EXHIBIT 10.18
CREDIT AGREEMENT
by and among
THE BISYS GROUP, INC.,
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS ISSUING BANK
AND AS AGENT
with
BNY CAPITAL MARKETS, INC., AS ARRANGER
________________
$100,000,000
________________
Dated as of March 5, 1997
TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION 1
1.1. Definitions 1
1.2. Principles of Construction 21
2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS AND LETTERS
OF CREDIT 22
2.1. Revolving Credit Loans 22
2.2. Revolving Credit Notes 22
2.3. Procedure for Borrowing 22
2.4. Termination or Reduction of Commitments 24
2.5. Prepayments of the Revolving Credit Loans 24
2.6. Use of Proceeds 25
2.7. Letter of Credit Sub-Facility 25
2.8. Letter of Credit Participation and Funding
Commitments 26
2.9. Absolute Obligation With Respect to Letter of
Credit Payments 27
2.10. Payments 27
2.11. Records 28
3. INTEREST, FEES, YIELD PROTECTIONS, ETC. 29
3.1. Interest Rate and Payment Dates 29
3.2. Fees 30
3.3. Conversions 31
3.4. Concerning Interest Periods 32
3.5. Indemnification for Loss 32
3.6. Capital Adequacy 33
3.7. Reimbursement for Increased Costs 34
3.8. Illegality of Funding 35
3.9. Substituted Interest Rate 35
3.10. Taxes 36
3.11. Option to Fund 37
3.12. Substitution of a Lender 37
4. REPRESENTATIONS AND WARRANTIES 38
4.1. Subsidiaries; Capitalization 38
4.2. Existence and Power 39
4.3. Authority and Execution 39
4.4. Binding Agreement 39
4.5. Litigation 39
4.6. Required Consents 39
4.7. Absence of Defaults; No Conflicting Agreements 40
4.8. Compliance with Applicable Laws 40
4.9. Taxes 40
4.10. Governmental Regulations 41
4.11. Federal Reserve Regulations; Use of Loan
Proceeds 41
4.12. Plans 41
4.13. Financial Statements 42
4.14. Property 42
4.15. Authorizations 42
4.16. Environmental Matters 42
4.17. Trade or Business 43
4.18. Solvency 43
4.19. Accounting Treatment of Internally Generated
Computer Software. 43
4.20. Absence of Certain Restrictions 43
4.21. No Misrepresentation 44
5. CONDITIONS TO EFFECTIVENESS 44
5.1. Evidence of Action 44
5.2. This Agreement 44
5.3. Revolving Credit Notes 45
5.4. Absence of Litigation 45
5.5. Approvals and Consents 45
5.6. Opinion of Counsel to the Borrower and the
Subsidiary Guarantors 45
5.7. Opinion of Special Counsel 45
5.8. Subsidiary Guaranty 45
5.9. Property, Public Liability and Other Insurance 46
5.10. Fees 46
5.11. Liens 46
5.12. Compliance Certificate 46
5.13. Other Documents 46
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF
CREDIT 46
6.1. Conditions of Lending - Revolving Credit Loans
and Letters of Credit 46
6.2. Additional Conditions to Revolving Credit Loans
and Letters of Credit in Connection with
Permitted Acquisitions 47
7. AFFIRMATIVE COVENANTS 48
7.1. Financial Statements and Information 48
7.2. Certificates; Other Information 49
7.3. Legal Existence 50
7.4. Taxes 51
7.5. Insurance 51
7.6. Performance of Obligations 51
7.7. Condition of Property 51
7.8. Observance of Legal Requirements 51
7.9. Inspection of Property; Books and Records;
Discussions 52
7.10. Authorizations 52
7.11. Financial Covenants 52
7.12. Additional Subsidiary Guarantors 53
8. NEGATIVE COVENANTS 53
8.1. Indebtedness 53
8.2. Liens 54
8.3. Merger, Consolidations and Acquisitions 55
8.4. Dispositions 56
8.5. Investments, Loans, Etc. 56
8.6. Restricted Payments 58
8.7. Business Changes 58
8.8. Subsidiaries 58
8.9. ERISA 58
8.10. Amendments, Etc. of Certain Agreements 58
8.11. Transactions with Affiliates 59
8.12. Issuance of Additional Capital Stock 59
8.13. Limitation on Certain Restrictions on
Subsidiaries 59
8.14. Sale and Leaseback Transactions 59
8.15. Trade or Business 59
9. DEFAULT 60
9.1. Events of Default 60
9.2. Contract Remedies 62
10. THE AGENT 63
10.1. Appointment 63
10.2. Delegation of Duties 63
10.3. Exculpatory Provisions 63
10.4. Reliance by Agent 64
10.5. Notice of Default 64
10.6. Non-Reliance on Agent and Other Lenders 65
10.7. Indemnification 65
10.8. Agent in Its Individual Capacity 66
10.9. Successor Agent 66
11. OTHER PROVISIONS 67
11.1. Amendments and Waivers 67
11.2. Notices 68
11.3. No Waiver; Cumulative Remedies 69
11.4. Survival of Representations and Warranties
and Certain Obligations 69
11.5. Payment of Expenses and Taxes 69
11.6. Lending Offices 70
11.7. Assignments and Participations 71
11.8. Indemnity 72
11.9. Limitation of Liability 73
11.10. Counterparts 73
11.11. Adjustments; Set-off 74
11.12. Construction 75
11.13. Governing Law 75
11.14. Headings Descriptive 75
11.15. Severability 75
11.16. Integration 75
11.17. Consent to Jurisdiction 76
11.18. Service of Process 76
11.19. No Limitation on Service or Suit 76
11.20. WAIVER OF TRIAL BY JURY 76
11.21. Treatment of Certain Information 77
EXHIBITS
Exhibit A List of Commitments
Exhibit B Form of Revolving Credit Note
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Letter of Credit Request
Exhibit D Form of Notice of Conversion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Opinion of Counsel to the Borrower and the Subsidiary
Guarantors
Exhibit G Form of Opinion of Special Counsel
Exhibit H Form of Assignment and Acceptance Agreement
Exhibit I Form of Subsidiary Guaranty and Subordination Agreement
SCHEDULES
Schedule 1.1 List of Lending Offices
Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.5 List of Litigation
Schedule 4.10 List of Subsidiaries that are Investment Companies
Schedule 4.12 List of Existing Pension Plans
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.5 List of Existing Investments
CREDIT AGREEMENT, dated as of March 5, 1997, by and among THE BISYS GROUP,
INC., a Delaware corporation (the "BORROWER"), the lenders party hereto
(together with their respective assigns, the "LENDERS", each a "LENDER") and THE
BANK OF NEW YORK, as agent for the Lenders (in such capacity, the "AGENT") and
as the Issuing Bank (as such term is defined below).
I. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
A. DEFINITIONS
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR ADVANCES": the Revolving Credit Loans (or any portions thereof),
at such time as they (or such portions) are made and/or being maintained at a
rate of interest based upon the Alternate Base Rate.
"ACCOUNTANTS": Coopers & Xxxxxxx, L.L.P. (or any successor thereto),
or such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Agent.
"ACCUMULATED FUNDING DEFICIENCY": as defined in Section 302 of ERISA.
"ACQUISITION": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including through a merger,
dividend or otherwise and whether in a single transaction or in a series of
related transactions), of (i) any Capital Stock of, or other equity securities
of, any other Person if, immediately thereafter, such other Person would be
either a Subsidiary of such Person or otherwise under the control of such
Person, (ii) any Operating Entity, or (iii) any Property, including rights
acquired in connection with a Contract Acquisition, of (A) any other Person or
(B) any Operating Entity in either case other than in the ordinary course of
business, provided, however, that (1) except as otherwise provided by clause (2)
below, an acquisition of any Property, the consideration paid for which is less
than $1,000,000, shall be deemed to be in the ordinary course of business, and
(2) no acquisition of all or substantially all of the assets of such other
Person or Operating Entity shall be deemed to be in the ordinary course of
business.
"ACQUISITION COST": with respect to any Acquisition by any Person, the
sum of (i) all cash consideration paid or agreed to be paid by such Person to
make such Acquisition (in-
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clusive of payments by such Person of the seller's professional fees and
expenses and other out-of-pocket expenses in connection therewith), PLUS (ii)
the fair market value of all non-cash consideration paid by such Person in
connection therewith, PLUS (iii) an amount equal to the principal or stated
amount of all liabilities assumed or incurred by such Person in connection
therewith. The principal or stated amount of any liability assumed or incurred
by a Person in connection with an Acquisition which is a contingent liability
shall be an amount equal to the stated amount of such liability or, if the same
is not stated, the maximum reasonably anticipated amount payable by such Person
in respect thereof as determined by such Person in good faith.
"ACQUISITION RELATED CONTINGENT PAYMENT": a payment constituting all
or a portion of the purchase price payable in connection with a Permitted
Acquisition, the maximum aggregate potential amount of which payments cannot be
determined in advance of the occurrence or non-occurrence after the closing date
of such Permitted Acquisition of certain contingencies.
"ADVANCE": an ABR Advance or a Eurodollar Advance, as the case may be.
"AFFECTED ADVANCE": as defined in Section 3.9.
"AFFECTED PRINCIPAL AMOUNT": in the event that (i) the Borrower shall
fail for any reason to borrow a Revolving Credit Loan in respect of which it
shall have requested a Eurodollar Advance or convert an Advance to a Eurodollar
Advance after it shall have notified the Agent of its intent to do so, an amount
equal to the principal amount of such Eurodollar Advance; (ii) a Eurodollar
Advance shall terminate for any reason prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such
Eurodollar Advance; and (iii) the Borrower shall prepay or repay all or any part
of the principal amount of a Eurodollar Advance prior to the last day of the
Interest Period applicable thereto, an amount equal to the principal amount of
such Advance so prepaid or repaid.
"AFFILIATE": as to any Person, any other Person 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 shall mean
the power, direct or indirect, (i) to vote 10% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons thereof or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"AGGREGATE COMMITMENT AMOUNT": at any time, the sum at such time of
the Commitment Amounts of all Lenders.
"AGGREGATE CREDIT EXPOSURE": at any time, the sum at such time of (i)
the outstanding principal balance of the Revolving Credit Loans of all Lenders,
PLUS (ii) an amount equal to the Letter of Credit Exposure of all Lenders.
"AGREEMENT": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
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"ALTERNATE BASE RATE": on any date, a rate of interest per annum equal
to the higher of (i) the Federal Funds Rate in effect on such date PLUS 1/2 of
1% or (ii) the BNY Rate in effect on such date.
"APPLICABLE FEE PERCENTAGE": with respect to the Commitment Fee and
the Letter of Credit Commissions, at all times during which the applicable
Pricing Level set forth below is in effect, the percentage set forth below next
to such Pricing Level and under the applicable column:
APPLICABLE FEE PERCENTAGE
Letter of
Commitment Credit
Pricing Level Fee Commissions
------------- ---------- -----------
Pricing Level I 0.150% 0.625%
Pricing Level II 0.175% 0.750%
Pricing Level III 0.200% 1.000%
Pricing Level IV 0.250% 1.250%.
Changes in the Applicable Fee Percentage resulting from a change in a
Pricing Level shall become effective upon the date of the delivery by the
Borrower to the Agent of a Compliance Certificate pursuant to Section 7.1(c)
evidencing a change in the Leverage Ratio which would affect the applicable
Pricing Level. If the Borrower shall fail to deliver a Compliance Certificate
within 45 days after the end of each of the first three fiscal quarters (or 90
days after the end of the last fiscal quarter) as required by Section 7.1(c),
the next higher Pricing Level than that in effect on such 45th day (or 90th day
in the case of the last quarter) shall apply from and including the 46th day
(the 91st day in the case of the last quarter) after the end of such fiscal
quarter to the date of the delivery by the Borrower to the Agent of a Compliance
Certificate demonstrating that a different Pricing Level is applicable.
Notwithstanding the foregoing, (i) if no payment of Commitment Fees and Letter
of Credit Commissions was due and payable during the period in which the
Borrower failed to deliver such Compliance Certificate, and if the Compliance
Certificate when delivered demonstrates that a Pricing Level different than that
which is applicable pursuant to the preceding sentence during such period should
apply, the Applicable Fee Percentage shall be recalculated for such period based
on such Compliance Certificate, and (ii) if a payment of Commitment Fees and
Letter of Credit Commissions was due and payable during such period and if the
Compliance Certificate when delivered demonstrates that a Pricing Level higher
than that which is applicable pursuant to the preceding sentence should apply
during such period, the Applicable Fee Percentage and related Commitment Fees
and Letter of Credit Commissions shall be recalculated for such period based
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on such Compliance Certificate and the difference between the amounts so
recalculated and the amounts paid during such period shall be due and payable on
the next date that Commitment Fees and Letter of Credit Commissions are due and
payable.
"APPLICABLE LENDING OFFICE": in respect of any Lender, (i) in the case
of such Lender's ABR Advances, its Domestic Lending Office and (ii) in the case
of such Lender's Eurodollar Advances, its Eurodollar Lending Office.
"APPLICABLE MARGIN": with respect to the unpaid principal balance of
ABR Advances and Eurodollar Advances, in each case at all times during which the
applicable Pricing Level set forth below is in effect, the percentage set forth
below next to such Pricing Level and under the applicable column, subject to the
provisos set forth below:
APPLICABLE MARGIN (TYPE OF ADVANCE)
Pricing Level ABR Eurodollar
------------- --- ----------
Pricing Level I 0.000% 0.625%
Pricing Level II 0.000% 0.750%
Pricing Level III 0.000% 1.000%
Pricing Level IV 0.000% 1.250%.
Changes in the Applicable Margin resulting from a change in a Pricing
Level shall become effective upon the date of the delivery by the Borrower to
the Agent of a Compliance Certificate pursuant to Section 7.1(c) evidencing a
change in the Leverage Ratio which would affect the applicable Pricing Level.
If the Borrower shall fail to deliver a Compliance Certificate within 45 days
after the end of each of the first three fiscal quarters (or 90 days after the
end of the last fiscal quarter) as required by Section 7.1(c), the next higher
Pricing Level than that in effect on such 45th day (or 90th day in the case of
the last quarter) shall apply from and including the 46th day (the 91st day in
the case of the last quarter) after the end of such fiscal quarter to the date
of the delivery by the Borrower to the Agent of a Compliance Certificate
demonstrating that a different Pricing Level is applicable. Notwithstanding the
foregoing, (i) if no Interest Payment Date occurred during the period in which
the Borrower failed to deliver such Compliance Certificate continued, and if the
Compliance Certificate when delivered demonstrates that a Pricing Level
different than that which is applicable pursuant to the preceding sentence
during such period should apply, the Applicable Margin shall be recalculated for
such period based on such Compliance Certificate, and (ii) if an Interest
Payment Date occurred during such period and if the Compliance Certificate when
delivered demonstrates that a Pricing Level higher than that which is applicable
pursuant to the preceding sentence should apply during such period, the
Applicable Margin and related payments shall be recalculated for such period
based on such Compliance Certificate and the difference between the amounts so
recalculated and the amount paid during such period shall be due and payable on
the next Interest Payment Date.
"APPROVED BANK": any bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating from (i) Standard &
Poor's is at least A-1 or the equivalent thereof or (ii) Xxxxx'x is at least P-1
or the equivalent thereof.
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"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement executed by an assignor and an assignee substantially in the form of
Exhibit H.
"ASSIGNMENT FEE": as defined in Section 11.7(b).
"AUTHORIZED SIGNATORY": as to (i) any Person which is a corporation,
the chairman of the board, the president, any vice president, the chief
financial officer or any other officer of such Person acceptable to the Agent
and (ii) any Person which is not a corporation, the Managing Person thereof or a
duly authorized representative of such Managing Person.
"AVAILABLE COMMITMENT AMOUNT": at any time, an amount equal to the
Aggregate Commitment Amount at such time MINUS the Aggregate Credit Exposure at
such time.
"BENEFITED LENDER": as defined in Section 11.11.
"BNY": The Bank of New York.
"BNY CAPITAL MARKETS": BNY Capital Markets, Inc.
"BNY RATE": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"BORROWING DATE": any Business Day specified in (i) a Borrowing
Request as a date on which the Borrower requests the Lenders to make Revolving
Credit Loans or (ii) a Letter of Credit Request as a date on which the Borrower
requests the Issuing Bank to issue a Letter of Credit.
"BORROWING REQUEST": a request for Revolving Credit Loans in the form
of Exhibit C-1.
"BUSINESS DAY": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which eurodollar funding between banks may be
carried on in
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Xxxxxx, Xxxxxxx.
"CAPITAL LEASE OBLIGATIONS": with respect to any Person, obligations
of such Person with respect to leases which are required to be capitalized for
financial reporting purposes in accordance with GAAP.
"CAPITAL STOCK": as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations, rights in or
other equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or convertible
into such shares, interests, participations, rights or other equity.
"CASH EQUIVALENTS": (i) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America
is pledged in full support thereof) having maturities of not more than six
months from the date of acquisition, (ii) Dollar denominated time deposits,
certificates of deposit and bankers acceptances of (x) any Lender or (y) any
Approved Bank, in any such case with maturities of not more than six months from
the date of acquisition, (iii) commercial paper issued by any Approved Bank or
by the parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any industrial or financial company with an unsecured non-credit
supported short-term commercial paper rating of at least A-1 or the equivalent
by Standard & Poor's or at least P-1 or the equivalent by Moody's, or guaranteed
by any industrial or financial company with a long term unsecured non-credit
supported senior debt rating of at least A or A-2, or the equivalent, by
Standard & Poor's or Moody's, as the case may be, and in each case maturing
within six months after the date of acquisition, (iv) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within six months from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's or Moody's and (v) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) above.
"CODE": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"COMMITMENT": in respect of any Lender, such Lender's undertaking
during the Commitment Period to make Revolving Credit Loans, subject to the
terms and conditions hereof, in an aggregate outstanding principal amount not
exceeding the Commitment Amount of such Lender.
"COMMITMENT AMOUNT": as of any date and with respect to any Lender,
the amount set forth adjacent to its name under the heading "Commitment Amount"
in Exhibit A on such date or, in the event that such Lender is not listed in
Exhibit A, the "Commitment Amount" which such Lender shall have assumed from
another Lender in accordance with Section 11.7 on or prior to such date, as the
same may be reduced from time to time pursuant to Section 2.4.
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"COMMITMENT FEE": as defined in Section 3.2(a).
"COMMITMENT PERCENTAGE": as to any Lender in respect of such Lender's
Commitment and its obligations with respect to Letters of Credit, the percentage
equal to such Lender's Commitment Amount divided by the Aggregate Commitment
Amount (or, if no Commitments then exist, the percentage equal to such Lender's
Commitment Amount on the last day upon which Commitments did exist divided by
the Aggregate Commitment Amount on such day).
"COMMITMENT PERIOD": the period from the Effective Date until the
Commitment Termination Date.
"COMMITMENT TERMINATION DATE": the earlier of the Business Day
immediately preceding the Maturity Date or such other date upon which the
Commitments shall have been terminated in accordance with Section 2.4 or Section
9.2.
"COMPENSATION FINANCING": as to any Subsidiary of the Borrower which
is a principal underwriter or distributor of shares of an Investment Company and
is so designated in such Investment Company's then effective registration
statement, either (i) the incurrence by such Subsidiary, as such principal
underwriter or distributor, of Indebtedness, the proceeds of which are loaned by
it to a broker or dealer entitled to compensation in connection with the sale of
shares of such Investment Company, which loan is to be repaid by such broker or
dealer at the time of its receipt of Contingent Deferred Sales Commissions or
12b-1 Fees to which such broker or dealer is entitled as a result of such sale
or (ii) the sale by such Subsidiary as such principal underwriter or distributor
of Contingent Deferred Sales Commissions or 12b-1 Fees to which such principal
underwriter or distributor is entitled in connection with the sale of shares of
such Investment Company.
"COMPENSATORY INTEREST PAYMENT": as defined in Section 3.1(c).
"COMPLIANCE CERTIFICATE": a certificate substantially in the form of
Exhibit E.
"CONCORD": Concord Holding Corporation, a Delaware corporation, and a
wholly-owned Subsidiary of the Borrower.
"CONSOLIDATED": the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED ADJUSTED EBITDA": for any period, Consolidated EBITDA
for such period plus the sum of, without duplication, (i) to the extent deducted
in determining
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Consolidated EBITDA, (A) transaction-related charges related to the acquisition
by the Borrower of BISYS Creative Solutions, Inc. and T.U.G., Inc. made under
the "pooling method" permitted by GAAP, and (B) the total Success Fees paid to
Xxxxxx Xxxx in connection with Contract Acquisitions with respect to which
Xxxxxx Xxxx was a Seller, not in excess of $17,150,000 before taxes ($11,374,000
net of taxes) for (A) and (B) in the aggregate, (ii) to the extent deducted in
determining Consolidated EBITDA, an amount equal to transaction-related charges
related to Permitted Acquisitions made under the "pooling method" permitted by
GAAP after the Effective Date (not in excess of 20% of the total consideration
in respect of any such Permitted Acquisition and $50,000,000 in the aggregate
for all such Permitted Acquisitions), and (iii) to the extent deducted in
determining Consolidated EBITDA, an amount equal to the difference between (x)
the total Success Fees paid in connection with Permitted Contract Acquisitions
made during such period and after the Effective Date (not in excess of
$50,000,000 in the aggregate for all Success Fees for all such Permitted
Contract Acquisitions), and (y) the amount thereof which would be amortized
during such period if such Success Fees were amortizable and assuming a 5 year
useful life thereof.
"CONSOLIDATED ASSETS": at any date of determination, the total assets
of the Borrower and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP as at such date.
"CONSOLIDATED CAPITAL EXPENDITURES": for any period, the aggregate of
all expenditures incurred by the Borrower or any of its Subsidiaries during such
period which, in accordance with GAAP, are required to be included in "ADDITIONS
TO PROPERTY, PLANT OR EQUIPMENT" or similar items reflected on the balance sheet
of the Borrower and its Subsidiaries, provided, however, that "Capital
Expenditures" shall not include (i) capitalized leases, or (ii) expenditures of
proceeds of insurance settlements in respect of lost, destroyed or damaged
assets, equipment or other property to the extent such expenditures are made to
replace or repair such lost, destroyed or damaged assets, equipment or other
property within six months of the receipt of such proceeds.
"CONSOLIDATED EBITDA": for any period, Consolidated Net Income for
such period PLUS the sum of, without duplication, (i) Consolidated Interest
Expense (plus non-cash amortization of fees with respect to interest rate swap,
cap or other interest rate hedging arrangements), (ii) provision for income
taxes and (iii) depreciation, amortization and all other non-cash charges for
such period of the Borrower and its Subsidiaries determined on a Consolidated
basis in accordance with GAAP, each to the extent deducted in determining
Consolidated Net Income for such period and LESS the sum of non-cash gains for
such period to the extent included in determining Net Income for such period.
For purposes of this definition, "CONSOLIDATED NET INCOME" and "CONSOLIDATED
INTEREST EXPENSE" shall not include any amounts earned by the Borrower or any of
its Subsidiaries in connection with Compensation Financings to the extent
permitted by Section 8.1(xi).
"CONSOLIDATED FIXED CHARGES": for any period, the sum of, without
duplication, (i) all scheduled payments of principal of Indebtedness during such
period, (ii) all payments made by the Borrower and its Subsidiaries in respect
of capitalized leases for such period determined on a Consolidated basis in
accordance with GAAP, (iii) Consolidated Interest
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Expense for such period, (iv) Acquisition Related Contingent Payments either
paid or accrued during such period by the Borrower or any of its Subsidiaries
determined on a Consolidated basis in accordance with GAAP, and (iv) regularly
scheduled principal payments on subordinated Indebtedness of the Borrower or any
of its Subsidiaries permitted pursuant to Section 8.1(v) to the extent the same
is permitted to be paid pursuant to the subordination provisions thereof.
"CONSOLIDATED INTEREST EXPENSE": for any period, the sum of, without
duplication, all interest (adjusted to give effect to all interest rate swap,
cap, collar or other interest rate hedging arrangements and non-cash
amortization of fees in connection therewith, all as determined on a
Consolidated basis in accordance with GAAP), paid or accrued in respect of
Consolidated Total Debt during such period.
"CONSOLIDATED NET INCOME": for any period, the sum of, without
duplication, net income of the Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP for such period.
"CONSOLIDATED NET WORTH": at any date of determination, the sum of all
amounts which would be included under shareholders' equity on a Consolidated
balance sheet of the Borrower and its Subsidiaries determined on a Consolidated
basis in accordance with GAAP as at such date.
"CONSOLIDATED TOTAL DEBT": at any date of determination, the aggregate
funded indebtedness (including, without limitation, Capital Lease Obligations)
on such date of the Borrower and its Subsidiaries on a Consolidated basis in
accordance with GAAP.
"CONTINGENT DEFERRED SALES COMMISSIONS": amounts owed by an Investment
Company to the principal underwriter or distributor thereof (as designated in
such Investment Company's then effective registration statement under the 0000
Xxx) as repayment for expenses incurred by such principal underwriter or
distributor pursuant to a written plan adopted by the shareholders of such
Investment Company.
"CONTINGENT OBLIGATION": as to any Person ( a "SECONDARY OBLIGOR"),
any obligation of such secondary obligor (i) guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation (a "PRIMARY OBLIGATION") of any other Person (a "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such secondary obligor, whether contingent, (A) to
purchase any primary obligation or any Property constituting direct or indirect
security therefor, (B) to advance or supply funds (x) for the purchase or
payment of any primary obligation or (y) to maintain
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working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of a primary obligor, (C) to purchase
Property, securities or services primarily for the purpose of assuring the
beneficiary of any primary obligation of the ability of a primary obligor to
make payment of a primary obligation, (D) otherwise to assure or hold harmless
the beneficiary of a primary obligation against loss in respect thereof, and (E)
in respect of the liabilities of any partnership in which a secondary obligor is
a general partner, except to the extent that such liabilities of such
partnership are nonrecourse to such secondary obligor and its separate Property,
provided, however, that the term "Contingent Obligation" shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation of a Person shall be deemed
to be an amount equal to the stated or determinable amount of a primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"CONTRACT ACQUISITION": as defined in Section 8.3(d).
"CONTROL PERSON": as defined in Section 3.6.
"CONVERSION DATE": the date on which: (i) a Eurodollar Advance is
converted to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar
Advance or (iii) a Eurodollar Advance is converted to a new Eurodollar Advance.
"CREDIT EXPOSURE": with respect to any Lender as of any date, the sum
as of such date of (i) the outstanding principal balance of such Lender's
Revolving Credit Loans, PLUS (ii) an amount equal to such Lender's Letter of
Credit Exposure.
"CREDIT PARTY": the Borrower and each Subsidiary Guarantor.
"CUSTOMER": as defined in Section 8.3(d).
"DEFAULT": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION": with respect to any Person, any sale, assignment,
transfer or other disposition by such Person, by any means, of (i) the Capital
Stock of, or other equity interests of, any other Person, (ii) any Operating
Entity, or (iii) any other Property of such Person other than in the ordinary
course of business, provided, however, that no such sale, assignment, transfer
or other disposition of Property (other than inventory, except to the extent
subject to a bulk sale) shall be deemed to be in the ordinary course of business
(a) if the fair market value thereof is in excess of $1,000,000, or (b) to the
extent that the fair market value thereof, when aggregated with all other sales,
assignments, transfers and other dispositions made by such Person within the
same fiscal year, exceeds $2,000,000, and then only to the extent of such
excess, if any, or (c) it is the sale, assignment, transfer or disposition of
(1) all or substantially all of the Property of such Person or (2) any Operating
Entity.
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"DISQUALIFIED STOCK": any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable at the option of the holder thereof by contract or otherwise,
is, or upon the happening of an event or passage of time would be, required to
be redeemed prior to the Maturity Date or is redeemable at the option of the
holder thereof at any time on or prior to the Maturity Date, or is convertible
into or exchangeable at the option of the holder thereof for debt securities at
any time prior to the Maturity Date (as from time to time extended).
"DOLLARS" and "$": lawful currency of the United States.
"DOMESTIC LENDING OFFICE": in respect of (i) any Lender listed on the
signature pages hereof, initially, the office or offices of such Lender
designated as such on Schedule 1.1; thereafter, such other office of such
Lender, through which it shall be making or maintaining ABR Advances, as
reported by such Lender to the Agent and the Borrower, and (ii) in the case of
any other Lender, initially, the office or offices of such Lender designated as
such on Schedule 2 of the Assignment and Acceptance Agreement or other document
pursuant to which it became a Lender; thereafter, such other office of such
Lender, through which it shall be making or maintaining ABR Advances, as
reported by such Lender to the Agent and the Borrower.
"DOMESTIC SUBSIDIARY": each Subsidiary of the Borrower that is
organized under the laws of the United States of America or any State thereof.
"EFFECTIVE DATE": March 5, 1997.
"ELIGIBLE ASSIGNEE": a Lender, any affiliate of a Lender and any other
bank, insurance company, pension fund, mutual fund or other financial
institution.
"EMPLOYEE BENEFIT PLAN": an employee benefit plan within the meaning
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"ENVIRONMENTAL LAWS": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section 9601 ET SEQ.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section 6901 ET SEQ.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA Section 2601 ET SEQ.; (iv) the Water
Pollution Control Act, as amended, 33 USCA Section 1251 ET SEQ.; (v) the Clean
Air Act, as amended, 42 USCA Section 7401 ET SEQ.; (vi) the Hazardous Materials
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Transportation Authorization Act of 1994, as amended, 49 USCA Section 5101 ET
SEQ. and (vii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA AFFILIATE": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person which is a member of any group of organizations within the meaning of
Sections 414(b) or (c) of the Code (or, solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, Sections 414(m) or (o) of the Code) of which the Borrower or any of its
Subsidiaries is a member.
"EURODOLLAR ADVANCES": collectively, the Revolving Credit Loans (or
any portions thereof), at such time as they (or such portions) are made and/or
being maintained at a rate of interest based upon the Eurodollar Rate.
"EURODOLLAR LENDING OFFICE": in respect of (i) any Lender listed on
the signature pages hereof, initially, the office or offices of such Lender
designated as such on Schedule 1.1; thereafter, such other office of such
Lender, through which it shall be making or maintaining Eurodollar Advances, as
reported by such Lender to the Agent and the Borrower and (ii) in the case of
any other Lender, initially, the office or offices of such Lender designated as
such on Schedule 2 of the Assignment and Acceptance Agreement or other document
pursuant to which it became a Lender; thereafter, such other office of such
Lender, through which it shall be making or maintaining Eurodollar Advances, as
reported by such Lender to the Agent and the Borrower.
"EURODOLLAR RATE": with respect to the Interest Period applicable to
any Eurodollar Advance, a rate of interest per annum, as determined by the
Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) the rate, as reported by BNY to the Agent, quoted by BNY to
leading banks in the interbank eurodollar market as the rate at which BNY is
offering Dollar deposits in an amount equal approximately to the Eurodollar
Advance of BNY to which such Interest Period shall apply for a period equal to
such Interest Period, as quoted at approximately 11:00 a.m. two Business Days
prior to the first day of such Interest Period, by
(b) a number equal to 1.00 MINUS the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in
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respect of eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board of Governors of the Federal Reserve
System) or in respect of any other category of liabilities including deposits by
reference to which the interest rate on Eurodollar Advances is determined or any
category of extensions of credit or other assets which includes loans by
non-domestic offices of any Lender to United States residents. Such reserve
requirements shall include, without limitation, those imposed under such
Regulation D. Eurodollar Advances shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of credits for proration, exceptions or offsets
which may be available from time to time to any Lender under such Regulation D.
The Eurodollar Rate shall be adjusted automatically on and as of the effective
date of any change in any such reserve requirement.
"EVENT OF DEFAULT": as defined in Section 9.1.
"EXEMPT SUBSIDIARY": each Subsidiary of the Borrower for so long as it
is (i) a registered broker-dealer, (ii) engaged in the insurance business and
subject to net capital rules or regulations of any Governmental Authority which
would treat the Contingent Obligations under the Subsidiary Guaranty as a
liability for purposes thereof if such Subsidiary was a Subsidiary Guarantor, or
(iii) holding no assets and conducting no business.
"EXISTING PENSION PLANS": as defined in Section 4.12.
"FEDERAL FUNDS RATE": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 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 (i) 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 (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Agent.
"FEES": as defined in Section 2.10.
"FINANCIAL OFFICER": as to any Person, the chief financial officer of
such Person or such other officer as shall be satisfactory to the Agent.
"FINANCIAL STATEMENTS": as defined in Section 4.13.
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"FIXED CHARGE COVERAGE RATIO": at any date of determination, the ratio
of (i) an amount equal to Consolidated Adjusted EBITDA for the four fiscal
quarter period ending on such date or, if such date is not the last day of a
fiscal quarter, for the immediately preceding four fiscal quarter period MINUS
Consolidated Capital Expenditures made during such period MINUS income taxes
paid during such period to (ii) Consolidated Fixed Charges for such period.
"FOREIGN SUBSIDIARY": each Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"FUND SERVICES": BISYS Fund Services, Inc., a Delaware corporation,
and a wholly-owned Subsidiary of the Borrower.
"FUND SERVICES (OHIO)": BISYS Fund Services Ohio, Inc., an Ohio
corporation, and a wholly-owned Subsidiary of Fund Services.
"FUNDED CURRENT LIABILITY PERCENTAGE": as defined in Section
401(a)(29) of the Code.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"HAZARDOUS SUBSTANCE": any hazardous or toxic substance, material or
waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and replacements
thereof and (ii) any substance, pollutant or material defined as, or designated
in, any Environmental Law as a "hazardous substance," "toxic substance,"
"hazardous material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"HIGHEST LAWFUL RATE": as to any Lender or the Issuing Bank, the
maximum rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on the Revolving
Credit Note held by it or by the Issuing Bank on the Reimbursement Agreements,
as the case may be, or which may be owing to such Lender or the Issuing Bank
pursuant to the Loan Documents under the laws applicable to such Lender or the
Issuing Bank and this transaction.
"INDEBTEDNESS": as to any Person, at a particular time, all items
which constitute,
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without duplication, (i) indebtedness for borrowed money, (ii) indebtedness in
respect of the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (iii) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (iv) obligations with respect
to any conditional sale or title retention agreement, (v) indebtedness arising
under acceptance facilities and the amount available to be drawn under all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment thereof, (vi) 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
(other than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations and (viii) Contingent Obligations.
"INDEMNIFIED LIABILITY": as defined in Section 11.5.
"INDEMNIFIED PERSON": as defined in Section 11.8.
"INDEMNIFIED TAX": as defined in Section 3.10(a).
"INDEMNIFIED TAX PERSON": as defined in Section 3.10(a).
"INTERCOMPANY INDEBTEDNESS": loans which are (i) made by the Borrower
to direct or indirect Subsidiaries thereof or (ii) made by direct or indirect
Subsidiaries of the Borrower to the Borrower or to other direct or indirect
Subsidiaries of the Borrower.
"INTERCOMPANY LOAN": a loan that is made by the Borrower to a direct
or indirect Subsidiary thereof.
"INTEREST PAYMENT DATE": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance as to which the Borrower has
selected an Interest Period of one, two or three months, the last day of such
Interest Period, (iii) as to any Eurodollar Advance as to which the Borrower has
selected an Interest Period of six months, the last day of each three month
interval occurring during such Interest Period and the last day of such Interest
Period; and (iv) as to all Advances, the Maturity Date.
"INTEREST PERIOD": with respect to any Eurodollar Advance requested by
the Borrower, the period commencing on, as the case may be, the Borrowing Date
or Conversion Date with respect to such Eurodollar Advance and ending one, two,
three or six months
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thereafter, as selected by the Borrower in its irrevocable Borrowing Request or
its irrevocable Notice of Conversion, provided, however, that (i) if any
Interest Period would otherwise end on a day which 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 and (ii) any Interest Period which 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. Interest Periods shall
be subject to the provisions of Section 3.4.
"INVESTMENT COMPANY": an investment company registered under the 1940
Act.
"INVESTMENTS": as defined in Section 8.5.
"ISSUING BANK": BNY, in its capacity as the issuer of the Letters of
Credit.
"LETTER OF CREDIT": as defined in Section 2.7.
"LETTER OF CREDIT COMMISSIONS": as defined in Section 3.2(b).
"LETTER OF CREDIT COMMITMENT": the commitment of the Issuing Bank to
issue Letters of Credit having an aggregate outstanding face amount up to the
Letter of Credit Commitment Amount, and the commitment of the Lenders to
participate in the Letter of Credit Exposure as set forth in Section 2.8.
"LETTER OF CREDIT COMMITMENT AMOUNT": $10,000,000.
"LETTER OF CREDIT EXPOSURE": at any time, (i) in respect of all the
Lenders, the sum at such time, without duplication, of (x) the aggregate undrawn
face amount of the outstanding Letters of Credit, (y) the aggregate amount of
unpaid drafts drawn on all Letters of Credit, and (z) the aggregate unpaid
Reimbursement Obligations (after giving effect to any Revolving Credit Loans
made on such date to pay any such Reimbursement Obligations), and (ii) in
respect of any Lender, an amount equal to such Lender's Commitment Percentage
multiplied by the amount determined under clause (i) of this definition.
"LETTER OF CREDIT REQUEST": a request in the form of Exhibit C-2.
"LEVERAGE RATIO": at any date of determination, the ratio of (i)
Consolidated Total Debt on such date to (ii) Consolidated Adjusted EBITDA for
the four fiscal quarter period ending on such date or, if such date is not the
last day of a fiscal quarter, for the immediately preceding four fiscal quarter
period. For purposes of this definition, "CONSOLIDATED TOTAL DEBT" shall not
include any Indebtedness incurred by the Borrower or any of its Subsidiaries in
connection with Compensation Financings to the extent permitted by Section
8.1(xi).
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security
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interest of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement and any capital or financing
lease having substantially the same economic effect as any of the foregoing.
"LOAN DOCUMENTS": collectively, this Agreement, the Revolving Credit
Notes, the Reimbursement Agreements and the Subsidiary Guaranty.
"MANAGING PERSON": with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"MARGIN STOCK": any "margin stock", as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as amended, supplemented or
otherwise modified from time to time.
"MATERIAL ADVERSE CHANGE": a material adverse change in the financial
condition, operations, business or Property of the Borrower and its Subsidiaries
taken as a whole.
"MATERIAL ADVERSE EFFECT": a material adverse effect on the financial
condition, operations, business or Property of the Borrower and its Subsidiaries
taken as a whole.
"MATERIAL SUBSIDIARY": any Subsidiary of the Borrower that is either
a. a Subsidiary Guarantor or b. a Foreign Subsidiary or an Exempt Subsidiary
(other than a Subsidiary of the Borrower that is an Exempt Subsidiary solely
because of the applicability of clause (iii) of the definition of "Exempt
Subsidiary") in respect of which either of the following conditions are met:(1)
such Subsidiary's total assets exceed 10% of Consolidated Assets as of the last
day of the most recently completed fiscal year of the Borrower, or (2)such
Subsidiary's EBITDA exceeds 10% of Consolidated EBITDA for the most recently
completed fiscal year of the Borrower. The term "EBITDA", as used in this
definition, means for any period, the net income of a Subsidiary of the Borrower
for such period PLUS the sum of, without duplication, interest expense, income
taxes, depreciation, amortization and all other non-cash charges for such
period, each to the extent deducted in determining net income for such period,
MINUS the sum of all non-cash gains for such period to the extent included in
determining net income for such period, all determined in the same manner as the
counterparts of such items are determined in the calculation of "Consolidated
EBITDA" for the Borrower and its Subsidiaries on a Consolidated basis.
"MATURITY DATE": March 5, 2002, or such earlier date on which the
Revolving
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Credit Notes shall become due and payable, whether by acceleration or otherwise.
"MOODY'S": Xxxxx'x Investors Service, Inc., or any successor thereto.
"MULTIEMPLOYER PLAN": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"1940 ACT": the Investment Company Act of 1940, as amended, and the
Rules promulgated thereunder, as amended.
"NOTICE OF CONVERSION": a notice substantially in the form of Exhibit
D.
"OTHER TAXES": as defined in Section 3.10(c).
"OPERATING ENTITY": any Person or any business or operating unit of a
Person which is, or could be, operated separate and apart from (i) the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"ORGANIZATIONAL DOCUMENTS": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, (iv) a limited
liability partnership, the limited liability partnership agreement or similar
agreement of such Person, or (v) any other form of entity or organization, the
organizational documents analogous to the foregoing.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"PENSION PLAN": at any date of determination, any Employee Benefit
Plan (including a Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Borrower, any of its Subsidiaries or any ERISA Affiliate.
"PERMITTED ACQUISITION": an Acquisition permitted by Section 8.3 other
than a Permitted Contract Acquisition.
"PERMITTED CONTRACT ACQUISITION": an Acquisition permitted by Section
8.3(d).
"PERMITTED LIEN": a Lien permitted to exist under Section 8.2(a).
"PERSON": any individual, firm, partnership, limited liability
company, limited liability partnership, joint venture, corporation, association,
business enterprise, joint stock company, unincorporated association, trust,
Governmental Authority or any other entity,
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whether acting in an individual, fiduciary, or other capacity, and for the
purpose of the definition of "ERISA Affiliate", a trade or business.
"PRICING LEVEL": Pricing Level I, Pricing Level II, Pricing Level III
or Pricing Level IV, as applicable.
"PRICING LEVEL I": the applicable Pricing Level at any time when the
Leverage Ratio is less than 1.00:1.00.
"PRICING LEVEL II": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 1.00:1.00 but less than 2.00:1.00.
"PRICING LEVEL III": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 2.00:1.00 but less than 3.00:1.00.
"PRICING LEVEL IV": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 3.00:1.00.
"PROHIBITED TRANSACTION": a transaction which is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"PROPERTY": all real, personal, tangible, intangible or mixed property
of any type.
"PROPOSED LENDER": as defined in Section 3.12.
"REAL PROPERTY": all real property owned or leased by the Borrower or
any of its Subsidiaries.
"REGULATORY CHANGE": (i) the introduction or phasing in of any law,
rule or regulation after the Effective Date, (ii) the issuance or promulgation
after the Effective Date of any directive, guideline or request from any central
bank or United States or foreign Governmental Authority (whether or not having
the force of law), or (iii) any change after the Effective Date in the
interpretation of any existing law, rule, regulation, directive, guideline or
request by any central bank or United States or foreign Governmental Authority
charged with the administration thereof.
"REIMBURSEMENT AGREEMENT": as defined in Section 2.7(b).
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the
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Issuing Bank for amounts drawn under a Letter of Credit.
"REMAINING INTEREST PERIOD": (i) in the event that the Borrower shall
fail for any reason to borrow a Revolving Credit Loan in respect of which it
shall have requested a Eurodollar Advance or convert an Advance to a Eurodollar
Advance after it shall have notified the Agent of its intent to do so, a period
equal to the Interest Period that the Borrower elected in respect of such
Eurodollar Advance; or (ii) in the event that a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that the
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date of such
prepayment or repayment to but excluding the last day of such Interest Period.
"REPORTABLE EVENT": with respect to any Pension Plan, (i) any event
set forth in Sections 4043(c) (other than a Reportable Event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) of ERISA or the regulations thereunder, (ii) an event
requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or
(iii) any failure to make any payment required by Section 412(m) of the Code.
"REQUIRED LENDERS": at any time when (i) no Revolving Credit Loans or
Letters of Credit are outstanding, Lenders having Commitment Amounts (or if no
Commitments then exist, Lenders having Commitment Amounts on the last day on
which Commitments did exist) greater than or equal to 66-2/3% of the Aggregate
Commitment Amount and (ii) at any time when Revolving Credit Loans or Letters of
Credit are outstanding, Lenders which have Revolving Credit Loans outstanding
and unreimbursed obligations in respect of Letters of Credit in an aggregate
amount greater than or equal to 66-2/3% of the Aggregate Credit Exposure.
"RESPONSIBLE OFFICER": as to any Person, its President, Chief
Financial Officer, Treasurer, General Counsel, Secretary, any Vice President,
Assistant Secretary, Assistant Treasurer, or any other individual responsible
for (i) the management of any Operating Entity thereof, or (ii) monitoring or
ensuring compliance with the Loan Documents.
"RESTRICTED PAYMENT": as to any Person (i) any dividend or other
distribution, direct or indirect, on account of any shares of Capital Stock or
other equity interest in such Person now or hereafter outstanding (other than a
dividend payable solely in shares of such Capital Stock to the holders of such
shares) and (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition, direct or indirect, of any shares of any class of
Capital Stock or other equity interest in such Person now or hereafter
outstanding.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS": as defined in
Section 2.1.
"REVOLVING CREDIT NOTE" and "REVOLVING CREDIT NOTES": as defined in
Section
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2.2.
"RULE 12B-1": Rule 12b-1 promulgated under the 1940 Act.
"SALE AND LEASEBACK TRANSACTION": any transaction or series of related
transactions pursuant to which a Person sells or transfers any Property in
connection with the leasing, or the resale against installment payments, of such
Property to the seller or transferor.
"SEC": the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions thereof.
"SELLER": as defined in Section 8.3(d).
"SOLVENT": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital. For purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability after taking
into account probable payments by co-obligors.
"SPECIAL COUNSEL": Xxxxx, Xxxxxx & Xxxxxx, LLP, special counsel to the
Agent.
"STANDARD & POOR'S": Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SUBSIDIARY": as to any Person, any corporation, association,
partnership, limited liability company, limited liability partnership, joint
venture or other business entity of which such Person or any Subsidiary of such
Person, directly or indirectly, either (i) in respect of a corporation, owns or
controls more than 50% of the outstanding Capital Stock having ordinary voting
power to elect a majority of the Managing Person, irrespective of whether a
class or classes shall or might have voting power by reason of the happening of
any contingency, or (ii) in respect of an association, partnership, limited
liability company, limited liability partnership,
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joint venture or other business entity, is entitled to share in more than 50% of
the profits and losses, however determined.
"SUBSIDIARY GUARANTORS": collectively, (i) each Subsidiary of the
Borrower that is a signatory to the Subsidiary Guaranty as of the Effective Date
and (ii) each other Person which becomes a Subsidiary Guarantor pursuant to the
provisions of the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY": the Subsidiary Guaranty and Subordination
Agreement, by and among the Subsidiary Guarantors, the Borrower and the Agent,
substantially in the form of Exhibit I, as amended, supplemented or otherwise
modified from time to time.
"SUCCESS FEE": as defined in Section 8.3(d).
"TAXES": as defined in Section 3.10(a).
"TAX ON THE INCOME": as defined in Section 3.10(a).
"TERMINATION EVENT": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under Section 4041(c) of ERISA, (iii) the institution
of proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv)
the appointment of a trustee to administer any Pension Plan under Section 4042
of ERISA.
"12B-1 FEES": all fees and distribution or other expenses incurred
under a plan adopted pursuant to Rule 12b-1 under the 1940 Act.
"TYPE": with respect to any Revolving Credit Loan, the character of
such Revolving Credit Loan as an ABR Advance or a Eurodollar Advance, each of
which constitutes a type of loan.
"UNFUNDED PENSION LIABILITIES": with respect to any Pension Plan, at
any date of determination, the amount determined by taking the accumulated
benefit obligation, as disclosed in accordance with Statement of Accounting
Standards No. 87, "Employers' Accounting for Pensions", over the fair market
value of Pension Plan assets.
"UNITED STATES": the United States of America (including the States
thereof and the District of Columbia).
"UNQUALIFIED AMOUNT": as defined in Section 3.1(c).
"UNRECOGNIZED RETIREE WELFARE LIABILITY": with respect to any Employee
Benefit Plan that provides postretirement benefits other than pension benefits,
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income
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statement of the Borrower and its Subsidiaries, provided that prior to the date
such Statement is applicable to the Borrower, such amount shall be based on an
estimate made in good faith of such transition obligation.
"U.S. PERSON": a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under any
laws of the United States, or any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
B. PRINCIPLES OF CONSTRUCTION
1. All terms defined in a Loan Document shall have the meanings
given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto,
unless otherwise defined therein.
2. As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in this Agreement, the Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
reflect such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
3. The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
4. The phrase "may not" is prohibitive and not permissive.
5. Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
6. Unless specifically provided in a Loan Document to the contrary,
any
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reference to a time shall refer to such time in New York.
7. Unless specifically provided in a Loan Document to the contrary,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
8. References in any Loan Document to a fiscal period shall refer to
that fiscal period of the Borrower.
II. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
A. REVOLVING CREDIT LOANS
Subject to the terms and conditions hereof, each Lender severally (and
not jointly) agrees to make revolving credit loans (each a "REVOLVING CREDIT
LOAN" and, as the context may require, collectively with all other Revolving
Credit Loans of such Lender and with the Revolving Credit Loans of all other
Lenders, the "REVOLVING CREDIT LOANS") to the Borrower from time to time during
the Commitment Period, provided that immediately after giving effect thereto a.
such Lender's Credit Exposure would not exceed such Lender's Commitment Amount,
and b. the Aggregate Credit Exposure would not exceed the Aggregate Commitment
Amount. During the Commitment Period, the Borrower may borrow, prepay in whole
or in part and reborrow under the Commitments, all in accordance with the terms
and conditions of this Agreement. Subject to the provisions of Sections 2.3 and
3.3, at the option of the Borrower, Revolving Credit Loans may be made as one or
more (i) ABR Advances, (ii) Eurodollar Advances or (iii) any combination
thereof.
B. REVOLVING CREDIT NOTES
The Revolving Credit Loans made by each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit B, with
appropriate insertions therein as to date and principal amount (each, as
indorsed or modified from time to time, a "REVOLVING CREDIT NOTE" and,
collectively with the Revolving Credit Notes of all other Lenders, the
"REVOLVING CREDIT NOTES"), payable to the order of such Lender for the account
of its Applicable Lending Office, dated the Effective Date, and in the stated
principal amount equal to such Lender's Commitment Amount. The outstanding
principal balance of the Revolving Credit Loans shall be due and payable on the
Maturity Date.
C. PROCEDURE FOR BORROWING
1. The Borrower may borrow under the Commitments on any Business Day
during the Commitment Period, provided that the Borrower shall notify the Agent
by the delivery of a Borrowing Request, which shall be sent by telecopy and
shall be irrevocable (confirmed promptly, and in any event within five Business
Days, by the delivery to the Agent of a Borrowing Request manually signed by the
Borrower), no later than 11:00 a.m. three
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Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Advances, or 11:00 a.m. one Business Day prior to the requested Borrowing Date,
in the case of ABR Advances, specifying (1) the aggregate principal amount to be
borrowed under the Commitments,(2) the requested Borrowing Date,(3) whether such
borrowing is to consist of one or more Eurodollar Advances, ABR Advances, or a
combination thereof and (4) if the borrowing is to consist of one or more
Eurodollar Advances, the length of the Interest Period for each such Eurodollar
Advance. Each (i) Eurodollar Advance to be made on a Borrowing Date, when
aggregated with all amounts to be converted to a Eurodollar Advance on such date
and having the same Interest Period as such first Eurodollar Advance, shall
equal no less than $1,000,000 or such amount PLUS a whole multiple of $100,000
in excess thereof, and (ii) each ABR Advance made on each Borrowing Date shall
equal no less than $1,000,000 or such amount PLUS a whole multiple of $100,000
in excess thereof or, if less, the Available Commitment Amount.
2. Upon receipt of each Borrowing Request, the Agent shall promptly
notify each Lender thereof. Subject to its receipt of the notice referred to in
the preceding sentence, each Lender will make the amount of its Commitment
Percentage of the requested Revolving Credit Loans available to the Agent for
the account of the Borrower at the office of the Agent set forth in Section 11.2
not later than 12:00 noon on the relevant Borrowing Date requested by the
Borrower, in funds immediately available to the Agent at such office. The
amounts so made available to the Agent on such Borrowing Date will then, subject
to the satisfaction of the terms and conditions of this Agreement, as determined
by the Agent, be made available on such date to the Borrower by the Agent at the
office of the Agent specified in Section 11.2 by crediting the account of the
Borrower on the books of such office with the aggregate of said amounts received
by the Agent.
3. Unless the Agent shall have received prior notice from a Lender
(by telephone or otherwise, such notice to be promptly confirmed by telecopy or
other writing) that such Lender will not make available to the Agent such
Lender's Commitment Percentage of the Revolving Credit Loans requested by the
Borrower, the Agent may assume that such Lender has made such share available to
the Agent on the Borrowing Date in accordance with this Section, provided that
such Lender received notice of the requested Revolving Credit Loans from the
Agent, and the Agent may, in reliance upon such assumption, make available to
the Borrower on the Borrowing Date a corresponding amount. If and to the extent
such Lender shall not have so made its Commitment Percentage of such Revolving
Credit Loans available to the Agent, such Lender and the Borrower severally
agree to pay to the Agent forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to the Borrower to the date
such amount is paid to the Agent, at a rate per annum equal to, in the case of
the Borrower, the applicable interest rate set forth in Section 3.1 for ABR
Advances, and, in the case of such Lender, at a rate of interest per annum equal
to the Federal Funds Rate for the first three days
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after the due date of such payment until the date such payment is received by
the Agent and the Federal Funds Rate plus 2% thereafter. Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Agent such corresponding amount, such amount so
paid shall constitute such Lender's Revolving Credit Loan as part of the
Revolving Credit Loans for purposes of this Agreement, which Revolving Credit
Loan shall be deemed to have been made by such Lender on the Borrowing Date
applicable to such Revolving Credit Loans.
4. If a Lender makes a new Revolving Credit Loan on a Borrowing Date
on which the Borrower is to repay a Revolving Credit Loan from such Lender, such
Lender shall apply the proceeds of such new Revolving Credit Loan to make such
repayment, and only the excess of the proceeds of such new Revolving Credit Loan
over the Revolving Credit Loan being repaid need be made available to the Agent.
D. TERMINATION OR REDUCTION OF COMMITMENTS
1. VOLUNTARY REDUCTIONS. The Borrower shall have the right, upon at
least three Business Days' prior written notice to the Agent, to reduce
permanently the Aggregate Commitment Amount, in whole at any time, or in part
from time to time, to an amount not less than the sum of a. the aggregate
principal balance of the Revolving Credit Loans then outstanding (after giving
effect to any contemporaneous prepayment thereof) and b. the Letter of Credit
Exposure, provided, however, that each partial reduction of the Aggregate
Commitment Amount shall be an amount equal to $1,000,000 or such amount PLUS a
whole multiple of $100,000 in excess thereof.
2. IN GENERAL. Each reduction of the Aggregate Commitment Amount
shall be made by reducing each Lender's Commitment Amount by an amount equal to
such Lender's Commitment Percentage of such reduction. Simultaneously with each
reduction of the Aggregate Commitment Amount under this Section, the Borrower
shall pay the Commitment Fee accrued on the amount by which the Aggregate
Commitment Amount have been reduced.
E. PREPAYMENTS OF THE REVOLVING CREDIT LOANS
1. VOLUNTARY PREPAYMENTS. The Borrower may, at its option, prepay
the Revolving Credit Loans without premium or penalty (but subject to Section
3.5), in full at any time or in part from time to time by notifying the Agent in
writing at least on or before the proposed prepayment date, in the case of
Revolving Credit Loans consisting of ABR Advances and at least three Business
Days prior to the proposed prepayment date, in the case of Revolving Credit
Loans consisting of Eurodollar Advances, specifying whether the Revolving Credit
Loans to be prepaid consist of ABR Advances, Eurodollar Advances, or a
combination thereof, the amount to be prepaid and the date of prepayment. Each
such notice shall be irrevocable and the amount specified in each such notice
shall be due and payable on the date specified, together with accrued interest
to the date of such payment on the amount prepaid. Upon receipt of such notice,
the Agent shall promptly notify each Lender thereof. Each partial prepayment of
the Revolving Credit Loans pursuant to this subsection shall be in an aggregate
principal amount of $1,000,000 or such amount PLUS a whole multiple of $100,000
in excess thereof, or, if less,
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the outstanding principal balance of the Revolving Credit Loans. After giving
effect to any partial prepayment with respect to Eurodollar Advances which were
made (whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal balance of such
Eurodollar Advances shall exceed $1,000,000 or such amount PLUS a whole multiple
of $100,000 in excess thereof.
2. MANDATORY PREPAYMENTS OF REVOLVING CREDIT LOANS RELATING TO
TERMINATIONS OF THE COMMITMENTS AND REDUCTIONS OF THE AGGREGATE COMMITMENT
AMOUNT. Simultaneously with the termination of the Commitments of all of the
Lenders and each reduction of the Aggregate Commitment Amount under Section 2.4,
the Borrower shall prepay the Revolving Credit Loans in full in the case of the
termination of the Commitments of all of the Lenders and prepay the Revolving
Credit Loans by the amount, if any, by which the Aggregate Credit Exposure
exceeds the Aggregate Commitment Amount as so reduced, in the case of a
reduction of the Aggregate Commitment Amount.
3. IN GENERAL. Simultaneously with each prepayment of a Revolving
Credit Loan, the Borrower shall prepay all accrued interest on the amount
prepaid through the date of prepayment. Unless otherwise specified by the
Borrower, each prepayment of Revolving Credit Loans shall first be applied to
ABR Advances. If any prepayment is made in respect of any Eurodollar Advance,
in whole or in part, prior to the last day of the applicable Interest Period,
the Borrower agrees to indemnify the Lenders in accordance with Section 3.5.
F. USE OF PROCEEDS
The Borrower agrees that the proceeds of the Revolving Credit Loans
shall be used solely, directly or indirectly,a. for the working capital needs of
the Borrower and its Subsidiaries,b. to finance Permitted Acquisitions and
Permitted Contract Acquisitions either directly or by the extension of
Intercompany Indebtedness to a Subsidiary to the extent permitted by Section
8.5(f),c. to pay all of the Fees due hereunder,d. to pay the reasonable
out-of-pocket fees and expenses incurred by the Borrower in connection with the
Loan Documents, and e. for the Borrower's general corporate purposes not
inconsistent with the provisions hereof. Notwithstanding anything to the
contrary contained in any Loan Document, the Borrower agrees that no part of the
proceeds of any Revolving Credit Loan will be used, directly or indirectly, for
a purpose which violates any law, including, without limitation, the provisions
of Regulations G, U or X of the Board of Governors of the Federal Reserve
System, as amended.
G. LETTER OF CREDIT SUB-FACILITY
1. Subject to the terms and conditions of this Agreement, the
Issuing Bank
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agrees, in reliance on the agreement of the other Lenders set forth in Section
2.8, to issue standby letters of credit (the "LETTERS OF CREDIT"; each,
individually, a "LETTER OF CREDIT") during the Commitment Period for the account
of the Borrower, provided that immediately after the issuance of each Letter of
Credit (i) the Letter of Credit Exposure of all Lenders (whether or not the
conditions for drawing under any Letter of Credit have or may be satisfied)
would not exceed the Letter of Credit Commitment Amount and (ii) the Aggregate
Credit Exposure would not exceed the Aggregate Commitment Amount. Each Letter
of Credit issued pursuant to this Section shall have an expiration date which
shall be not later than one Business Day prior to the Maturity Date. No Letter
of Credit shall be issued if the Agent, or any Lender by notice to the Agent no
later than 1:00 p.m. one Business Day prior to the requested date of issuance of
such Letter of Credit, shall have determined that any condition set forth in
Section 6 has not been satisfied.
2. Each Letter of Credit shall be issued for the account of the
Borrower in support of an obligation of the Borrower or a Subsidiary thereof in
favor of a beneficiary who has requested the issuance of such Letter of Credit
a. as a condition to a transaction entered into in connection with the
Borrower's ordinary course of business, or b. as support for Indebtedness
incurred by the Borrower, and permitted under Section 8.1, in connection with a
Permitted Acquisition. The Borrower shall give the Agent a Letter of Credit
Request for the issuance of each Letter of Credit by 11:00 a.m., three Business
Days prior to the requested date of issuance. Each Letter of Credit Request
shall be accompanied by the Issuing Bank's standard Application and Agreement
for Standby Letter of Credit (each, a "REIMBURSEMENT AGREEMENT") executed by an
Authorized Signatory of the Borrower, and shall specify (i) the beneficiary of
such Letter of Credit and the obligations in respect of which such Letter of
Credit is to be issued, (ii) the Borrower's proposal as to the conditions under
which a drawing may be made under such Letter of Credit and the documentation to
be required in respect thereof, (iii) the maximum amount to be available under
such Letter of Credit, and (iv) the requested dates of issuance and expiration.
Upon receipt of such Letter of Credit Request from the Borrower, the Agent shall
promptly notify the Issuing Bank and each other Lender thereof. Each Letter of
Credit shall be in form and substance reasonably satisfactory to the Issuing
Bank, with such provisions with respect to the conditions under which a drawing
may be made thereunder and the documentation required in respect of such drawing
as the Issuing Bank shall reasonably require. Each Letter of Credit shall be
used solely for the purposes described therein. The Issuing Bank shall, on the
proposed date of issuance and subject to the terms and conditions of the
Reimbursement Agreement and to the other terms and conditions of this Agreement,
issue the requested Letter of Credit.
3. Each payment by the Issuing Bank of a draft drawn under a Letter
of Credit shall give rise to an obligation on the part of the Borrower to
reimburse the Issuing Bank immediately for the amount thereof.
H. LETTER OF CREDIT PARTICIPATION AND FUNDING COMMITMENTS
1. Each Lender hereby unconditionally, irrevocably and severally
(and not jointly) for itself only and without any notice to or the taking of any
action by such Lender, takes an undivided participating interest in the
obligations of the Issuing Bank under and in connection with each Letter of
Credit in an amount equal to such Lender's Commitment Percentage
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of the amount of such Letter of Credit. Each Lender shall be liable to the
Issuing Bank for its Commitment Percentage of the unreimbursed amount of any
draft drawn and honored under each Letter of Credit. Each Lender shall also be
liable for an amount equal to the product of its Commitment Percentage and any
amounts paid by the Borrower pursuant to Section 2.7(c) and 2.9 that are
subsequently rescinded or avoided, or must otherwise be restored or returned.
Such liabilities shall be unconditional and without regard to the occurrence of
any Default or Event of Default or the compliance by any Credit Party with any
of its obligations under the Loan Documents.
2. The Issuing Bank will promptly notify the Agent, and the Agent
will promptly notify each Lender (which notice shall be promptly confirmed in
writing) of the date and the amount of any draft presented under any Letter of
Credit with respect to which full reimbursement of payment is not made by the
Borrower as provided in Section 2.7(c), and forthwith upon receipt of such
notice, such Lender (other than the Issuing Bank in its capacity as a Lender)
shall make available to the Agent for the account of the Issuing Bank its
Commitment Percentage of the amount of such unreimbursed draft at the office of
the Agent specified in Section 11.2, in lawful money of the United States and in
immediately available funds, before 4:00 p.m., on the day such notice was given
by the Agent, if the relevant notice was given by the Agent at or prior to 1:00
p.m., on such day, and before 12:00 noon, on the next Business Day, if the
relevant notice was given by the Agent after 1:00 p.m., on such day. The Agent
shall distribute the payments made by each Lender (other than the Issuing Bank
in its capacity as a Lender) pursuant to the immediately preceding sentence to
the Issuing Bank promptly upon receipt thereof in like funds as received. Each
Lender shall indemnify and hold harmless the Agent and the Issuing Bank from and
against any and all losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses and an administration fee of
not less than $250 payable to the Issuing Bank as the issuer of the relevant
Letter of Credit) resulting from any failure on the part of such Lender to
provide, or from any delay in providing, the Agent with such Lender's Commitment
Percentage of the amount of any payment made by the Issuing Bank under a Letter
of Credit in accordance with this subsection (b) (except in respect of losses,
liabilities or other obligations suffered by the Issuing Bank resulting from the
gross negligence or willful misconduct of the Issuing Bank). If a Lender does
not make available to the Agent when due such Lender's Commitment Percentage of
any unreimbursed payment made by the Issuing Bank under a Letter of Credit
(other than payments made by the Issuing Bank by reason of its gross negligence
or willful misconduct), such Lender shall be required to pay interest to the
Agent for the account of the Issuing Bank on such Lender's Commitment Percentage
of such payment at a rate of interest per annum equal to the Federal Funds Rate
for the first three days after the due date of such payment until the date such
payment is received by the Agent and the Federal Funds Rate plus 2% thereafter.
The Agent shall distribute such interest payments to the Issuing Bank upon
receipt thereof in like funds as received.
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3. Whenever the Agent is reimbursed by the Borrower, for the account
of the Issuing Bank, for any payment under a Letter of Credit and such payment
relates to an amount previously paid by a Lender in respect of its Commitment
Percentage of the amount of such payment under such Letter of Credit, the Agent
(or the Issuing Bank, to the extent that the Agent has paid the same to the
Issuing Bank) will pay over such payment to such Lender a. before 4:00 p.m. on
the day such payment from the Borrower is received, if such payment is received
at or prior to 1:00 p.m. on such day, or b. before 12:00 noon on the next
succeeding Business Day, if such payment from the Borrower is received after
1:00 p.m. on such day.
I. ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS
The Borrower's obligation to reimburse the Agent for the account of
the Issuing Bank in respect of a Letter of Credit for each payment under or in
respect of such Letter of Credit shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off, counterclaim or defense
to payment which the Borrower may have or have had against the beneficiary of
such Letter of Credit, the Agent, the Issuing Bank, as issuer of such Letter of
Credit, any Lender or any other Person, including, without limitation, any
defense based on the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be forged, fraudulent or
invalid, or the legality, validity, regularity or enforceability of such Letter
of Credit; provided, that, with respect to any Letter of Credit, the foregoing
shall not relieve the Issuing Bank of any liability it may have to the Borrower
for any actual damages sustained by the Borrower arising from a wrongful payment
under such Letter of Credit made as a result of the Issuing Bank's gross
negligence or willful misconduct.
J. PAYMENTS
1. Each borrowing of Revolving Credit Loans by the Borrower from the
Lenders, any conversion of Revolving Credit Loans from one Type to another and
any reduction in the Commitments shall be made pro rata according to the
Commitment Percentage of such Lender. Each payment, including each prepayment,
of principal and interest on the Revolving Credit Loans, of the Commitment Fee,
the Letter of Credit Commissions and of all of the other fees to be paid to the
Agent and the Lenders in connection with this Agreement (the Commitment Fee and
the Letter of Credit Commissions, together with all of such other fees, being
sometimes hereinafter collectively referred to as the "FEES") shall be made by
the Borrower prior to 1:00 p.m. on the date such payment is due to the Agent for
the account of the applicable Lenders at the Agent's office specified in Section
11.2, in each case in lawful money of the United States, in immediately
available funds and without set-off or counterclaim. As between the Borrower
and the Lenders, any payment by the Borrower to the Agent for the account of the
Lenders shall be deemed to be payment by the Borrower to the Lenders. The
failure of the Borrower to make any such payment by such time shall not
constitute a Default, provided that such payment is made on such due date, but
any such payment made after 1:00 p.m. on such due date shall be deemed to have
been made on the next Business Day for the purpose of calculating interest on
amounts outstanding on the Revolving Credit Loans. Promptly upon receipt
thereof by the Agent, each payment of principal and interest on the Revolving
Credit Loans shall be remitted by the Agent in like funds as received to each
Lender pro rata according to the aggregate outstanding principal balance of the
Revolving Credit Loans. Promptly upon
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receipt thereof by the Agent, each payment of the Commitment Fee and the Letter
of Credit Commissions shall be remitted by the Agent in like funds as received
to each Lender pro rata according to such Lender's Commitment Amount.
2. If any payment hereunder, under the Revolving Credit Notes or
under any Reimbursement Agreement shall be due and payable on a day which is not
a Business Day, the due date thereof (except as otherwise provided in the
definition of Interest Period) shall be extended to the next Business Day and
(except with respect to payments in respect of the Fees) interest shall be
payable at the applicable rate specified herein during such extension, provided,
however that if such next Business Day is after the Maturity Date, any such
payment shall be due on the immediately preceding Business Day.
K. RECORDS
1. LENDER'S RECORDS. Each Lender will note, either manually or
electronically, on its internal records with respect to each Revolving Credit
Loan made by it a. the date and amount of such Revolving Credit Loan,b. the
character of such Revolving Credit Loan as an ABR Advance, a Eurodollar Advance
or a combination thereof,c. the interest rate (without regard to the Applicable
Margin) and the Interest Period applicable to Eurodollar Advances, and d. each
payment and prepayment of the principal thereof.
2. AGENT'S AND ISSUING BANK'S RECORDS. The Agent and the Issuing
Bank shall keep records regarding the Revolving Credit Loans, the Letters of
Credit and the Loan Documents in accordance with their customary procedures for
agented credits and Letters of Credit, respectively.
3. PRIMA FACIE EVIDENCE. The entries made in the records maintained
pursuant to subsections (a) and (b) above shall, to the extent not prohibited by
applicable law, be prima facie evidence of the existence and amount of the
obligations of the Borrower recorded therein; provided that the failure of the
Agent, the Issuing Bank or any Lender, as the case may be, to make any notation
on its records shall not affect the Borrower's or any other Credit Party's
rights and obligations in respect of the Revolving Credit Loans, the Letters of
Credit or any other Loan Documents.
III. INTEREST, FEES, YIELD PROTECTIONS, ETC.
A. INTEREST RATE AND PAYMENT DATES
1. PRIOR TO MATURITY. Except as otherwise provided in Section 3.1(b)
and
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3.1(c), prior to maturity, the Revolving Credit Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below, as selected by Borrower in accordance with Section
2.3:
ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate PLUS the Applicable
Margin applicable to ABR Advances.
Each Eurodollar Advance Eurodollar Rate for the applicable Interest
Period PLUS the Applicable Margin applicable
to Eurodollar Advances.
2. DEFAULT RATE. Upon the occurrence and during the continuance of
an Event of Default, the unpaid principal balance of the Revolving Credit Loans
shall bear interest at a rate per annum (whether before or after the entry of a
judgment thereon) equal to 2% PLUS the rate which would otherwise be applicable
under Section 3.1(a), and any overdue interest or other amount payable under the
Loan Documents (including any unpaid Reimbursement Obligations) shall bear
interest (whether before or after the entry of a judgment thereon) at a rate per
annum equal to the Alternate Base Rate PLUS the Applicable Margin applicable to
ABR Advances PLUS 2%. For purposes of the preceding sentence, the rate
applicable pursuant to Section 3.1(a) to any overdue principal, interest or
other amount payable under the Loan Documents shall be a. in the case of an
overdue principal balance of any Eurodollar Advance, the applicable Eurodollar
Rate PLUS the Applicable Margin until the last day of the applicable Interest
Period (or the earlier termination thereof pursuant to this Agreement) and
thereafter at the Alternate Base Rate PLUS the Applicable Margin and b. in all
other cases, the Alternate Base Rate PLUS the Applicable Margin. All such
interest shall be payable on demand.
3. HIGHEST LAWFUL RATE. At no time shall the interest rate payable
on the Revolving Credit Loans of any Lender, together with the Fees and all
other amounts payable under the Loan Documents to such Lender, to the extent the
same are construed to constitute interest, exceed the Highest Lawful Rate
applicable to such Lender. If with respect to any Lender for any period during
the term of this Agreement, any amount paid to such Lender under the Loan
Documents, to the extent the same shall (but for the provisions of this Section)
constitute or be deemed to constitute interest, would exceed the maximum amount
of interest permitted by the Highest Lawful Rate applicable to such Lender
during such period (such amount being hereinafter referred to as an "UNQUALIFIED
AMOUNT"), then (i) such Unqualified Amount shall be applied or shall be deemed
to have been applied as a prepayment of the Revolving Credit Loans of such
Lender, and (ii) if in any subsequent period during the term of this Agreement,
all amounts payable under the Loan Documents to such Lender in respect of such
period which constitute or shall be deemed to constitute interest shall be less
than the maximum amount of interest permitted by the Highest Lawful Rate
applicable to such Lender during such period, then the Borrower shall pay to
such Lender in respect of such period an amount (each a "COMPENSATORY INTEREST
PAYMENT") equal to the lesser of (x) a sum which, when added to all such
amounts, would equal the maximum amount of interest permitted by the Highest
Lawful Rate applicable to such Lender during such period, and (y) an amount
equal to the Unqualified
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Amount less all other Compensatory Interest Payments made in respect thereof.
4. IN GENERAL. Interest on a. ABR Advances to the extent based on
the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as the
case may be), and b. ABR Advances to the extent based on the Federal Funds Rate
and on Eurodollar Advances shall be calculated on the basis of a 360-day year,
in each case, for the actual number of days elapsed. Except as otherwise
provided in Section 3.1(b), interest shall be payable in arrears on each
Interest Payment Date and upon each payment (including prepayment) of the
Revolving Credit Loans. Any change in the interest rate on the Revolving Credit
Loans resulting from a change in the Alternate Base Rate or reserve requirements
shall become effective as of the opening of business on the day on which such
change shall become effective. The Agent shall, as soon as practicable, notify
the Borrower and the Lenders of the effective date and the amount of each such
change in the BNY Rate, but any failure to so notify shall not in any manner
affect the obligation of the Borrower to pay interest on the Revolving Credit
Loans in the amounts and on the dates required. Each determination of the
Alternate Base Rate or a Eurodollar Rate by the Agent pursuant to this Agreement
shall be conclusive and binding on all parties hereto absent manifest error.
The Borrower acknowledges that to the extent interest payable on ABR Advances is
based on the BNY Rate, such rate is only one of the bases for computing interest
on loans made by the Lenders, and by basing interest payable on ABR Advances on
the BNY Rate, the Lenders have not committed to charge, and the Borrower has not
in any way bargained for, interest based on a lower or the lowest rate at which
the Lenders may now or in the future make loans to other borrowers.
B. FEES
1. COMMITMENT FEES. The Borrower agrees to pay to the Agent, for the
account of the Lenders in accordance with each Lender's Commitment Percentage, a
fee (the "COMMITMENT FEE"), during the Commitment Period, at a rate per annum
equal to the Applicable Fee Percentage on the average daily Available Commitment
Amount. The Commitment Fee shall be payable quarterly in arrears on the last
day of each March, June, September and December of each year, commencing on the
first such day following the Effective Date, and ending on the date that the
Commitments shall expire or otherwise terminate. The Commitment Fee shall be
calculated on the basis of a 360-day year for the actual number of days elapsed.
2. LETTER OF CREDIT COMMISSIONS. The Borrower agrees to pay to the
Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, commissions (the "LETTER OF CREDIT COMMISSIONS") with
respect to the Letters of Credit for the period from and including the date of
issuance of each thereof to and including the expiration date thereof, at a rate
per annum equal to the Applicable Fee Percentage in effect on the date of
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issuance thereof on the average daily maximum amount available under any
contingency to be drawn under such Letter of Credit. The Letter of Credit
Commissions shall be a. calculated on the basis of a 360-day year for the actual
number of days elapsed and b. payable quarterly in arrears on the last day of
each March, June, September and December of each year and on the date that the
Commitments shall expire. In addition to the Letter of Credit Commissions, the
Borrower agrees to pay to the Issuing Bank, for its own account, its standard
fees and charges customarily charged to customers similar to the Borrower with
respect to any Letter of Credit.
3. AGENT'S AND ISSUING BANK'S FEES. The Borrower agrees to pay to
the Agent and the Issuing Bank, for their own respective accounts, such other
fees as have been agreed to in writing by the Borrower, the Agent and the
Issuing Bank.
C. CONVERSIONS
1. The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election, specifying the amount to be
converted, provided, that any such conversion of Eurodollar Advances shall only
be made on the last day of the Interest Period applicable thereto. In addition,
the Borrower may elect from time to time to convert a. ABR Advances to
Eurodollar Advances and b. Eurodollar Advances to new Eurodollar Advances by
selecting a new Interest Period therefor, in each case by giving the Agent at
least three Business Days' prior irrevocable notice of such election, in the
case of a conversion to Eurodollar Advances, specifying the amount to be so
converted and the initial Interest Period relating thereto, provided that any
such conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such conversion of Eurodollar Advances to new Eurodollar
Advances shall only be made on the last day of the Interest Period applicable to
the Eurodollar Advances which are to be converted to such new Eurodollar
Advances. Each such notice shall be irrevocable and shall be given by the
delivery by telecopy of a Notice of Conversion (confirmed promptly, and in any
event within five Business Days, by the delivery to the Agent of a Notice of
Conversion manually signed by the Borrower). The Agent shall promptly provide
the Lenders with notice of each such election. Advances may be converted
pursuant to this Section in whole or in part, provided that the amount to be
converted to each Eurodollar Advance, when aggregated with any Eurodollar
Advance to be made on such date in accordance with Section 2.3 and having the
same Interest Period as such first Eurodollar Advance, shall equal no less than
$1,000,000 or such amount PLUS a whole multiple of $100,000 in excess thereof.
2. Notwithstanding anything in this Agreement to the contrary, upon
the occurrence and during the continuance of a Default or an Event of Default,
the Borrower shall have no right to elect to convert any existing ABR Advance to
a new Eurodollar Advance or to convert any existing Eurodollar Advance to a new
Eurodollar Advance. In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the Interest Period applicable to
such Eurodollar Advance.
3. Each conversion shall be effected by each Lender by applying the
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proceeds of its new ABR Advance or Eurodollar Advance, as the case may be, to
its Advances (or portion thereof) being converted (it being understood that any
such conversion shall not constitute a borrowing for purposes of Sections 4, 5
or 6).
D. CONCERNING INTEREST PERIODS
Notwithstanding any other provision of any Loan Document:
1. If the Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or 3.3, as the case may be, in connection with any
borrowing of new Revolving Credit Loans or expiration of an Interest Period with
respect to any existing Eurodollar Advance, the amount of the Revolving Credit
Loans subject to such borrowing or such existing Eurodollar Advance shall
thereafter be an ABR Advance until such time, if any, as the Borrower shall
elect a new Eurodollar Advance pursuant to Section 3.3.
2. No Interest Period selected in respect of the conversion of
any Eurodollar Advance shall end after the Maturity Date.
3. The Borrower shall not be permitted to have more than ten
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Borrowing Request shall
constitute the making of one Eurodollar Advance for the purpose of calculating
such limitation.
E. INDEMNIFICATION FOR LOSS
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow or convert on a Borrowing Date or Conversion Date
after it shall have given notice to do so in which it shall have requested a
Eurodollar Advance, or if a Eurodollar Advance shall be terminated for any
reason prior to the last day of the Interest Period applicable thereto, or if,
while a Eurodollar Advance is outstanding, any repayment or prepayment of such
Eurodollar Advance is made for any reason (including, without limitation, as a
result of acceleration or illegality) on a date which is prior to the last day
of the Interest Period applicable thereto, the Borrower agrees to indemnify each
Lender against, and to pay on demand directly to such Lender, any loss or
expense suffered by such Lender as a result of such failure to borrow or
convert, termination, repayment or prepayment, including, without limitation, an
amount, if greater than zero, equal to:
A x (B-C) x D
360
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where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal), applicable to such
Eurodollar Advances;
"C" equals the Eurodollar Rate (expressed as a decimal), in effect on or about
the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such date, for
deposits in an amount equal approximately to such Lender's pro rata share of the
Affected Principal Amount with an Interest Period equal approximately to the
applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, including, without limitation, in liquidating or
employing deposits acquired to fund or maintain the funding of its pro rata
share of the Affected Principal Amount, or redeploying funds prepaid or repaid,
in amounts which correspond to its pro rata share of the Affected Principal
Amount. Each determination by the Agent or a Lender pursuant to this Section
shall be conclusive and binding on the Borrower absent manifest error.
F. CAPITAL ADEQUACY
If the amount of capital required or expected to be maintained by any
Lender or any Person directly or indirectly owning or controlling such Lender or
the Issuing Bank (each a "CONTROL PERSON"), shall be affected by the occurrence
of a Regulatory Change and such Lender or the Issuing Bank shall have determined
that such Regulatory Change shall have had or will thereafter have the effect of
reducing a. the rate of return on such Lender's or such Control Person's
capital, or b.the asset value to such Lender or the Issuing Bank or such Control
Person of the Revolving Credit Loans made or maintained by such Lender, or of
the Reimbursement Obligations or any participation therein, in any case to a
level below that which such Lender or the Issuing Bank or such Control Person
could have achieved or would thereafter be able to achieve but for such
Regulatory Change (after taking into account such Lender's or the Issuing Bank's
or such Control Person's policies regarding capital adequacy) by an amount
deemed by such Lender or the Issuing Bank to be material to such Lender or the
Issuing Bank or Control Person, then, within ten days after demand by such
Lender or the Issuing Bank, the Borrower shall pay to such Lender or the Issuing
Bank or such Control Person such additional amount or amounts as shall be
sufficient to compensate such Lender or the Issuing Bank or such Control Person,
as the case may be, for such reduction. No failure by any Lender or the
Issuing Bank to demand any amount under this Section shall constitute a waiver
of such Lender's or the Issuing Bank's right to demand such amount at any time,
provided that such Lender or the Issuing Bank shall notify the Borrower of its
demand for any such amount not later than 90 days after the officer of such
Lender or the Issuing Bank having
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primary responsibility for administering this Agreement, or such Person's
immediate supervisor, has obtained knowledge of the basis for demanding such
amount. Any Lender or the Issuing Bank that demands the payment of amounts
pursuant to this Section shall submit to the Borrower a statement setting forth
the calculations in reasonable detail of such amounts, and such statement shall
be presumed correct absent manifest error.
G. REIMBURSEMENT FOR INCREASED COSTS
If any Lender, the Agent or the Issuing Bank shall determine that a
Regulatory Change:
1. does or shall subject it to any Taxes of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to it
of principal, interest or any other amount payable hereunder in respect of its
Eurodollar Advances, or impose on the Agent, the Issuing Bank or such Lender any
other condition regarding the Letters of Credit including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Income of such Lender); or
2. does or shall impose, modify or make applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances which is not otherwise
included in the determination of a Eurodollar Rate or against any Letters of
Credit issued by the Issuing Bank or participated in by any Lender;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing, converting or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or to reduce any amount receivable
hereunder in respect of its Eurodollar Advances, or to increase the cost to the
Issuing Bank of issuing or maintaining the Letters of Credit or the cost to any
Lender of participating therein or the cost to the Agent or the Issuing Bank of
performing its respective functions hereunder with respect to the Letters of
Credit, then, in any such case, the Borrower shall pay such Lender, the Agent,
or the Issuing Bank, as the case may be, within ten days after demand therefor,
such additional amounts as is sufficient to compensate such Lender, the Issuing
Bank or the Agent, as the case may be, for such additional cost or reduction in
such amount receivable which such Lender deems to be material as determined by
such Lender, the Issuing Bank or the Agent, as the case may be; provided,
however, that nothing in this Section shall require the Borrower to indemnify
the Lenders, the Agent, or the Issuing Bank, as the case may be, with respect to
withholding Taxes for which the Borrower has no obligation under Section 3.10.
No failure by any Lender, the Agent or the Issuing Bank to
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demand any amount under this Section shall constitute a waiver of such Lender's,
the Agent's or the Issuing Bank's right to demand such amount at any time,
provided that such Lender, the Agent or the Issuing Bank shall notify the
Borrower of its demand for any such amount not later than 90 days after the
officer of such Lender, the Agent or the Issuing Bank having primary
responsibility for administering this Agreement, or such Person's immediate
supervisor, has obtained knowledge of the basis for demanding such amount. Any
Lender, the Agent, or the Issuing Bank demanding amounts be paid pursuant to
this Section shall submit to the Borrower a statement setting forth the
calculations in reasonable detail of such amounts, and such statement shall be
presumed correct absent manifest error.
H. ILLEGALITY OF FUNDING
Notwithstanding any other provision hereof, if any Lender shall
reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify the Borrower
and the Agent thereof, and a. the commitment of such Lender to make such
Eurodollar Advances or convert ABR Advances to Eurodollar Advances shall
forthwith be suspended,b. such Lender shall fund its portion of each requested
Eurodollar Advance as an ABR Advance and c. such Lender's Revolving Credit Loans
then outstanding as such Eurodollar Advances, if any, shall be converted
automatically to an ABR Advance on the last day of the then current Interest
Period applicable thereto or at such earlier time as may be required. If the
commitment of any Lender with respect to Eurodollar Advances is suspended
pursuant to this Section and such Lender shall have obtained actual knowledge
that it is once again legal for such Lender to make or maintain Eurodollar
Advances, such Lender shall promptly notify the Agent and the Borrower thereof
and, upon receipt of such notice by each of the Agent and the Borrower, such
Lender's commitment to make or maintain Eurodollar Advances shall be reinstated.
I. SUBSTITUTED INTEREST RATE
In the event that a. the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that by reason
of circumstances affecting the interbank eurodollar market either adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate applicable
pursuant to Section 3.1 or b. the Required Lenders shall have notified the Agent
that they have determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the
Revolving Credit Loans that the Borrower has requested be made as Eurodollar
Advances or Eurodollar Advances that will result from the requested conversion
of any portion of the Advances into or of Eurodollar Advances (each, an
"AFFECTED ADVANCE"), the Agent shall promptly notify the Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances. If the Agent
shall give such notice, (a) any Affected Advances shall be made as ABR Advances,
(b) the Advances (or any portion thereof) that were to have been converted to
Affected Advances shall be converted to ABR Advances and (c) any outstanding
Affected
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Advances shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances. Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the Agent (by
notice to the Borrower promptly upon either (x) the Agent having determined that
such circumstances affecting the interbank eurodollar no longer exist and that
adequate and reasonable means do exist for determining the Eurodollar Rate
pursuant to Section 3.1 or (y) the Agent having been notified by such Required
Lenders that circumstances no longer render the Advances (or any portion
thereof) Affected Advances, no further Eurodollar Advances shall be required to
be made by the Lenders, nor shall the Borrower have the right to convert all or
any portion of the Revolving Credit Loans to or as Eurodollar Advances.
J. TAXES
1. PAYMENTS TO BE FREE AND CLEAR. All payments by each Credit Party
under the Loan Documents to or for the account of the Agent, any Lender or the
Issuing Bank (each, an "INDEMNIFIED TAX PERSON") shall be made free and clear
of, and without any deduction or withholding for or on account of, any and all
current or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto (including interest, additions to tax,
and penalties thereon) imposed, levied, collected, withheld or assessed by the
United States or any political subdivision or taxing authority thereof
(collectively, "TAXES"), excluding as to any Indemnified Tax Person, (i) a Tax
on the Income imposed on such Indemnified Tax Person and (ii) any interest,
fees, additions to tax or penalties for late payment thereof (each such
nonexcluded Tax, an "INDEMNIFIED TAX"). For purposes hereof, "TAX ON THE INCOME"
shall mean, as to any Person, a Tax imposed by one of the following
jurisdictions or by any political subdivision or taxing authority thereof: (i)
the United States, (ii) the jurisdiction in which such Person is organized,
(iii) the jurisdiction in which such Person's principal office is located, or
(iv) in the case of each Lender, any jurisdiction in which such Lender's
Applicable Lending Office is located; which Tax is an income tax or franchise
tax imposed on all or part of the net income or net profits of such Person or
which Tax represents interest, fees, or penalties for late payment of such an
income tax or franchise tax.
2. GROSSING UP OF PAYMENTS. If any Credit Party or any other Person
is required by any law, rule, regulation, order, directive, treaty or guideline
to make any deduction or withholding (which deduction or withholding would
constitute an Indemnified Tax) from any amount required to be paid by any Credit
Party to or on behalf of an Indemnified Tax Person under any Loan Document a.
such Credit Party shall pay such Indemnified Tax before the date on which
penalties attach thereto, such payment to be made for its own account (if the
liability to pay is imposed on such Credit Party) or on behalf of and in the
name of such Indemnified Tax Person (if the liability is imposed on such
Indemnified Tax Person), and b. the sum payable to such Indemnified Tax Person
shall be increased as may be necessary so that after making all re-
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quired deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) such Indemnified Tax
Person receives an amount equal to the sum it would have received had no such
deductions or withholdings been made.
3. OTHER TAXES. Each Credit Party agrees to pay any current or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents (collectively, the
"OTHER TAXES").
4. EVIDENCE OF PAYMENT. Within 30 days after the reasonable request
therefor by the Agent in connection with any payment of Indemnified Taxes or
Other Taxes, each Credit Party will furnish to the Agent the original or a
certified copy of an official receipt from the jurisdiction to which payment is
made evidencing payment thereof or, if unavailable, a certificate from a
Financial Officer that states that such payment has been made and that sets
forth the date and amount of such payment.
5. U.S. TAX CERTIFICATES. Each Indemnified Tax Person that is
organized under the laws of any jurisdiction other than the United States or any
political subdivision thereof that is exempt from United States federal
withholding tax, or that is subject to such tax at a reduced rate under an
applicable treaty, with respect to payments under the Loan Documents shall
deliver to the Agent for transmission to the Borrower, on or prior to the
Effective Date (in the case of each Indemnified Tax Person listed on the
signature pages hereof) or on the effective date of the Assignment and
Acceptance Agreement or other document pursuant to which it becomes an
Indemnified Tax Person (in the case of each other Indemnified Tax Person), and
at such other times as the Borrower or the Agent may reasonably request,
Internal Revenue Form 4224 or Form 1001 or other certificate or document
required under United States law to establish entitlement to such exemption or
reduced rate. No Credit Party shall be required to pay any additional amount to
any such Indemnified Tax Person under subsection (b) above if such Indemnified
Tax Person shall have failed to satisfy the requirements of the immediately
preceding sentence; provided that if such Indemnified Tax Person shall have
satisfied such requirements on the Effective Date (in the case of each
Indemnified Tax Person listed on the signature pages hereof) or on the effective
date of the Assignment and Acceptance Agreement or other document pursuant to
which it became an Indemnified Tax Person (in the case of each other Indemnified
Tax Person), nothing in this subsection shall relieve any Credit Party of its
obligation to pay any additional amounts pursuant to subsection (b) in the event
that, as a result of any change in applicable law or treaty, such Indemnified
Tax Person is no longer properly entitled to deliver certificates, documents or
other evidence at a subsequent date establishing the fact that such Indemnified
Tax Person is no longer entitled to such exemption or reduced rate.
K. OPTION TO FUND
Each Lender has indicated that, if the Borrower requests a Eurodollar
Advance, such Lender may wish to purchase one or more deposits in order to fund
or maintain its funding
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of its Commitment Percentage of such Eurodollar Advance during the Interest
Period with respect thereto; it being understood that the provisions of this
Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid in respect of such Eurodollar
Advance and any amounts owing under Sections 3.5 and 3.7. Each Lender shall be
entitled to fund and maintain its funding of all or any part of each Eurodollar
Advance in any manner it sees fit, but all such determinations hereunder shall
be made as if each Lender had actually funded and maintained its Commitment
Percentage of each Eurodollar Advance during the applicable Interest Period
through the purchase of deposits in an amount equal to its Commitment Percentage
of such Eurodollar Advance having a maturity corresponding to such Interest
Period. Any Lender may fund its Commitment Percentage of each Eurodollar
Advance from or for the account of any branch or office of such Lender as such
Lender may choose from time to time.
L.SUBSTITUTION OF A LENDER
Notwithstanding anything to the contrary contained herein, if any
Lender shall request compensation pursuant to Section 3.6 or 3.7 in an aggregate
amount in excess of $10,000, then, in each such case, provided that no Default
or Event of Default shall then exist and be continuing, during the 90 day period
after the receipt of such request, the Borrower may require that such Lender
transfer all of its right, title and interest under the Loan Documents to one or
more of the other Lenders or any other Eligible Assignee identified by the
Borrower and reasonably acceptable to the Agent and the Issuing Bank (a
"PROPOSED LENDER"), if such Proposed Lender agrees to assume all of the
obligations of such Lender under the Loan Documents for consideration equal to
the outstanding principal amount of such Lender's Revolving Credit Loans,
together with interest thereon to the date of such transfer, all accrued, but
theretofore unpaid, fees owing to such Lender pursuant to Sections 3.1 and 3.2,
and all other amounts payable under the Loan Documents to such Lender on or
prior to the date of such transfer (including, without limitation, any fees
accrued hereunder and any amounts which would be payable under Section 3.5 as if
all of such Lender's Loans were being prepaid in full on such date). Subject to
the execution and delivery by the Borrower at its expense of a new Revolving
Credit Note, an Assignment and Acceptance Agreement, and such other documents as
such Lender may reasonably require, such Proposed Lender shall be a "Lender" for
all purposes hereunder. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements of the Borrower contained in
Sections 3.5, 3.6, 3.7, 3.10, 11.5 and 11.8 (without duplication of any payments
made to such Lender by the Borrower or the Proposed Lender) shall survive for
the benefit of any Lender replaced under this Section 3.12 with respect to the
time prior to such replacement. In addition and notwithstanding anything herein
to the contrary, such Lender shall be entitled to receive the additional amounts
to which it would be entitled pursuant to Section 3.6 or 3.7 had it not been
replaced pursuant hereto.
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IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Revolving Credit Loans and the Issuing Bank to issue the Letters
of Credit and the Lenders to participate therein, the Borrower makes the
following representations and warranties to the Agent, the Issuing Bank and each
Lender:
A. SUBSIDIARIES; CAPITALIZATION
As of the Effective Date, (i) the Borrower has only the Subsidiaries
set forth on Schedule 4.1 and (ii) the authorized, issued and outstanding
Capital Stock of the Borrower and each such Subsidiary is as set forth on
Schedule 4.1. As of the Effective Date, except as set forth on Schedule 4.1,a.
none of the Subsidiaries is a Foreign Subsidiary or an Exempt Subsidiary,b. the
shares of, or partnership or other interests in, each Subsidiary of the Borrower
are owned beneficially and of record by the Borrower or another Subsidiary of
the Borrower, are free and clear of all Liens and are duly authorized, validly
issued, fully paid and nonassessable,c. neither the Borrower nor any of its
Subsidiaries has issued any securities convertible into, or options or warrants
for, any common or preferred equity securities thereof,d. there are no
agreements, voting trusts or understandings binding upon the Borrower or any of
its Subsidiaries with respect to the voting securities of the Borrower or any of
its Subsidiaries or affecting in any manner the sale, pledge, assignment or
other disposition thereof, including any right of first refusal, option,
redemption, call or other right with respect thereto, whether similar or
dissimilar to any of the foregoing.
B. EXISTENCE AND POWER
Each of the Borrower and each of its Subsidiaries is duly organized or
formed and validly existing in good standing under the laws of the jurisdiction
of its incorporation or formation, has all requisite power and authority to own
its Property and to carry on its business as now conducted, and is in good
standing and authorized to do business by it in each jurisdiction in which the
nature of the business conducted therein or the Property owned by it therein
makes such qualification necessary, except where such failure to qualify could
not reasonably be expected to have a Material Adverse Effect.
C. AUTHORITY AND EXECUTION
Each of the Borrower and each of the Subsidiary Guarantors has full
legal power and authority to enter into, execute, deliver and perform the terms
of the Loan Documents to which it is a party all of which have been duly
authorized by all proper and necessary corporate, partnership or other
applicable action and are in full compliance with its Organizational Documents.
The Borrower and each of the Subsidiary Guarantors has duly executed and
delivered the Loan Documents to which it is a party.
D. BINDING AGREEMENT
The Loan Documents (other than the Revolving Credit Notes) constitute,
and the
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Revolving Credit Notes, when issued and delivered pursuant hereto for value
received, will constitute, the valid and legally binding obligations of each
Credit Party, in each case, to the extent it is a party thereto, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally.
E. LITIGATION
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower, any of its Subsidiaries or any
other Credit Party) pending or, to the knowledge of the Borrower, threatened
against the Borrower, any of its Subsidiaries or any other Credit Party or
maintained by the Borrower, any of its Subsidiaries or any other Credit Party or
which may affect the Property of the Borrower, any of its Subsidiaries or any
other Credit Party or any of their respective Properties or rights, which a.
could reasonably be expected to have a Material Adverse Effect,b. call into
question the validity or enforceability of, or otherwise seek to invalidate, any
Loan Document, or c. might, individually or in the aggregate, materially and
adversely affect any of the transactions contemplated by any Loan Document.
F. REQUIRED CONSENTS
Except for information filings required to be made in the ordinary
course of business which are not a condition to the performance by the Borrower
or any of its Subsidiaries under the Loan Documents to which it is a party, no
consent, authorization or approval of, filing with, notice to, or exemption by,
stockholders or holders of any other equity interest, any Governmental Authority
or any other Person is required to authorize, or is required in connection with
the execution, delivery and performance of the Loan Documents to which the
Borrower or any of its Subsidiaries or any other Credit Party is a party or is
required as a condition to the validity or enforceability of the Loan Documents
to which any of the same is a party.
G. ABSENCE OF DEFAULTS; NO CONFLICTING AGREEMENTS
1. Neither the Borrower, any of its Subsidiaries nor any other
Credit Party is in default under any mortgage, indenture, contract or agreement
to which it is a party or by which it or any of its Property is bound, the
effect of which default could reasonably be expected to have a Material Adverse
Effect. The execution, delivery or carrying out of the terms of the Loan
Documents will not constitute a default under, or result in the creation or
imposition of, or obligation to create, any Lien upon any Property of the
Borrower or any of its Subsidiaries or result in a breach of or require the
mandatory repayment of or other acceleration of payment under or pursuant to the
terms of any such mortgage, indenture, contract or agreement.
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2. Neither the Borrower, any of its Subsidiaries nor any other
Credit Party is in default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Authority which default could
reasonably be expected to have a Material Adverse Effect. The execution,
delivery or carrying out of the terms of the Loan Documents will not result in
any default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority.
H. COMPLIANCE WITH APPLICABLE LAWS
The Borrower and each of its Subsidiaries is complying in all material
respects with all statutes, regulations, rules and orders of all Governmental
Authorities which are applicable to the Borrower or such Subsidiary, a violation
of which could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents will not
result in a violation of any statute, regulation, rule or order of any
Governmental Authority which is applicable to the Borrower and its Subsidiaries.
I. TAXES
The Borrower and each of its Subsidiaries has filed or caused to be
filed all tax returns required to be filed and has paid, or has made adequate
provision for the payment of, all taxes shown to be due and payable on said
returns or in any assessments made against it (other than those being contested
as required under Section 7.4) which would be material to the Borrower or any of
its Subsidiaries, and no tax Liens have been filed with respect thereto. The
charges, accruals and reserves on the books of the Borrower and each of its
Subsidiaries with respect to all taxes are, to the best knowledge of the
Borrower, adequate for the payment of such taxes, and the Borrower knows of no
unpaid assessment which is due and payable against the Borrower or any of its
Subsidiaries or any claims being asserted which could reasonably be expected to
have a Material Adverse Effect, except such thereof as are being contested as
required under Section 7.4, and for which adequate reserves have been set aside
in accordance with GAAP.
J. GOVERNMENTAL REGULATIONS
Neither the Borrower, any of its Subsidiaries nor any Person
controlled by, controlling, or under common control with, the Borrower or any of
its Subsidiaries, is (a) an "investment company" within the meaning of the 1940
Act or a Person deemed to be an "investment company" for purposes of the 1940
Act, except as set forth on Schedule 4.10, (b) subject to regulation under the
Public Utility Holding Company Act of 1935, as amended, or the Federal Power
Act, as amended, or (c) is subject to any statute or regulation which prohibits
or restricts the incurrence of Indebtedness, including, without limitation,
statutes or regulations relative to common or contract carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services, except for statutes and regulations that limit the incurrence of
Indebtedness by Exempt Subsidiaries (other than Subsidiaries of the Borrower
that are Exempt Subsidiaries solely because of the applicability of clause (iii)
of the definition of "Exempt Subsidiary").
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K. FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. After giving
effect to the making of each Revolving Credit Loan, Margin Stock will constitute
less than 25% of the assets (as determined by any reasonable method) of the
Borrower and its Subsidiaries.
L. PLANS
The only Pension Plans in effect as of the Effective Date (the
"EXISTING PENSION PLANS") are listed on Schedule 4.12. Each Employee Benefit
Plan of the Borrower, its Subsidiaries and the ERISA Affiliates is in compliance
with ERISA and the Code, where applicable, in all material respects. As of the
Effective Date,a. the amount of all Unfunded Pension Liabilities under the
Pension Plans, excluding any plan which is a Multiemployer Plan, does not exceed
$1,000,000, and b. the amount of the aggregate Unrecognized Retiree Welfare
Liability under all applicable Employee Benefit Plans does not exceed
$1,000,000. The Borrower and each of its Subsidiaries and ERISA Affiliates has
complied with the requirements of Section 515 of ERISA with respect to each
Pension Plan which is a Multiemployer Plan. As of the Effective Date, the
aggregate potential annual withdrawal liability payments, as determined in
accordance with Title IV of ERISA, of the Borrower and its Subsidiaries and
ERISA Affiliates with respect to all Pension Plans which are Multiemployer Plans
is approximately $0. The Borrower and its Subsidiaries and ERISA Affiliates
have, as of the Effective Date, made all contributions or payments to or under
each such Pension Plan required by law or the terms of such Pension Plan or any
contract or agreement with respect thereto, except where the failure so to do
could not reasonably be expected to have a Material Adverse Effect. No material
liability to the PBGC has been, or is expected by the Borrower, any of its
Subsidiaries or any ERISA Affiliate to be, incurred by the Borrower, any such
Subsidiary or any ERISA Affiliate. Liability, as referred to in this Section
includes any joint and several liability. Each Employee Benefit Plan which is a
group health plan within the meaning of Section 5000(b)(1) of the Code is in
material compliance with the continuation of health care coverage requirements
of Section 4980B of the Code.
M. FINANCIAL STATEMENTS
The Borrower has heretofore delivered to the Agent and the Lenders
copies of its Form 10-K for the fiscal year ended June 30, 1996, containing the
audited Consolidated Balance Sheets of the Borrower and its Subsidiaries as of
June 30, 1996 and June 30, 1995 and the related Consolidated Statements of
Operations, Stockholder's Equity and Cash Flows for the periods then ended (with
the applicable related notes and schedules, the "FINANCIAL STATEMENTS").
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The Financial Statements fairly present the Consolidated financial condition and
results of the operations of the Borrower and its Subsidiaries as of the dates
and for the periods indicated therein and have been prepared in conformity with
GAAP. Except as reflected in the Financial Statements or in the footnotes
thereto, neither the Borrower nor any of its Subsidiaries has any obligation or
liability of any kind (whether fixed, accrued, contingent, unmatured or
otherwise) which, in accordance with GAAP, should have been shown in the
Financial Statements and was not. Since June 30, 1996, the Borrower and each of
its Subsidiaries has conducted its business only in the ordinary course and
there has been no Material Adverse Change.
N. PROPERTY
The Borrower and each of its Subsidiaries has a. good and marketable
title to all of its Property, title to which is material to the Borrower or such
Subsidiary and b. a valid leasehold interest in all Property, a leasehold
interest in which is material to the Borrower or such Subsidiary, in each case
subject to no Liens, except Permitted Liens.
O. AUTHORIZATIONS
The Borrower and each of its Subsidiaries possesses or has the right
to use all franchises, licenses, trademarks and other rights as are material and
necessary for the conduct of its business, and with respect to which it is in
compliance, with no known conflict with the valid rights of others which could
reasonably be expected to have a Material Adverse Effect. No event has occurred
which permits or, to the best knowledge of the Borrower, after notice or the
lapse of time or both, or any other condition, could reasonably be expected to
permit, the revocation or termination of any such franchise, license or other
right which revocation or termination could reasonably be expected to have a
Material Adverse Effect.
P. ENVIRONMENTAL MATTERS
1. No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any real
property owned or operated by the Borrower or any Subsidiary thereof or, to the
Borrower's knowledge, any real property leased by the Borrower or any Subsidiary
thereof, in violation of any Environmental Laws; no Hazardous Substances have
been discharged into subsurface waters under any real property owned or operated
by the Borrower or any Subsidiary thereof or, to the Borrower's knowledge, any
real property leased by the Borrower or any Subsidiary thereof, in violation of
any Environmental Laws; no Hazardous Substances have been discharged from any
real property owned or operated by the Borrower or any Subsidiary thereof or, to
the Borrower's knowledge, any real property leased by the Borrower or any
Subsidiary thereof, on or into Property or waters (including subsurface waters)
adjacent to any Real Property in violation of any Environmental Laws; and there
are not now, nor ever have been, on any real property owned or operated by the
Borrower or any Subsidiary thereof or, to the Borrower's knowledge, any real
property leased by the Borrower or any Subsidiary thereof, any underground or
above ground storage tanks regulated under any Environmental Laws.
2. Neither the Borrower nor any of its Subsidiaries a. has received
notice
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(written or oral) or otherwise learned of any claim, demand, suit, action,
proceeding, event, condition, report, directive, Lien, violation, non-compliance
or investigation indicating or concerning any potential or actual liability
(including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, Property damages, personal injuries
or penalties) arising in connection with: (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any of its Subsidiaries) or the release or
threatened release of any Hazardous Substance into the environment,b. has any
threatened or actual liability in connection with the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned by the
Borrower or any of its Subsidiaries) or the release or threatened release of any
Hazardous Substance into the environment,c. has received notice of any federal
or state investigation evaluating whether any remedial action is needed to
respond to the presence of any Hazardous Substance on any Real Property (or any
Real Property previously owned by the Borrower or any of its Subsidiaries) or a
release or threatened release of any Hazardous Substance into the environment
for which the Borrower or any of its Subsidiaries is or may be liable, or d. has
received notice that the Borrower or any of its Subsidiaries is or may be liable
to any Person under any Environmental Law.
Q. TRADE OR BUSINESS
The Borrower engages in no trade or business other than the holding of
the Capital Stock of its Subsidiaries and activities incidental thereto.
R. SOLVENCY
Immediately after giving effect to the transactions contemplated by
the Loan Documents, the Borrower and each of its Subsidiaries is and will be
Solvent.
S. ACCOUNTING TREATMENT OF INTERNALLY GENERATED COMPUTER SOFTWARE.
The Borrower and its Subsidiaries charge to operations the cost of
routine maintenance of software products, design costs and development costs
incurred prior to establishment of a product's technical feasibility in
accordance with GAAP. The Borrower and its Subsidiaries capitalize and amortize
over the useful life of a product any such costs which are incurred after the
establishment of a product's technological feasibility.
T. ABSENCE OF CERTAIN RESTRICTIONS
No indenture, certificate of designation for preferred stock,
agreement or in-
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strument to which the Borrower or any of its Subsidiaries is a party (other than
this Agreement), prohibits or limits in any way, directly or indirectly the
ability of any Subsidiary of the Borrower to make Restricted Payments or repay
any Indebtedness to the Borrower or to another Subsidiary of the Borrower,
except for restrictions in respect of net capital requirements imposed by
applicable law upon Subsidiaries of the Borrower that are registered
broker-dealers or are engaged in the insurance business.
U. NO MISREPRESENTATION
No representation or warranty contained in any Loan Document and no
certificate or report from time to time furnished by the Borrower or any of its
Subsidiaries in connection with the transactions contemplated thereby, contains
or will contain a misstatement of material fact, or, to the best knowledge of
the Borrower, omits or will omit to state a material fact required to be stated
in order to make the statements therein contained not misleading in the light of
the circumstances under which made, provided that any projections or pro-forma
financial information contained therein are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made, it being
recognized by the Agent and the Lenders that such projections as to future
events are not to be viewed as facts, and that actual results during the period
or periods covered thereby may differ from the projected results.
V. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Agreement shall be subject to the
fulfillment of the following conditions precedent on or prior to the Effective
Date:
A. EVIDENCE OF ACTION
The Agent shall have received a certificate, dated the Effective Date,
of the Secretary or Assistant Secretary or other analogous counterpart of each
Credit Party a. attaching a true and complete copy of the resolutions of its
Managing Person and of all documents evidencing all necessary corporate,
partnership or similar action (in form and substance satisfactory to the Agent)
taken by it to authorize the Loan Documents to which it is a party and the
transactions contemplated thereby,b. attaching a true and complete copy of its
Organizational Documents,c. setting forth the incumbency of its officer or
officers or other analogous counterpart who may sign the Loan Documents,
including therein a signature specimen of such officer or officers and d.
attaching a certificate of good standing of the Secretary of State of the
jurisdiction of its formation and of each other jurisdiction in which such
Credit Party maintains its principal place of business.
B. THIS AGREEMENT
The Agent shall have received counterparts of this Agreement signed by
each of the parties hereto (or receipt by the Agent from a party hereto of a
telecopy signature page signed by such party which shall have agreed to promptly
provide the Agent with originally executed counterparts hereof).
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C. REVOLVING CREDIT NOTES
The Agent shall have received the Revolving Credit Notes, duly
executed by an Authorized Signatory of the Borrower and dated the Effective
Date.
D. ABSENCE OF LITIGATION
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for in the Loan Documents and no action or
proceeding by or before any Governmental Authority has been commenced and is
pending or, to the knowledge of the Borrower, threatened, seeking to prevent or
delay the transactions contemplated by the Loan Documents or challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith, and the Agent shall have received a certificate, dated the
Effective Date, in all respects satisfactory to the Agent, of an executive
officer of the Borrower to the foregoing effects.
E. APPROVALS AND CONSENTS
All approvals and consents of all Persons required to be obtained in
connection with the consummation of the transactions contemplated by the Loan
Documents shall have been obtained and shall be in full force and effect, and
all required notices have been given and all required waiting periods shall have
expired, and the Agent shall have received a certificate, dated the Effective
Date, in all respects satisfactory to the Agent, of an executive officer of the
Borrower to the foregoing effects.
F. OPINION OF COUNSEL TO THE BORROWER AND THE SUBSIDIARY GUARANTORS
The Agent shall have received an opinion of Xxxxx X. Dell, Esq., Vice
President, Secretary and General Counsel of the Borrower and counsel to the
Subsidiary Guarantors, addressed to the Agent, the Issuing Bank and the Lenders
(and permitting Special Counsel to rely thereon), and dated the Effective Date,
substantially in the form of Exhibit F. It is understood that such opinion is
being delivered to the Agent and the Lenders upon the direction of the Borrower
and the Subsidiary Guarantors and that the Agent and the Lenders may and will
rely on such opinion.
G. OPINION OF SPECIAL COUNSEL
The Agent shall have received an opinion of Special Counsel, addressed
to the Agent, the Issuing Bank and the Lenders and dated the Effective Date
substantially in the form
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of Exhibit G.
H. SUBSIDIARY GUARANTY
The Agent shall have received the Subsidiary Guaranty, duly executed
by an Authorized Signatory of the Borrower and each of its Subsidiaries that is
not a Foreign Subsidiary or an Exempt Subsidiary.
I. PROPERTY, PUBLIC LIABILITY AND OTHER INSURANCE
The Agent shall have received a certificate of all insurance
maintained by the Borrower and its Subsidiaries in form and substance reasonably
satisfactory to the Agent.
J. FEES
All fees payable to the Agent, the Issuing Bank and the Lenders on the
Effective Date shall have been paid.
K. LIENS
There shall be no Liens, except Permitted Liens, upon the Property of
the Credit Parties and the Agent shall have received a certificate, dated the
Effective Date, in all respects satisfactory to the Agent, of an executive
officer of the Borrower to the foregoing effects.
L. COMPLIANCE CERTIFICATE
The Agent shall have received a certificate of a Financial Officer of
the Borrower, dated the Effective Date, attaching a pro-forma Compliance
Certificate (after giving effect to the making of Revolving Credit Loans, if
any, on the Effective Date) in all respects satisfactory to the Agent.
M. OTHER DOCUMENTS
The Agent shall have received such other documents, each in form and
substance reasonably satisfactory to the Agent, as the Agent shall reasonably
require in connection with the making of the effectiveness of this Agreement.
VI. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
A. CONDITIONS OF LENDING - REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
The obligation of each Lender to make any Revolving Credit Loan or the
Issuing Bank to issue any Letter of Credit on a Borrowing Date and each Lender
to participate therein is subject to the satisfaction of the following
conditions precedent as of the date of such Revolving Credit Loan or the
issuance of such Letter of Credit, as the case may be:
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1. COMPLIANCE. On each Borrowing Date and after giving effect
to the Revolving Credit Loans to be made and the Letters of Credit to be issued
thereon a. there shall exist no Default or Event of Default,b. the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties had
been made on such Borrowing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier xxxx,x. no Material Adverse Change shall have occurred since June
30, 1996, and d. the Aggregate Credit Exposure will not exceed the Aggregate
Commitment Amount. Each borrowing by the Borrower and each request by the
Borrower for the issuance of a Letter of Credit shall constitute a certification
by the Borrower as of such Borrowing Date that each of the foregoing matters is
true and correct in all respects.
2. BORROWING REQUEST; LETTER OF CREDIT REQUEST. With respect to
the Revolving Credit Loans to be made, and the Letters of Credit to be issued,
on each Borrowing Date, the Agent shall have received,a. in the case of
Revolving Credit Loans, a Borrowing Request and b. in the case of Letters of
Credit, a Letter of Credit Request, in each case duly executed by an Authorized
Signatory of the Borrower.
3. LOAN CLOSINGS. All documents required by the provisions of
the Loan Documents to be executed or delivered to the Agent on or before the
applicable Borrowing Date shall have been executed and shall have been delivered
at the office of the Agent set forth in Section 11.2 on or before such Borrowing
Date.
4. OTHER DOCUMENTS. The Agent shall have received such other
documents as the Agent or the Lenders shall reasonably request.
B. ADDITIONAL CONDITIONS TO REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
IN CONNECTION WITH PERMITTED ACQUISITIONS
In addition to the satisfaction on the Effective Date of the
conditions set forth in Section 5 and the satisfaction on any Borrowing Date of
the conditions set forth in Section 6.1, the obligation of each Lender to make
any Revolving Credit Loan and the obligation of the Issuing Bank to issue
Letters of Credit, the proceeds of which are to be used directly or indirectly
to make a Permitted Acquisition (including by the making of an Intercompany
Loan) is subject to the satisfaction of the following conditions precedent as of
the date of such Revolving Credit Loan or such Letter of Credit:
1. LEVERAGE RATIO. After giving effect to the making of such
Revolving Credit Loan or the issuance of such Letter of Credit, the Leverage
Ratio shall be less
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than 3.00:1.00, provided, however, that in computing the Leverage Ratio for
purposes of this subsection (a) only, Consolidated Adjusted EBITDA shall be
determined on a pro forma basis for the period of four consecutive quarters
immediately succeeding the date on which such Permitted Acquisition is to be
consummated.
2. TARGET'S BUSINESS. The Person to be acquired in such
Permitted Acquisition is engaged in substantially the same or a related business
as any Subsidiary of the Borrower, including, without limitation, the software,
financial services, transaction processing and outsourcing businesses, or in the
case of an Acquisition of a business or assets, such business is substantially
the same as or related to, or such assets are devoted to a business that is
substantially the same as or related to, as the case may be, the business of any
Subsidiary of the Borrower.
3. HISTORICAL FINANCIAL STATEMENTS. The Agent and the Lenders
shall have received historical financial statements of the Person or business to
be acquired in such Permitted Acquisition for no less than three years to the
date of such Permitted Acquisition or such lesser amount of time for which such
statements exist.
4. FINANCIAL OFFICER'S CERTIFICATE. The Agent and the Lenders
shall have received a certificate (in form and substance satisfactory to the
Agent) of a Financial Officer of the Borrower to the effect that (and including
calculations indicating that), on a pro forma basis after giving effect to such
Permitted Acquisition,a. all of the representations and warranties in the Loan
Documents will be true and correct,b. no Default or Event of Default exists or
would exist immediately before and after giving effect to the consummation of
such Permitted Acquisition and c. certifying compliance with subsections (a) and
(b) of this Section 6.2 (including calculations in reasonable detail).
VII. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Revolving Credit Loan or Reimbursement Obligation (contingent or otherwise) in
respect of any Letter of Credit remains outstanding and unpaid, or any other
amount is owing under any Loan Document to any Lender, the Issuing Bank or the
Agent, the Borrower shall:
A. FINANCIAL STATEMENTS AND INFORMATION
Maintain, and cause each of its Subsidiaries to maintain, a system of
accounting in accordance with GAAP, and furnish or cause to be furnished to the
Agent and each Lender:
1. As soon as available, but in any event within 90 days after
the end of each fiscal year, a copy of the Borrower's annual report on Form 10-K
in respect of such fiscal year, together with the annual audited Consolidated
Balance Sheets and the related Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows of the Borrower and its Subsidiaries
prepared in conformity with GAAP and as filed with the SEC, setting forth in
comparative form the figures for the preceding fiscal year. The Consolidated
Balance Sheets
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and Consolidated Statements of Operations, Stockholders' Equity and Cash Flows
shall be audited and certified without qualification by the Accountants, which
certification shall (1) state that the examination by such Accountants in
connection with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, included
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances, and (2) include the opinion of such
Accountants that such Consolidated financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion.
2. As soon as available, but in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year, a copy
of the Borrower's quarterly report on Form 10-Q in respect of such fiscal
quarter together with the quarterly unaudited Consolidated Balance Sheets and
the related unaudited Consolidated Statements of Operations, Stockholders'
Equity and Cash Flows of the Borrower and its Subsidiaries prepared in
conformity with GAAP and as filed with the SEC, setting forth in comparative
form the figures for the corresponding periods of the preceding fiscal year,
certified by a Financial Officer of the Borrower, as being complete and correct
in all material respects and as presenting fairly the Consolidated financial
condition and the Consolidated results of operations of the Borrower and its
Subsidiaries.
3. Within 45 days after the end of each of the first three
fiscal quarters of each fiscal year (90 days after the end of the last fiscal
quarter), a Compliance Certificate, certified by a Financial Officer of the
Borrower.
4. Such other information as the Agent or any Lender may
reasonably request from time to time.
B. CERTIFICATES; OTHER INFORMATION
Furnish to the Agent and each Lender:
1. Prompt written notice if:a. any Indebtedness of the Borrower
or any of its Subsidiaries in an aggregate amount in excess of $1,000,000 is
declared or shall become due and payable prior to its stated maturity, or is
called and not paid when due,b. a default shall have occurred under, or the
holder or obligee of, any note (other than the Revolving Credit Notes),
certificate, security or other evidence of Indebtedness, with respect to any
other Indebtedness of the Borrower or any of its Subsidiaries has the right to
declare Indebtedness in an aggregate amount in excess of $1,000,000 due and
payable prior to its stated maturity, or c. there shall occur and be continuing
a Default or an Event of Default.
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2. Prompt written notice of:a. any citation, summons, subpoena,
order to show cause or other document naming the Borrower or any of its
Subsidiaries a party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect or which calls
into question the validity or enforceability of any of the Loan Documents, and
include with such notice a copy of such citation, summons, subpoena, order to
show cause or other document,b. any lapse or other termination of any material
license, permit, franchise or other authorization issued to the Borrower, or any
of its Subsidiaries by any Person or Governmental Authority, and c. any refusal
by any Person or Governmental Authority to renew or extend any such material
license, permit, franchise or other authorization, which lapse, termination,
refusal or dispute could reasonably be expected to have a Material Adverse
Effect;
3. Promptly upon becoming available, copies of all a. regular,
periodic or special reports, schedules and other material which the Borrower or
any of its Subsidiaries may now or hereafter be required to file with or deliver
to any securities exchange or the SEC, and b. material news releases and annual
reports relating to the Borrower and any of its Subsidiaries;
4. Prompt written notice in the event that the Borrower, any of
its Subsidiaries or any ERISA Affiliate knows, or has reason to know, that a.
any Termination Event has occurred or will occur,b. any condition exists with
respect to a Pension Plan which presents a material risk of (A) termination of
the Pension Plan, (B) imposition of an excise tax, (C) requirement to provide
security to the Pension Plan or (D) other liability on the Borrower, any of its
Subsidiaries or any ERISA Affiliate,c. the Borrower, any of its Subsidiaries or
any ERISA Affiliate has applied for a waiver of the minimum funding standard
under Section 412 of the Code with respect to a Pension Plan,d. the aggregate
amount of the Unfunded Pension Liabilities under all Pension Plans is in excess
of $1,000,000,e. the aggregate amount of Unrecognized Retiree Welfare Liability
under all applicable Employee Benefit Plans is in excess of $1,000,000,f. the
Borrower, any of its Subsidiaries or any ERISA Affiliate has engaged in a
Prohibited Transaction with respect to an Employee Benefit Plan that may
reasonably be expected to have a Material Adverse Effect,g. the imposition of
any tax under Section 4980B(a) of the Code that may reasonably be expected to
have a Material Adverse Effect, or h. the assessment of a civil penalty under
Section 502(c) of ERISA that may reasonably be expected to have a Material
Adverse Effect, together with a certificate of a Financial Officer of the
Borrower setting forth the details of such event and the action which the
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto, together with a copy of all notices and filings with respect thereto.
5. Prompt written notice in the event that Borrower, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Borrower, such Subsidiary or such ERISA Affiliate of any final
decision finding liability and the date by which such liability must be paid,
together with a copy of such letter and a certificate of a Financial Officer of
the Borrower setting forth the action which the Borrower, such Subsidiary or
such ERISA Affiliate proposes to take with respect thereto.
6. Promptly upon the same becoming available, and in any event
by
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the date such amendment is adopted, a copy of any Pension Plan amendment that
the Borrower, any of its Subsidiaries or any ERISA Affiliate proposes to adopt
which would require the posting of security under Section 401(a)(29) of the
Code, together with a certificate of a Financial Officer of the Borrower setting
forth the reasons for the adoption of such amendment and the action which the
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto.
7. As soon as possible and in any event by the tenth day after
any required installment or other payment under Section 412 of the Code owed to
a Pension Plan shall have become due and owing and remains unpaid, a copy of the
notice of failure to make required contributions provided to the PBGC by the
Borrower, any of its Subsidiaries or any ERISA Affiliate under Section 412(n) of
the Code, together with a certificate of a Financial Officer setting forth the
action which the Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
8. Such other information as the Agent or any Lender shall
reasonably request from time to time.
C. LEGAL EXISTENCE
Except as may otherwise be permitted by Sections 8.3 and 8.4,
maintain, and cause each of its Subsidiaries to maintain, its corporate,
partnership or analogous existence, as the case may be, in good standing in the
jurisdiction of its incorporation or formation and in each other jurisdiction in
which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
D. TAXES
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all Taxes, upon or with respect to the Borrower or such Subsidiary and all
Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, could reasonably be expected to have a Material
Adverse Effect or become a Lien on Property of the Borrower or such Subsidiary
(other than a Lien described in Section 8.2(a)(i)), unless and to the extent
only that such Taxes shall be contested in good faith and by appropriate
proceedings diligently conducted by the Borrower or such Subsidiary and only so
long as no Lien (other than a Permitted Lien) shall attach with respect thereto
and no foreclosure, distraint, sale or similar proceedings shall have been
commenced and provided that the Borrower shall give the Agent prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
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E. INSURANCE
Maintain, and cause each of its Subsidiaries to maintain, with
financially sound and reputable insurance companies, insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption
coverage) as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Agent, upon
written request, full information as to the insurance carried.
F. PERFORMANCE OF OBLIGATIONS
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, might a. have a Material Adverse Effect,
or b.become a Lien upon Property of the Borrower or any of its Subsidiaries
other than a Permitted Lien, unless and to the extent only that the validity of
such Indebtedness, obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted, and provided further that the
Borrower shall give the Agent prompt notice of any such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
G. CONDITION OF PROPERTY
At all times, maintain, protect and keep in good repair, working order
and condition, ordinary wear and tear excepted, and cause each of its
Subsidiaries so to do, all Property necessary to the operation of the Borrower's
or any of its Subsidiaries' businesses.
H. OBSERVANCE OF LEGAL REQUIREMENTS
Observe and comply in all respects, and cause each of its Subsidiaries
so to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, a violation of which could reasonably be expected to have a
Material Adverse Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by it, provided that the
Borrower shall give the Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
I. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS
At all reasonable times, upon reasonable prior notice, permit
representatives of the Agent and each Lender to visit the offices of the
Borrower and its Subsidiaries, to examine the books and records thereof and
Accountants' reports relating thereto, and to make copies or extracts therefrom,
to discuss the affairs of the Borrower and its Subsidiaries with the officers
thereof, and to examine and inspect the Property of the Borrower and its
Subsidiaries and to meet and discuss the affairs of the Borrower and its
Subsidiaries with the Accountants.
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J. AUTHORIZATIONS
Maintain, and cause each of its Subsidiaries to maintain, in full
force and effect, all material licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business.
K. FINANCIAL COVENANTS
1. FIXED CHARGE COVERAGE RATIO. Maintain at all times a Fixed Charge
Coverage Ratio of not less than 1.20:1.00.
2. LEVERAGE RATIO. Maintain at all times a Leverage Ratio of not
more than 3.50:1.00.
3. CONSOLIDATED NET WORTH. Maintain as of the last day of each
fiscal quarter, Consolidated Net Worth in an amount not less than the sum,
without duplication, of a. $110,000,000, PLUS b. 60% of Consolidated Net Income
(if positive) for each fiscal quarter commencing after June 30, 1996 to the date
of such determination, PLUS c. 90% of the total net proceeds received by the
Borrower from the sale of its Capital Stock after the Effective Date, PLUS d.
90% of any increase to Consolidated Net Worth resulting from any issuance by the
Borrower of shares of its Capital Stock.
4. CONSOLIDATED EBITDA AND CONSOLIDATED ASSETS ATTRIBUTABLE TO AND
OWNED BY SUBSIDIARY GUARANTORS. Within 90 days after the last day of each
fiscal quarter, ensure that at least 75% of a. Consolidated EBITDA for such
fiscal quarter had been earned by one or more of the Subsidiary Guarantors and
b. the assets of the Borrower and its Subsidiaries on a Consolidated basis had
been owned directly by one or more of the Subsidiary Guarantors as of the last
day of such fiscal quarter, it being understood that if as of the last day of a
fiscal quarter the Borrower is not in compliance with this subsection (d), the
Borrower shall nonetheless be deemed in compliance if, within such 90 day
period, one or more of its Subsidiaries which are not then Subsidiary Guarantors
become Subsidiary Guarantors in the manner provided by Section 7.12.
L. ADDITIONAL SUBSIDIARY GUARANTORS
Cause each Domestic Subsidiary (other than an Exempt Subsidiary) which
is not a Subsidiary Guarantor, including each Domestic Subsidiary which was an
Exempt Subsidiary but which has ceased to be an Exempt Subsidiary, to become a
Subsidiary Guarantor by executing a Supplement (as defined therein) to the
Subsidiary Guaranty in accordance with the terms thereof and delivering the same
to the Agent together with a. a certificate, dated the date
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such Subsidiary shall have become a party to the Subsidiary Guaranty, executed
by such Subsidiary and substantially in the form of, and with substantially the
same attachments as, the certificate which would have been required under
Section 5.1 if such Subsidiary had become a party to the Subsidiary Guaranty on
the Effective Date, and b. if requested by the Agent, an opinion of counsel to
such Subsidiary covering the same matters with respect to such Subsidiary as are
covered by the opinion delivered pursuant to Section 5.6, and otherwise in form
and substance reasonably satisfactory to the Agent.
VIII. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Revolving Credit Loan or Reimbursement Obligation (contingent or otherwise) in
respect of any Letter of Credit remains outstanding and unpaid, or any other
amount is owing under any Loan Document to any Lender, the Issuing Bank or the
Agent, the Borrower shall not, directly or indirectly:
A. INDEBTEDNESS
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except a. Indebtedness
due under the Loan Documents; b.Indebtedness of the Borrower or any of its
Subsidiaries existing on the Effective Date as set forth on Schedule 8.1,
including, except as set forth in the proviso below, refinancings thereof but
not increases in the amount of any thereof, provided that refinancings of such
existing Indebtedness shall not be permitted unless the interest rate on any
such refinanced Indebtedness is not in excess of the rate available for similar
borrowings by similar borrowers at the time of the refinancing, the final
maturity of such refinanced Indebtedness is not earlier than the Maturity Date,
and if the Indebtedness being refinanced is subordinated to the Indebtedness
under the Loan Documents, such refinanced Indebtedness shall be so subordinated
on the same terms and to the same extent as such Indebtedness being so
refinanced,c. Capital Lease Obligations of the Borrower or any of its
Subsidiaries and purchase money Indebtedness incurred by the Borrower or any of
its Subsidiaries in connection with the purchase, after the Effective Date, of
any Property, (in each case other than any such Indebtedness described in clause
(ii) above) in an aggregate principal amount not to exceed $2,000,000;d.
Intercompany Indebtedness to the extent permitted by Section 8.5(f);e.
subordinated Indebtedness of the Borrower incurred in connection with a
Permitted Acquisition, provided that (1) such Indebtedness is subordinated to
the Indebtedness under the Loan Documents in form and substance satisfactory to
the Agent and Required Lenders and (2) no Default or Event of Default would
exist immediately before and after giving effect thereto;f. senior Indebtedness
of the Borrower incurred in connection with a Permitted Acquisition in an
aggregate amount not in excess of $5,000,000, provided that (1) no Default or
Event of Default would exist immediately before and after giving effect thereto
and (2) if such Indebtedness is secured, the Lien in respect thereof is a Lien
permitted by Section 8.2(a)(xi);g. Acquisition Related Contingent Payments
incurred after the Effective Date with respect to Permitted Acquisitions which,
at the time of the incurrence thereof, are commercially reasonable under the
circumstances;h. Contingent Obligations of Fund Services as a general partner of
BISYS Fund Services, L.P.;i. Contingent Obligations of the Borrower under
performance guaranties of the obligations of its Subsidiaries, provided that (1)
such
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guaranty is required as a condition of a Person retaining the services of a
Subsidiary of the Borrower,(2) the obligations which are guaranteed are not
financial obligations other than financial obligations incurred in the ordinary
course of business, and (3) to the extent that any such obligations are
financial obligations, (a)such obligations are not in excess of $10,000,000 in
the aggregate or (b) the guaranty in respect of such obligations is in a form to
be negotiated that is mutually satisfactory to the Agent and the Borrower;j.
Contingent Obligations of the Borrower under operating or capital leases of one
or more of its Subsidiaries provided, in the case of Contingent Obligations in
respect of Capital Lease Obligations, such Capital Lease Obligations are
permitted to be incurred pursuant to clause (iii) above;k. Indebtedness of a
Subsidiary of the Borrower in respect of Compensation Financings, provided that
(1) no Default or Event of Default would exist immediately before and after
giving effect thereto and (2) such Indebtedness shall be unsecured or, if
secured, shall be secured only by the 12b-1 Fees and/or Contingent Deferred
Sales Commissions to which such Subsidiary is entitled from such Investment
Company or its shareholders; and x.xx addition to Indebtedness permitted under
clause (iii) above, Capital Lease Obligations in connection with Sale and
Leaseback Transactions to the extent permitted by Section 8.14.
B. LIENS
1. Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except a.Liens for Taxes in the ordinary course of
business which are not delinquent or which are being contested in accordance
with Section 7.4, provided that enforcement of such Liens is stayed pending such
contest;b. Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA);c. deposits or
pledges to secure bids, tenders, contracts (other than contracts for the payment
of money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of business;d. zoning
ordinances, easements, rights of way, minor defects, irregularities, and other
similar restrictions affecting real Property which do not adversely affect the
value of such real Property or the financial condition of the Borrower or such
Subsidiary or impair its use for the operation of the business of the Borrower
or such Subsidiary;e. Liens arising by operation of law such as mechanics',
materialmen's, carriers', warehousemen's liens incurred in the ordinary course
of business which are not delinquent or which are being contested in accordance
with Section 7.6, provided that enforcement of such Liens is stayed pending such
contest;f. Liens arising out of judgments or decrees which are being contested
in accordance with Section 7.6, provided that enforcement of such Liens is
stayed pending such contest;g. Liens in favor of the Agent, the Issuing Bank and
the Lenders under the Loan Documents;h. purchase money Liens on Property of the
Borrower or any of its Subsidiaries acquired after the Effective Date to secure
Indebtedness of such Person permitted by Section 8.1(iii), incurred in
connection with the acquisition of such Property, provided that each such Lien
is limited to such Property so
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acquired;i. Liens on Property of the Borrower and its Subsidiaries existing on
the Effective Date as set forth on Schedule 8.2 as renewed from time to time,
but not any increases in the amounts secured thereby;j. Liens on Margin Stock to
the extent that a prohibition on such Liens would result in the Agent, the
Issuing Bank and the Lenders being deemed to be "indirectly secured" by Margin
Stock under Regulation U of the Board of Governors of the Federal Reserve
System, as amended, taking into account the value of Margin Stock owned by the
Borrower and its Subsidiaries and any other relevant facts and circumstances;
and k. Liens on Property of the Borrower or any of its Subsidiaries acquired
after the Effective Date in a Permitted Acquisition, provided that such Liens
are limited to the Property so acquired and were not created in contemplation of
such acquisition.
2. Subject to clause (x) of subsection (a) above, enter into or
permit any of its Subsidiaries to enter into, any agreement which prohibits or
limits the ability of the Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its Property, whether now owned
or hereafter acquired except a. purchase money mortgages or capital leases
otherwise permitted by this Agreement in which case any prohibition or
limitation shall only be effective against the assets financed thereby and b.
this Agreement.
C. MERGER, CONSOLIDATIONS AND ACQUISITIONS
Consolidate with, be acquired by, merge into or with any Person, make
any Acquisition or enter into any binding agreement to do any of the foregoing
which is not contingent on obtaining the consent of the Required Lenders, or
permit any of its Subsidiaries so to do, except:
1. provided that no Default or Event of Default would exist
immediately before and after giving effect thereto, any direct or indirect
wholly-owned Subsidiary of the Borrower may merge with or into a. the Borrower
or any other direct or indirect wholly-owned Subsidiary of the Borrower,
provided that (1) the Agent shall have received ten days prior written notice
thereof,(2) in the case of a merger of the Borrower with any Subsidiary, the
Borrower shall be the survivor,(3) in the case of a merger of any Subsidiary
Guarantor and any wholly-owned Subsidiary that is not a Subsidiary Guarantor,
either the Subsidiary Guarantor shall be the surviving entity or the survivor
shall become a Subsidiary Guarantor in accordance with the provisions of Section
7.12 and the Subsidiary Guaranty or by an instrument of assumption in form and
substance satisfactory to the Agent, and (4) the Agent shall have received such
opinions, certificates and other documents in connection therewith as it shall
require and b. any other Person in connection with a Permitted Acquisition
described in subsection (c) below, provided that (1)the Agent shall have
received ten days prior written notice thereof,(2) in the case of a merger of
any Subsidiary Guarantor and such other Person, either the Subsidiary Guarantor
shall be the surviving entity or the survivor shall become a Subsidiary
Guarantor in accordance with the provisions of Section 7.12 and the Subsidiary
Guaranty or by an instrument of assumption in form and substance satisfactory to
the Agent,(3) no Capital Stock is issued by any Credit Party in connection
therewith except to the extent permitted by Section 8.13 and (4) the Agent shall
have received such opinions, certificates and other documents in connection
therewith as it shall require;
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2. Investments permitted by Section 8.5;
3. provided that no Default or Event of Default would exist
immediately before and after giving effect thereto, the Borrower or any of its
Subsidiaries may make Acquisitions other than Contract Acquisitions, provided,
further, however, that in the case of an Acquisition made directly or indirectly
with the proceeds of Revolving Credit Loans or Letters of Credit (including by
the making of an Intercompany Loan), the conditions of Section 6.2 shall be
satisfied; and
(d) provided that no Default or Event of Default would exist
immediately before and after giving effect thereto, the Borrower or any
Subsidiary thereof may make an Acquisition of rights under a contract or group
of related contracts with a customer (the "CUSTOMER") that had previously been a
party to a similar contract or group of contracts with a another Person (the
"SELLER") with respect to which the Borrower or such Subsidiary has agreed to
pay a fee (a "SUCCESS FEE") to the Seller upon the successful negotiation,
execution and delivery of a replacement contract or group of contracts with the
Customer within a specified period of time (a "CONTRACT ACQUISITION"), provided,
further that the Leverage Ratio on a pro forma basis for the period of four
consecutive quarters immediately succeeding the date on which such Contract
Acquisition is consummated is less than 3.00:1.00 and the Agent and the Lenders
shall have received a certificate (in form and substance satisfactory to the
Agent) of a Financial Officer of the Borrower to the foregoing effect, setting
forth calculations in reasonable detail.
D. DISPOSITIONS
Make any Disposition, or permit any of its Subsidiaries so to do,
except
1. Dispositions of any Investments permitted under Section
8.5(a);
2. Dispositions of Property which, in the reasonable opinion of
the Borrower or such Subsidiary, is obsolete or no longer useful in the conduct
of its business;
3. sales or other dispositions of receivables in respect of
12b-1 Fees and Contingent Deferred Sales Commissions in the ordinary course of
business;
4. Sale and Leaseback Transactions to the extent permitted by
Section 8.14; and
5. Dispositions of Margin Stock to the extent that a
prohibition or restriction on such Dispositions would result in the Agent, the
Issuing Bank and the Lenders
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being deemed to be "indirectly secured" by such Margin Stock under Regulation U
of the Board of Governors of the Federal Reserve System, as amended, taking into
account the value of the Margin Stock owned by the Borrower and its Subsidiaries
and any other relevant facts and circumstances.
E. INVESTMENTS, LOANS, ETC.
At any time, purchase or otherwise acquire, hold or invest in the
Capital Stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds or
credit to, or make any other investment, whether by way of capital contribution,
time deposit or otherwise, in or with any Person, or permit any of its
Subsidiaries so to do, (all of which are sometimes referred to herein as
"INVESTMENTS") except, without duplication:
1. Investments in Cash Equivalents;
2. Investments existing on the Effective Date as set forth on
Schedule 8.5;
3. normal business banking accounts and short-term certificates
of deposit and time deposits in, or issued by, federally insured institutions in
amounts not exceeding the limits of such insurance;
4. repurchase agreements fully collateralized by any obligation
described in Section 8.5(c);
5. Permitted Acquisitions and Permitted Contract Acquisitions;
6. Investments by the Borrower or any of its wholly-owned
Subsidiaries in Intercompany Indebtedness, provided that a. such Indebtedness is
repayable on demand,b. no Default or Event of Default would exist immediately
before or after giving effect thereto,c. the amount of Intercompany Indebtedness
extended by the Borrower or any Domestic Subsidiary to Foreign Subsidiaries
shall not exceed $10,000,000 in the aggregate at any time, and (iv) the Borrower
shall not permit any of its Subsidiaries that is an "investment company" within
the meaning of the 1940 Act or a Person deemed to be an "investment company" for
purposes of the 1940 Act to incur Intercompany Indebtedness as a result of the
Borrower or any other Subsidiary thereof making an Investment in such Subsidiary
with the proceeds of Revolving Credit Loans or Letters of Credit;
7. Investments consisting of loans to employees of the Borrower
or any of its Subsidiaries made in the ordinary course of business, provided
that no Default or Event of Default would exist immediately before or after
giving effect thereto;
8. Investments consisting of minority interests in
substantially the same or a related business to that of the Borrower or any of
its Subsidiaries in an aggregate amount not to exceed $10,000,000, provided that
no Default or Event of Default would exist
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immediately before or after giving effect thereto;
9. Investments in shares of an Investment Company for which a
direct or indirect subsidiary of the Borrower is a principal underwriter named
in such Investment Company's registration statement under the 1940 Act, provided
that (1) such shares are acquired by such Subsidiary prior to the public
offering of such Investment Company's shares,(2) such shares are acquired by
such Subsidiary solely for purposes of enabling such Investment Company to
satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act, and (C)
the amount paid for such shares is limited to the amount necessary to enable
such Investment Company to satisfy the net worth requirement of Section 14(a)(1)
of the 1940 Act PLUS an additional $10,000,000 in the aggregate for all such
Investments, it being understood that nothing herein shall require the sale of
any such shares;
10. Investments in shares of open-end management Investment
Companies, provided that after giving effect to any such Investment, the
consideration paid for such shares, when aggregated with the consideration paid
for all other such shares then held by the Borrower and its Subsidiaries, shall
not exceed 10% of the value of Consolidated Assets as at such time of such
Investment; and
11. in addition to Investments permitted by subsection (f)
above, capital contributions by the Borrower or any Subsidiary thereof to Exempt
Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt
Subsidiary solely because of the applicability of clause (iii) of the definition
of "Exempt Subsidiary"), provided that a. no Default or Event of Default shall
or would exist immediately before and after giving effect thereto, and b. the
amount of any such Investment shall not exceed the amount necessary to meet the
net capital requirements applicable to such Exempt Subsidiaries.
F. RESTRICTED PAYMENTS
Declare or pay any Restricted Payments payable in cash or otherwise or
apply any of its Property thereto or set apart any sum therefor, or permit any
of its Subsidiaries so to do, except that:a. a wholly-owned Subsidiary of the
Borrower may declare and pay Restricted Payments to its parent and b. provided
that no Default or Event of Default would exist immediately before or after
giving effect thereto, the Borrower may repurchase shares of its Capital Stock
in an aggregate amount not in excess of $30,000,000.
G. BUSINESS CHANGES
Materially change the nature of its business as conducted on the
Effective Date, or alter or modify its structure, or change its fiscal year from
that in effect on the Effective Date,
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or permit its Subsidiaries so to do.
H. SUBSIDIARIES
Create or acquire any other Subsidiary, or permit any of its
Subsidiaries so to do, except (a) as permitted in connection with a Permitted
Acquisition, and (b) that the Borrower may create Exempt Subsidiaries.
I. ERISA
Establish or contribute, or permit any of its Subsidiaries so to do,
to any Pension Plan (other than an Existing Pension Plan) except to the extent
that the same could not reasonably be expected to result in a Material Adverse
Effect, cause any Pension Plan to have a Funded Current Liability Percentage of
less than 60%, or increase benefits, or permit any of its Subsidiaries so to do,
under any Employee Benefit Plan or establish or contribute to any new Employee
Benefit Plan except to the extent that the same could not reasonably be expected
to result in a Material Adverse Effect.
J. AMENDMENTS, ETC. OF CERTAIN AGREEMENTS
Enter into or agree to any amendment, modification or waiver of any
term or condition of its Organizational Documents in any way which would
adversely affect the interests of the Agent, the Issuing Bank or any of the
Lenders under any of the Loan Documents.
K. TRANSACTIONS WITH AFFILIATES
Become a party to any transaction with an Affiliate, or permit any of
its Subsidiaries so to do, unless the Borrower's or such Subsidiary's, as the
case may be, Managing Person shall have determined that the terms and conditions
relating thereto are as favorable to the Borrower or such Subsidiary, as the
case may be, as those which would be obtainable at the time in a comparable
arms-length transaction with a Person other than an Affiliate.
L. ISSUANCE OF ADDITIONAL CAPITAL STOCK
Create or acquire the Capital Stock of, or Property of, any Person
which shall thereupon become a direct or indirect Subsidiary, or issue any
additional Capital Stock, or permit any of its Subsidiaries so to do, except a.
the Borrower may issue Capital Stock (other than Disqualified Stock) in
connection with the exercise of stock options granted pursuant to the Borrower's
stock option and employee stock purchase plans,b. provided that no Default or
Event of Default would exist immediately before or after giving effect thereto,
the Borrower or any of its Subsidiaries may issue additional Capital Stock
(other than Disqualified Stock),c. as otherwise permitted by Section 8.3 or 8.8.
M. LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES
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Directly or indirectly create or otherwise cause or suffer to exist or
become effective, any encumbrance or restriction on the ability of any
Subsidiary of the Borrower to a. pay Restricted Payments or any Indebtedness
owed to the Borrower or any Subsidiary of the Borrower,b. make loans or advances
to the Borrower or any Subsidiary of the Borrower or c.transfer any of its
Property to the Borrower, or permit any of its Subsidiaries so to do, except for
such encumbrances or restrictions existing under or by reason of (x) applicable
law, including, without limitation, any restriction in respect of net capital
requirements imposed upon Subsidiaries of the Borrower that are broker-dealers
or are engaged in the insurance business, and (y) the Loan Documents.
N. SALE AND LEASEBACK TRANSACTIONS
Enter into any Sale and Leaseback Transaction or permit any of its
Subsidiaries so to do, except that the Borrower or any Subsidiary of the
Borrower may enter into Sale and Leaseback Transactions of equipment to be used
in the conduct of its business, provided, however, that the aggregate principal
amount of Capital Lease Obligations in respect of such leases shall not exceed
$10,000,000.
O. TRADE OR BUSINESS
Engage in any trade or business other than the holding of the Capital
Stock of its Subsidiaries and activities incidental thereto.
IX. DEFAULT
A. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT" hereunder:
1. The failure of the Borrower to make any payment of principal
on any Revolving Credit Note, or any reimbursement payment hereunder or under
any Reimbursement Agreement, when due and payable; or
2. The failure of the Borrower to make any payment of interest,
Fees, expenses or other amounts payable under any Loan Document or otherwise to
the Agent with respect to the loan facilities established hereunder within three
Business Days of the date when due and payable; or
3. The failure of the Borrower to observe or perform any
covenant
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or agreement contained in Sections 2.6, 7.3, 7.11 or Section 8; or
4. The failure of any Credit Party to observe or perform any
other term, covenant, or agreement contained in any Loan Document and such
failure shall have continued unremedied for a period of 30 days after a
Responsible Officer of such Credit Party shall have obtained knowledge thereof;
or
5. Any representation or warranty made by any Credit Party (or
by an officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
6. Liabilities and/or other obligations of the Borrower (other
than its obligations under the Revolving Credit Notes), any of its Subsidiaries
or any other Credit Party, whether as principal, guarantor, surety or other
obligor, for the payment of any Indebtedness or operating leases in an aggregate
amount in excess of $2,000,000 a. shall become or shall be declared to be due
and payable prior to the expressed maturity thereof, or b. shall not be paid
when due or within any grace period for the payment thereof,c. any holder of any
such obligation shall have the right to declare such obligation due and payable
prior to the expressed maturity thereof or (iv) as a consequence of the
occurrence or continuation of any event or condition, the Borrower, any of its
Subsidiaries or such other Credit Party has become obligated to purchase or
repay any Indebtedness before its regularly scheduled maturity date;
7. Any license, franchise, permit, right, approval or agreement
of the Borrower, any of its Subsidiaries or any other Credit Party is not
renewed, or is suspended, revoked or terminated and the non-renewal, suspension,
revocation or termination thereof would have a Material Adverse Effect; or
8. The Borrower or any Material Subsidiary shall a. suspend or
discontinue its business,b. make an assignment for the benefit of creditors,c.
generally not be paying its debts as such debts become due,d. admit in writing
its inability to pay its debts as they become due,e. file a voluntary petition
in bankruptcy,f. become insolvent (however such insolvency shall be
evidenced),g. file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or dissolution or
similar relief under any present or future statute, law or regulation of any
jurisdiction,h. petition or apply to any tribunal for any receiver, custodian or
any trustee for any substantial part of its Property,i. be the subject of any
such proceeding filed against it which remains undismissed for a period of 60
days,j. file any answer admitting or not contesting the material allegations of
any such petition filed against it or any order, judgment or decree approving
such petition in any such proceeding,k. seek, approve, consent to, or acquiesce
in any such proceeding, or in the appointment of any trustee, receiver,
sequestrator, custodian, liquidator, or fiscal agent for it, or any substantial
part of its Property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such order remains in effect
for 60 days, or l. take any formal action for the purpose of effecting any of
the foregoing or looking to the liquidation or dissolution of the Borrower or
such Material Subsidiary; or
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9. An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction a. adjudging the Borrower or any Material Subsidiary bankrupt or
insolvent,b. approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any Material Subsidiary under the United States bankruptcy laws or
any other applicable Federal or state law,c. appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Borrower or any Material Subsidiary or of any substantial part of the Property
of any thereof, or d. ordering the winding up or liquidation of the affairs of
the Borrower or any Material Subsidiary, and any such decree or order continues
unstayed and in effect for a period of 60 days; or
10. Judgments or decrees against the Borrower, any of its
Subsidiaries or any other Credit Party aggregating in excess of $2,000,000 shall
remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of 30 days; or
11. The occurrence of an Event of Default as defined in any Loan
Document; or
12. Any Loan Document shall cease, for any reason, to be in full
force and effect, or any Credit Party shall so assert in writing or shall
disavow any of its obligations thereunder; or
13. a.any Termination Event shall occur;b. any Accumulated
Funding Deficiency, whether waived, shall exist with respect to any Pension
Plan;c. any Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan;d. the Borrower, any of its Subsidiaries or any ERISA
Affiliate shall fail to pay when due an amount which is payable by it to the
PBGC or to a Pension Plan under Title IV of ERISA;e. the imposition of any tax
under Section 4980B(a) of the Code;f. the assessment of a civil penalty with
respect to any Employee Benefit Plan under Section 502(c) of ERISA; or g.any
other event or condition shall occur or exist with respect to an Employee
Benefit Plan which in the case of clauses (i) through (vii) would, individually
or in the aggregate, have a Material Adverse Effect.
B. CONTRACT REMEDIES
1. Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified whether in clause (h) or (i) above, the Commitments of all of
the Lenders shall immediately and automatically terminate and the Revolving
Credit Loans, all accrued and unpaid interest thereon, any Reimbursement
Obligations owing or contingently owing in respect of all outstanding Letters
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of Credit and all other amounts owing under the Loan Documents shall immediately
become due and payable, and the Borrower shall forthwith deposit an amount equal
to the Letter of Credit Exposure in a cash collateral account with and under the
exclusive control of the Agent, and the Agent may, and, upon the direction of
the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the consent
of the Required Lenders, the Agent may, and upon the direction of the Required
Lenders shall, by notice to the Borrower, declare the Commitments of all of the
Lenders and the Letter of Credit Commitment to be terminated forthwith,
whereupon such Commitments and the Letter of Credit Commitment shall immediately
terminate, and (ii) with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice of default to the
Borrower, declare the Revolving Credit Loans, all accrued and unpaid interest
thereon, any Reimbursement Obligations owing or contingently owing in respect of
all outstanding Letters of Credit and all other amounts owing under the Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable, and the Borrower shall forthwith deposit an amount equal
to the Letter of Credit Exposure in a cash collateral account with and under the
exclusive control of the Agent, and the Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
in the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived. The Borrower hereby further expressly waives and covenants
not to assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay, prevent
or otherwise impede the performance or enforcement of any Loan Document.
2. In the event that the Commitments of all the Lenders and the
Letter of Credit Commitment shall have been terminated or the Revolving Credit
Loans, all accrued and unpaid interest thereon, any Reimbursement Obligations
owing or contingently owing in respect of all outstanding Letters of Credit and
all other amounts owing under the Loan Documents shall have been declared due
and payable pursuant to the provisions of this Section, any funds received by
the Agent, the Issuing Bank and the Lenders from or on behalf of the Borrower
shall be applied by the Agent, the Issuing Bank and the Lenders in liquidation
of the Revolving Credit Loans, the Reimbursement Obligations and the other
obligations of the Borrower under the Loan Documents in the following manner and
order:a. first, to the payment of interest on, and then the principal portion
of, any Revolving Credit Loans which the Agent may have advanced on behalf of
any Lender for which the Agent has not then been reimbursed by such Lender or
the Borrower;b. second, to the payment of any fees or expenses due the Agent
from the Borrower;c. third, to reimburse the Agent, the Issuing Bank and the
Lenders for any expenses (to the extent not paid pursuant to clause (ii) above)
due from the Borrower pursuant to the provisions of Section 11.5;d. fourth, to
the payment of accrued Fees and all other fees, expenses and amounts due under
the Loan Documents (other than principal and interest on the Revolving Credit
Loans and the Reimbursement Obligations);e. fifth, to the payment pro rata
according to the outstanding principal balance of the Revolving Credit Loans and
the Letter of Credit Exposure, of interest due on the Revolving Credit Loans and
the Letter of Credit Exposure of each Lender;f. sixth, to the payment of
principal outstanding on the Revolving Credit Loans and under the Reimbursement
Agreements; and g. seventh, to the payment of any other amounts owing to the
Agent, the Issuing Bank and the Lenders under any Loan Document.
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X. THE AGENT
A. APPOINTMENT
Each of the Issuing Bank and each Lender hereby irrevocably designates
and appoints BNY as the Agent of the Issuing Bank and such Lender under the Loan
Documents and each of the Issuing Bank and each Lender hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
the Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Agent by the terms of the Loan Documents, together
with such other powers as are reasonably incidental thereto. The duties of the
Agent shall be mechanical and administrative in nature, and, notwithstanding any
provision to the contrary elsewhere in any Loan Document, the Agent shall not
have any duties or responsibilities other than those expressly set forth
therein, or any fiduciary relationship with, or fiduciary duty to, the Issuing
Bank or any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into the Loan Documents or
otherwise exist against the Agent.
B. DELEGATION OF DUTIES
The Agent may execute any of its duties under the Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to rely upon, and
shall be fully protected in, and shall not be under any liability for, relying
upon, the advice of counsel concerning all matters pertaining to such duties.
C. EXCULPATORY PROVISIONS
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be a. liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except the Agent for its own gross
negligence or willful misconduct), or b. responsible in any manner to the
Issuing Bank or any of the Lenders for any recitals, statements, representations
or warranties made by the Borrower or any other Credit Party or any officer
thereof contained in the Loan Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by the Agent under
or in connection with, the Loan Documents or for the value, validity,
effectiveness, genuineness, perfection, enforceability or sufficiency of any of
the Loan Documents or for any failure of the Borrower or any other Credit Party
or any other Person to perform its obligations thereunder. The Agent shall not
be under any obligation to the Issuing Bank or any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, the Loan Documents, or to inspect the Property,
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books or records of the Borrower or any other Credit Party. The Issuing Bank
and the Lenders acknowledge that the Agent shall not be under any duty to take
any discretionary action permitted under the Loan Documents unless the Agent
shall be instructed in writing to do so by the Issuing Bank and Required Lenders
and such instructions shall be binding on the Issuing Bank and all Lenders and
all holders of the Revolving Credit Notes; provided, however, that the Agent
shall not be required to take any action which exposes the Agent to personal
liability or is contrary to law or any provision of the Loan Documents. The
Agent shall not be under any liability or responsibility whatsoever, as Agent,
to the Borrower or any other Credit Party or any other Person as a consequence
of any failure or delay in performance, or any breach, by the Issuing Bank or
any Lender of any of its obligations under any of the Loan Documents.
D. RELIANCE BY AGENT
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
opinion, 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 a proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower or any other Credit Party), independent accountants and
other experts selected by the Agent. The Agent may treat the Issuing Bank or
each Lender, as the case may be, or the Person designated in the last notice
filed with it under this Section, as the holder of all of the interests of the
Issuing Bank or such Lender, as the case may be, in its Revolving Credit Loans,
Revolving Credit Notes, the Letters of Credit and the Reimbursement Obligations,
as applicable, until written notice of transfer, signed by the Issuing Bank or
such Lender (or the Person designated in the last notice filed with the Agent)
and by the Person designated in such written notice of transfer, in form and
substance satisfactory to the Agent, shall have been filed with the Agent. The
Agent shall not be under any duty to examine or pass upon the validity,
effectiveness, enforceability or genuineness of the Loan Documents or any
instrument, document or communication furnished pursuant thereto or in
connection therewith, and the Agent shall be entitled to assume that the same
are valid, effective and genuine, have been signed or sent by the proper parties
and are what they purport to be. The Agent shall be fully justified in failing
or refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request or
direction of the Required Lenders, and such request or direction and any action
taken or failure to act pursuant thereto shall be binding upon the Issuing Bank,
all the Lenders and all future holders of the Revolving Credit Notes and the
Reimbursement Obligations.
E. NOTICE OF DEFAULT
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from the Issuing Bank, a Lender or the Borrower. In the
event that the Agent receives such a notice, the Agent shall promptly give
notice thereof to the Issuing Bank, the Lenders and the Borrower. The Agent
shall take such action with respect to such Default or Event of Default as shall
be di-
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rected by the Required Lenders, provided, however, that unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
F. NON-RELIANCE ON AGENT AND OTHER LENDERS
Each of the Issuing Bank and each Lender expressly acknowledges that
neither the Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter, including any review
of the affairs of the Borrower or any other Credit Party, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each of
the Issuing Bank and each Lender represents to the Agent that it has,
independently and without reliance upon the Agent, the Issuing Bank or any
Lender, and based on such documents and information as it has deemed appropriate
made its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of the Borrower or
any other Credit Party and made its own decision to enter into this Agreement.
Each of the Issuing Bank and each Lender also represents that it will,
independently and without reliance upon the Agent, the Issuing Bank or any
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, evaluations and decisions
in taking or not taking action under any Loan Document, 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
Borrower or any other Credit Party. Except for notices, reports and other
documents expressly required to be furnished to the Issuing Bank and/or the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide the Issuing Bank or any Lender with any credit or
other information concerning the business, operations, Property, financial and
other condition or creditworthiness of the Borrower or any other Credit Party
which at any time may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
G. INDEMNIFICATION
Each Lender agrees to indemnify and hold harmless the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according to
the aggregate of the outstanding principal balance of the Revolving Credit Loans
and any unpaid Reimbursement Obligations (or at any time when no Revolving
Credit Loans are outstanding and there are no unpaid Reimbursement Obligations,
according to its Commitment Percentage), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the
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Lenders (through the Agent) by the Borrower or any other Credit Party pursuant
to the terms of the Loan Documents, that are subsequently rescinded or avoided,
or must otherwise be restored or returned) which may at any time (including,
without limitation, at any time following the payment of the Revolving Credit
Loans, the Revolving Credit Notes and the Reimbursement Obligations) be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any other documents contemplated by or referred to
therein or the transactions contemplated thereby or any action taken or omitted
to be taken by the Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the finally adjudicated gross negligence or willful misconduct of
the Agent. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its pro rata share of any unpaid fees owing
to the Agent, and any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrower under Section
11.5, to the extent that the Agent has not been paid such fees or has not been
reimbursed for such costs and expenses, by the Borrower. The failure of any
Lender to reimburse the Agent promptly upon demand for its pro rata share of any
amount required to be paid by the Lenders to the Agent as provided in this
Section shall not relieve any other Lender of its obligation hereunder to
reimburse the Agent for its pro rata share of such amount, but no Lender shall
be responsible for the failure of other Lender to reimburse the Agent for such
other Lender's pro rata share of such amount. If after having been indemnified
or reimbursed by the Lenders as provided by this Section, the Agent shall have
received payment from the obligor in respect of the obligation or liability for
which it received such indemnification or reimbursement from the Lenders, the
Agent shall disburse to the Lenders an amount equal to the amount of the payment
so received on a pro rata basis. The agreements in this Section shall survive
the termination of the Commitments of all of the Lenders, the Letter of Credit
Commitment, and the payment of all amounts payable under the Loan Documents.
H. AGENT IN ITS INDIVIDUAL CAPACITY
BNY and its affiliates may make secured or unsecured loans to, accept
deposits from, issue letters of credit for the account of, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower
or any other Credit Party as though BNY were not Agent hereunder and BNY Capital
Markets did not arrange the transactions contemplated hereby. With respect to
the Commitments made or renewed by BNY and the Revolving Credit Note issued to,
and the Reimbursement Obligations owing to, BNY, BNY shall have the same rights
and powers under the Loan Documents as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall in each
case include BNY.
I. SUCCESSOR AGENT
If at any time the Agent deems it advisable, in its sole discretion,
it may submit to the Issuing Bank and each of the Lenders a written notice of
its resignation as Agent under the Loan Documents, such resignation to be
effective upon the earlier of a. the written acceptance of the duties of the
Agent under the Loan Documents by a successor Agent and b.
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on the 30th day after the date of such notice. Upon any such resignation, the
Required Lenders shall have the right to appoint from among the Lenders a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and accepted such appointment in writing within 30 days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Issuing Bank and the Lenders, appoint a successor Agent,
which successor Agent shall be a commercial bank organized under the laws of the
United States or any State thereof and having a combined capital, surplus, and
undivided profits of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent's rights, powers,
privileges and duties as Agent under the Loan Documents shall be terminated.
The Borrower, the other Credit Parties, the Issuing Bank and the Lenders shall
execute such documents as shall be necessary to effect such appointment. After
any retiring Agent's resignation as Agent, the provisions of the Loan Documents
shall inure to its benefit as to any actions taken or omitted to be taken by it,
and any amounts owing to it, while it was Agent under the Loan Documents. If at
any time there shall not be a duly appointed and acting Agent, the Borrower
agrees to make each payment due under the Loan Documents directly to the Issuing
Bank and the Lenders entitled thereto during such time.
XI. OTHER PROVISIONS
A. AMENDMENTS AND WAIVERS
With the written consent of the Required Lenders, the Agent, the
Issuing Bank and the Borrower and any other appropriate Credit Party may, from
time to time, enter into written amendments, supplements or modifications of the
Loan Documents and, with the consent of the Required Lenders, the Agent on
behalf of the Issuing Bank and the Lenders may execute and deliver to any such
parties a written instrument waiving or a consent to a departure from, on such
terms and conditions as the Agent may specify in such instrument, any of the
requirements of the Loan Documents or any Default or Event of Default and its
consequences; provided, however, that:
1. no such amendment, supplement, modification, waiver or consent
shall, without the consent of all of the Lenders,a. increase the Commitment
Amount of any Lender or the Aggregate Commitment Amount, or extend the Maturity
Date; b.decrease the rate, or extend the time of payment, of interest of, or
change or forgive the principal amount or extend the time of payment of, or
change the pro rata allocation of payments under, any Revolving Credit Note,c.
release or discharge any Subsidiary Guarantor in respect of the Subsidiary
Guaranty;d. reduce the amount, or extend the time of payment, of any Fee;e.
change the provisions of
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Sections 3.6, 3.10, 9.1(a), 9.1(b), 11.1 or 11.7(a), or f. change the definition
of "Required Lenders"; and
2. without the written consent of the Issuing Bank, no such
amendment, supplement, modification or waiver shall change the Letter of Credit
Commitment, change the amount or the time of payment of the Letter of Credit
Commissions or change any other term or provision which relates to the Letter of
Credit Commitment or the Letters of Credit or any other rights of the Issuing
Bank under any Loan Document; and
3. without the written consent of the Agent, no such amendment,
supplement, modification or waiver shall amend, modify or waive any provision of
Section 10 or otherwise change any of the rights or obligations of the Agent
hereunder or under the Loan Documents.
Any such amendment, supplement, modification or waiver shall apply
equally to the Issuing Bank and each of the Lenders and shall be binding upon
the parties to the applicable Loan Document, the Lenders, the Issuing Bank, the
Agent and all future holders of the Revolving Credit Notes and the Reimbursement
Obligations. In the case of any waiver, the parties to the applicable Loan
Document, the Issuing Bank, the Lenders and the Agent shall be restored to their
former position and rights hereunder and under the outstanding Revolving Credit
Notes and other Loan Documents to the extent provided for in such waiver, and
any Default or Event of Default waived shall not extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. The
Loan Documents may not be amended orally or by any course of conduct.
B. NOTICES
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail (first-class postage prepaid and
certified, return receipt requested), or, in the case of notice by telecopy,
when sent, addressed as follows in the case of the Borrower, the Agent or the
Issuing Bank, addressed to the Domestic Lending Office, in the case of each
Lender, or addressed to such other addresses as to which the Agent may be
hereafter notified by the respective parties thereto or any future holders of
the Notes:
The Borrower:
The BISYS Group, Inc.
000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Executive Vice President/
Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to
The BISYS Group, Inc.
000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Agent or the Issuing Bank:
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 6366 or 6367
with a copy to:
The Bank of New York
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx,
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
except that any notice, request or demand by the Borrower to or upon the Agent,
the Issuing Bank or the Lenders pursuant to Section 2.3, 2.7 or 3.3 shall not be
effective until received. Any party to a Loan Document may rely on signatures
of the parties thereto which are transmitted by telecopy or other electronic
means as fully as if originally signed.
C. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the
Agent, the Issuing Bank or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy,
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power or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
D. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND CERTAIN OBLIGATIONS
1. All representations and warranties made under the Loan Documents
and in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
2. The obligations of the Borrower under Sections 3.5, 3.6, 3.7,
3.8, 3.9, 3.10, 3.11, 11.5 and 11.8 shall survive the termination of the
Commitments of all of the Lenders, the Letter of Credit Commitment and the
payment of the Revolving Credit Loans, the Reimbursement Obligations and all
other amounts payable under the Loan Documents.
E. PAYMENT OF EXPENSES AND TAXES
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Revolving Credit Loan is made or any Letter of
Credit is issued a. to pay or reimburse the Agent and BNY Capital Markets for
all their respective out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation, execution and syndication of, the
Loan Documents and any amendment, supplement or modification thereto (whether or
not executed or effective), any documents prepared in connection therewith and
the consummation of the transactions contemplated thereby, including, without
limitation, the reasonable fees and disbursements of Special Counsel,b. to pay
or reimburse the Agent, the Issuing Bank and the Lenders for all of their
respective costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel, incurred in connection with (1) any Default or
Event of Default and any enforcement or collection proceedings resulting
therefrom or in connection with the negotiation of any restructuring or
"work-out" (whether consummated or not) of the obligations of any Credit Party
under any of the Loan Documents and (2) the enforcement of this Section, and c.
to pay, indemnify and hold each Lender, the Issuing Bank and the Agent and each
of their respective officers, directors and employees harmless from and against
any and all other liabilities, obligations, claims, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Revolving Credit Loans and the Letters
of Credit and the enforcement and performance of the provisions of any
subordination agreement involving the Agent, the Issuing Bank and the Lenders
(all the foregoing, collectively, the "INDEMNIFIED LIABILITIES") and, if and to
the extent that the foregoing indemnity may be unenforceable for any reason, the
Borrower agrees to make the maximum payment not prohibited under applicable law;
provided, however, that the Borrower shall have no obligation to pay Indemnified
Liabilities to the Agent, the Issuing Bank or any Lender arising from the
finally adjudicated gross negligence or willful misconduct of the Agent, the
Issuing Bank or such Lender or claims between one indemnified party and another
indemnified party. The agreements in this Section shall survive the termination
of the Commitments of all of the
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Lenders, the Letter of Credit Commitment and the payment of all amounts payable
under the Loan Documents.
F. LENDING OFFICES
1. Each Lender shall have the right at any time and from time to
time to transfer its Revolving Credit Loans to a different office, provided that
such Lender shall promptly notify the Agent and the Borrower of any such change
of office. Such office shall thereupon become such Lender's Domestic Lending
Office or Eurodollar Lending Office, as the case may be, provided, however, that
no Lender shall be entitled to receive any greater amount under Sections 3.5,
3.7 and 3.10, as a result of a transfer of any such Revolving Credit Loans to a
different office of such Lender than it would be entitled to immediately prior
thereto unless such claim would have arisen even if such transfer had not
occurred.
2. Each Lender agrees that, upon the occurrence of any event giving
rise to any increased cost or indemnity under Sections 3.5, 3.7 and 3.10 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Revolving Credit Loans affected by such event,
provided that such designation is made on such terms that such Lender and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
any such Section. Nothing in this Section shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections 3.5,
3.6, 3.7 and 3.10.
G. ASSIGNMENTS AND PARTICIPATIONS
1. The Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Issuing Bank, the Agent, all future holders of
the Revolving Credit Notes and the Reimbursement Obligations, and their
respective successors and assigns, except that neither the Borrower nor any
other Credit Party may assign, delegate or transfer any of its rights or
obligations under the Loan Documents without the prior written consent of the
Agent, the Issuing Bank and each Lender.
2. Each of the Issuing Bank and each Lender shall have the right at
any time, upon notice to the Agent of its intent to do so, to sell, assign,
transfer or negotiate all or any part of its rights and obligations under the
Loan Documents to one or more of its affiliates, to one or more of the other
Lenders (or to affiliates of such other Lenders) or, with the prior written
consent of the Borrower, the Agent and the Issuing Bank (which consents shall
not be unreasonably withheld and, in the case of the Borrower, shall not be
required upon the occurrence and during the continuance of an Event of Default),
to sell, assign, transfer or
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negotiate all or any part of its rights and obligations under the Loan Documents
to any Eligible Assignee, provided that a. each such sale, assignment, transfer
or negotiation (other than sales, assignments, transfers or negotiations (x) to
its affiliates or (y) its entire interest) shall be in a minimum amount of
$5,000,000 or such amount PLUS an integral multiple of $1,000,000 in excess
thereof and b. there shall be paid to the Agent by it a fee (an "ASSIGNMENT
FEE") of $3,000. For each assignment, the parties to such assignment shall
execute and deliver to the Agent for its acceptance and recording an Assignment
and Acceptance Agreement. Upon such execution, delivery, acceptance and
recording by the Agent, from and after the effective date specified in such
Assignment and Acceptance Agreement, the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance Agreement,
the assignor Lender or the Issuing Bank, as the case may be, thereunder shall be
released from its obligations under the Loan Documents. The Borrower agrees
upon written request of the Agent to execute and deliver (1) to such assignee, a
Revolving Credit Note, dated the effective date of such Assignment and
Acceptance Agreement, in an aggregate principal amount equal to the Revolving
Credit Loans assigned to, and Commitment assumed by, such assignee and (2) to
such assignor Lender if it did not assign its entire interest, a Revolving
Credit Note, dated the effective date of such Assignment and Acceptance
Agreement, in an aggregate principal amount equal to the balance of such
assignor Lender's Commitment Amount, if any, and each assignor Lender shall
cancel and return to the Borrower its existing Revolving Credit Note. The
execution and delivery of Revolving Credit Notes pursuant to the preceding
sentence shall be at the Borrower's expense unless the assignee is an Affiliate
of the assignor, in which case the expense shall be borne by the assignor. Upon
any such sale, assignment or other transfer, the Commitment Amounts set forth in
Exhibit A shall be adjusted accordingly by the Agent and a new Exhibit A shall
be distributed by the Agent.
3. Each of the Issuing Bank and each Lender may, with the prior
written consent of the Agent and the Issuing Bank (which consent shall not be
unreasonably withheld), grant participations in all or any part of its rights
under the Loan Documents to one or more Eligible Assignees, provided that a. its
obligations under the Loan Documents shall remain unchanged,b. it shall remain
solely responsible to the other parties to the Loan Documents for the
performance of such obligations,c. the Borrower, the Issuing Bank, the Agent and
the Lenders, as applicable, shall continue to deal solely and directly with it
in connection with its rights and obligations under the Loan Documents,d. no
sub-participations shall be permitted unless approved by the Agent and e. the
voting rights of any holder of any participation shall be limited to decisions
that only do any of the following:(1) subject the participant to any additional
obligation,(2) reduce the principal of, or interest on the Revolving Credit
Notes or any fees or other amounts payable under the Loan Documents,(3) postpone
any date fixed for the payment of principal of, or interest on the Revolving
Credit Notes or any fees or other amounts payable under the Loan Documents, or
(4) release any guarantor under any guaranty. The Borrower acknowledges and
agrees that any such participant shall for purposes of Sections 3.5, 3.6, 3.7,
3.8, 3.9, 3.10 and 3.11, be deemed to be a "Lender"; provided, however, the
Borrower shall not, at any time, be obligated to pay any participant in any
interest of the Issuing Bank or any Lender hereunder any sum which, when
aggregated with the sums payable to other participants in the same interest and
the sums payable to the Issuing Bank or Lender granting such participations,
would be in excess of the sum which the Borrower would have been obligated to
pay to the Issuing Bank or such Lender, as the case may be, in respect of such
interest had the Issuing
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Bank or such Lender, as the case may be, not sold such participation.
4. If any a. assignment is made pursuant to subsection (b) above or
b. any participation is granted pursuant to subsection (c) above, to any Person
that is not a U.S. Person, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the Agent in the case of clause
(i), and to the Borrower and the Issuing Bank or the Lender which sold such
participation, as the case may be, in the case of clause (ii), as shall be
required by Section 3.10(c).
5. Neither the Issuing Bank nor any Lender shall, as between and
among the Borrower, the Issuing Bank, the Agent and such Lender, as the case may
be, be relieved of any of its obligations under the Loan Documents as a result
of any sale, assignment, transfer or negotiation of, or granting of
participations in, all or any part of its Revolving Credit Loans, its Revolving
Credit Notes, its Commitment, the Letter of Credit Commitment, or the
Reimbursement Agreements, as applicable, except that it shall be relieved of its
obligations to the extent of any such sale, assignment, transfer, or negotiation
of all or any part of its Revolving Credit Loans, its Commitment, its Revolving
Credit Notes, the Letter of Credit Commitment, or the Reimbursement Agreements,
as applicable, pursuant to subsection (b) above.
6. Notwithstanding anything to the contrary contained in this
Section, the Issuing Bank or any Lender may at any time or from time to time
assign all or any portion of its rights under the Loan Documents to a Federal
Reserve Bank, provided that any such assignment shall not release such assignor
from its obligations thereunder.
H. INDEMNITY
The Borrower agrees to defend, protect, indemnify, and hold harmless
the Agent, BNY Capital Markets, the Issuing Bank and each and all of the
Lenders, each of their respective Affiliates and each of the respective
officers, directors, employees and agents of each of the foregoing (each an
"INDEMNIFIED PERSON" and, collectively, the "INDEMNIFIED PERSONS") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel to such Indemnified Persons in connection with any
investigative, administrative or judicial proceeding, whether direct, indirect
or consequential and whether based on any federal or state laws or other
statutory regulations, including, without limitation, securities and commercial
laws and regulations, under common law or at equitable cause, or on contract or
otherwise, including any liabilities and costs under Environmental Laws,
Federal, state or local health or safety laws, regulations, or common law
principles, arising from or in connection with the past, present or future
operations of the Borrower, any other Credit Party, or their respective
predecessors in interest, or the past, present
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or future environmental condition of the Property of the Borrower or any of its
Subsidiaries, the presence of asbestos-containing materials at any such
Property, or the release or threatened release of any Hazardous Substance into
the environment from any such Property) in any manner relating to or arising out
of the Loan Documents, any commitment letter or fee letter executed and
delivered by the Borrower or any of its Subsidiaries, the Issuing Bank and/or
the Agent, the capitalization of the Borrower or any of its Subsidiaries, the
Commitments, the Letter of Credit Commitment, the making of, issuance of,
management of and participation in the Revolving Credit Loans or the Letters of
Credit, or the use or intended use of the Letters of Credit and the proceeds of
the Loans hereunder, provided that the Borrower shall have no obligation under
this Section to an Indemnified Person with respect to any of the foregoing to
the extent the same (1) is found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person, (2) arises solely from claims between one
such Indemnified Person and another such Indemnified Person, or (3) arises out
of a final judgment relating hereto, rendered against such Indemnified Person in
favor of the Borrower. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to each Indemnified Person
under the Loan Documents or at common law or otherwise, and shall survive any
termination of the Loan Documents, the expiration of the Commitments of all of
the Lenders, the Letter of Credit Commitment and the payment of all Indebtedness
of the Credit Parties under the Loan Documents.
I. LIMITATION OF LIABILITY
No claim may be made by the Borrower, any of its Subsidiaries, any
Lender, the Issuing Bank, the Agent or other Person against the Borrower, any of
its Subsidiaries, any Lender, the Issuing Bank, the Agent, or any directors,
officers, employees, or agents of any of them for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by any Loan Document, or any act, omission or event occurring in
connection therewith, and each of the Borrower, its Subsidiaries, any such
Lender, the Issuing Bank, the Agent or other Person hereby waives, releases and
agrees not to xxx upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
J. COUNTERPARTS
Each Loan Document (other than the Revolving Credit Notes) may be
executed by one or more of the parties thereto on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same document. It shall not be necessary in making proof
of any Loan Document to produce or account for more than one counterpart signed
by the party to be charged. A counterpart of any Loan Document or to any
document evidencing, and of any an amendment, modification, consent or waiver to
or of any Loan Document transmitted by telecopy shall be deemed to be an
originally executed counterpart. A set of the copies of the Loan Documents
signed by all the parties thereto shall be deposited with each of the Borrower,
the Issuing Bank and the Agent. Any party to a Loan Document may rely upon the
signatures of any other party thereto which are transmitted by telecopy or other
electronic means to the same extent as if originally signed.
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K. ADJUSTMENTS; SET-OFF
1. If any Lender (a "BENEFITED LENDER") shall at any time receive
any payment of all or any part of the principal of its Revolving Credit Loans or
the Reimbursement Obligations owing to such Lender, 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 9.1(h) or (i), or
otherwise), in a greater proportion than any such payment to and collateral
received by any other Lender in respect of the principal of such other Lender's
Revolving Credit Loans or the Reimbursement Obligations owing to such other
Lender, or interest thereon, such Benefited Lender shall purchase for cash from
each of the other Lenders such portion of each such other Lender's Revolving
Credit Loans and Reimbursement Obligations, and shall provide each of such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders,
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Revolving Credit Loans and
Reimbursement Obligations may exercise all rights of payment (including, without
limitation, rights of set-off, to the extent not prohibited by law) with respect
to such portion as fully as if such Lender were the direct holder of such
portion.
2. In addition to any rights and remedies of the Issuing Bank and
the Lenders provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents, or
at any time upon the occurrence and during the continuance of an Event of
Default, under Section 9.1(a) or (b), each of the Issuing Bank and each Lender
shall have the right, without prior notice to the Borrower or any other Credit
Party, any such notice being expressly waived by the Borrower and each other
Credit Party to the extent not prohibited by applicable law, to set-off and
apply against any indebtedness, whether matured or unmatured, of the Borrower or
such other Credit Party, as the case may be, to the Issuing Bank or such Lender,
as the case may be, any amount owing from the Issuing Bank or such Lender, as
the case may be, to the Borrower or such other Credit Party, as the case may be,
at, or at any time after, the happening of any of the above-mentioned events.
To the extent not prohibited by applicable law, the aforesaid right of set-off
may be exercised by the Issuing Bank or such Lender, as the case may be, against
the Borrower or such other Credit Party, as the case may be, or against any
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, re-
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ceiver, or execution, judgment or attachment creditor of the Borrower or such
other Credit Party, as the case may be, or against anyone else claiming through
or against the Borrower or such other Credit Party, as the case may be, or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by the Issuing Bank or such Lender, as the case may be, prior to the
making, filing or issuance, or service upon the Issuing Bank or such Lender, as
the case may be, of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each of the
Issuing Bank and each Lender agrees promptly to notify the Borrower and the
Agent after any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
L. CONSTRUCTION
Each party to a Loan Document represents that it has been represented
by counsel in connection with the Loan Documents and the transactions
contemplated thereby and that the principle that agreements are to be construed
against the party drafting the same shall be inapplicable.
M. GOVERNING LAW
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws, but including Section 5-1401 of the General Obligations
Law.
N. HEADINGS DESCRIPTIVE
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
O. SEVERABILITY
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
P. INTEGRATION
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Agent and/or the Issuing Bank and the Borrower
with respect to certain fees, the Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the Issuing Bank and the Lenders
with respect to the subject matter thereof and supersede all prior agreements
and understandings among the Borrower, the Agent, the Issuing Bank and the
Lenders with respect to the subject matter thereof.
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Q. CONSENT TO JURISDICTION
Each party to a Loan Document hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Credit Party hereby agrees that a final judgment in any such suit, action
or proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
R. SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably consents to the
service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 11.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
S. NO LIMITATION ON SERVICE OR SUIT
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Agent, the Issuing Bank or any
Lender to serve process in any manner permitted by law or limit the right of the
Agent, the Issuing Bank or any Lender to bring proceedings against any Credit
Party in the courts of any jurisdiction or jurisdictions in which such Credit
Party may be served.
T. WAIVER OF TRIAL BY JURY
EACH OF THE AGENT, THE ISSUING BANK, THE LENDERS AND THE CREDIT
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, EACH CREDIT PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
THE ISSUING BANK, THE AGENT, OR THE LENDERS, OR COUNSEL TO THE
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ISSUING BANK, THE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE ISSUING BANK, THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH
CREDIT PARTY ACKNOWLEDGES THAT THE ISSUING BANK, THE AGENT AND THE LENDERS HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS
SECTION.
U. TREATMENT OF CERTAIN INFORMATION
Each Lender, the Issuing Bank and the Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature, all non-public information supplied by the Borrower or any
of its Subsidiaries pursuant to this Agreement which 1. is identified by such
Person as being confidential at the time the same is delivered to such Lender,
the Issuing Bank or the Agent, or 2. constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder,
provided, however, that nothing herein shall limit the disclosure of any such
information a. to the extent required by statute, rule, regulation or judicial
process,b. on a confidential basis, to counsel to any of the Lenders, the
Issuing Bank or the Agent, x.xx bank examiners, auditors or accountants, and any
analogous counterpart thereof,d. to the Agent, the Lenders, or the Issuing Bank
e. in connection with any litigation to which any one or more of the Lenders,
the Issuing Bank or the Agent is a party,f. to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) agrees to keep such information
confidential on substantially the same basis as set forth in this Section, or g.
to any affiliate of the Agent, BNY Capital Markets, any Lender or the Issuing
Bank that is a Section 20 securities affiliate of such Person or that is an
affiliate of such Person reasonably believed by such Person to require such
information in connection with the transactions contemplated by the Loan
Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THE BISYS GROUP, INC.
By: __________________________
Name: ________________________
Title: _______________________
THE BANK OF NEW YORK,
Individually, as Issuing Bank
and as Agent
By: __________________________
Name: ________________________
Title: _______________________
THE BANK OF NOVA SCOTIA
By: __________________________
Name: ________________________
Title: _______________________
FIRST UNION NATIONAL BANK
By: __________________________
Name: ________________________
Title: _______________________
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XXXXX XXXX, NATIONAL ASSOCIATION
By: __________________________
Name: ________________________
Title: _______________________
PNC BANK, NATIONAL ASSOCIATION
By: __________________________
Name: ________________________
Title: _______________________
CORESTATES BANK, N.A.
By: __________________________
Name: ________________________
Title: _______________________
THE FIRST NATIONAL BANK OF CHICAGO
By: __________________________
Name: ________________________
Title: _______________________
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