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Exhibit 10.37
CREDIT AGREEMENT
dated as of December 29, 2000
between
EFUNDS CORPORATION
and
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BANK OF AMERICA, NATIONAL ASSOCIATION
TABLE OF CONTENTS
Section Page
ARTICLE I.................................................................... 1
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DEFINITIONS.................................................................. 1
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1.01 Certain Defined Terms........................................... 1
1.02 Other Interpretive Provisions................................... 16
1.03 Accounting Principles........................................... 17
ARTICLE II.................................................................... 18
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THE LOANS .................................................................... 18
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2.01 The Revolving Credit Facility................................... 18
2.02 Loan Accounts................................................... 18
2.03 Procedure for Borrowing......................................... 18
2.04 Conversion and Continuation Elections........................... 19
2.05 Voluntary Termination or Reduction of Commitments............... 20
2.06 Optional Prepayments............................................ 20
2.07 Mandatory Prepayments, Cash Collateralization and Termination... 21
2.08 Repayment....................................................... 22
2.09 Interest........................................................ 22
2.10 Fees............................................................ 22
2.11 Computation of Fees and Interest................................ 23
2.12 Payments by the Company......................................... 23
ARTICLE III................................................................... 23
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THE LETTERS OF CREDIT......................................................... 24
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3.01 The Letter of Credit Sub-facility............................... 24
3.02 Issuance, Amendment and Renewal of Letters of Credit............ 25
3.03 Drawings and Reimbursements..................................... 26
3.04 Role of the Bank................................................ 26
3.05 Obligations Absolute............................................ 27
3.06 Cash Collateralization Obligations.............................. 28
3.07 Letter of Credit Fees........................................... 28
3.08 Uniform Customs and Practice.................................... 28
ARTICLE IV................................................................... 28
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TAXES, YIELD PROTECTION AND ILLEGALITY....................................... 28
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4.01 Taxes........................................................... 28
4.02 Illegality...................................................... 29
4.03 Increased Costs and Reduction or Return......................... 29
4.04 Funding Losses.................................................. 30
4.05 Inability to Determine Rates.................................... 30
4.06 Reserves on Offshore Rate Loans................................. 31
4.07 Certificates of the Bank........................................ 31
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4.08 Survival........................................................ 32
ARTICLE V.................................................................... 32
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CONDITIONS.................................................................... 32
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5.01 Conditions to Effectiveness of Agreement........................ 32
5.02 Conditions to All Credit Extensions............................. 34
ARTICLE VI................................................................... 35
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6.01 Corporate Existence and Power................................... 35
6.02 Corporate Authorization; No Contravention....................... 35
6.03 Governmental Authorization...................................... 35
6.04 Binding Effect.................................................. 36
6.07 ERISA Compliance................................................ 36
6.08 Use of Proceeds; Margin Regulations............................. 37
6.09 Title to Properties............................................. 37
6.10 Taxes........................................................... 37
6.11 Financial Condition............................................. 37
6.12 Environmental Matters........................................... 38
6.13 Regulated Entities.............................................. 38
6.14 No Burdensome Restrictions...................................... 38
6.15 Copyrights, Patents, Trademarks and Licenses, etc............... 38
6.16 Subsidiaries.................................................... 38
6.17 Insurance....................................................... 39
6.18 Swap Obligations................................................ 39
6.19 Full Disclosure................................................. 39
6.20 Solvency........................................................ 39
6.21 Good Standing Certificates...................................... 40
ARTICLE VII.................................................................. 40
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AFFIRMATIVE COVENANTS........................................................ 40
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7.01 Financial Statements............................................ 40
7.02 Certificates; Other Information................................. 41
7.03 Notices......................................................... 41
7.04 Preservation of Corporate and Partnership Existence, etc........ 42
7.05 Maintenance of Property......................................... 43
7.06 Insurance....................................................... 43
7.07 Payment of Certain Obligations.................................. 43
7.08 Compliance with Laws; Guarantees................................ 43
7.09 Inspection of Property and Books and Records.................... 44
7.10 Environmental Laws.............................................. 44
7.11 Use of Proceeds................................................. 44
7.12 Solvency........................................................ 44
7.13 Internal Controls............................................... 45
ARTICLE VIII................................................................. 45
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NEGATIVE COVENANTS........................................................... 45
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8.01 Limitation on Liens............................................. 45
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8.02 Disposition of Property......................................... 47
8.03 Fundamental Changes; Restrictive Agreements..................... 47
8.04 Loans and Investments........................................... 49
8.05 Limitation on Indebtedness...................................... 50
8.06 Transactions with Affiliates.................................... 50
8.07 Use of Proceeds................................................. 50
8.08 Contingent Obligations.......................................... 50
8.09 Restricted Payments............................................. 51
8.10 ERISA........................................................... 52
8.11 Change in Business.............................................. 52
8.12 Minimum Consolidated Net Worth.................................. 52
8.13 Minimum EBITDA.................................................. 53
8.14 Maximum Ratio of Consolidated Funded Debt to EBITDA............. 53
8.15 Minimum Ratio of EBIT to Consolidated Interest Expense.......... 53
8.16 Maximum Capital Expenditures.................................... 53
ARTICLE IX................................................................... 53
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EVENTS OF DEFAULT............................................................ 53
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9.01 Event of Default................................................ 53
9.02 Remedies........................................................ 56
9.03 Rights Not Exclusive............................................ 56
ARTICLE X.................................................................... 56
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GENERAL PROVISIONS........................................................... 56
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10.01 Amendments and Waivers.......................................... 56
10.02 Notices......................................................... 56
10.03 No Waiver; Cumulative Remedies.................................. 57
10.04 Costs and Expenses.............................................. 57
10.05 Indemnity....................................................... 58
10.06 Payments Set Aside.............................................. 59
10.07 Successors and Assigns.......................................... 59
10.08 Assignments, Participations, etc................................ 59
10.09 Confidentiality................................................. 60
10.10 Set-off......................................................... 61
10.11 Counterparts.................................................... 61
10.12 Severability.................................................... 61
10.13 No Third Parties Benefited...................................... 61
10.14 Governing Law and Jurisdiction.................................. 61
10.15 Waiver of Jury Trial............................................ 62
10.16 Entire Agreement................................................ 62
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SCHEDULES
2.01 Commitment
6.05 Litigation
6.11 Financial Condition
6.12 Environmental Matters
6.15 Litigation Respecting Intellectual Property
6.16 Subsidiaries and Minority Interests
6.17 Insurance Matters
6.20 Solvency
8.01(a) Certain Permitted Liens
8.05(b) Certain Permitted Indebtedness
8.08(c) Certain Permitted Contingent Obligations
10.02 Lending Office; Addresses for Notices
EXHIBITS
A Form of Notice of Borrowing
B Form of Notice of Conversion/Continuation
C Form of Compliance Certificate
D Form of Legal Opinion of Company's Counsel
E Form of Guarantee
F Form of Promissory Note
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CREDIT AGREEMENT
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This CREDIT AGREEMENT, dated as of December 29, 2000, is between EFUNDS
CORPORATION, a Delaware corporation (the "Company"), and BANK OF AMERICA,
NATIONAL ASSOCIATION, a national banking association (the "Bank").
WHEREAS the Company has requested the Bank to extend credit to the Company
in the form of a revolving credit facility with a letter of credit sub-facility
for working capital and other general corporate purposes; and
WHEREAS, the Bank has agreed to make available such credit to the Company
on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.
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As used herein:
"Access Agreements" means, collectively: (a) (i) the Automated Teller
Machine Cash Agreement, dated June 24, 1998; (ii) the Automated Teller
Machine Cash Agreement, dated March 19, 1999; (iii) the Automated Teller
Machine Cash Agreement, dated August 23, 1999; (iv) the Automated Teller
Machine Cash Agreement, dated November 15, 1999 (but effective September 1,
1999); (v) the Currency Control Agreement, dated as of November 15, 1999
(but effective as of June 24, 1998); in each case, as amended by the
Amendment to ATM Cash Agreements, made effective as of February 20, 2000;
all of the foregoing agreements being between ACILLC (as successor to
Access Cash International, Inc., a Minnesota corporation) and the Company
(the foregoing agreements, collectively, the "ATM Access Agreements"); and
(b) the Agreement, made as of September 1, 2000, between ACILLC and the
Company (inclusive of certain letter agreements, dated September 20, 2000,
relating to the provision by the Company to ACILLC of: (i) a guaranty of up
to $3,000,000 of face value of leases between customers of ACILLC or its
Canadian subsidiary who purchase automated teller machines and related
services for deployment in Canada and third party lessors) (the "Revenue
Consolidation Agreement"); and (ii) loans in an aggregate amount not to
exceed $12,000,000 to ACILLC for funding acquisitions that are mutually
agreed to between the Company and ACILLC). Notwithstanding anything to the
contrary contained herein, the terms "Access Agreement," "Access
Agreements," "ATM Access Agreement," "ATM Access Agreements" and "Revenue
Consolidation Agreement" shall not include any amendments, modifications,
supplements, waivers or other alterations of any of the foregoing
agreements unless the same have been approved in advance in writing by the
Bank.
"ACILLC" means Access Cash International L.L.C., a Delaware limited
liability company.
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"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting in, directly or indirectly: (a) the
acquisition of all or substantially all of the Property of a Person, or of
any business or division of a Person; (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or
equity of any Person, or otherwise causing any Person to become a
Subsidiary; (c) the power to elect, appoint, or cause the election or
appointment of at least a majority of the members of the board of directors
or similar governing body of such Person; or (d) a merger or consolidation
or any other combination with another Person (other than a Person that is a
Subsidiary), provided that the Company or one of its Subsidiaries is the
surviving entity.
"Affiliate" means, as to any Person, any other Person who, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, membership
interests, partnership interests, by contract, or otherwise.
"Agreement" means this Credit Agreement.
"Applicable Commitment Fee Percentage" means, on any date, 0.40% per
annum.
"Applicable Margin" means, on any date, one and three-quarters percent
(1.75%) per annum.
"Assignee" has the meaning specified in Section 10.08(a).
"ATM Access Agreements" means, collectively, the Access Agreements
described in clause (a) of the definition of "Access Agreements" contained
herein.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bank" has the meaning specified in the introduction hereto.
"Bankruptcy Code" means the federal Bankruptcy Reform Act of 1978 (11
U.S.C. (S)101 et seq.).
"Bank's Payment Office" means the address for payments set forth on
Schedule 10.02 or such other address as the Bank may from time to time
specify.
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the most recently announced Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to time by
the Bank at its headquarters office as its "prime rate." (The "prime rate"
is a rate set by the Bank based upon various factors, including the Bank's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.) Any
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change in the "prime rate" rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of
such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Type made to the Company on the same day by the Bank under Article II
and (other than in the case of Base Rate Loans) having the same Interest
Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina, New York, New
York, San Francisco, California or Phoenix, Arizona are authorized or
required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in
the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Capital Expenditures" means, for any period, the aggregate
expenditures (whether paid in cash or accrued as a liability, including the
aggregate amount of Capital Lease Obligations incurred during such period,
but excluding capitalized interest and items paid in cash that had been
accrued and counted as "Capital Expenditures" in a prior period) made by
the Company or any of its Subsidiaries to acquire or to construct fixed
assets, plant and equipment (including renewals, improvements and
replacements, but excluding repairs in the ordinary course) during such
period, determined on a consolidated basis.
"Capital Expenditure Threshold" has the meaning specified in Section
8.16.
"Capital Lease Obligations" means, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP, and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount of such obligations.
"Cash Collateralize" means to pledge and deposit with or deliver to
the Bank, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance reasonably
satisfactory to the Bank. Derivatives of such term shall have a
corresponding meaning.
"Change of Control" means the occurrence of either of the following:
(a) any "person" or "group" (as such terms are used in subsections 13(d)
and 14(d) of the Exchange Act and the regulations thereunder) is or becomes
the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is
3
exercisable immediately or only after the passage of time), directly or
indirectly, of 30% or more of the then outstanding voting capital stock of
the Company, or (b) the Continuing Directors shall cease to constitute at
least a majority of the directors constituting the board of directors of
the Company; provided that "Change of Control" shall not include the spin-
off of the Company as a subsidiary of Deluxe Corporation.
"Closing Date" means the date on which all of the conditions set forth
in Section 5.01 are satisfied, made conditions subsequent by the Bank or
waived by the Bank.
"Code" means the Internal Revenue Code of 1986, including all
regulations promulgated thereunder.
"Commitment" has the meaning specified in Section 2.01.
"Company" has the meaning specified in the introduction hereto.
"Company Plan" means an annual business plan and budget for the
Company (as prepared by the Company).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated Funded Debt" means all Funded Debt of the Company and
its Subsidiaries, determined on a consolidated basis eliminating
intercompany items.
"Consolidated Interest Expense" means, with respect to the Company for
any period, without duplication, the sum of (a) the interest expense of the
Company and its Subsidiaries for such period, determined on a consolidated
basis, including (i) any amortization of debt discount, (ii) the net cost
of obligations under any Swap Agreements (including any amortization of
discounts), (iii) the interest portion of any deferred payment obligation,
(iv) all amounts accrued, paid, or scheduled to be paid during such period
on account of Indebtedness that is given off-balance sheet treatment in
accordance with GAAP, which amounts consist of, or are designated or
identified as, "rent" or similar obligations, (v) all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, and (vi) all accrued interest, plus (b)
the interest component of Capitalized Lease Obligations paid, accrued or
scheduled to be paid or accrued by the Company and its Subsidiaries during
such period, determined on a consolidated basis.
"Consolidated Net Income" and "Consolidated Net Loss" mean,
respectively, for any period, the aggregate net income or loss for such
period of the Company and its Subsidiaries, determined on a consolidated
basis.
"Consolidated Net Worth" means, as of any date of determination,
Consolidated Total Assets minus Consolidated Total Liabilities.
"Consolidated Total Assets" means, as of any date of determination,
the total assets of the Company and its Subsidiaries, determined on a
consolidated basis.
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"Consolidated Total Liabilities" means, as of any date of
determination, the total liabilities of the Company and its Subsidiaries,
determined on a consolidated basis.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that Person (i)
to purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other Property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
Property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other Property is ever made or
tendered, or such services are ever performed or tendered, or (d) in
respect of any Swap Contract. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the stated
or determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, and in the
case of other Contingent Obligations other than in respect of Swap
Contracts, shall be equal to the maximum reasonably anticipated liability
in respect thereof and, in the case of Contingent Obligations in respect of
Swap Contracts, shall be equal to the Swap Termination Value.
"Continuing Directors" means, as of any date, the collective reference
to all members of the board of directors of the Company who assumed office
after such date and whose appointment or nomination for election by the
Company's shareholders was approved by a vote of at least 50% of the
Continuing Directors in office immediately prior to such appointment or
nomination.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
Property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Credit Documents" means this Agreement, all Notes, all Guarantees,
the Fee Letter and all other documents delivered to the Bank in connection
herewith.
"Credit Extension" means: (a) any Loan or L/C Advance made hereunder;
or (b) any Letter of Credit Issued hereunder.
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"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Dividend Payment" means any dividend (in cash, Property or
obligations) on, or other payment or distribution on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of or any other equity interest in the Company or any of the
Company's Subsidiaries or of any warrants, options or other rights to
acquire the same (or to make any payments (in cash, Property, or
obligations) to any Person, such as "phantom stock" payments, where the
amount is calculated with reference to the fair market or equity value of
the Company or any of its Subsidiaries), but excluding any dividend payable
solely in shares of common stock of or additional equity interests in the
Company or any of the Company's Subsidiaries.
"Dollars," "dollars" and "$" each mean lawful money of the United
States.
"Domestic Subsidiary" means any Subsidiary of the Company organized
under the laws of the United States or any State or Territory thereof.
"EBIT" means, for any period, the sum of: (a) Consolidated Net Income
or Consolidated Net Loss, as the case may be, for such period; plus (b) the
sum of (i) Consolidated Interest Expense, (ii) income tax expense and (iii)
the cash (except as otherwise provided in Section 1.03(a)(ii)) and noncash
portions of infrequent or unusual charges, in each case, which were
deductible in determining Consolidated Net Income or Consolidated Net Loss,
determined on a consolidated basis for such period.
"EBITDA" means, for any period, the sum of: (a) Consolidated Net
Income or Consolidated Net Loss, as the case may be, for such period; plus
(b) the sum of (i) Consolidated Interest Expense, (ii) income tax expense,
(iii) depreciation expense, (iv) amortization expense and (v) the cash
(except as otherwise provided in Section 1.03(a)(ii)) and noncash portions
of infrequent or unusual charges, in each case, which were deductible in
determining Consolidated Net Income or Consolidated Net Loss, determined on
a consolidated basis for such period.
"Effective Amount" means: (a) with respect to any Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to
any Borrowings and prepayments or repayments occurring on such date; and
(b) with respect to any outstanding L/C Obligations on any date, the amount
of such L/C Obligations on such date after giving effect to any Issuances
of Letters of Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
"eFIT" means eFunds IT Solutions Group Inc., a Delaware corporation
and a Subsidiary of the Company.
"Eligible Assignee" means: (a) a financial institution organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least
6
$100,000,000; (b) a financial institution organized under the laws of any
other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any
such country, and having a combined capital and surplus of at least
$100,000,000, provided that such financial institution is acting through a
branch or agency located in the United States or the Cayman Islands; (c) a
Person that is primarily engaged in the business of commercial banking and
that is (i) a Subsidiary of the Bank, (ii) a Subsidiary of a Person of
which the Bank is a Subsidiary, or (iii) a Person of which the Bank is a
Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility of the Company or any of its Subsidiaries for violation of
any Environmental Law, or for release or injury to the environment.
"Environmental Laws" means all federal, state, local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974,
including all regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
subsection 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code);
provided that, for purposes of this definition, the term "ERISA Affiliate"
shall not include Deluxe Corporation or any of its Subsidiaries (other than
the Company and its Subsidiaries) following the spin-off of the Company as
a subsidiary of Deluxe Corporation.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate" contained herein.
"Event of Default" means any of the events or circumstances specified
in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, including
all regulations promulgated thereunder.
7
"Existing Deluxe Facility" means the unsecured $75,000,000 credit
facility provided by Deluxe Corporation to the Company pursuant to a Credit
Agreement, dated as of April 1, 2000, as amended by the Amendment to Credit
Agreement, dated as of November 30, 2000, between Deluxe Corporation and
the Company.
"Existing India Facility" means the financial accommodations provided
from time to time by the Bank to eFunds International India Private
Limited, a Subsidiary of the Company organized and existing under the laws
of India.
"FDIC" means the Federal Deposit Insurance Corporation and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Bank of the rates for
the last transaction in overnight federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
federal funds transactions in New York City selected by the Bank.
"Fee Letter" has the meaning specified in Section 2.10(a).
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"Funded Debt" of any Person means, as of the end of each fiscal
quarter of such Person and without duplication: (a) all obligations of
such Person (including with respect to any Credit Extensions hereunder) for
borrowed money; (b) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments (including obligations so
evidenced incurred in connection with the acquisition of Property or
businesses) and all other obligations of such Person that are given off-
balance sheet treatment in accordance with GAAP (including any obligations
with respect to securitized assets); (c) all non-contingent reimbursement
or payment obligations of such Person with respect to Surety Instruments;
(d) all Capitalized Lease Obligations of such Person; (e) the current
portion of all obligations of such Person arising with respect to preferred
stock that is mandatorily redeemable by such Person; (f) all Indebtedness
referred to in clauses (a) through (e) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in Property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (g) all
Guaranty Obligations in respect of the Indebtedness or obligations of
others of the kinds referred to in clauses (a) through (e) of this
definition.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to Section
4.01.
8
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances and consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantee" means a guarantee executed by a Guarantor in favor of the
Bank, in substantially the form of Exhibit E.
"Guarantor" means, at any time, each Person who is a guarantor or all
or any portion of the Obligations and shall include all Domestic
Subsidiaries.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation" contained herein.
"Honor Date" has the meaning specified in Section 3.03(c).
"iDLX (Netherlands)" means iDLX International, B.V., a Netherlands
company and a Subsidiary of the Company.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money; (b) all obligations of such
Person issued, undertaken or assumed as the deferred purchase price of
Property or services (other than trade payables entered into in the
ordinary course of business on ordinary terms, including amounts payable by
the Company under the Access Agreements); (c) all non-contingent
reimbursement or payment obligations of such Person with respect to Surety
Instruments; (d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments (including obligations so evidenced
incurred in connection with the acquisition of Property or businesses) and
all other obligations of such Person that are given off-balance sheet
treatment in accordance with GAAP (including any obligations with respect
to securitized assets); (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to Property acquired by
such Person (even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to repossession or
sale of such Property); (f) all Capital Lease Obligations of such Person;
(g) all obligations of such Person referred to in clauses (a) through (f)
above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or
in Property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; (h) all Guaranty Obligations of such Person in respect
of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (g) above. For all purposes of this Agreement, the
"Indebtedness" of any Person shall include all "Indebtedness" (with
recourse to such Person) of any partnership or joint
9
venture or limited liability company in which such Person is a general
partner, a joint venturer or a member.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in Section 7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in either event undertaken under U.S. federal,
state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar quarter and
each date such Loan is converted into another Type of Loan, provided that,
if any Interest Period for an Offshore Rate Loan exceeds three months, the
date that falls three months after the beginning of such Interest Period
and after each Interest Payment Date thereafter is also an Interest Payment
Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which a Loan is converted into or continued
as an Offshore Rate Loan, and ending on the date one, two or three months
thereafter as selected by the Company in its Notice of Borrowing or Notice
of Conversion/Continuation; provided that:
(a) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
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 preceding Business Day;
(b) any Interest Period pertaining to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
(c) no Interest Period for any Loan shall extend beyond September
28, 2001.
"Investments" has the meaning specified in Section 8.04.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
10
"Issuance Date" has the meaning specified in Section 3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit; and
the terms "Issued", "Issuing" and "Issuance" have corresponding meanings.
"Joint Venture" means a single- or special-purpose corporation or a
partnership, limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a separate legal
entity) now or hereafter formed by the Company or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
"L/C Advance" means an extension of credit resulting from a drawing under
any Letter of Credit that is not reimbursed on the date of such drawing nor
converted into a Loan.
"L/C Amendment Application" means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the Bank, as the Bank shall request.
"L/C Amount" means, on any date, an amount equal to the L/C Threshold
Amount less the Effective Amount of all L/C Obligations outstanding on such
date. The L/C Amount represents a portion of the Commitment and is not a
separate, independent commitment.
"L/C Application" means an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
Bank, as the Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which is not reimbursed on the date when made nor converted
into a Borrowing under Section 3.03(c).
"L/C Obligations" means at any time the sum of: (a) the aggregate undrawn
amount of all Letters of Credit then outstanding; plus (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all outstanding L/C
Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications and any other documents relating to any Letter of
Credit, including any of the Bank's standard form documents for letter of credit
issuances.
"L/C Threshold Amount" means, on any date, $5,000,000; provided that the
"L/C Threshold Amount" shall be reduced automatically and without notice on the
effective date of any reduction of the Commitment in accordance with Section
2.05 by an amount equal to the percentage by which the Commitment was so
reduced.
"Lending Office" means, as to the Bank, the office or offices of the Bank
specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office," as the case may be, on Schedule 10.02, or such other office or
offices as the Bank may from time to time designate in writing to the Company.
11
"Letters of Credit" means all letters of credit (whether standby letters of
credit or commercial letters of credit) Issued by the Bank pursuant to Article
III.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge, financial institution deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of any kind
or nature whatsoever in respect of any Property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the Property to which such
lien relates as debtor, under the UCC or any comparable law) and any contingent
or other agreement to provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"Loan" means an extension of credit by the Bank to the Company under
Article II and may be a Base Rate Loan or an Offshore Rate Loan (each, a "Type"
of Loan).
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
"Material Adverse Effect" means: (a) a material adverse change in, or a
material adverse effect upon, the Properties, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries, taken as a whole, which would be expected to
result in a material impairment of the ability of the Company or any Guarantor
to perform under any Credit Document to which it is a party and to avoid any
Default or Event of Default; or (b) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Company or any Guarantor
of any Credit Document.
"Multiemployer Plan" means a "multiple employer plan" or a "multiemployer
plan," within the meaning of Sections 4064(a) and 4001(a)(3) of ERISA, to which
the Company or any ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"Net Securities Proceeds" has the meaning specified in Section 8.12.
"Note" means a promissory note executed by the Company in favor of the Bank
pursuant to Section 2.02, in substantially the form of Exhibit F.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties and other Indebtedness (other than any of the foregoing
arising under purchase card transactions) owing by the Company to the Bank or
any Indemnified Person under the Credit Documents, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
12
"OECD" has the meaning specified in the definition of "Eligible Assignee"
contained herein.
"Offshore Rate" means, for any Interest Period, with respect to Offshore
Rate Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Bank as follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to the Bank) under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"IBOR" means the rate of interest per annum determined by the Bank as
the rate at which dollar deposits in the approximate amount of the Bank's
Offshore Rate Loan for such Interest Period would be offered by the Bank's
Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by the Bank), to major banks in the offshore
dollar interbank market at their request at approximately 11:00 a.m. (New
York City time) two Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Loans then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the Offshore
Rate.
"Organization Documents" means: (a) for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation
and any shareholder rights agreement; (b) for any partnership, the partnership
agreement and any other agreements or instruments relating to the rights or the
partners of such partnership or limiting or authorizing the activities of such
partnership; (c) for any limited liability company, the articles of organization
or certificate of formation of such Person, the limited liability company
agreement or operating agreement of such Person and any other agreements or
instruments relating to the rights of the members or mangers of such Person or
limiting or authorizing the activities of such Person; or (d) for any other
entity, the organizational and operating documents of such entity, any other
agreements or instruments related to the rights of the investors, members or
participants therein or limiting or authorizing the activities of such Person,
and all applicable resolutions of such Person.
"Other Taxes" means any present or future stamp, court or documentary taxes
or any other excise or property taxes (except for the present excise tax imposed
by any State to the extent that it
13
is imposed upon the gross receipts of the Bank), charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Credit Documents.
"Participant" has the meaning specified in Section 10.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA which the Company or any ERISA Affiliate sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments or Property held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view"; and
(b) such Swap Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party (unless such party is the Bank or an
Assignee) from its obligation to make payments on outstanding transactions to
the defaulting party, or (ii) any provision (except in favor of the Bank or any
Assignee) creating or permitting the declaration of an event of default,
termination event or similar event upon the occurrence of an Event of Default
hereunder (other than an Event of Default under Section 9.01(a)).
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
which the Company sponsors or maintains or to which the Company makes, is
making, or is obligated to make contributions and includes any Pension Plan.
"Projections" has the meaning specified in Section 6.19.
"Property" means any estate or interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
"Reportable Event" means, any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder, other than any such event for which the 30-
day notice requirement under ERISA has been waived in regulations issued by the
PBGC.
14
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its Property or to which the Person or any of its Property is subject.
"Responsible Officer" means, with respect to the Company or any Guarantor,
the chief executive officer, the president or a senior vice president or
controller of such Person; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer or the controller of such
Person, or any other officer (including a senior vice president) having
substantially the same authority and responsibility or otherwise familiar with
the compliance by such Person with financial covenants.
"Revenue Consolidation Agreement" has the meaning specified in the
definition of "Access Agreements" contained herein.
"Revolving Termination Date" means the earlier to occur of: (a) September
28, 2001; and (b) the date on which the Commitment terminates in accordance with
the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Shortfall" has the meaning specified in Section 8.16.
"Solvent" means, as to any Person at any time, that: (a) the fair value of
the Property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
California Uniform Fraudulent Transfer Act; (b) the present fair saleable value
of the Property 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; (c) such Person is able to realize upon its Property and
pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business; and
(d) such Person is not engaged in business or a transaction for which such
Person's Property would constitute unreasonably small capital.
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option,
15
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swap option, currency option or
any other, similar transaction (including any option to enter into any of
the foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing
any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the xxxx-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may include the Bank).
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of the Bank, taxes imposed on or measured by its net income, property or
gross receipts by any Governmental Authority having jurisdiction over the
Bank (or any lending office thereof).
"Type" has the meaning specified in the definition of "Loan"
contained herein.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each means the United States of America.
"Wholly Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly Owned Subsidiaries of the Company, or both.
1.02 Other Interpretive Provisions.
-----------------------------------
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
16
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding," and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein: (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Credit Document; and (ii) references to any statute or
regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and the other Credit Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Bank by way of consent, approval or
waiver shall be deemed modified by the phrase "in its sole discretion."
(g) This Agreement and the other Credit Documents are the result of
negotiations among, and have been reviewed by counsel to, the Company, the Bank
and the other parties to the Credit Documents, and are the products of all
parties. Accordingly, none of the Credit Documents shall be construed against
the Bank merely because of the Bank's involvement in its preparation.
1.03 Accounting Principles.
---------------------------
(a) Except as otherwise expressly provided herein, all accounting
terms contained herein shall be construed, and all financial determinations
calculations or computations required under this Agreement shall be made, in
accordance with GAAP; provided that, if any change in GAAP results in a change
in the operation or calculation of any of Sections 8.12, 8.13, 8.14, 8.15 or
8.16 or any of the defined terms used therein, the Company shall promptly notify
the Bank thereof and, upon notice to the Company by the Bank, compliance with
any such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn upon instruction from the Bank or such covenant is amended in a manner
satisfactory to the Company and the Bank; provided further that, for purposes of
the operation or calculation of any of Sections 8.12, 8.13, 8.14, 8.15 or 8.16
or any of the defined terms used therein: (i) for infrequent or unusual charges
taken in all periods prior to the Closing Date, no adjustments shall be made
respecting the recognition of the cash portion of such charges; and (ii) for
infrequent or unusual charges taken in all periods following the Closing Date,
the cash portion of such charges shall be recognized in the period during which
such cash portion is actually expended.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
17
ARTICLE II
THE LOANS
2.01 The Revolving Credit Facility.
-----------------------------------
The Bank agrees, on the terms and conditions set forth herein, to
make loans to the Company from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth on Schedule
2.01 (such amount as the same may be reduced under Section 2.05 or as a result
of one or more assignments under Section 10.08, the Bank's "Commitment");
provided that, after giving effect to any Credit Extension, the Effective Amount
of all outstanding Loans and L/C Obligations together shall not at any time
exceed the Commitment. Within the limits of the Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.01, prepay under Section 2.06 and reborrow under this Section 2.01.
2.02 Loan Accounts.
-------------------
The Loans made by the Bank shall be evidenced by one or more accounts
or records maintained by the Bank in the ordinary course of business. The
accounts or records maintained by the Bank shall be conclusive (absent manifest
error) of the amount of the Loans made by the Bank to the Company and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans. Upon the
reasonable request of the Bank, the Loans made by the Bank may be evidenced by
one or more Notes. The Bank may, but shall not be obligated to, endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Company with
respect thereto. The Company irrevocably authorizes the Bank to endorse its
Note(s), and the Bank's record shall be conclusive (absent manifest error);
provided that the failure of the Bank to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to the Bank.
2.03 Procedure for Borrowing.
-----------------------------
(a) Each Borrowing shall be made upon the Company's irrevocable
written notice delivered to the Bank in the form of a Notice of Borrowing (which
notice must be received by the Bank (i) prior to 7:30 a.m. (San Francisco time)
two Business Days prior to the requested Borrowing Date, in the case of Offshore
Rate Loans; and (ii) prior to 9:00 a.m. (San Francisco time) on the same
Business Day as the requested Borrowing Date, in the case of Base Rate Loans),
specifying:
(1) the amount of the Borrowing, which shall be in an aggregate
minimum amount of $1,000,000 or any multiple of $100,000 in excess
thereof;
(2) the requested Borrowing Date, which shall be a Business
Day;
(3) the Type of Loans comprising the Borrowing; and
18
(4) with respect to Offshore Rate Loans, the duration of the
Interest Period applicable to such Loans included in such notice. If
the Notice of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be three months;
provided that, with respect to any Borrowing to be made on the Closing Date, the
Notice of Borrowing shall be delivered to the Bank not later than 11:00 a.m.
(San Francisco time) at least one Business Day before the Closing Date and such
Borrowing will consist of Base Rate Loans only; provided further that if so
requested by the Bank, all Borrowings during the first 30 days following the
Closing Date shall have the same Interest Period and shall be Base Rate Loans or
Offshore Rate Loans for Interest Periods no longer than one month.
(b) The Bank will make the proceeds of each Credit Extension
available to the Company at the Bank's Payment Office by crediting the account
of the Company on the books of the Bank or, if requested by the Company, by wire
transfer in accordance with written instructions provided to the Bank by the
Company, less customary fees of the Bank for such wire transfer.
(c) After giving effect to any Borrowing, unless the Bank shall
otherwise consent, there may not be more than five (5) different Interest
Periods in effect.
2.04 Conversion and Continuation Elections.
-------------------------------------------
(a) The Company may, upon irrevocable written notice to the Bank in
accordance with Section 2.04(b):
(1) elect to convert, as of any Business Day, any Base Rate
Loans (or any part thereof in an amount not less than $1,000,000, or that
is in an integral multiple of $100,000 in excess thereof) into Offshore
Rate Loans;
(2) elect to convert, as of the last day of the applicable
Interest Period, any Offshore Rate Loans expiring on such day (or any part
thereof in an amount not less than $1,000,000, or that is in an integral
multiple of $100,000 in excess thereof) into Base Rate Loans; or
(3) elect to continue, as of the last day of the applicable
Interest Period, any Offshore Rate Loans having Interest Periods expiring
on such day (or any part thereof in an amount not less than $1,000,000, or
that is in an integral multiple of $100,000 in excess thereof);
provided that, if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $1,000,000, then such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
the Bank, which Notice of Conversion/Continuation must be received by the Bank
not later than 9:00 a.m. (San Francisco time) at least (i) three Business Days
in advance of the Conversion/Continuation Date, if the
19
Loans are to be converted into or continued as Offshore Rate Loans; and (ii) on
the same Business Day as the Conversion/ Continuation Date, if the Loans are to
be converted into Base Rate Loans, specifying:
(1) the proposed Conversion/Continuation Date;
(2) the aggregate amount of Loans to be converted or continued;
(3) the Type of Loans resulting from the proposed conversion or
continuation; and
(4) other than in the case of conversions into Base Rate Loans,
the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable to any
of the Company's outstanding Offshore Rate Loans, the Company shall have failed
to select timely a new Interest Period to be applicable to such outstanding
Offshore Rate Loans, or if any Default or Event of Default then exists, then the
Company shall be deemed to have elected to convert such Offshore Rate Loans into
Base Rate Loans effective as of the expiration date of such Interest Period, and
all conditions to such conversion shall be deemed to have been satisfied.
(d) Unless the Bank otherwise consents, during the existence of a
Default or Event of Default, the Company may not elect to have a Loan converted
into or continued as an Offshore Rate Loan.
(e) After giving effect to any conversion or continuation of Loans,
unless the Bank shall otherwise consent, there may not be more than five (5)
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments.
-------------------------------------------------------
The Company may, upon five Business Days' prior notice to the Bank,
terminate the Commitment, or permanently reduce the Commitment by an aggregate
minimum amount of $1,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then outstanding principal amount of the Loans would
exceed the amount of the Commitment then in effect. Once reduced in accordance
with this Section 2.05, the Commitment may not be increased. All accrued
commitment fees to the effective date of any reduction or termination of the
Commitment shall be paid on the effective date of such reduction or termination.
2.06 Optional Prepayments.
--------------------------
Subject to Section 4.04, the Company may, at any time or from time to
time, upon irrevocable notice received by the Bank, in the case of Offshore Rate
Loans, not less than three Business Days prior to the requested prepayment date,
and, in the case of Base Rate Loans, not less than one Business Day prior to the
requested prepayment date, prepay Loans in whole or in part, in minimum amounts
of $1,000,000 or any multiple of $100,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid. Once notice of any such prepayment is given by the
Company, such prepayment shall be irrevocable and the payment amount specified
in such notice shall be due and payable on the date specified therein in such
notice (together with accrued interest to each such date on the amount prepaid
and any amounts required pursuant to Section 4.04).
20
2.07 Mandatory Prepayments, Cash Collateralization and Termination.
-------------------------------------------------------------------
(a) Subject to Section 4.04: (i) if on any date the Effective Amount
of all L/C Obligations exceeds the L/C Threshold Amount, then the Company shall
immediately, and without notice or demand, repay all unreimbursed drawings under
all Letters of Credit (including L/C Borrowings) in an amount equal to such
excess and, if such repayment is insufficient to reduce the Effective Amount of
all L/C Obligations to or below the L/C Threshold Amount, Cash Collateralize the
L/C Obligations in respect of outstanding and wholly or partially undrawn
Letters of Credit in the amount of such remaining excess; (ii) if on any date
the Effective Amount of all Loans and L/C Obligations together exceeds the
Commitment, then the Company shall immediately, and without notice or demand,
prepay the outstanding principal amount of the Loans and all unreimbursed
drawings under all Letters of Credit (including L/C Borrowings) an amount equal
to such excess; and (iii) if on any date the Company or any of its Subsidiaries
issues or becomes indebted with respect to any Indebtedness of the type
referenced in clause (a) or clause (d) of the definition of "Indebtedness"
contained in Section 1.01 that is not otherwise permitted under Section 8.05:
(A) the Commitment shall automatically and without notice terminate; and (B) the
Company shall immediately, and without notice or demand, prepay the outstanding
principal amount of the Loans, repay all unreimbursed drawings under all Letters
of Credit (including L/C Borrowings) and Cash Collateralize the L/C Obligations
in an amount equal to the aggregate undrawn amount of all Letters of Credit then
outstanding.
(b) No later than forty-five days after the Bank has received notice
of a Change of Control pursuant to Section 7.03 (or upon and at any time after
the occurrence of any Change of Control if the Company is in default of its
obligation to deliver such a notice), the Bank may by notice to such effect to
the Company: (i) declare the Commitment to be terminated, whereupon the
Commitment shall automatically terminate; and (ii) declare an amount equal to
the maximum aggregate amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of Credit (whether or not
any beneficiary shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, or demand that the Company Cash
Collateralize the L/C Obligations to the extent of outstanding and wholly or
partially undrawn Letters of Credit, whereupon the Company shall so Cash
Collateralize the L/C Obligations; and declare the unpaid principal amount of
all outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable without presentment, demand or protest, all of which
are hereby expressly waived by the Company.
(c) Any prepayments pursuant to this Section 2.07 shall be applied
first to any Base Rate Loans then outstanding and then to outstanding Offshore
Rate Loans with the shortest Interest Periods then remaining. All payments of
Loans and L/C Borrowings pursuant to this Section 2.07 shall be made together
with interest accrued to the date of such payment on the principal amount
repaid, together with any amounts payable under Section 4.04; provided that, if
any such prepayment would cause the Company to incur Obligations pursuant to
Section 4.04 with respect to Offshore Rate Loans, the Company may Cash
Collateralize such Offshore Rate Loans until the last day of the Interest Period
related thereto, at which time such Cash Collateral shall be applied by the Bank
to repay such Loans.
21
2.08 Repayment.
---------------
Subject to the other provisions hereof: (a) the Commitment shall
automatically and without notice terminate on the Revolving Termination Date;
and (b) the Company shall repay to the Bank on the Revolving Termination Date
the aggregate principal amount of all Loans and L/C Borrowings outstanding on
such date.
2.09 Interest.
--------------
(a) Each Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Offshore Rate or the Base Rate, as the case may be (and subject to the
Company's right to convert to other Types of Loans under Section 2.04), plus the
Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of Loans
under Section 2.06 or 2.07 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand of the Bank (which demand the
Bank may make or not make at its sole election).
(c) Notwithstanding subsection (a) of this Section, during the
existence of any Event of Default under Section 9.01(a), or 9.01(e), 9.01(k),
9.01(m), or under 9.01(c) as a consequence of the failure of the Company to
observe or perform or cause to be observed or performed any term, covenant or
agreement contained in Section 7.11 or Article VIII, or after acceleration, the
Company shall pay interest (after as well as before any entry of judgment
thereon to the extent permitted by law) on the principal amount of all
Obligations outstanding hereunder, at a rate per annum which is determined by
adding one and one-half percent (1.50%) per annum to the Applicable Margin then
in effect for such Loans and, in the case of Obligations not subject to an
Applicable Margin, at a rate per annum equal to the Base Rate plus one and one-
half percent (1.50%); provided that, on and after the expiration of any Interest
Period applicable to any Offshore Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration, the principal amount of
such Loan shall, during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base Rate plus one
and one-half percent (1.50%). All such interest shall be payable upon demand.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to the Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by the Bank would be contrary to the provisions of any
law applicable to the Bank limiting the highest rate of interest that may be
lawfully contracted for, charged or received by the Bank, and in such event the
Company shall pay to the Bank interest at the highest rate permitted by
applicable law.
2.10 Fees.
----------
(a) Upfront Fee. The Company shall pay an arrangement fee to the
Bank for the Bank's sole account as required by the letter agreement, dated
December 8, 2000 (the "Fee Letter"), between the Company and the Bank.
22
(b) Commitment Fee. The Company shall pay to the Bank for the Bank's
sole account a commitment fee on the average daily unused portion of the
Commitment, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily utilization for that quarter as
calculated by the Bank, equal to such unused portion as so calculated multiplied
by the Applicable Commitment Fee Percentage for such period. Such commitment fee
shall accrue from the Closing Date to the Revolving Termination Date and shall
be due and payable quarterly in arrears on the last Business Day of each quarter
commencing on March 31, 2000 through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments under Section 2.05,
the accrued and unpaid commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction or termination, with the
following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The
commitment fees provided in this Section shall accrue at all times after the
Closing Date, including at any time during which one or more conditions in
Article V are not met.
2.11 Computation of Fees and Interest.
--------------------------------
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by the Bank's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360 day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a year of 365 or 366 days, as the case may be).
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to, but excluding, the last day
thereof.
(b) Each determination of an interest rate by the Bank shall be
conclusive and binding on the Company in the absence of manifest error.
2.12 Payments by the Company.
-----------------------------
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim.
(b) Except as otherwise expressly provided herein, all payments
(whether of principal, interest, fees or otherwise) by the Company shall be made
to the Bank at the Bank's Payment Office and shall be made in Dollars and in
immediately available funds, no later than 11:00 a.m. (San Francisco time) on
the date specified herein. Any payment received by the Bank later than 11:00
a.m. (San Francisco time) shall be deemed to have been received on the following
Business Day and any applicable interest or fees shall continue to accrue.
(d) Subject to the provisions set forth in the definition of
"Interest Period" contained herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following Business Day,
and such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
23
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Sub-facility.
---------------------------------------
(a) On the terms and conditions set forth herein and from time to
time on any Business Day during the period from the Closing Date to the
Revolving Termination Date, the Bank agrees (i) to issue Letters of Credit for
the account of the Company, and to amend or renew Letters of Credit previously
issued by it, in accordance with Sections 3.02(c) and 3.02(d), in an aggregate
amount not to exceed the L/C Amount, and (ii) to honor drafts under the Letters
of Credit; provided that the Bank shall not be obligated to Issue any Letter of
Credit if, as of the date of and after giving effect to the Issuance of such
Letter of Credit (the "Issuance Date"), (A) the Effective Amount of all L/C
Obligations exceeds (or would exceed) the L/C Amount or (B) the Effective Amount
of all L/C Obligations and Loans together exceeds (or would exceed) the
Commitment. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company's ability to obtain Letters of Credit shall be
fully revolving, and, accordingly, the Company may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed.
(b) The Bank is under no obligation to Issue any Letter of Credit
if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
the Bank from Issuing such Letter of Credit, or any Requirement of Law
applicable to the Bank or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over
the Bank shall prohibit, or request that the Bank refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Bank
is not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the Bank any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the Bank in good xxxxx
xxxxx material to it;
(ii) the Bank has received written notice from the Company, on
or prior to the Business Day prior to the requested date of Issuance of
such Letter of Credit, that one or more of the applicable conditions
contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is (A)
more than 365 days after the date of Issuance, or (B) more than 180 days
after the Revolving Termination Date, unless the Bank has approved such
expiry date in writing and the Company has Cash Collateralized such Letter
of Credit;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the Bank,
or the Issuance of a Letter of Credit shall violate any applicable policies
of the Bank; or
(v) any standby Letter of Credit is for the purpose of
supporting the issuance of any letter of credit by any other Person or for
the purpose of supporting any debt for borrowed money.
24
3.02 Issuance, Amendment and Renewal of Letters of Credit.
----------------------------------------------------------
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Bank at least three Business Days
(or such shorter time as the Bank may agree in a particular instance) prior to
the proposed date of issuance. Each such request for issuance of a Letter of
Credit shall be in the form of an L/C Application and shall specify in form and
detail satisfactory to the Bank: (i) the proposed date of issuance of the Letter
of Credit (which shall be a Business Day); (ii) the face amount of the Letter of
Credit; (iii) the expiry date of the Letter of Credit; (iv) the name and address
of the beneficiary thereof; (v) the documents to be presented by the beneficiary
of the Letter of Credit in case of any drawing thereunder; (vi) the full text of
any certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Bank may reasonably require.
(b) Unless the issuance, amendment or renewal of any Letter of
Credit is not then permitted under Section 3.01(a)(ii) as a result of the
limitations set forth in clauses (A) or (B) thereof or under Section 3.01(b), or
one or more conditions specified in Article V are not then satisfied, then,
subject to the terms and conditions hereof, the Bank shall, on the requested
Issue date, Issue a Letter of Credit for the account of the Company in
accordance with the Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Termination Date, the Bank will, upon the written request
of the Company received by the Bank at least four Business Days (or such shorter
time as the Bank may agree in a particular instance) prior to the proposed date
of amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Bank: (i)
the Letter of Credit to be amended; (ii) the proposed date of amendment of the
Letter of Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Bank may reasonably
require. The Bank shall be under no obligation to amend any Letter of Credit if:
(A) the Bank would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed amendment
to the Letter of Credit.
(d) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Termination Date, the Bank shall, upon the written
request of the Company received by the Bank at least four Business Days (or such
shorter time as the Bank may agree in a particular instance) prior to the
proposed date of notification of renewal, be entitled to authorize the automatic
renewal of any Letter of Credit issued by it. Each such request for renewal of a
Letter of Credit shall be made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to the Bank: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised expiry date
of the Letter of Credit; and (iv) such other matters as the Bank may require.
The Bank shall be under no obligation to renew any Letter of Credit if: (A) the
Bank would have no obligation at such time to issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed renewal of
the Letter of Credit. If any outstanding Letter of Credit provides that it shall
be automatically renewed unless the beneficiary thereof receives notice from the
Bank that such Letter of Credit will not be renewed, and if at the time of
renewal the Bank would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this Section 3.02(d) upon the request of the
Company but the Bank shall not have received an L/C Amendment Application from
the Company with respect to such renewal or any other written direction by the
Company with respect thereto, the Bank shall nonetheless be permitted to allow
such Letter of Credit to renew, and the
25
Company hereby authorizes such renewal, and, accordingly, the Bank shall be
deemed to have received an L/C Amendment Application from the Company requesting
such renewal.
(e) The Bank may, at its election, deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than 180 days after the Revolving Termination
Date; provided that, if the Bank shall have previously approved in writing the
expiry date of any such Letter of Credit and the Company shall have Cash
Collateralized such Letter of Credit, then the Bank may not terminate or take
any such other action.
(f) This Agreement shall control in the event of any conflict with
any L/C-Related Document (other than any Letter of Credit).
3.03 Drawings and Reimbursements.
---------------------------------
(a) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Bank will promptly notify
the Company. The Company shall reimburse the Bank prior to 10:00 a.m. (San
Francisco time), on each date that any amount is paid by the Bank under any
Letter of Credit (each such date, an "Honor Date"), in an amount equal to the
amount so paid by the Bank. In the event the Company fails to reimburse the Bank
for the full amount of any drawing under any Letter of Credit by 10:00 a.m. (San
Francisco time) on the Honor Date, the Company will be deemed to have requested
that Base Rate Loans be made by the Bank to be disbursed on the Honor Date in
respect of such Letter of Credit, subject to the amount of the unutilized
portion of the Commitment and subject to the conditions set forth in Section
5.02. Solely for the purposes of making such Base Rate Loans, the minimum amount
limitations set forth in Section 2.03 shall not be applicable. Any notice given
by the Bank pursuant to this Section 3.03(a) may be oral if immediately
confirmed in writing (including by facsimile); provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(b) With respect to any unreimbursed drawing that is not converted
into Loans consisting of Base Rate Loans to the Company in whole or in part,
because of the Company's failure to satisfy the conditions set forth in Section
5.02 (b), (c) or (d) or for any other reason, the Company shall be deemed to
have incurred from the Bank an L/C Borrowing in the amount of such drawing,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate plus one and
one-half percent (1.50%) per annum.
3.04 Role of the Bank.
----------------------
The Bank and the Company agree that, in paying any drawing under a Letter
of Credit, the Bank shall not have any responsibility to obtain any document
(other than any sight draft and certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. The Company hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the
Company from pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. No Indemnified
Person nor any Indemnified Person's correspondents, participants or assignees,
shall be liable or responsible for any of the matters described in subsections
(a) through (h) of Section 3.05; provided that the Company may have a claim
against the Bank, and the Bank may be liable to the Company, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the
26
Company which the Company proves were caused by the Bank's willful misconduct or
gross negligence or the Bank's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (a) the Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (b) the Bank shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.05 Obligations Absolute.
--------------------------
The obligations of the Company under this Agreement and any L/C-Related
Document to reimburse the Bank for a drawing under a Letter of Credit, and to
repay any L/C Borrowing and any drawing under a Letter of Credit converted into
Loans, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other L/C-Related
Document under all circumstances, including the following:
(a) any lack of validity or enforceability of this Agreement, any
L/C-Related Document or other Credit Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Company in respect of any
Letter of Credit or any other amendment or waiver of or any consent to departure
from all or any of the L/C-Related Documents;
(c) the existence of any claim, set-off, defense or other right that
the Company may have at any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Bank or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(d) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit;
(e) any payment by the Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by the Bank under any Letter
of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of any
Letter of Credit, including any arising in connection with any Insolvency
Proceeding;
(f) any exchange, release or non perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit;
(g) any misapplication by the beneficiary of any Letter of Credit of
the proceeds of any drawing under such Letter of Credit; or
27
(h) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company.
3.06 Cash Collateralization Obligations.
----------------------------------------
Upon (a) the request of the Bank (i) if the Bank has honored any full or
partial drawing request on any Letter of Credit and such drawing has resulted in
an L/C Borrowing hereunder, (ii) if at any time the Dollar amount equal to the
sum of the cash balances of the Company plus the then unused portion of the
Commitment is less than $15,000,000 or (iii) if, as of the Revolving Termination
Date, any Letters of Credit may for any reason remain outstanding and partially
or wholly undrawn, or (b) the occurrence of the circumstances described in
Section 2.07 requiring the Company to Cash Collateralize Letters of Credit,
then, the Company shall immediately Cash Collateralize or cause to be Cash
Collateralized all of the outstanding L/C Obligations in an amount equal to such
outstanding L/C Obligations. Such amount, when received by the Bank, shall be
held by the Bank and maintained in a blocked deposit account or deposit accounts
at the Bank, as Cash Collateral for reimbursement obligations of the Company in
respect of the L/C Obligations and for the other Obligations. The Company
hereby grants to the Bank a security interest in all such cash, deposit accounts
and deposit account balances. Amounts held in such account(s) shall be applied
by the Bank to the payment and reimbursement of the Bank in full for all L/C
Obligations, and the unused portion thereof after all Letters of Credit have
expired or been fully drawn upon, if any, shall be applied to repay other
Obligations of the Company hereunder. The Company shall execute such further
agreements, documents, instruments or financing statements as the Bank
reasonably deems necessary in connection with the foregoing.
3.07 Letter of Credit Fees.
---------------------------
(a) The Company shall pay to the Bank a letter of credit fee based
on the average daily maximum amount available to be drawn on outstanding Letters
of Credit at a rate equal to the Applicable Margin, which fee shall be computed
on a quarterly basis in arrears on the last Business Day of each calendar
quarter based upon Letters of Credit outstanding for that quarter as calculated
by the Bank. Such letter of credit fees shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during which Letters
of Credit are outstanding, commencing on March 31, 2001 (with all fees payable
for the quarter ending December 31, 2000 to be payable on such date) through the
Revolving Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on the
Revolving Termination Date (or such later expiration date, if any).
(b) The Company shall also pay to the Bank its standard fees and
charges in respect of the Issuance, presentation, amendment, renewal and
processing of any Letter of Credit hereunder in the amount(s) and at the time(s)
specified by the Bank. All fees and charges payable under this Section 3.07
shall be nonrefundable.
3.08 Uniform Customs and Practice.
----------------------------------
Unless otherwise expressly provided in any Letter of Credit, (a) the
Uniform Customs and Practices for Documentary Credits as most recently published
by the International Chamber of Commerce at the time of Issuance of any
documentary Letter of Credit shall apply to such Letter of Credit and (b) the
International Standby Practices 1998 most recently published by the Institute of
International Banking Law & Practice, Inc.
28
(or such later version thereof as may be then be in effect) at the time of
Issuance of any standby Letter of Credit shall apply to such Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
-----------
(a) Any and all payments by the Company to the Bank under this
Agreement and any other Credit Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, the Company shall
pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to the Bank, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section),
the Bank receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to the Bank, for the account
of the Bank at the time interest is paid, Further Taxes in the amount that
the Bank specifies is necessary to preserve the after-tax yield the Bank
would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed.
(c) The Company agrees to indemnify and hold harmless the Bank for
the full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in the
amount that the Bank specifies is necessary to preserve the after-tax yield the
Bank would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted, but only
to the extent such Taxes, Other Taxes or Further Taxes were actually paid by the
Bank. Payment under this indemnification shall be made within 30 days after the
date the Bank makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes, the Company shall furnish to the Bank the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Bank.
(e) If the Company is required to pay any amount to the Bank
pursuant to subsection (b) or (c) of this Section, then the Bank shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such
29
additional payment by the Company which may thereafter accrue, if such change in
the sole and absolute judgment of the Bank is not otherwise disadvantageous to
the Bank.
4.02 Illegality.
----------------
(a) If the Bank determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for the Bank or its Lending Office to make Offshore Rate Loans, then, on notice
thereof by the Bank to the Company, any obligation of the Bank to make Offshore
Rate Loans shall be suspended until the Bank notifies the Company that the
circumstances giving rise to such determination no longer exist.
(b) If the Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from the Bank, prepay in full such Offshore Rate Loans then
outstanding, together with interest accrued thereon and amounts required under
Section 4.04, either on the last day of the Interest Period thereof, if the Bank
may lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Offshore
Rate Loan. If the Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company shall borrow from the Bank, in
the amount of such repayment, a Base Rate Loan.
(c) If the obligation of the Bank to make or maintain Offshore Rate
Loans has been so terminated or suspended, the Company may elect, by giving
notice to the Bank that all Loans which would otherwise be made by the Bank as
Offshore Rate Loans shall be instead Base Rate Loans.
4.03 Increased Costs and Reduction or Return.
---------------------------------------------
(a) If the Bank determines that, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance by the Bank with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to the Bank of agreeing to make or making,
funding or maintaining any Loans, then the Company shall be liable for, and
shall immediately pay to the Bank, from time to time as specified by the Bank,
additional amounts as are sufficient to compensate the Bank for such increased
costs.
(b) If the Bank shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Bank (or its Lending Office) or any corporation controlling the Bank with
any Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration the Bank's or such corporation's
policies with respect to capital adequacy and the Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of the Commitment, loans, credits or obligations under this
Agreement, then, upon demand of the Bank to the Company, the Company shall
immediately pay to the Bank, from time to time as specified by the Bank,
additional amounts as are sufficient to compensate the Bank for such increase.
30
4.04 Funding Losses.
--------------------
The Company shall reimburse the Bank and hold the Bank harmless from
any loss or expense that the Bank may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan (including after any acceleration
thereof);
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the conversion of any Offshore Rate Loan to a Base Rate Loan on
a day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Company to the Bank under this
Section and under Section 4.03(a), each Offshore Rate Loan made by the Bank (and
each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the IBOR used in determining the
Offshore Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates.
----------------------------------
If the Bank determines that for any reason adequate and reasonable
means do not exist for determining the Offshore Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan, or that the Offshore Rate
applicable pursuant to Section 2.09(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to the Bank of funding such Loan, then the Bank will promptly so notify
the Company. Thereafter, the obligation of the Bank to make or maintain Offshore
Rate Loans hereunder shall be suspended until the Bank revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any Notice of
Borrowing or Notice of Conversion/ Continuation then submitted by it. If the
Company does not revoke such Notice, then the Bank shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans.
31
4.06 Reserves on Offshore Rate Loans.
-------------------------------------
The Company shall pay to the Bank, as long as the Bank shall be
required under regulations of the FRB to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional costs on the unpaid
principal amount of each Offshore Rate Loan equal to the actual costs of such
reserves allocated to such Loan by the Bank (as determined by the Bank in good
faith, which determination shall be conclusive absent manifest error), payable
on each date on which interest is payable on such Loan, provided the Company
shall have received at least 15 days prior written notice of such additional
costs from the Bank. If the Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
4.07 Certificates of the Bank.
------------------------
If the Bank claims reimbursement or compensation under this Article
IV, it shall deliver to the Company a certificate setting forth in reasonable
detail the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
4.08 Survival.
--------------
The agreements and obligations of the Company in this Article IV
shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS
5.01 Conditions to Effectiveness of Agreement.
----------------------------------------------
The effectiveness of this Agreement is subject to satisfaction or
waiver of the condition that the Bank shall have received on or before the
Closing Date all of the following, in form and substance satisfactory to the
Bank and its counsel:
(a) Credit Agreement; Note; Guarantees. (i) This Agreement duly
executed and delivered by the Company; (ii) if requested by the Bank, a Note,
duly executed and delivered by the Company; and (iii) a Guarantee, duly executed
and delivered by each Domestic Subsidiary;
(b) Resolutions; Incumbency.
-----------------------
(i) Copies of the resolutions of the respective boards of
directors, partners, members or managers (as applicable) of the Company and each
of the Persons required to deliver a Guarantee pursuant to Section 5.01(a)(iii)
authorizing the transactions contemplated by the Credit Documents to which they
are a party, certified as of the Closing Date by a Responsible Officer of the
Company; and
(ii) A certificate of a Responsible Officer of the Company,
certifying the names and true signatures of the officers of the Company and each
Person required to deliver a Guarantee
32
pursuant to Section 5.01(a)(iii) authorized to execute, deliver and perform, as
applicable, this Agreement and all other Credit Documents to be delivered by
each such Person hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws (or, if applicable, the partnership agreement, limited liability company
agreement or operating agreement) of the Company and each of the Persons
required to deliver a Guarantee pursuant to Section 5.01(a)(iii), each as in
effect on the Closing Date, certified: (A) in the case of any articles or
certificate of incorporation, by the Secretary of State of the State of
organization of each such Person, or, in the discretion of the Bank, a
Responsible Officer of the Company; and (B) in the case of bylaws (or, if
applicable, any partnership agreement, limited liability company agreement or
operating agreement), as of the Closing Date by a Responsible Officer of the
Company; and
(ii) (A) a good standing certificate from the Secretary of
State (or similar, applicable Governmental Authority) as of a date on or near
the Closing Date for the Company and each of the Persons required to deliver a
Guarantee pursuant to Section 5.01(a)(iii) from each such Person's State of
organization; (B) a good standing certificate as of a date on or near the
Closing Date for the Company and each of the Persons required to deliver a
Guarantee pursuant to Section 5.01(a)(iii) from the State in which each such
Person's chief executive office and principal place of business are located; (C)
a tax good standing certificate for the Company and each of the Persons required
to deliver a Guarantee pursuant to Section 5.01(a)(iii) from each such Person's
State of organization and the State in which each such Person's chief executive
office and principal place of business are located; provided that, to the extent
that any of the certificates required by the preceding sub-clauses (B) and (C)
have been ordered, but not yet received, by the Company prior to December 29,
2000, the Company shall only be required to deliver the foregoing in accordance
with Section 6.21;
(d) Legal Opinions. The favorable opinions of (i) in-house counsel
to the Company and the Persons required to deliver a Guarantee pursuant to
Section 5.01(a)(iii), and (ii) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
to the Company and the Persons required to deliver a Guarantee pursuant to
Section 5.01(a)(iii), in each case, addressed to the Bank, and together covering
the substantive matters set forth on Exhibit D;
(e) Certificate. A certificate, dated as of the Closing Date, signed
by a Responsible Officer of the Company on behalf of itself and each of the
Persons required to deliver a Guarantee pursuant to Section 5.01(a)(iii),
stating that:
(i) the representations and warranties contained in Article VI
are true and correct on and as of such date, as though made on and as of such
date;
(ii) no Default or Event of Default exists or would result from
the making of any initial Credit Extension; and
(iii) since September 30, 2000, no event or circumstance that
has resulted in or could reasonably be expected to result in a Material Adverse
Effect has occurred and is continuing;
(f) Preliminary Company Plan. The most current Company Plan for its
2001 fiscal year;
33
(g) Termination of the Existing Deluxe Facility. Evidence of the
termination of the Existing Deluxe Facility; and
(h) Other Documents. Such other approvals, opinions, documents or
materials as the Bank may reasonably request;
provided that neither this Agreement nor any of the other Credit Documents shall
become effective or be binding on any party hereto unless, on or before 5:00
p.m. (Phoenix, Arizona time) on December 29, 2000: (A) each of the foregoing
conditions has been satisfied (or has been waived by the Bank); (B) the Bank
shall have received all documents reasonably required by it pertaining to the
spin-off of the Company as a subsidiary of Deluxe Corporation; (C) all such
documents shall be in form and substance satisfactory to the Bank; and (D)
Deluxe Corporation and the Company shall have consummated the spin-off of the
Company as a subsidiary of Deluxe Corporation in accordance with the provisions
of such documents. The Bank shall promptly notify the Company of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto. The
opinion referenced in Section 5.01(d) shall be dated as of the Closing Date; all
other documents shall be dated as of a date reasonably near the Closing Date
unless otherwise specified or the Bank shall otherwise agree.
5.02 Conditions to All Credit Extensions.
-----------------------------------------
The obligation of the Bank to make any Credit Extension (including
its initial Credit Extension) or to continue/convert any Loan is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date, Conversion/Continuation Date or Issuance Date:
(a) Notice. The Bank shall have received, in respect of any
Borrowing (other than pursuant to section 2.04(c)), a completed and duly
executed Notice of Borrowing or Notice of Conversion/Continuation (as
applicable) and, in respect of any Issuance of any Letter of Credit, a completed
and duly executed L/C Application or L/C Amendment Application (as applicable);
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct on and as
of such Borrowing Date, Conversion/Continuation Date or Issuance Date with the
same effect as if made on and as of such Borrowing Date, Conversion/Continuation
Date or Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date);
(c) No Existing Default. No Default or Event of Default shall exist
or shall result from such Credit Extension or continuation or conversion; and
(d) No Material Adverse Effect. There shall not exist a Material
Adverse Effect.
Each Notice of Borrowing, Notice of Conversion/Continuation, L/C Application or
L/C Amendment Application submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice, L/C Application or L/C Amendment (as applicable) and as of each
Borrowing Date, Conversion/Continuation Date or Issuance Date (as applicable)
that the conditions contained in this Section 5.02 are satisfied.
34
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank that:
6.01 Corporate Existence and Power.
-----------------------------------
(a) The Company and each of its Domestic Subsidiaries: (i) is a
corporation, partnership or limited liability company, as applicable, duly
organized or formed (as applicable), validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation; and (ii) has the
power and authority and all governmental licenses, authorizations, consents and
approvals to own its Property, carry on its business and to execute, deliver,
and perform its obligations under the Credit Documents to which it is a party.
(b) Each of the Subsidiaries of the Company that is not a Domestic
Subsidiary: (i) is a corporation, partnership or limited liability company, as
applicable, duly organized or formed (as applicable), validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation, except to the extent any failure to comply with the foregoing could
not reasonably be expected to have a Material Adverse Effect; and (ii) has the
power and authority and all governmental licenses, authorizations, consents and
approvals to own its Property and carry on its business, except to the extent
any failure to comply with the foregoing could not reasonably be expected to
have a Material Adverse Effect.
(c) The Company and each of its Subsidiaries: (i) is duly qualified
as a foreign corporation, partnership or limited liability company and is
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification or license, except to the extent any failure to
comply with the foregoing could not reasonably be expected to have a Material
Adverse Effect; and (ii) is in compliance with all Requirements of Law except to
the extent any failure to comply with the foregoing could not reasonably be
expected to have a Material Adverse Effect.
6.02 Corporate Authorization; No Contravention.
-----------------------------------------------
The execution and delivery of each Credit Document by the Company and
each Subsidiary which is a party thereto, and the performance by each such
Person of its obligations thereunder, have been duly authorized by all necessary
action (corporate or otherwise) in respect of such Person, and do not and will
not: (a) contravene the terms of any of such Person's Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any material Contractual Obligation
to which any such Person is a party or any order, injunction, writ or decree of
any Governmental Authority to which any such Person or its Property is subject;
or (c) violate any Requirement of Law.
6.03 Governmental Authorization.
--------------------------------
No approval, consent, exemption, authorization, or other action by,
or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or
35
performance by, or enforcement against, the Company or any of its Domestic
Subsidiaries of this Agreement or any other Credit Document.
6.04 Binding Effect.
--------------------
This Agreement and each other Credit Document to which the Company or
any of its Domestic Subsidiaries is a party constitute the legal, valid and
binding obligations of each such Person, enforceable against each such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
6.05 Litigation.
----------
Except as specifically disclosed on Schedule 6.05, there are no
actions, suits, proceedings, claims or disputes pending, or threatened in
writing, at law, in equity, in arbitration or before any Governmental Authority,
against the Company, or its Subsidiaries or any of their respective Properties
which: (a) purport to affect or pertain to this Agreement or any other Credit
Document, or any of the transactions contemplated hereby or thereby; or (b) if
determined adversely to the Company or any of its Subsidiaries, could reasonably
be expected to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Credit Document or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.06 No Default.
----------
No Default or Event of Default exists or would result from the
incurring of any Obligations by the Company or of any Obligations guaranteed by
any Guarantor under any Guarantee. As of the Closing Date, neither the Company
nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create an
Event of Default under Section 9.01(e).
6.07 ERISA Compliance.
----------------------
(a) As of the Closing Date, each Plan is in compliance with the
applicable provisions of ERISA, the Code and other federal or state law except
to the extent to which the failure to so comply could not reasonably be expected
to have a Material Adverse Effect. As soon as possible but in no event later
than sixty calendar days following the Closing Date, the Company shall file for
a favorable determination letter from the IRS for each Plan that is intended to
qualify under subsection 401(a) of the Code; and, to the best knowledge of the
Company, there are no facts or circumstances that would make any such Plan not
qualify. As of the Closing Date, the Company and each ERISA Affiliate has made
all required contributions to any Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) As of the Closing Date, there are no pending or, to the best
knowledge of the Company, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to
36
any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect. As of the Closing Date, there has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) As of the Closing Date, (i) no ERISA Event has occurred or is
reasonably expected to occur; and (ii) no event or circumstance has occurred or
exists that, if such event or circumstance had occurred or arisen after the
Closing Date, would create an Event of Default under Section 9.01(h).
6.08 Use of Proceeds; Margin Regulations.
-----------------------------------------
The proceeds of the Loans are to be used solely for the purposes set
forth in and permitted by Section 7.11 and Section 8.07. None of the Company and
its Subsidiaries is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock.
6.09 Title to Properties.
-------------------------
The Company and each of its Subsidiaries: (a) have good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect; and (b) have good and marketable
title to all of the personal property maintained as being owned by them (other
than any personal property that is the subject of the Access Agreements, with
respect to which the Company may be deemed to have a security interest rather an
ownership interest), except for such defects in title as could not, individually
or in the aggregate, have a Material Adverse Effect. As of the Closing Date, the
Property of the Company and its Subsidiaries is subject to no Liens other than
Permitted Liens.
6.10 Taxes.
-----------
The Company and its Subsidiaries have filed all federal and other
material tax returns and reports required to be filed, and have paid all federal
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their income or Property otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against the Company or any of its
Subsidiaries that could, if made, be reasonably expected to have a Material
Adverse Effect.
6.11 Financial Condition.
-------------------------
(a) The audited consolidated financial statements of the Company and
its consolidated Subsidiaries, dated December 31, 1999, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal year ended on that date: (i) were prepared in accordance
with GAAP; (ii) fairly present the financial condition of the Company and its
consolidated Subsidiaries as of the date thereof and results of operations for
the period covered thereby; and (iii) except as specifically disclosed on
Schedule 6.11, show all material indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of September 30,
2000, including
37
liabilities for taxes, material commitments and Contingent Obligations required
to be disclosed in accordance with GAAP.
(b) Since December 8, 2000 (assuming that this Agreement were in
effect on such date and thereafter), there has been no Material Adverse Effect.
6.12 Environmental Matters.
---------------------------
The Company and each of its Subsidiaries conduct in the ordinary
course of their respective businesses a review of the effect of existing
Environmental Laws and existing Environmental Claims on their respective
business, operations and Properties, and as a result thereof each such Person
has reasonably concluded that, except as specifically disclosed on Schedule
6.12, such Environmental Laws and Environmental Claims could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13 Regulated Entities.
------------------------
None of the Company, any Person controlling the Company, and any of
the Company's Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions.
--------------------------------
None of the Company and the Company's Subsidiaries is a party to or
bound by any Contractual Obligation, is subject to any restriction in any
Organization Document or is subject to or bound by any Requirement of Law which
could reasonably be expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc.
-------------------------------------------------------
To the best of the Company's knowledge, the Company and each of its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any of its
Subsidiaries infringes upon any valid intellectual property or ownership of any
other Person. Except as specifically disclosed on Schedule 6.15, no claim or
litigation regarding any of the foregoing is pending or threatened in writing.
6.16 Subsidiaries.
------------------
As of the Closing Date, the Company does not have any Subsidiaries
other than those specifically disclosed in part (a) of Schedule 6.16 hereto,
which schedule shows the form of organization and ownership of each such Person,
and has no equity investments in any other Person other than those specifically
disclosed in part (b) of Schedule 6.16.
38
6.17 Insurance.
---------------
Except as specifically disclosed on Schedule 6.17, the Properties of
the Company and each of its Subsidiaries are insured with financially sound and
reputable insurance companies that are not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar Properties
in localities where the Company or any such Subsidiary, as applicable, operates.
6.18 Swap Obligations.
----------------------
None of the Company and its Subsidiaries has incurred any outstanding
obligations under any Swap Contracts, other than Permitted Swap Obligations. The
Company has voluntarily entered into each Swap Contract to which it is a party
based upon its own independent assessment of its consolidated assets,
liabilities and commitments, in each case as an appropriate means of mitigating
and managing risks associated with such matters, and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether to
enter into any Swap Contract.
6.19 Full Disclosure.
---------------------
To the best knowledge after due inquiry of any Responsible Officer of
the Company, none of the representations and warranties made by the Company or
any of its Subsidiaries in the Credit Documents as of the date such
representations and warranties are made or deemed made, and none of the written
statements contained in any material exhibit, report, statement or certificate
furnished by or on behalf of the Company or any of its Subsidiaries in
connection with the Credit Documents (including any written offering and
disclosure materials delivered by or on behalf of the Company to the Bank prior
to the Closing Date but excluding any Projections (as hereinafter defined)),
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as of
the time when made or delivered. All financial projections concerning the
Company and its Subsidiaries that have been or are hereafter made available to
the Bank by the Company or any of its representatives (the "Projections") have
been or will be prepared in good faith based upon assumptions the Company
believed to be reasonable at the time of their preparation, it being understood
and agreed that neither the Company nor any of its Subsidiaries can or does
guarantee or warrant that the results set forth in such Projections will be
achieved; provided that, in connection with the delivery by the Company of the
Company Plan pursuant to Section 5.01(f), the Company represents and warrants
that: (a) as of the Closing Date, the Company Plan is the most current annual
business plan and budget of the Company for its 2001 fiscal year; and (b) the
final Company Plan for the Company's 2001 fiscal year to be delivered to the
Bank in accordance with Section 7.02(c) will contain no material deterioration
in the expected financial results for, or financial performance of, the Company
and its Subsidiaries, taken as a whole, from those set forth in the Company Plan
delivered to the Company pursuant to Section 5.01(f).
6.20 Solvency.
--------------
Except as described on Schedule 6.20, the Company and each of its
Subsidiaries are Solvent, and as of the Closing Date: (a) the Company does not
intend to, and does not believe that it or any of its Subsidiaries will, incur
debts beyond such Person's ability to pay as such debts mature, and (b) neither
the Company nor any of its Subsidiaries is about to engage in a transaction,
after giving effect to
39
which the Person's remaining Property would constitute unreasonably small
capital for the business conducted or transactions engaged by such Person.
6.21 Good Standing Certificates.
--------------------------------
On or before the date that is thirty calendar days following the
Closing Date, the Company shall provide to the Bank all good standing
certificates and tax good standing certificates not delivered to the Bank under
Section 5.01(c)(ii) and permitted by such section to be delivered under this
Section 6.21; provided that, if the Company is unable to deliver any such
certificate by virtue of a delay in the ability of any applicable Governmental
Authority to provide such certificate in the ordinary course (and not by virtue
of any Person referred to in Section 5.01(c)(ii) not being in good standing or
tax good standing, as applicable) and the Company has provided to the Bank
reasonably evidence of such inability, then the Company shall have such
additional time to deliver such certificate(s) as the Bank shall reasonably
determine.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as the Commitment remains hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Bank waives compliance
in writing:
7.01 Financial Statements.
--------------------------
The Company shall deliver to the Bank, in form and detail
satisfactory to the Bank:
(a) as soon as available, but not later than ninety days following
the end of each fiscal year of the Company: (i) a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such year and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and accompanied by
the opinion of Deloitte & Touche LLP or another nationally recognized
independent public accounting firm ("Independent Auditor"), which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years, and together with SEC Form 10-K for the Company
(excluding the exhibits thereto); and (ii) a copy of an unaudited consolidating
balance sheet of the Company and its Subsidiaries as at the end of such year and
the related consolidating statements of income, shareholders' equity and cash
flows for such year, certified by a Responsible Officer as having been developed
and used in connection with the preparation of the financial statements referred
to in the immediately preceding clause (i). The Independent Auditor's opinion
shall not be qualified or limited because of a restricted or limited examination
by the Independent Auditor of any material portion of the Company's or any
Subsidiary's records; and
(b) as soon as available, but not later than forty-five (45) days
following the end of each of the first three fiscal quarters of each fiscal year
of the Company, a copy for the immediately preceding fiscal quarter of the
unaudited consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such quarter and the related consolidated and
consolidating statements of income, shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day of such quarter,
and certified by a Responsible Officer as fairly presenting, in accordance with
40
GAAP (subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Company and the Subsidiaries,
together with an SEC Form 10-Q for the Company (excluding the exhibits thereto).
7.02 Certificates; Other Information.
-------------------------------------
The Company shall furnish to the Bank:
(a) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a Compliance Certificate executed by a
Responsible Officer;
(b) except for SEC Forms 10-K and 10-Q to be delivered pursuant to
Sections 7.01(a) and (c), promptly, and in any event no later than 10 days after
the same is made available to the Company's shareholders or is filed with the
SEC, copies of all financial statements and reports that the Company sends to
its shareholders, and copies of all financial statements and regular, periodical
or special reports that the Company or any Subsidiary may make to, or file with,
the SEC;
(c) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a copy of the final Company Plan for the
Company's current fiscal year; provided that the final Company Plan for the
Company's 2001 fiscal year shall not contain any material deterioration in the
expected financial results for, or financial performance of, the Company and its
Subsidiaries, taken as a whole, from those set forth in the Company Plan
delivered to the Company pursuant to Section 5.01(f);
(d) upon the request from time to time of the Bank, the Swap
Termination Values, together with a description of the method by which such
values were determined, relating to any then-outstanding Swap Contracts to which
the Company or any of its Subsidiaries is party; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the Bank may
from time to time reasonably request.
7.03 Notices.
-------------
The Company shall promptly notify the Bank of the following:
(a) the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that could reasonably be
expected to result in a Default or Event of Default;
(b) any matter that has resulted or could reasonably result in a
Material Adverse Effect, including: (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Company or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; (iii) the commencement
of, or any material development in, any litigation or proceeding affecting the
Company or any Subsidiary, including pursuant to any applicable Environmental
Laws; or (iv) the imposition of any fine or penalty by any Governmental
Authority against or with respect to any facility or plants of the Company or
any Subsidiary;
(c) the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than 10 days after such
event), and deliver to the Bank a copy of
41
any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Company or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) an increase in the Unfunded Pension Liability of any
Pension Plan, including as a result of the adoption of any amendment to a
Plan subject to Section 412 of the Code, that could reasonably be likely to
cause or result in an Event of Default under Section 9.01(h); or
(iii) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company or any ERISA
Affiliate other than any such Plan in effect and receiving contributions as
of the Closing Date.
(d) any Acquisition, or incurring any Contractual Obligations with
respect to any Acquisition, by the Company or any Subsidiary if the aggregate
cash and noncash consideration (including assumption of liabilities and
including all Contingent Obligations) in connection with such Acquisition is (or
could reasonably be expected to become) $5,000,000 or more;
(e) any Change in Control or any event or circumstance that is
reasonably likely to result in any Change in Control; and
(f) the reduction at any time of the Dollar amount equal to the sum
of the cash balances of the Company plus the then unused portion of the
Commitment to an amount less than $15,000,000.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, and stating what action, if any, the Company or
any affected Subsidiary proposes to take with respect thereto and at what time.
Each notice under Section 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Credit Document that have been
(or foreseeably will be) breached or violated.
7.04 Preservation of Corporate and Partnership Existence, etc.
---------------------------------------------------------------
Except as otherwise expressly permitted hereby, the Company shall, and
shall cause each Subsidiary to:
(a) (i) preserve and maintain in full force and effect (A) its
corporate, partnership or limited liability company existence, as the case may
be, and good standing under the laws of its state or jurisdiction of
incorporation or organization, and (B) all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business; and (ii) use reasonable efforts, in the ordinary
course of business, to preserve its business organization and goodwill; provided
that the foregoing shall not prevent any transaction permitted by Section 8.02
or 8.03, or the termination of the existence of any Subsidiary if, in the
opinion of the Chief Executive Officer of the Company, such termination is in
the best interest of the Company and is not otherwise prohibited by this
Agreement; and
42
(b) preserve or renew and maintain all of its registered patents,
trademarks, trade names and service marks and other intellectual property
assets, the non-preservation or non-maintenance of which could reasonably be
expected to have a Material Adverse Effect.
7.05 Maintenance of Property.
-----------------------------
The Company shall maintain, and shall cause each Subsidiary to
maintain, and preserve all its Property which is used or useful in its business
in good working order and condition, ordinary wear and tear excepted (as
applicable) and make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect. The Company and each Subsidiary shall use the
standard of care typical in the industry in the operation and maintenance of its
facilities.
7.06 Insurance.
---------------
The Company shall maintain, and shall cause each Subsidiary to
maintain, with financially sound and reputable independent insurers, insurance
with respect to its Properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.07 Payment of Certain Obligations.
------------------------------------
The Company shall, and shall cause each Subsidiary to, pay and
discharge as the same shall become due and payable, all their respective
material obligations and liabilities, including: (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
Property, unless the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by the Company or such Subsidiary (as applicable); (b) all lawful material
claims which, if unpaid, would by law become a Lien upon its Property, unless
the same are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the Company or
such Subsidiary (as applicable).
7.08 Compliance with Laws; Guarantees.
--------------------------------------
(a) The Company shall comply, and shall cause each Subsidiary to
comply, in all respects with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business or Properties (including
the Federal Fair Labor Standards Act), unless such noncompliance is being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary with
respect thereto, except to the extent any such noncompliance, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) The Company shall cause each Domestic Subsidiary to be and remain
at all times (subject to Section 8.02(d) and the proviso to Section 7.04(a)) a
Guarantor. If, at any time, a Person not a Guarantor becomes a Domestic
Subsidiary, then the Company shall cause such Person to execute a Guarantee. If
a Guarantee is required to be executed and delivered pursuant to this Section
7.08(b), then the Company shall: (i) cause the subject Person to execute and
deliver to the Bank a Guarantee within 15 days of the date that such Person
becomes a Domestic Subsidiary; and (ii) deliver or cause to be delivered,
43
concurrently upon the delivery of such Guarantee, such other documentation as
the Bank may reasonably request, which documentation may include certified
resolutions and other organizational and authorizing documents of such Person
and a favorable opinion of counsel to such Person (which may be in-house counsel
to the Company) which shall cover the legality, validity, binding effect and
enforceability against such Person of such Guarantee and any other Credit
Documents to which such Person becomes a party in connection with such
Guarantee. Except as otherwise permitted under this Section 7.08(b) and under
Section 8.02(d), at no time shall any Domestic Subsidiary not be a Guarantor.
7.09 Inspection of Property and Books and Records.
--------------------------------------------------
The Company shall maintain, and shall cause each Subsidiary to
maintain, proper books of record and account, in which full, true and correct
entries in conformity with GAAP shall be made of all financial transactions and
matters involving the Properties and business of the Company and each such
Subsidiary. The Company, at its expense, shall permit, and shall cause each
Subsidiary to permit, representatives and independent contractors of the Bank to
visit and inspect any of their respective places of business or properties, to
examine their respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors and officers at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company (provided that, absent
the existence of an Event of Default, the Bank shall not conduct more than two
such inspections during any calendar year); provided that, if an Event of
Default has occurred and is continuing, the Bank may do any of the foregoing at
the expense of the Company at any time during normal business hours and without
advance notice; provided further that the Company and it Subsidiaries will not
be required to disclose, permit the inspection, examination, copying or making
of extracts of, or discuss, any document, any portion thereof, or any
information in respect of which and to the extent that disclosure to the Bank is
then prohibited by law or by an agreement binding on the Company or any of its
Subsidiaries entered into by such Person in good faith and not for the specific
purpose of evading the provisions of this Section or any other provision of this
Agreement.
7.10 Environmental Laws.
------------------------
The Company shall, and shall cause each Subsidiary to, conduct their
respective operations and keep and maintain their respective Properties in
compliance with all Environmental Laws, except for any such non-compliance that,
either individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
7.11 Use of Proceeds.
---------------------
The Company shall use the proceeds of the Loans for working capital,
other general corporate purposes and for non-hostile Acquisitions, in each case
not in contravention of any Requirement of Law or of any Credit Document;
provided that the Company shall not directly or indirectly use the proceeds of
the Loans for any Acquisition of any Person if such Acquisition has not been
approved by the board of directors (or other body exercising similar authority)
of such Person.
7.12 Solvency.
--------------
The Company and each of its Domestic Subsidiaries (other than those set
forth on Exhibit 6.20) shall each be Solvent at all times; each Subsidiary of
the Company that is not a Domestic Subsidiary shall be Solvent
44
at all times, except where any failure of such Subsidiary to be Solvent could
not reasonably be expected to have a Material Adverse Effect.
7.13 Internal Controls.
-----------------------
The Company shall maintain reasonable internal controls and reporting
systems designed to ensure that a Responsible Officer will be promptly informed
of all material financial, operational and compliance matters relevant to
compliance with the provisions of the Credit Documents to which the Company or
any of its Subsidiaries is a party.
ARTICLE VIII
NEGATIVE COVENANTS
So long as the Commitment remains hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Bank waives compliance
in writing:
8.01 Limitation on Liens.
-------------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, directly or indirectly, make, create, incur, assume or suffer to exist any
Lien upon or with respect to any part of its Property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on Property of the Company or any of its
Subsidiaries on the Closing Date securing Indebtedness (other than Indebtedness
relating to the Liens referenced in Section 8.01(b) and Section 8.01(k))
outstanding on the Closing Date; provided that, if all such Indebtedness so
secured by such Liens exceeds $6,000,000 in the aggregate on the Closing Date,
then no such Liens shall be permitted under this Section 8.01(a) except for
those disclosed on Schedule 8.01(a);
(b) any Lien created (i) under any Credit Document or (ii) in
connection with the Existing India Facility;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 7.07(a), provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the Property of the Company or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory
45
obligations, (ii) contingent obligations on surety, performance and appeal
bonds, and (iii) other non-delinquent obligations of a like nature; in each
case, incurred in the ordinary course of business;
(g) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and all such
liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $10,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the Property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(i) Liens on Property of Persons that become Subsidiaries after the
date of this Agreement, provided that such Liens existed at the time the
respective Person became Subsidiaries and were not created in anticipation
thereof;
(j) a Lien consisting of a purchase money security interest on any
Property acquired or held by the Company or any of its Subsidiaries in the
ordinary course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such Property;
provided that (i) any such Lien attaches to such Property concurrently with or
within 30 days after the acquisition thereof, (ii) such Lien attaches solely to
the Property so acquired in such transaction, (iii) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such Property,
and (iv) the principal amount of the Indebtedness secured by any such purchase
money security interest shall not at any time exceed, together with the
principal amount of all other Indebtedness secured by purchase money security
interests under this clause, the amount permitted under Section 8.05(c);
(k) Liens securing Capital Lease Obligations on Property subject to
the lease giving rise to such Capital Lease Obligations, provided that such
Capital Lease Obligations are otherwise permitted hereunder;
(l) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (other than in connection with the
Existing India Facility) (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company or any of its Subsidiaries in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not intended by the
Company or any of its Subsidiaries to provide collateral to the depository
institution;
(m) Liens arising pursuant to Section 412(n) of the Code or Section
4069(a) of ERISA if (i) the delinquent payments to which the Lien relates are
made within ten (10) days after the Company or any Subsidiary learns of the
failure to make payment or (ii) the obligation to make such payments is being
contested in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or such Subsidiary
(as applicable) in accordance with GAAP; and
(n) Liens arising under the Revenue Consolidation Agreement.
46
8.02 Disposition of Property.
-----------------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any Property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except for:
(a) the sale or other disposition of (i) equipment that is used,
worn-out, surplus or no longer useful to the Company or any of its Subsidiaries
or (ii) inventory, or (iii) other Property (other than accounts and notes
receivable), in any of the foregoing instances, in the ordinary course of
business; provided that, for purposes of the foregoing, the sale or other
disposition of a business division or of the stock of other equity interest in
any Person that is a subsidiary (including a Subsidiary) of the Company shall
not be deemed to be in the ordinary course of business;
(b) the sale or other disposition of equipment to the extent that
such equipment is exchanged for credit against the purchase price of similar
replacement equipment, or the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement equipment;
(c) the sale or other disposition by any Subsidiary of all or
substantially all of its Property (upon voluntary liquidation or otherwise) to
the Company or to any Subsidiary of the Company that is a Wholly Owned
Subsidiary;
(d) the sale or other disposition of Property (other than accounts
and notes receivable (except to the extent the same are the Property of any
Subsidiary of the Company all of whose stock or other equity interests are being
sold or otherwise disposed of in a transaction otherwise permitted under this
Agreement, including this Section 8.02)) not otherwise permitted hereunder which
is made for fair market value; provided that (i) at the time of any such sale or
other disposition, no Default or Event of Default shall exist or shall result
from such sale or other disposition, (ii) the aggregate sales price from such
sale or other disposition shall be paid in cash, and (iii) the aggregate book
value (without duplication) of all Property so sold or otherwise disposed of by
the Company and its Subsidiaries shall not exceed, in the aggregate, in any
fiscal year ten percent (10%) of Consolidated Total Assets as of the end of the
Company's immediately preceding fiscal year (as reflected in the annual
financial statements for such fiscal year delivered by the Company to the Bank
pursuant to Section 7.01(a)); provided further that, to the extent all of the
stock of or equity interest in any Subsidiary is sold or otherwise disposed of
in accordance with the provisions of this Agreement (including this Section
8.02) to a Person other than the Company or an Affiliate of the Company, then
such Person shall automatically and without further action cease to be a party
to or be bound by the Credit Documents (including in its capacity as a
Guarantor); and
(e) Investments permitted under Section 8.04(d).
8.03 Fundamental Changes; Restrictive Agreements.
-------------------------------------------------
(a) The Company shall not, and shall not suffer or permit any
Subsidiary to, liquidate, wind up or dissolve, or enter into any consolidation,
merger or other combination, or agree to do any of the foregoing, provided that:
(i) any Subsidiary may merge with the Company (so long as the Company shall be
the continuing or surviving Person) or with any one or more Subsidiaries,
provided that, if any transaction shall be between a Subsidiary and a Wholly
Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving Person; and (ii) subject to Section 8.02, any Subsidiary of the
Company may be liquidated, wound up or dissolved by the Company or by a Wholly-
Owned Subsidiary of the
47
Company or sole to or merged with any other Person if such liquidation, winding
up, dissolution, sale or merger could not reasonably be expected to have a
Material Adverse Effect.
(b) The Company shall not, and shall not permit any of its
Subsidiaries to, enter into or suffer to exist any Contractual Obligation or
other arrangement that prohibits, restricts or imposes any condition upon (i)
except as otherwise provided in the Revenue Consolidation Agreement, the ability
of the Company or any Subsidiary to create, incur or permit to exist any Lien
(other than a Permitted Lien) upon any of its Property, or (ii) the ability of
any Subsidiary make any Dividend Payments or to make or repay loans or advances
to the Company or any other Subsidiary, or to guarantee Indebtedness of the
Company; provided that
(A) the foregoing shall not apply to restrictions and conditions
imposed by this Agreement or by any Requirement of Law or by application of
a reasonable interpretation of any Requirement of Law (confirmed at the
request of the Bank at the Company's expense by an opinion of counsel to
the Company (in form and substance acceptable to the Bank));
(B) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is otherwise permitted
hereunder;
(C) clause (i) of this Section 8.03(b) shall not apply to
restrictions or conditions (1) imposed by any Contractual Obligation
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the Property securing such
Indebtedness or (2) customarily found in Contractual Obligations entered
into in the ordinary course of business arising in respect of licenses of
intellectual property or in respect of leases or rentals of tangible goods
that restrict the assignment thereof or relate to the Property covered
thereby; and
(D) the foregoing shall not apply to such restrictions and
conditions applicable to any Subsidiary acquired after the Closing Date if
such restrictions and conditions existed at the time such Subsidiary was
acquired and were not created in anticipation of such acquisition.
(c) The Company shall not amend, modify, supplement, waiver or
otherwise alter any or all of the Access Agreements without the prior written
consent of the Bank.
48
8.04 Loans and Investments.
---------------------------
The Company shall not purchase or acquire, or suffer or permit any
Subsidiary to purchase or acquire, or make any commitment therefor, any capital
stock, equity interest, or any obligations or other securities of, or any
interest in, any Person, or make or commit to make any Acquisitions, or make or
commit to make any advance, loan, extension of credit or capital contribution to
or any other investment in, or joint venture with, any Person including any
Affiliate of the Company (together, "Investments"; provided that the term
"Investments" shall not include the amount of any cash supplied by the Company
for use in any "Automated Teller Machine" or "ATM" (as each of those terms is
defined in the ATM Access Agreements) under and subject to the terms and
provisions of the ATM Access Agreements), except for:
(a) Investments held by the Company or any of its Subsidiaries in the
form of cash equivalents or short term marketable securities;
(b) Investments by the Company or any of its Subsidiaries: (i) in
their respective Subsidiaries as in effect on the date hereof; and (ii) in other
Persons as in effect on the date hereof as set forth in item (b) of Schedule
6.16;
(c) Investments on or after the Closing Date consisting of
Acquisitions of Persons engaged in lines of business substantially similar or
complementary to the lines of business of the Company and its Subsidiaries on
the date hereof; provided that all of the following are true at the time of any
such Acquisition and, except as set forth below, at the time that the Company or
any Subsidiary incurs any Contractual Obligation with respect to any such
Acquisition:
(i) the amount of all Investments permitted pursuant to this
Section 8.04(c), including all Indebtedness incurred or assumed in
connection with any such Investment, does not exceed $50,000,000 in any
twelve consecutive month period following the Closing Date;
(ii) no Default or Event of Default shall have occurred and be
continuing or result therefrom; and
(iii) the Dollar amount equal to the sum of the cash balances of
the Company plus the then unused portion of the Commitment is not less than
$15,000,000;
(d) Investments not otherwise permitted pursuant to subsections (a),
(b) or (c) of this Section 8.04 by the Company or any of its Subsidiaries on or
after the Closing Date: (i) in any Subsidiaries of the Company, provided that
the aggregate outstanding amount of all Investments in Subsidiaries that are not
Guarantors, together with the Dollar amount of all Dividend Payments declared
and made by eFIT to iDLX (Netherlands) that are not subsequently declared and
paid as Dividend Payments by iDLX (Netherlands) to the Company or a Domestic
Subsidiary, may not exceed $30,000,000 at any time; and (ii) in other Persons
(including Persons that are not "Subsidiaries" as defined herein) in an
aggregate outstanding amount not to exceed $20,000,000 at any time; and
(e) Investments constituting Permitted Swap Obligations or payments
or advances under Swap Contracts relating to Permitted Swap Obligations.
49
8.05 Limitation on Indebtedness.
--------------------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, create, incur, assume, suffer to exist, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred under the Credit Documents;
(b) Indebtedness existing on the Closing Date and set forth on
Schedule 8.05(b) and any extensions and renewals of such Indebtedness on terms
otherwise permitted pursuant to this Agreement, so long as the principal amount
of any such Indebtedness is not increased, additional collateral is not given
and unsecured Indebtedness is not made secured Indebtedness;
(c) Indebtedness secured by Liens otherwise permitted by Section
8.01(j) in an aggregate outstanding amount not to exceed $25,000,000 at any
time; provided that the aggregate outstanding amount of all Indebtedness under
this Section 8.05(c), together with the aggregate outstanding amount of all
Indebtedness permitted under Section 8.05(e), shall not exceed $25,000,000 at
any time;
(d) (i) Indebtedness arising as a consequence of Investments
pursuant to Section 8.04 and (ii) other Indebtedness owing by the Company or any
Subsidiary to the Company or any other Subsidiary that is not otherwise
prohibited by this Agreement or any of the other Credit Documents;
(e) Indebtedness consisting of Capital Lease Obligations in an
aggregate outstanding amount not to exceed $25,000,000 at any time; provided
that the aggregate outstanding amount of all Indebtedness under this Section
8.05(e), together with the aggregate outstanding amount of all Indebtedness
permitted under Section 8.05(c), shall not exceed $25,000,000 at any time; and
(f) other Indebtedness owing by the Company or any of its
Subsidiaries to a Person other than the Company, any Subsidiary of the Company
or the Bank, provided that the aggregate outstanding amount of all such
Indebtedness may not exceed $7,500,000 at any time.
8.06 Transactions with Affiliates.
----------------------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, enter into any transaction with any Affiliate of the Company, except upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would obtain in a comparable arm's-length transaction with a Person not an
Affiliate of the Company or such Subsidiary.
8.07 Use of Proceeds.
---------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, use any portion of the Loan proceeds, directly or indirectly, (a) to
purchase or carry Margin Stock, (b) to repay or otherwise refinance indebtedness
of the Company or others incurred to purchase or carry Margin Stock, (c) to
extend credit for the purpose of purchasing or carrying any Margin Stock, or (d)
to acquire any security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
50
The Company shall not, and shall not suffer or permit any Subsidiary
to, create, incur, assume or suffer to exist any Contingent Obligations, except:
(a) endorsements for collection or deposit in the ordinary course
of business or in connection with performance bonds posted in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed on Schedule 8.08(c);
(d) Contingent Obligations with respect to Surety Instruments
incurred following the Closing Date in the ordinary course of business and which
otherwise constitute Indebtedness permitted pursuant to Section 8.05; and
(e) (i) Guaranty Obligations incurred by Company or any of its
Subsidiaries under the Credit Documents; and (ii) other Guaranty Obligations
incurred by the Company or any of its Subsidiaries in the ordinary course of
business which otherwise constitute Indebtedness permitted pursuant to Section
8.05.
8.09 Restricted Payments.
--------------------------
The Company shall not, and shall not suffer or permit any Subsidiary
to, declare or make any Dividend Payments or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any of its equity
interests, or any warrants, rights or options to acquire such shares or equity
interests, now or hereafter outstanding; except that:
(a) (i) any Subsidiary that is not a Domestic Subsidiary of the
Company may declare and make Dividend Payments solely to the Company or to a
Wholly-Owned Subsidiary of the Company; (ii) any Domestic Subsidiary may declare
and make Dividend Payments solely to the Company or to a Guarantor; and (iii)
eFIT may declare and make Dividend Payments to iDLX (Netherlands) so long as
iDLX (Netherlands) is a Wholly-Owned Subsidiary, provided that the aggregate
Dollar amount of any such Dividend Payments that are not subsequently declared
and paid as Dividend Payments by idLX (Netherlands) to the Company or any
Domestic Subsidiary, together with the aggregate outstanding amount of all
Investments in Subsidiaries that are not Guarantors, shall not exceed
$30,000,000 at any time;
(b) the Company or any Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock or its equity interests, or warrants or
options to acquire any such shares or equity interests, with the proceeds
received from the substantially concurrent issue of new shares of its common
stock; and
(c) the Company may purchase, redeem or otherwise acquire shares of
its common stock, or any warrants, rights or options to acquire any of its
common stock, from its current or former employees, provided that the aggregate
amount paid by the Company in respect of the purchase, redemption or other
acquisition of any such shares, warrants, rights or options does not exceed
$1,000,000 in any twelve consecutive month period.
51
8.10 ERISA.
------------
The Company shall not, and shall not suffer or permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan; (b) cause or permit any
Plan which is qualified under subsection 401(a) of the Code to lose such
qualification; or (c) fail to make all required contributions to any Plan
subject to subsection 412 of the Code; but only to the extent that any such act
or failure to act, separately or together with all other such acts or failures
to act, in any of the foregoing clauses (a), (b) or (c) has resulted or could
reasonably expected to result in liability of the Company in an aggregate amount
in excess of $1,000,000; or (d) engage in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA
8.11 Change in Business.
-------------------------
Except as permitted pursuant to Section 8.04, the Company shall not,
and shall not suffer or permit any Subsidiary to, engage in any material line of
business substantially different from those lines of business carried on by the
Company and its Subsidiaries on the date hereof, including as a consequence of
any Acquisition.
8.12 Minimum Consolidated Net Worth.
-------------------------------------
The Company shall not permit, as of the last day of any fiscal
quarter, Consolidated Net Worth to be less than the sum of the following:
(a) $255,000,000; plus
(b) 75% of Consolidated Net Income from September 30, 2000 through
the date of determination (not reduced by any Consolidated Net Loss); plus
(c) 100% of Net Securities Proceeds arising on or after September
30, 2000 through the date of determination.
As used herein, "Net Securities Proceeds" means, with respect to any sale or
issuance of equity securities (whether common or preferred, options, warrant or
capital appreciation rights, but excluding any sales or issuances of stock
pursuant to employee stock purchase plans, employee stock option plans, other
employee benefit plans or the plan known as the "Stock Option Plan for Deluxe
Conversion Awards"), the excess of (i) the gross cash and, to the extent
acceptable to the Bank, non-cash proceeds received or receivable by the Company
or any Subsidiary from such disposition minus (ii) the sum of (A) all reasonable
expenses attendant to such sale or issuance, including reasonable Attorney Costs
and underwriting and accounting fees and disbursements and government fees
actually paid during the twelve month period ending on the date of such sale or
issuance (or reasonably expected to be paid within the three calendar month
period immediately following the date of such sale or issuance) in connection
with such sale or issuance which are not payable to the Company or any of its
Subsidiaries (or any of their respective officers, directors or employees) or
any Affiliate of the foregoing; (B) all taxes actually paid in connection with
such sale or issuance; and (C) the value of such acceptable noncash proceeds.
52
8.13 Minimum EBITDA.
---------------------
The Company shall not permit: (a) as of the last day of each of the
first two fiscal quarters of each fiscal year, EBITDA for such quarter to be
less than $10,000,000; and (b) as of the last day of each of the last two fiscal
quarters of each fiscal year, EBITDA for such quarter to be less than
$15,000,000.
8.14 Maximum Ratio of Consolidated Funded Debt to EBITDA.
----------------------------------------------------------
The Company shall not permit, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated Funded Debt as at the end of such quarter
to (b) EBITDA (calculated for the four consecutive fiscal quarter period then
ended) to be equal to or greater than 2.00 to 1.00.
8.15 Minimum Ratio of EBIT to Consolidated Interest Expense.
------------------------------------------------------
The Company shall not permit, as of the last day of any fiscal
quarter, the ratio of EBIT (calculated for the four consecutive fiscal quarter
period then ended) to Consolidated Interest Expense (calculated for the four
consecutive fiscal quarter period then ended) to be less than 3.00 to 1:00.
8.16 Maximum Capital Expenditures.
----------------------------
The Company shall not make or incur, and shall not permit any of its
Subsidiaries to make or incur, any Capital Expenditures during any fiscal year
commencing with the Company's 2001 fiscal year, if, after giving effect thereto,
the aggregate amount of all Capital Expenditures made or incurred by the Company
and its Subsidiaries during such period would exceed the amount (the "Capital
Expenditure Threshold") equal to the greater of (a) 10% of Consolidated Total
Assets as of the end of the Company's immediately preceding fiscal year (as
reflected in the annual financial statements for such fiscal year delivered by
the Company to the Bank pursuant to Section 7.01(a)) and (b) $60,000,000;
provided that, if the amount of Capital Expenditures actually expended during
any fiscal year is less than the Capital Expenditure Threshold (such amount for
any year, a "Shortfall"), then the Company may make additional Capital
Expenditures in excess of the Capital Expenditure Threshold in the immediately
succeeding fiscal year in an amount not to exceed the Shortfall for the prior
year; provided further that, for purposes of determining the Shortfall in any
year, the amount of the prior year's Shortfall shall not be added to the Capital
Expenditure Threshold.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default.
-----------------------
Any of the following shall constitute an "Event of Default":
(a) Non-Payment. (i) The Company fails to pay: (A) when and as
required to be paid herein or in any Note, any amount of principal of any Loan
payable hereunder or under any Note; (B) within five calendar days of the date
when and as required to be paid herein, in any other Credit Document or in any
other evidence of the Obligations, any interest, fee or other Obligations; or
(ii) the Company or any of its Subsidiaries fails to pay, within five Business
Days of the date when and as required to be paid in any evidence of any other
Indebtedness of the Company or any of its Subsidiaries owing to the Bank, any
Indebtedness (whether consisting of principal, interest, fees or otherwise)
owing thereunder; or
53
(b) Representation or Warranty. Any representation or warranty by the
Company or any of its Subsidiaries made or deemed made herein or in any other
Credit Document, or which is contained in any certificate, document or financial
or other statement by the Company, any of its Subsidiaries, or any Responsible
Officer furnished at any time under this Agreement or in or under any other
Credit Document, is incorrect in any material respect on or as of the date made
or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any
term, covenant or agreement contained in Section 7.11, in Section 7.12 or in
Article VIII; or
(d) Other Defaults. The Company fails to perform or observe any other
term or covenant (not identified in clauses (a) through (c) of this Section
9.01) that is contained in this Agreement, any other Credit Document or any
other evidence of the Obligations, and such default shall continue unremedied
for a period of 20 days after the earlier of (i) the date upon which a
Responsible Officer knew or reasonably should have known of such failure or (ii)
the date upon which written notice thereof is given to the Company by the Bank;
or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent Obligation (other
than in respect of Swap Contracts), having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$1,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect thereof to
be demanded; or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Company or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (2) any Termination Event
(as so defined) as to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination Value owed by the
Company or any such Subsidiary as a result thereof is greater than $250,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any Domestic
Subsidiary (other than any Domestic Subsidiary listed on Schedule 6.20) (i)
ceases or fails to be Solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Company's or any Subsidiary's
Properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully
54
bonded within 60 days after commencement, filing or levy; (ii) the Company or
any Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Company or any
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or business;
or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC; (ii) any Unfunded Pension Liability with respect
to any or all Pension Plans shall exist; or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan; but only to the extent
that any of the foregoing, separately or in the aggregate, has or could
reasonably be expected to have a Material Adverse Effect; or
(i) Monetary Judgments. One or more noninterlocutory judgments,
noninterlocutory orders, decrees or arbitration awards is entered against the
Company or any of its Subsidiaries involving in the aggregate a liability (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $1,000,000 or more, and the same shall
remain unsatisfied, unvacated and unstayed pending appeal for a period of 10
days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company or any of its Subsidiaries which does or
could reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss of Licenses. Any Governmental Authority revokes or fails to
renew any material license, permit or franchise of the Company or any of its
Subsidiaries, or the Company or any of its Subsidiaries for any reason loses any
material license, permit or franchise, or the Company or any of its Subsidiaries
suffers the imposition of any restraining order, escrow, suspension or impound
of funds in connection with any proceeding (judicial or administrative) with
respect to any material license, permit or franchise; or
(m) Adverse Change. There occurs a Material Adverse Effect; or
(n) Guarantor Defaults. Any Guarantor fails in any material respect
to perform or observe any term, covenant or agreement as a guarantor of the
Obligations pursuant to its Guarantee, or such Guarantor's Guarantee is for any
reason partially (including with respect to future advances) or wholly revoked
or invalidated, or otherwise ceases to be in full force and effect, or any
Guarantor contests in any manner the validity or enforceability of such
Guarantor's Guarantee or denies that such Person has any further liability or
obligation thereunder; or any event described at subsections (f) or (g) of this
Section occurs with respect to any Guarantor.
55
9.02 Remedies.
---------------
If any Event of Default occurs, the Bank may:
(a) declare the Commitment to make Loans to be terminated,
whereupon the Commitment shall automatically be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Credit Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise all rights and remedies available to it under the
Credit Documents or applicable law;
provided that, upon the occurrence of any event specified in subsection (f) or
(g) of Section 9.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of the Bank
to make Credit Extensions shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as noted
above shall automatically become due and payable without further act of the Bank
and without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company.
9.03 Rights Not Exclusive.
---------------------------
The rights provided for in this Agreement and the other Credit
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
ARTICLE X
GENERAL PROVISIONS
10.01 Amendments and Waivers.
-----------------------------
No amendment or waiver of any provision of this Agreement or any other
Credit Document, and no consent with respect to any departure by the Company or
any applicable Subsidiary therefrom, shall be effective unless the same shall be
in writing and signed by the Bank and the Company, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
10.02 Notices.
--------------
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 10.02, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 10.02; or, as directed to the Company or the Bank, to
56
such other address as shall be designated by such party in a written notice to
the other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Bank.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II to the Bank shall not be effective until actually
received by the Bank.
(c) Any agreement of the Bank herein to receive certain notices by
telephone or facsimile is solely for the convenience and at the request of the
Company. The Bank shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Bank shall not have any liability to the Company or any other Person on account
of any action taken or not taken by the Bank in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans shall not be
affected in any way or to any extent by any failure by the Bank to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Bank of a confirmation which is at variance with the terms understood by the
Bank to be contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies.
-------------------------------------
No failure to exercise and no delay in exercising, on the part of
the Bank, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses.
-------------------------
The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Bank within five Business Days after demand
for all costs and expenses actually incurred by the Bank in connection with the
development, preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Credit Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs (other than the allocated cost of in-house legal services) incurred by the
Bank with respect thereto; and
(b) pay or reimburse the Bank within five Business Days after
demand for all costs and expenses (including Attorney Costs) actually incurred
by it in connection with the enforcement, attempted enforcement, or preservation
of any rights or remedies under this Agreement or any other Credit Document
during the existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding).
57
10.05 Indemnity.
----------------
(a) General Indemnity. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the Bank,
its Affiliates and each of their respective officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless
from and against (and will reimburse each Indemnified Person as the same are
incurred for) any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs (other than the allocated cost of in-house legal services
incurred in connection with the matters referred to in Section 10.04(a)) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans) be imposed on, incurred by or asserted against any such
Person in any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. In connection with any claim,
action, suit or proceeding, the Company shall, at the direction of any
Indemnified Person and at the Company's sole cost and expense, defend such
Indemnified Person using legal counsel satisfactory to such Indemnified Person
in such Indemnified Person's sole discretion; provided that, in the event that
the Company is resisting or defending any such claim, action, suit or
proceeding, any separate Attorney Costs incurred by such Indemnified Person in
connection therewith shall be for such Indemnified Person's own account until
such time as (i) the Indemnified Person assumes the resistance or defense of
such claim, action, suit or proceeding or (ii) there exists a conflict of
interest between the Company and such Indemnified Person in respect of such
claim, action, suit or proceeding; provided further that, in connection with any
claim, action, suit or proceeding, in no event shall the Company be liable for
the fees and expenses of more than one outside counsel for all Indemnified
Persons (unless more than one outside counsel is reasonably deemed necessary by
an Indemnified Person to avoid any conflicts of interest). Notwithstanding
anything to the contrary contained herein: (y) no settlement or compromise of
any liability with respect to which the Company is liable to any Indemnified
Person shall be made without the Company's prior written consent, which consent
may be granted or withheld in its sole discretion; and (z) the Company shall not
be entitled to settle or compromise any claim, action, suit or proceeding
involving any Indemnified Person without the prior written consent of such
Indemnified Person, which consent may be granted or withheld in such Indemnified
Person's sole discretion.
(b) Environmental Indemnity.
(i) The Company hereby agrees to indemnify, defend and hold
harmless each Indemnified Person, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including Attorney Costs and the
allocated cost of internal environmental audit or review services), which
may be incurred by or asserted against such Indemnified Person in
connection with or arising out of any pending or threatened investigation,
litigation or proceeding, or any action taken by any Person, with respect
to any Environmental Claim arising out of or related to any Property of the
Company or any of its Subsidiaries. No action taken by legal counsel chosen
by the Bank in defending against any such investigation, litigation or
proceeding or requested remedial, removal or response
58
action shall vitiate or any way impair the Company's obligation and duty
hereunder to indemnify and hold harmless the Bank.
(ii) In no event shall any site visit, observation, or testing
by the Bank be deemed a representation or warranty that Hazardous Materials
are or are not present in, on, or under the site, or that there has been or
shall be compliance with any Environmental Law. Neither the Company nor any
other Person is entitled to rely on any site visit, observation, or testing
by the Bank. The Bank does not owe any duty of care to protect the Company
or any other Person against, or to inform the Company or any other Person
of, any Hazardous Materials or any other adverse condition affecting any
site or Property. The Bank shall not be obligated to disclose to the
Company or any other Person any report or findings made as a result of, or
in connection with, any site visit, observation, or testing by the Bank.
(c) Survival; Defense. The obligations in this Section 10.05 shall
survive the termination of this Agreement and the payment of all other
Obligations.
10.06 Payments Set Aside.
-------------------------
To the extent that the Company makes a payment to the Bank, or the
Bank exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then to the extent of such recovery the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such set-off
had not occurred.
10.07 Successors and Assigns.
-----------------------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its rights or
obligations under this Agreement or any of the other Credit Documents to which
it is a party without the prior written consent of the Bank.
10.08 Assignments, Participations, etc.
---------------------------------------
(a) The Bank may at any time, with the prior written consent of the
Company at all times other than during the existence of an Event of Default
(which consent of the Company, if required, shall not be unreasonably withheld),
assign and delegate to one or more Eligible Assignees (provided that no written
consent of the Company shall be required in connection with any assignment and
delegation by the Bank to an Eligible Assignee that is an Affiliate of the Bank)
(each an "Assignee") all or any part of the Credit Extensions, the Commitments
or the other rights, interests and obligations of the Bank hereunder or under
any of the other Credit Documents, in a minimum amount of $1,000,000; provided
that the Company may continue to deal solely and directly with the Bank in
connection with the interest so assigned to an Assignee until written notice of
such assignment, together with payment instructions and address information with
respect to the Assignee, shall have been given to the Company by the Bank and
the Assignee.
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(b) The Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company or any of its Subsidiaries (a
"Participant") participating interests in all or any Credit Extensions, the
Commitment or the other rights, interests and obligations of the Bank hereunder
and under any of the other Credit Documents; provided that the Bank shall not
transfer or grant any participating interest under which the Participant has
rights to approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Credit Document, except to the extent such
amendment, consent or waiver would (i) increase or extend the Commitment or
subject to the Bank to any additional obligations, (ii) postpone or delay any
date fixed for any payment of principal, interest, fees or other amounts due
under any Credit Document, or (iii) reduce the principal of or the rate of
interest specified herein on any Loan or L/C Borrowing or of any fees or other
amounts payable under any Credit Document. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Credit Documents, and all amounts payable by the Company
hereunder shall be determined as if the Bank had not sold such participation,
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as the Bank under this Agreement. The Company shall
not be required to incur any expense in connection with any such participation.
(c) Notwithstanding any other provision in this Agreement, the Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR '203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.
10.09 Confidentiality.
----------------------
The Bank agrees to take and to cause its Affiliates to take normal
and reasonable precautions and exercise due care to maintain the confidentiality
of all information identified as "confidential" or "secret" by the Company and
provided to it by the Company or any of its Subsidiaries under this Agreement or
any other Credit Document, and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Credit Documents or in connection with other business
now or hereafter existing or contemplated with the Company or any of its
Subsidiaries; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Bank, or
(ii) was or becomes available on a nonconfidential basis from a source other
than the Company or any of its Affiliates, so long as such source is not bound
by a confidentiality agreement with the Company (or any such Affiliate) known to
the Bank; provided that the Bank may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination of the Bank by any such
authority; (B) pursuant to subpoena or other court process; (C) when required to
do so in accordance with the provisions of any applicable Requirement of Law;
(D) to the extent reasonably required in connection with any litigation or
proceeding to which the Bank or any of its Affiliates may be party; (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Credit Document; (F) to the Bank's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
whether actual or potential, so long as such Person agrees in writing to keep
such information confidential to the same extent required of the Bank hereunder;
(H) as to the Bank or any of its Affiliates, as expressly permitted under the
terms of any other
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document or agreement regarding confidentiality to which the Company or any of
its Subsidiaries is a party or is deemed a party with such Bank or such
Affiliate; and (I) to its Affiliates.
10.10 Set-off.
--------------
In addition to any rights and remedies of the Bank provided by law,
if an Event of Default exists or the Loans have been accelerated, the Bank is
authorized at any time and from time to time, without prior notice to the
Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, the Bank to or for the credit or the account
of the Company against any and all Obligations owing to the Bank, now or
hereafter existing, irrespective of whether or not the Bank shall have made
demand under this Agreement or any other Credit Document and although such
Obligations may be contingent or unmatured. The Bank agrees promptly to notify
the Company after any such set-off and application made by the Bank, provided
that the failure to give such notice shall not affect the validity of such set-
off and application.
10.11 Counterparts.
-------------------
This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of such counterparts taken together shall be deemed to constitute but one
and the same instrument.
10.12 Severability.
-------------------
The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
10.13 No Third Parties Benefited.
---------------------------------
This Agreement is made and entered into for the sole protection and
legal benefit of the Company, the Bank, and each Indemnified Person, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Credit Documents.
10.14 Governing Law and Jurisdiction.
-------------------------------------
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF CALIFORNIA,
PROVIDED THAT THE BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND THE BANK
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY AND THE BANK IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY
61
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. EACH OF THE COMPANY AND THE BANK WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY CALIFORNIA LAW.
10.15 Waiver of Jury Trial.
---------------------------
EACH OF THE COMPANY AND THE BANK WAIVES ITS RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY INDEMNIFIED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. EACH OF THE COMPANY AND THE BANK AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
10.16 Entire Agreement.
-----------------------
This Agreement, together with the other Credit Documents, embodies
the entire agreement and understanding between the Company and the Bank and
supersedes all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first written above.
THE COMPANY: eFunds Corporation,
-----------
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx III
-------------------------
Name: Xxxx X. Xxxxxxxxx III
Title: Chief Executive Officer
THE BANK: Bank of America, National Association
--------
By: /s/ Xxxxx Leader
----------------
Name: Xxxxx Leader
Title: Managing Director
