's equity and cash
flows for the fiscal year ended on each such date, reported on by Ernst & Young
LLP, copies of which have heretofore been furnished to each Bank, are complete
and correct and present fairly the consolidated financial condition of the
Company and its Subsidiaries as at such dates, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants and as
disclosed therein). Neither the Company nor any of its Subsidiaries had, at the
date of the most recent balance sheet referred to above, any guarantee
obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto and which, to the
best of the Company's knowledge, would have a Material Adverse Effect.
3.2 No Change. Except as disclosed in the Company's annual financial
statements for its fiscal year ended December 31, 1999, during the period from
December 31, 1999 to and including the Closing Date, no change, or development
or event involving a prospective change, has occurred which has had or could
reasonably be expected to have a Material Adverse Effect; provided, however that
the foregoing representation is made solely as of the Closing Date.
3.3 Corporate Existence; Compliance with Law. Each of the Company
and its Significant Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, except to
the extent that, in the aggregate, the failure of any such Subsidiaries to be
duly organized, validly existing or in good standing would not have a Material
Adverse Effect, (b) has the corporate (or other) power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, except
to the extent that, in the aggregate, the failure of any such Subsidiaries to
have any such power, authority or legal right would not have a Material Adverse
Effect, (c) is duly qualified and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that, in the
aggregate, the failure of the Company and its Subsidiaries to so qualify or be
in good standing would not have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law except to the extent that, in the
aggregate, the failure of the Company and its Subsidiaries to comply therewith
would not have a Material Adverse Effect.
32
3.4 Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority, and the legal right, to make,
deliver and perform this Agreement and the Notes and to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the terms
and conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of this Agreement and the Notes. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Notes. This Agreement has been, and
each Note will be, duly executed and delivered on behalf of the Company. This
Agreement constitutes, and each Note when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the Notes, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligation of the
Company or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. Except as listed on Schedule 3.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Company,
threatened by or against the Company or any of its Subsidiaries or against any
of its or their respective properties or revenues which would have a Material
Adverse Effect or a material adverse effect on the validity or enforceability of
this Agreement or any of the Notes or the rights or remedies of the
Administrative Agent or the Banks hereunder or thereunder.
3.7 No Default. No Default or Event of Default has occurred and is
continuing.
3.8 Taxes. Each of the Company and its Significant Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Company, are required to be filed and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any of
its property and all material other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority (other than any the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case may be);
on the Closing Date, no tax Lien has been filed, and, to the knowledge of the
Company, no claim is being asserted, with respect to any such tax, fee or other
charge.
3.9 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the
33
quoted terms under Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect if such
use would violate, or cause the Loans or the Commitments to be in violation of,
the provisions of the Regulations of such Board of Governors. If requested by
any Bank or the Administrative Agent at any time (and in any case prior to or
concurrently with the borrowing of any Loan the proceeds of which will be used
to purchase or carry margin stock), the Company will furnish to the
Administrative Agent and each Bank a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said
Regulation U.
3.10 ERISA. Except to the extent that all of the following, in the
aggregate, would not have a Material Adverse Effect: (i) no Reportable Event has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code; (ii) the present value of all accrued benefits under each Single
Employer Plan maintained by the Company or any Commonly Controlled Entity (based
on those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits; (iii) neither the Company nor any Commonly Controlled Entity has or
has had any liability or obligation in respect of any Multiemployer Plan; and
(iv) the present value (determined using actuarial and other assumptions which
are reasonable in respect of the benefits provided and the employees
participating) of the liability of the Company and each Commonly Controlled
Entity for post retirement benefits, if any, to be provided to their current and
former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits, if any.
3.11 Investment Company Act; Other Regulations. Neither the Company
nor any of its Subsidiaries is subject to registration as an "investment
company" or is "controlled" by such a company, within the meaning of the
Investment Company Act of 1940, as amended.
3.12 Purpose of Loans. The proceeds of the Loans shall be used by
the Company (a) to refinance the Existing Credit Agreement, (b) to provide
financing for the working capital needs of the Company, (c) to provide back-up
and liquidity for the commercial paper of the Company and (d) to provide funds
for general corporate purposes.
3.13 Disclosure. On the Closing Date, neither this Agreement, the
Notes, nor the Information Materials, taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances in which they were made, not materially misleading.
3.14 Ranking. The Loans shall remain at least pari passu with all
other senior unsecured obligations of the Company.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The agreements of each Bank
contained herein are subject to the satisfaction of the following conditions
precedent:
34
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, and (ii) for the account of each
Bank, a Note conforming to the requirements hereof and executed by a duly
authorized officer of the Company.
(b) Corporate Proceedings of the Company. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Company authorizing (i) the
execution, delivery and performance of this Agreement and the Notes and
(ii) the borrowings contemplated hereunder, certified by the Secretary or
an Assistant Secretary of the Company as of the Closing Date, which
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded and are in full force and
effect and shall be in form and substance satisfactory to the
Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of the Company, certified as of
the Closing Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of the Company.
(d) No Violation. The consummation of the transactions contemplated
hereby shall not contravene, violate or conflict with, nor involve the
Administrative Agent or any Bank in any violation of, any Requirement of
Law.
(e) Fees. The Administrative Agent shall have received the fees to be
received on the Closing Date referred to in subsection 2.4.
(f) Legal Opinion. The Administrative Agent shall have received, with
a counterpart for each Bank, the executed legal opinion of the Associate
General Counsel of the Company, substantially in the form of Exhibit C, and
the Company hereby instructs its Associate General Counsel to execute and
deliver such opinion to the Administrative Agent, with a counterpart for
each Bank. Such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(g) Existing Credit Agreement. The Administrative Agent shall have
received evidence satisfactory to it that the commitments under the
Existing Credit Agreement shall have been terminated, all amounts
outstanding thereunder have been repaid and any other amounts required to
be paid to Chase or the banks thereunder have been paid.
(h) Additional Documents. The Administrative Agent shall have
received each additional document, instrument or item of information
reasonably requested by it, including, without limitation, a copy of any
debt instrument, security agreement or other material contract to which the
Company may be a party.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in form
and substance to the
35
Administrative Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
4.2 Conditions to Each Loan. The agreement of each Bank to make any
Loan (other than the conversion or continuation of any Loan pursuant to
subsection 2.7) requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Company in this Agreement shall be true and correct
in all material respects on and as of such date as if made on and as of
such date, both before and after giving effect to the making of such Loans.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Borrowing Certificate. In the case of Revolving Credit Loans, the
Administrative Agent shall have received, on or prior to the time required
for its receipt pursuant to subsection 2.3, a Borrowing Certificate with
respect to the Loans requested to be made on such date.
(d) Bid Loan Confirmation. With respect to any Bid Loan, a Bid Loan
Confirmation shall have been delivered in accordance with subsection
2.18(b)(iv). Each borrowing by the Company hereunder shall constitute a
representation and warranty by the Company as of the date of such Loan that
the conditions contained in subsection 4.2(a) and (b) have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Bank or the Administrative Agent hereunder, the Company shall:
5.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 95 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Ernst & Young LLP or other
independent certified public accountants of nationally recognized standing
not unacceptable to the Majority Banks (it being understood that (i) any of
the following accounting firms: Xxxxxx Xxxxxxxx, Deloitte & Touche, Ernst &
Young LLP, KPMG and PricewaterhouseCoopers shall not be unacceptable to the
Banks and (ii) in furnishing to each Bank copies of the Company's
36
Annual Report on Form 10-K filed with the Securities and Exchange
Commission, the Company shall satisfy the requirements of this subsection);
and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Company and its consolidated Subsidiaries
for such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments). In
furnishing to each Bank copies of the Company's Quarterly Report on Form
10-Q filed with the Securities and Exchange Commission, the Company shall
satisfy the requirements of this subsection;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge of
any Default or Event of Default that has occurred and is continuing except
as specified in such certificate, and including calculations demonstrating
compliance with subsection 6.1 hereof;
(c) within five days after the same are sent, copies of all regular
and periodic reports which the Company sends to its stockholders generally,
and within five days after the same are filed, copies of all regular and
periodic reports which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(d) promptly upon receipt thereof, copies of the executive summary
portion of any final auditor's letter or auditor's report submitted to the
Company's board of directors or any committee thereof relating to internal
financial controls of the Company or any Subsidiary; and
(e) promptly, such additional financial and other information as any
Bank may from time to time reasonably request.
37
5.3 Conduct of Business and Maintenance of Existence. Continue to
engage in business of substantially the same general type as now conducted by
it, taken as a whole, and preserve, renew and keep in full force and effect its
corporate existence and take such reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to subsection 6.5; comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith would not, in the aggregate, have a material adverse
effect on the ability of the Company to perform its obligations under this
Agreement or the Notes.
5.4 Inspection of Property; Books, Records and Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities.
(b) Permit representatives of the Administrative Agent and the Banks
(other than Excluded Individuals of the Administrative Agent and the Banks)
which are not Competitors to visit and inspect at their own expense (unless a
Default or Event of Default has occurred and is continuing, in which case at the
Company's expense) any of its properties and examine and make abstracts from any
of its books and records at any reasonable time upon reasonable prior notice to
the Company and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Company and its Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants, provided
that the Company and its Subsidiaries shall have no obligation to provide access
to information which is the subject of a confidentiality agreement between the
Company or any of its Subsidiaries, on the one hand, and a customer of the
Company or of any of its Subsidiaries, on the other hand. The Administrative
Agent shall endeavor to coordinate such visits by the Banks in order to minimize
inconvenience to the Company, and so long as no Event of Default shall be
continuing, such visits shall occur not more frequently than once per fiscal
quarter.
5.5 Notices. Promptly give notice to the Administrative Agent and
each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of a Change of Control;
(c) any litigation, investigation or proceeding which would have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, the commencement of any obligation to contribute to any
Multiemployer Plan by the Company or any Commonly Controlled Entity, or any
withdrawal from, or the termination, Reorganization or Insolvency of any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Company or any Commonly Controlled
Entity or
38
any Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) the use of the proceeds of any Loans for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. Each
notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Bank or the Administrative Agent hereunder, the Company shall not:
6.1 Interest Coverage. Permit (for any period of four consecutive
fiscal quarters) the ratio of (i) Consolidated Operating Income of the Company
and its Subsidiaries for such period to (ii) Interest Expense of the Company and
its Subsidiaries for such period, to be less than 2.5 to 1.
6.2 Limitation on Significant Subsidiary Indebtedness. Permit any of
its Significant Subsidiaries, directly or indirectly, to create, incur, assume
or suffer to exist any Indebtedness (which for purposes of this subsection 6.2
shall include, without duplication, Guarantee Obligations) unless immediately
thereafter the aggregate amount of all Indebtedness of Significant Subsidiaries
(excluding Indebtedness owed to the Company or a Significant Subsidiary,
including any renewal or replacement thereof) and the discounted present value
of all net rentals payable under leases covered by subsection 6.4 (and not
expressly excluded therefrom) would not exceed 20% of Consolidated Net Worth;
provided, however, that, solely, for the purposes of this covenant, Indebtedness
shall not include indebtedness incurred in connection with (x) overdraft or
similar facilities related to settlement, clearing and related activities by a
Significant Subsidiary in the ordinary course of business consistent with past
practice to the extent that such indebtedness remains outstanding for a period
not to exceed 72 hours or (y) Purchased Receivables Financings; and provided,
further, that any Indebtedness of a Person (i) existing at the time such Person
becomes a Significant Subsidiary or is merged with or into the Company or a
Significant Subsidiary or other entity or (ii) assumed by the Company or a
Subsidiary in connection with the acquisition of all or a portion of the
business of such Person, shall not be deemed to be Indebtedness created, incur
red, assumed or guaranteed by a Significant Subsidiary or otherwise deemed to be
Indebtedness of a Significant Subsidiary for the purposes of this covenant.
6.3 Limitation on Liens. Directly or indirectly, create, incur, assume
or suffer to exist, or permit any of its Significant Subsidiaries to create,
incur, assume or suffer to exist, any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:
39
(a) any Lien on any property now owned or hereafter acquired or
constructed by the Company or a Subsidiary, or on which property so owned,
acquired or constructed is located, which Lien (i) in the case of any
property so acquired, existed on such property at the time of acquisition
thereby by the Company or such Subsidiary or (ii) secures or provides for
the payment of any part of the purchase or construction price or cost of
improvements of such property and was created prior to, contemporaneously
with or within 360 days after, such purchase, construction or improvement
(and any replacements or refinancings for such Liens); provided, that (i)
if a firm commitment from a bank, insurance company or other lender or
investor (not including the Company, a Subsidiary or an Affiliate of the
Company) for the financing of the acquisition or construction of property
is made prior to, contemporaneously with or within the 360-day period
hereinabove referred to, the applicable Lien shall be deemed to be
permitted by this paragraph (a) whether or not created or assumed within
such period, and (ii) each such Lien is not spread to cover any additional
property and the amount of Indebtedness secured thereby is not increased;
(b) Liens for taxes not yet delinquent or which are being contested in
good faith by appropriate proceedings diligently conducted and adequate
reserves with respect thereto are maintained on the books of the Company or
its Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business;
(d) Liens of landlords or of mortgagees of landlords arising by
operation of law;
(e) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or
other insurance related obligations (including, without limitation, pledges
or deposits securing liability to insurance carriers under insurance or
self-insurance arrangements) and Liens on the proceeds of insurance
policies created in connection with any of the foregoing;
(f) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings
which have been duly initiated for the review of such judgment, decree or
order, are being diligently prosecuted and have not been finally terminated
or the period within which such proceedings may be initiated shall not have
expired;
(g) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, judgment and like bonds, replevin and similar
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on the
use of property, other similar encumbrances incurred in the ordinary course
of business and
40
minor irregularities of title, which do not materially interfere with the
ordinary conduct of the business of the Company and its Subsidiaries taken
as a whole;
(i) Liens on Purchased Receivables and related assets granted in
connection with one or more Purchased Receivables Financings; and
(j) any Lien not otherwise permitted under this subsection 6.3,
provided that the aggregate amount of indebtedness secured by all such
Liens, together with the aggregate sale price of property involved in sale
and leaseback transactions not otherwise permitted under subsection 6.4,
does not exceed the greater of $100,000,000 or 15% of Consolidated Net
Worth.
6.4 Limitation on Sales and Leasebacks. Sell or transfer, or permit
any Subsidiary to sell or transfer, (except to the Company or one or more of its
wholly-owned Subsidiaries, or both) any Principal Facility owned by it on the
date of this Agreement with the intention of taking back a lease of such
property, other than a lease relating to computer hardware with lease terms of
four years or less, unless either:
(a) the sum of the aggregate sale price of property involved in sale
and leaseback transactions not otherwise permitted under this subsection
plus the aggregate amount of indebtedness secured by all mortgages,
pledges, liens and encumbrances not otherwise permitted except under
subsection 6.3(j) does not exceed the greater of $100,000,000 or 10% of
Consolidated Net Worth; or
(b) the Company within 120 days after the sale or transfer shall have
been made by the Company or by any such Subsidiary applies an amount equal
to the greater of (i) the net proceeds of the sale of the Principal
Facility sold and leased back pursuant to such arrangement or (ii) the fair
market value of the Principal Facility sold and leased back at the time of
entering into such arrangement (which may be conclusively determined by the
Board of Directors of the Company) to the retirement of Funded Debt of the
Company; provided, that the amount required to be applied to the retirement
of Funded Debt of the Company pursuant to this clause (b) shall be reduced
by the principal amount of any Funded Debt of the Company voluntarily
retired by the Company within 120 days after such sale, whether or not any
such retirement of Funded Debt shall be specified as being made pursuant to
this clause (b). Notwithstanding the foregoing, no retirement referred to
in this clause (b) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment provision.
6.5 Limitations on Fundamental Changes. Directly or indirectly, sell,
assign, lease, transfer or other wise dispose of all or substantially all of its
assets or consolidate with or merge into any Person or permit any Person to
merge into it, provided that the Company may enter into a consolidation or
merger with any Person if (i) the survivor formed by or resulting from such
consolidation or merger is the Company and (ii) at the time of such
consolidation or merger and immediately after giving effect thereto no Default
or Event of Default shall have occurred and be continuing.
41
6.6 Limitations on Restrictions on Dividends. Permit any Significant
Subsidiary exclusively organized under the laws of the United States of America
or any state thereof to enter into any arrangement with any Person which in any
way prohibits, limits the amount of or otherwise impairs the declaration or
distribution by such Subsidiary of dividends on its Capital Stock if such
arrangement, together with all other similar arrangements, could reasonably be
expected to have a Material Adverse Effect.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Note when due
in accordance with the terms thereof or hereof; or the Company shall fail
to pay any interest on any Note, or any other amount payable hereunder,
within three Business Days after any such interest or other amount becomes
due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made, or deemed made pursuant to
subsection 4.2, by the Company herein or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have been
incorrect in any material respect on or as of the date made or deemed made
or furnished; or
(c) The Company shall default in the observance or performance of any
agreement contained in subsection 5.4(b), 5.5(a) or 5.5(b) or Section 6; or
(d) A Change of Control shall occur; or
(e) The Company shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (d) of this Section), and such default shall
continue unremedied for a period of 30 days after the earlier of written
notification to the Company by the Administrative Agent or any Bank or
after any Responsible Officer becomes aware or, with reasonable diligence,
would become aware of such default; or
(f) The Company or any of its Significant Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than the Notes) or in the payment of any Guarantee Obligation,
beyond the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created, and such default shall be continuing; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, and such default shall be continuing, or any other event shall
occur or condition exist and be continuing, the effect of which default or
other event or condition is to cause, such Indebtedness to become due or
required to be purchased, redeemed or otherwise defeased prior to its
stated maturity or such Guarantee Obligation to become payable, provided
that the aggregate principal amount of any such Indebtedness and Guarantee
Obligations outstanding at such time, when aggregated with
42
the outstanding principal amount of all other such Indebtedness and
Guarantee Obligations in respect of which the Company or any Significant
Subsidiary shall have so defaulted or an event shall have occurred or a
condition exists as described above, aggregates $25,000,000 or more; or
(g) (i) The Company or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any of its
Significant Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Company or any
of its Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Company or any of its Significant Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company or any of its Significant Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Company or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Majority Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, would have a material adverse effect on the ability of
the Company to perform its obligations under this Agreement or the Notes;
or
43
(i) The rendering against the Company or any Significant Subsidiary of
one or more final nonappealable judgments, decrees or orders for the
payment of money which, either singly or in the aggregate with all other
monies in respect of which a final nonappealable judgment, decree or order
for payment shall have been rendered against the Company or any Significant
Subsidiary, aggregates $25,000,000 or more, and the continuance of such
judgments, decrees or orders unsatisfied and in effect for any period of 30
consecutive days or, in the case of a foreign judgment, decree or order the
enforcement of which is not being sought in the United States, 60
consecutive days without a stay of execution;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Company,
automatically the Commitments and Swing Line Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Banks, the Administrative Agent may, or upon the request of the Majority Banks,
the Administrative Agent shall, by notice to the Company declare the Commitments
and Swing Line Commitments to be terminated forthwith, whereupon the Commitments
and Swing Line Commitments shall immediately terminate; and (ii) with the
consent of the Majority Banks, the Administrative Agent may, or upon the request
of the Majority Banks, the Administrative Agent shall, by notice of default to
the Company, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and appoints
Chase as the Administrative Agent of such Bank under this Agreement and the
Notes and each Bank irrevocably authorizes Chase, as the Administrative Agent
for such Bank, to take such action on its behalf under the provisions of this
Agreement and the Notes and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of this
Agreement and the Notes, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the Notes or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the Notes by or through agents or attorneys-
in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
44
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or the Notes (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(except for the Administrative Agent's due execution and delivery) or the Notes
or for any failure of the Company to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or the Notes or to
inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or the Notes unless
it shall first receive such advice or concurrence of the Majority Banks as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes in accordance with a request of the
Majority Banks (or such other number of Banks as is expressly required hereby),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks and all future holders of the Notes.
8.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Banks; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
45
8.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereafter taken, including any review of the affairs of the Company, shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any Bank. Each Bank represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Administrative Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the Notes, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise) or creditworthiness of the Company
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
the respective amounts of their Commitments (or, if the Commitments have been
terminated, ratably according to the respective amount of their outstanding
Loans or, if no Loans are outstanding, their Commitments as of the date of such
termination) from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement, the Notes or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Bank shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements
in this subsection shall survive the payment of the Notes and all other amounts
payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to its Loans made or renewed by it and any Note issued to it, the Administrative
Agent shall have the same rights and powers under this Agreement as any Bank or
any Swing Line Bank and may exercise the same as though it were
46
not the Administrative Agent, and the terms "Bank" and "Banks", "Swing Line
Bank" and "Swing Line Banks" shall include the Administrative Agent in its
individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Banks and the
Company, such resignation to become effective upon the appointment of a
successor Administrative Agent as provided below. If the Administrative Agent
shall resign as Administrative Agent under this Agreement, then the Majority
Banks shall appoint from among the Banks a successor agent for the Banks, which
successor agent shall be approved by the Company if no Default or Event of
Default has occurred and is continuing (such approval not to be unreasonably
withheld), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor agent effective upon its appointment, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
8.10 Co-Agents, Syndication Agents, Managing Agents etc. Neither any
of the Banks or any Swing Line Banks identified in this Agreement as a "co-
agent" nor the Syndication Agents or the Managing Agents shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks and Swing Line Banks as such. Without
limiting the foregoing, none of such Banks or Swing Line Banks shall have or be
deemed to have a fiduciary relationship with any Bank or Swing Line Bank. Each
Bank and Swing Line Bank hereby makes the same acknowledgments with respect to
Banks and Swing Line Banks as it makes with respect to the Administrative Agent
in Section 8.8.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. None of this Agreement, any Note or any
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Majority Banks, the Administrative Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto and to
the Notes for the purpose of changing any provisions of or adding any provisions
to this Agreement or the Notes or changing in any manner the rights of the Banks
or of the Company hereunder or thereunder or waiving, on such terms and
conditions as the Administrative Agent may specify in such instrument, any of
the requirements of this Agreement or the Notes or any Default or Event of
Default and its consequences; provided, however, that (i) each Bank shall
receive a form of any such waiver, amendment, supplement or modification prior
to the execution thereof by the Majority Banks or the Administrative Agent and
(ii) no such waiver and no such amendment, supplement or modification shall (a)
reduce the amount or extend the Commitment of any Bank, the maturity of any Note
or any installment thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce the amount or extend the time of payment of any fee
payable to any Bank hereunder, or change the amount of any Bank's Commitment or
any Swing Line Bank's Swing Line Commitment, in each case without the consent of
the Bank or the Swing Line Bank, as the
47
case may be, affected thereby, or (b) amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of Majority
Banks, or consent to the assignment or transfer by the Company of any of its
rights and obligations under this Agreement, or waive the conditions precedent
to the making of any Loan set forth in subsection 4.2, in each case without the
written consent of all the Banks, (c) amend, modify or waive any provision of
Section 8 without the written consent of the then Administrative Agent or (d)
amend, modify or waive any provision of subsection 2.19 without the written
consent of each Swing Line Bank. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Banks and shall be
binding upon the Company, the Banks, the Administrative Agent and all future
holders of the Notes. In the case of any waiver, the Company, the Banks and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy,) and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and the Administrative
Agent, and as set forth in Schedule 1.1 in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Company: First Data Corporation
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
with a copy of
any notice to
the Company to: First Data Corporation
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel's Office
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
48
The Administrative
Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx, V.P.
or Xxxxxxx Xxxxxx,
Credit Administration Officer
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
with a copy of
any notice to
the Administrative
Agent to: The Chase Manhattan Bank
Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Account Manager
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Banks pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.18 or 2.19 shall not
be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each Bank and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Notes
and any such other documents, including, without limitation, fees and
disbursements of counsel to the Administrative Agent and
49
to the several Banks, (c) to pay, and indemnify and hold harmless each Bank and
the Administrative Agent from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes and any such other documents, and (d) to pay, and
indemnify and hold harmless each Bank and the Administrative Agent from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Notes, and any such other
documents (all the foregoing, collectively, the "indemnified liabilities"),
provided, that the Company shall have no obligation hereunder to the
Administrative Agent or any Bank with respect to indemnified liabilities arising
from (i) the gross negligence or willful misconduct of the Administrative Agent
or such Bank, (ii) legal proceedings commenced or claims against the
Administrative Agent or such Bank by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such, or (iii) legal proceedings commenced or
claims against the Administrative Agent or such Bank by any other Bank or by any
Transferee. The agreements in this subsection shall survive repayment of the
Notes and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time with the consent of
the Administrative Agent, the Company (unless there is a Default or Event of
Default occurring or continuing) and each Swing Line Bank (which, in each case,
shall not be unreasonably withheld) sell to one or more banks or other entities
which are not Competitors ("Participants") participating interests in any Loan
owing to such Bank, any Note held by such Bank, the Commitment of such Bank or
any other interest of such Bank hereunder, provided that with respect to any
such sale of a participating interest, the Bank selling such participating
interest must retain the right to make all determinations under this Agreement
other than requests for (i) reductions in the principal amount of the Loans,
(ii) reductions in the interest rates payable on the Loans, (iii) reductions in
the facility fee payable to such selling Bank pursuant to subsection 2.4 and
(iv) waivers and extensions in respect of payment dates on account of principal
of the Loans, Interest Payment Dates and the dates on which such facility fee is
payable. In the event of any such sale by a Bank of participating interests to
a Participant, such Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder of
any such Note for all purposes under this Agreement, and the Company and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. The
Company agrees that if amounts outstanding under this Agreement and the Notes
are due or unpaid, or shall have been declared or shall have become
50
due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note
to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement or any Note, provided
that such Participant shall only be entitled to such right of setoff if it
shall have agreed in the agreement pursuant to which it shall have acquired
its participating interest to share with the Banks the proceeds thereof as
provided in subsection 9.7. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16 with
respect to its participation in the Commitments and the Loans outstanding
from time to time; provided that no Participant shall be entitled to
receive any greater amount pursuant to such subsections than the transferor
Bank would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Bank to such Participant had
no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial banking
business, in accordance with applicable law and with the consent of the
Administrative Agent (which shall not be unreasonably withheld) at any time
sell to any Bank or any affiliate thereof (but only if such affiliate's
Short-Term Ratings equal or exceed the Short-Term Ratings of such selling
Bank) and, with the consent of the Company (unless there is a Default or
Event of Default occurring or continuing) and the Administrative Agent
(which in each case shall not be unreasonably withheld), to one or more
additional banks or financial institutions ("Purchasing Banks") all or any
part of its rights and obligations under this Agreement and its Note
pursuant to a Commitment Transfer Supplement, substantially in the form of
Exhibit D (a "Commitment Transfer Supplement"), executed by such Purchasing
Bank, such transferor Bank (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Company and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that (i) in connection
with such sale, such transferor Bank must transfer all of its outstanding
Commitment to such Purchasing Bank or (ii) after giving effect to such sale
the outstanding Commitment of such transferor Bank must equal or exceed
$10,000,000, provided, further, with respect to a Purchasing Bank which was
not a Bank or an affiliate of a Bank prior to such sale, the outstanding
Commitment of such Purchasing Bank after giving effect to such sale must
equal or exceed $10,000,000. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date determined pursuant
to (and as defined in) such Commitment Transfer Supplement, (x) the
Purchasing Bank thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, (in addition to any such
rights and obligations theretofore held by it) have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein, and
(y) the transferor Bank thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under this
Agreement (and, in the case of a Commitment Transfer Supplement covering
all or the remaining portion of a transferor Bank's rights and obligations
under this Agreement, such transferor Bank shall cease to be a party
hereto, provided, that it is expressly understood and agreed that such
transferor Bank shall retain all of such transfer or Bank's rights under
subsections 2.14, 2.15, 2.16 and 9.5 of this Agreement with respect to any
cost, reduction or payment incurred or made prior to the Transfer Effective
Date determined pursuant to such Commitment Transfer Supplement, including,
without limitation the rights to indemnification and to reimbursement for
taxes, costs and expenses). Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the resulting
adjustment of
51
Commitments and Commitment Percentages arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Notes. On or prior to the
Transfer Effective Date determined pursuant to such Commitment Transfer
Supplement, the Company, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Note a new Note to
the order of such Purchasing Bank in an amount equal to the Commitment
assumed by it pursuant to such Commitment Transfer Supplement and, if the
transferor Bank has retained a Commitment hereunder, a new Note to the
order of the transferor Bank in an amount equal to the Commitment retained
by it hereunder. Such new Notes shall be dated the Closing Date and shall
otherwise be in the form of the Notes replaced thereby. The Note
surrendered by the transferor Bank shall be returned by the Administrative
Agent to the Company marked "cancelled".
(d) The Administrative Agent shall maintain at its address referred
to in subsection 9.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Company, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of each Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and
the Administrative Agent) together with payment to the Administrative
Agent, in the case of a Purchasing Bank that is not then a Bank or an
affiliate thereof, of a registration and processing fee of $2,000 by the
transferor Bank, the Administrative Agent shall (i) promptly accept such
Commitment Transfer Supplement and (ii) on the Transfer Effective Date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Banks
and the Company.
(f) Subject to subsection 9.8, the Company authorizes each Bank to
disclose to any Participant or Purchasing Bank (each, a "Transferee") and
any prospective Transferee any and all financial information in such Bank's
possession concerning the Company and its affiliates which has been
delivered to such Bank by or on behalf of the Company pursuant to this
Agreement or which has been delivered to such Bank by or on behalf of the
Company in connection with such Bank's credit evaluation of the Company and
its affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this Agreement
or any Note is transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any state thereof,
the transferor Bank shall require such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative Agent and the
Company) that under applicable law and treaties no taxes will be required
to be withheld by the Administrative Agent, the Company or the transferor
Bank with respect to any payments to be made to such Transferee
52
in respect of the Loans, (ii) to furnish to the transferor Bank (and, in the
case of any Purchasing Bank registered in the Register, the Administrative Agent
and the Company) either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or successor applicable form (wherein such Transferee
claims entitlement to complete exemption from U.S. federal withholding tax on
all interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Administrative Agent and the Company) to provide the
transferor Bank (and, in the case of any Purchasing Bank registered in the
Register, the Administrative Agent and the Company) a new Form 4224 or Form 1001
or successor applicable form upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
(h) Nothing herein shall prohibit any Bank or any Swing Line Bank from
pledging or assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
(i) No Swing Line Bank may (except as provided in subsections 2.19 and
9.6(h)) assign or sell participations in all or any part of its Swing Line
Loans, its Swing Line Note or its Swing Line Commitment.
9.7 Adjustments; Set-off. (a) If any Bank (a "benefitted Bank") shall
at any time receive any payment of all or part of its Loans then payable, or
interest then payable thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Bank, if any, in respect of such other Bank's Loans then payable, or interest
then payable thereon, such benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's Loans or such interest
thereon, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loans or
interest thereon may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law,
each Bank shall have the right, without prior notice to the Company, any such
notice being expressly waived by the Company to the extent permitted by
applicable law, upon any amount becoming due and payable by the Company
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of the Company. Each Bank agrees
promptly to notify the Company and the Administrative Agent after any such set-
off and
53
application made by such Bank, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
9.8 Confidentiality. Each of the Banks and the Administrative Agent
agrees to keep confidential (and to cause its officers, directors, employees,
agents and representatives, and its Affiliates' officers, directors, employees,
agents and representatives who gain access to Confidential Materials (as defined
below), to keep confidential) any information which is or has been obtained
pursuant to the terms of this Agreement (including, without limitation,
subsection 5.4(b)) (collectively, the "Confidential Materials"), except that
such Bank or the Administrative Agent, as the case may be, shall be permitted to
disclose the Confidential Materials (a) to such of the officers, directors,
employees, agents, independent auditors and representatives of the Bank or any
of its Affiliates as need to know such Confidential Materials in connection with
its administration of its Commitment and Loans (provided such persons are
informed of the confidential nature of the Confidential Materials and the
restrictions imposed by this subsection), (b) to the extent required by law
(including, without limitation disclosure to bank examiners and regulatory
officials) or legal process (in which event such Bank or the Administrative
Agent, as the case may be, will promptly notify the Company of any such
requirement), (c) to the extent such Confidential Materials become publicly
available other than as a result of a breach of the provisions of this
subsection, (d) to the extent the Company shall have consented to such
disclosure in writing, (e) to a prospective Transferee which agrees in writing
to be bound by the terms of this subsection as if it were a Bank party to this
Agreement, and (f) to a Governmental Authority in connection with litigation
involving this Agreement or the Notes; provided that in no event shall any such
Bank or the Administrative Agent disclose any of the Confidential Materials to
any of its Excluded Individuals.
9.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
9.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.11 Integration. This Agreement represents the entire agreement of
the Company, the Administrative Agent and the Banks with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Bank relative to subject matter
hereof not expressly set forth or referred to herein or in the Notes.
9.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND
54
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.13 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the Notes, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in subsection 9.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
9.14 Acknowledgements. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Bank has any fiduciary
relationship to the Company, and the relationship between the
Administrative Agent and the Banks, on the one hand, and the Company, on
the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company and
the Banks.
9.15 WAIVERS OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT
AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR
55
PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY COUNTERCLAIM
THEREIN.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
FIRST DATA CORPORATION
By /s/ Xxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent, a Swing Line Bank and as a Bank
By /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.,
as Co-Agent and as a Bank
By /s/ Xxxxxxxxxxx Xxxx
-----------------------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
BANK ONE, NA,
As Syndication Agent, a Swing Line Bank and as a Bank
By /s/ illegible
-----------------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
As Syndication Agent, a Swing Line Bank and as a Bank
By /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Managing Director
57
THE BANK OF NEW YORK,
as Co-Agent, a Swing Line Bank and as a Bank
By /s/ Xxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Co-Agent and as a Bank
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
BANK OF TOKYO-MITSUBISHI LTD.,
as Managing Agent and as a Bank
By /s/ Xxxx Xxxxxxx
----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Illegible
CITICORP USA, INC.,
As Syndication Agent and as a Bank
By /s/ Xxxxxx Xxxxxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ (NEW YORK)
By /s/ Xxxx XxXxxxx
----------------------------------------------------
Name: Xxxx XxXxxxx
Title: Vice President and Senior Relationship Manager
By /s/ Xxxxx XxXxxxxxxx
----------------------------------------------------
Name: Xxxxx XxXxxxxxxx
Title: Vice President and Senior Relationship Manager
58
FLEET BANK,
as Co-Agent and as a Bank
By /s/ Xxxx Xxx Xxxxxx
-------------------------------
Name: Xxxx Xxx Xxxxxx
Title: Director
THE NORTHERN TRUST COMPANY,
as Co-Agent and as a Bank
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
ROYAL BANK OF CANADA,
as Managing Agent and as a Bank
By /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Senior Manager
THE SUMITOMO BANK, LIMITED,
as Co-Agent and as a Bank
By /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Senior Vice President
THE SUNTRUST BANK, ATLANTA,
As Managing Agent, a Swing Line Bank and as a Bank
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
59
THE SANWA BANK, LIMITED
acting through its New York Branch
By /s/ X. Xxxxxxxx Wu
---------------------------------
Name: X. Xxxxxxxx Wu
Title: Vice President
WACHOVIA BANK, N.A.,
As Managing Agent, a Swing Line Bank and as a Bank
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
as Co-Agent and as a Bank
By /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Vice President
60
Schedule 1.1
------------
to the Revolving Credit Agreement
---------------------------------
Banks & Commitments
Swing Line
Name and Address Commitment Commitment
for Notices of Banks Amount Amount
-------------------- ------------------------ -------------
ABN AMRO Bank N.V. $ 50,000,000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
Telecopy: (000) 000-0000
Bank One, NA $100,000,000 $100,000,000
Xxx Xxxx Xxx Xxxxx, 00xx Xxxxx $100,000,000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxx
Telecopy: (000) 000-0000
Bank of America, N.A. $100,000,000
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx $100,000,000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx XxXxxxxx
Telecopy: (000) 000-0000
The Bank of New York $ 50,000,000 $ 50,000,000
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Mr. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
The Bank of Nova Scotia $ 50,000,000
000 Xxxxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
61
Bank of Tokyo-Mitsubishi Ltd. $ 72,500,000
133 Peachtree
#0000 Xx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxx
Telecopy: (000) 000-0000
The Chase Manhattan Bank $110,000,000 $110,000,000
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Mr. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Citicorp USA, Inc. $100,000,000
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
Credit Agricole Indosuez (New York) $ 25,000,000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx XxXxxxxxxx
Telecopy: (000) 000-0000
FleetBoston (Boston-State Street) $ 50,000,000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Ms. Xxxx Xxx Xxxxxx
Telecopy: (000) 000-0000
The Northern Trust Company $ 50,000,000
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
62
Royal Bank of Canada $ 72,500,000
Grand Cayman (North America No. 1)
Branch
c/o New York Branch
Xxx Xxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Manager, Loans Administration
Telecopy: (000) 000-0000
with a copy to:
Attn: Xx. Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
The Sumitomo Bank Ltd. (New York) $ 50,000,000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xx XxXxxx
Telecopy: (000) 000-0000
The SunTrust Bank, Atlanta $ 72,500,000 $ 72,500,000
000 Xxxxxxxxx Xx.
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Mr. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
The Sanwa Bank Ltd. (New York) $ 25,000,000
00 Xxxx 00xx Xx.
Xxxx Xxxxxx Xxxxx
00X
Xxx Xxxx, XX 00000
Attn: Xx. X. Xxxxxxxx Wu
Telecopy: (000) 000-0000
Wachovia Bank, N.A. $ 72,500,000 $ 72,500,000
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, XX 00000
Attn: Ms. Xxx Sales
Telecopy: (000) 000-0000
Xxxxx Fargo Bank (Denver) $ 50,000,000
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. XXX Xxxxxxxxxx
Telecopy: (000) 000-0000
63
Schedule 3.6
to the Revolving Credit Agreement
Legal Matters disclosure contained in the Company's Annual Report on Form 10-K
for the year ended December 31, 1999 which was filed on March 24, 2000.
As previously reported, on February 20, 1998, Plaintiffs Xxxx Xxxxxxxx and
Xxxxxx Xxxx, individually and on behalf of all others similarly situated, filed
a complaint in the District Court of Xxxxxx County, Texas, against Western Union
Financial Services, Inc. (the "Xxxxxxxx action"). Plaintiffs claim that Western
Union charges an undisclosed "commission" when it transmits consumers' money by
wire from Texas to Mexico, in that the exchange rate used in these transactions
is less favorable than the exchange rate that Western Union receives when it
trades dollars for Mexican pesos in the international money market. Plaintiffs
assert that Western Union's failure to disclose this so-called "commission" in
its advertising and in the transactions violates state law. Plaintiffs seek to
recover the purported damage suffered by each class member.
As previously reported, on April 20, 1998, Plaintiffs Xxxx Xxxxxx and Xxxxx
Xxxxxxx brought a putative class action against Western Union Financial
Services, Inc. in the United States District Court for the Northern District of
Illinois (the "Xxxxxx action"). The Plaintiffs make allegations substantially
similar to those made in the Xxxxxxxx action described above, except that the
Plaintiffs purported to assert their action on behalf of a nationwide class of
persons who sent money from the United States to Mexico through Western Union's
wire transfer service. Plaintiffs seek declaratory and injunctive relief,
compensatory damages, treble damages, punitive damages, attorneys' fees,
prejudgment interest, and costs of suit.
As previously reported, on September 14, 1998, Plaintiff Xxxx Xxxxxx filed a
putative class action in the Superior Court of the State of California for the
County of Los Angeles against, among others, the Company's subsidiary, Western
Union Financial Services, Inc. (the "Xxxxxx" action). The Plaintiff asserts
claims based on factual allegations similar to those made in the Xxxxxxxx action
described above, except that the Plaintiff purported to assert the action on
behalf of persons who sent money from California to Mexico. Plaintiff also
asserts that Western Union has discriminated against persons who use Western
Union to transmit money to Mexico, in that the difference between the exchange
rate at which Western Union purchased Mexican pesos and the exchange rate
provided by Western Union to its customers transmitting funds to Mexico is
greater than the difference between the exchange rate at which Western Union
purchased foreign currency and the exchange rate provided by Western Union to
its customers transmitting funds to other countries. The Plaintiff seeks
injunctive relief, imposition of a constructive trust, an accounting,
restitution, compensatory and statutory damages, statutory penalties, punitive
damages, attorneys' fees, prejudgment interest, and costs of suit.
As previously reported, on November 17, 1998, Plaintiffs Xxxxx Xxxx Xxxxxx, Xxxx
Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxxx brought a putative class action against the
Company's Xxxxxxx Valuta subsidiary in the United States District Court for the
Central District of California seeking compensatory damages, treble damages,
injunctive relief, attorneys' fees, and costs of suit. Plaintiffs filed an
amended complaint on January 29, 1999, naming the Company as an additional
defendant. The claims are based on factual allegations similar to those made in
the
64
Xxxxxxxx action described above, except that the Plaintiffs purported to
assert their action on behalf of a nationwide class of persons who sent money
from the United States to Mexico through Xxxxxxx Valuta's wire transfer service.
On May 3, 1999, the Court dismissed the federal statutory claims in the amended
complaint, but not the state claims, and granted the Plaintiffs leave to amend
the federal claims within 20 days.
As previously reported, in April 1998, Plaintiff Xxxx Xxxx Xxxxxx, individually
and on behalf of all others similarly situated, filed a putative class action in
the United States District Court for the Northern District of Illinois naming
MoneyGram Payment Systems, Inc. as the defendant (the "Xxxxxx action").
Integrated Payment Systems, Inc. ("IPS"), a subsidiary of the Company,
subsequently was added as a defendant in that action. IPS operated an
electronic money transfer service under the name "MoneyGram" prior to December
1996. The claims are based on factual allegations similar to those made in the
Xxxxxx action described above. Xx. Xxxxxx seeks declaratory and injunctive
relief, damages in an amount to be proven at trial, treble damages, punitive
damages, attorneys' fees, and cost of suit.
The parties in the Xxxxxx and Xxxxxx actions have reached a proposed settlement
that the Company believes would also extinguish the claims in the Xxxxxx,
Xxxxxxxx and Xxxxxx actions. Under the proposed settlement, the Company will
establish a charitable fund for the advancement of Mexican and Mexican-American
causes in the amount of $4 million. Western Union also will issue coupons for
discounts on future money transfer transactions to Mexico to its customers who
transferred money from the U.S. to Mexico between January 1, 1987 and August 31,
1999. In addition, the Company will issue coupons for discounts on future
Western Union transactions to customers who transferred money to Mexico from
January 1, 1988 to December 10, 1996 using the MoneyGram service because
MoneyGram was previously operated by a subsidiary of the Company. The proposed
settlement also includes reasonable attorneys' fees, expenses and costs.
On May 12, 1999, Plaintiffs in the Xxxxxx and Xxxxxx actions filed First Amended
Complaints alleging additional causes of action and naming additional
defendants. On that same day, the United States District Court for the Northern
District of Illinois issued a Preliminary Settlement Order in the Xxxxxx and
Xxxxxx actions, inter alia, preliminarily approving the proposed settlement.
The Court also barred and enjoined the continued prosecution of the Xxxxxx,
Xxxxxxxx and Xxxxxx actions. Further, the Court barred the commencement of any
new actions in any state or federal court that assert any claims that would be
released and discharged upon final approval of the settlement. The Court has
conducted a Fairness Hearing to determine the fairness, reasonableness, and
adequacy of the proposed settlement and the parties await the Court's ruling.
On January 11, 2000, Plaintiffs Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx brought a putative class action against First Data Corporation and its
subsidiaries Western Union Financial Services, Inc. and Xxxxxxx Valuta in the
Superior Court of the State of California for the County of Los Angeles. The
putative class consists of those persons who have used Western Union or Xxxxxxx
Valuta's services after August 31, 1999 to transmit money from California to
Mexico, or who have used the Western Union money transfer service to transmit
money from California to Mexico and have opted out of the nationwide settlement
pending approval in the Xxxxxx Action. Approximately 2,100 individuals
purporting to be class members in the Xxxxxx action submitted
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requests to opt out of the proposed settlement. Plaintiffs assert claims similar
to the claims in the Xxxxxx action and seek injunctive relief, imposition of a
constructive trust, an accounting, restitution, compensatory and statutory
damages alleged to be in excess of $500,000,000, statutory penalties in an
amount of $1,000 for each offense, punitive damages, attorneys' fees,
prejudgment interest, and costs of suit. The Company is formulating its response
in this matter.
The above matters were updated as follows in the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2000 which was filed on August 8, 2000.
In the actions filed by Xxxx Xxxxxx (Xxxxxx) and Xxxx Xxxxxx (Xxxxxx) that were
previously reported in the Company's Annual Report on Form 10-K for the period
ended December 31, 1999, the Court issued orders granting the parties joint
motions for preliminary approval of an amendment to the proposed settlement.
Pursuant to the orders, the Company gave notice of the settlement, as amended,
to class members who had excluded themselves from the settlement, and to certain
other class members in the Xxxxxx action to whom direct mail notice
inadvertently had not been sent. The Court further required that requests to
rejoin the class in Xxxxxx or Xxxxxx by members who had excluded themselves be
postmarked by July 25, 2000 and any objections or opts-outs from the proposed
settlement by the Xxxxxx class members to whom direct mail notice had
inadvertently not been sent also be postmarked by July 25, 2000. A supplemental
hearing on the fairness of the proposed settlement has been scheduled for August
11, 2000.
In the action filed by Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxx that
was previously reported in the Company's Annual Report on Form 10-K for the
period ended December 31, 1999, the Company and other defendants filed a
demurrer to many of the plaintiffs' claims and a motion to strike portions of
the plaintiffs' complaint. Both sides have filed briefs and the parties await a
hearing date to be scheduled by the Court.
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