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REVOLVING CREDIT
AND
SECURITY AGREEMENT
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PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AS AGENT)
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WITH
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VISTA INFORMATION SOLUTIONS, INC.
VISTA ENVIRONMENTAL INFORMATION, INC.
E/RISK INFORMATION SERVICES
GEOSURE, INC.
GEOSURE, LP
ENSITE CORPORATION OF DENVER
ECOSEARCH ACQUISITION, INC.
ECOSEARCH ENVIRONMENTAL RESOURCES, INC.
NRC ACQUISITION, LLC
NRC INSURANCE SERVICES, INC.
VISTA DMS, INC. and
VISTAINFO CANADA, INC.
(As Borrowers)
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DATED AS OF
MAY 3, 2000
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TABLE OF CONTENTS
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I. DEFINITIONS........................................................... 1
1.1 Accounting Terms................................................ 1
1.2 General Terms................................................... 1
1.3 Uniform Commercial Code Terms...................................19
1.4 Certain Matters of Construction.................................19
II. REVOLVING ADVANCES, PAYMENTS..........................................19
2.1 (a) Revolving Advances..........................................19
(b) Individual Revolving Advances.............................20
(c) Discretionary Rights......................................20
2.2 Procedure for Borrowing Revolving Advances......................20
2.3 Disbursement of Revolving Advance Proceeds......................22
2.4 [intentionally omitted].........................................23
2.5 Maximum Revolving Advances......................................23
2.6 Repayment of Revolving Advances.................................23
2.7 Repayment of Excess Revolving Advances..........................23
2.8 Statement of Account............................................23
2.9 [Intentionally Omitted..........................................24
2.10 [Intentionally Omitted..........................................24
2.11 [Intentionally Omitted..........................................24
2.12 Additional Payments.............................................24
2.13 Manner of Borrowing and Payment.................................24
2.14 Mandatory Prepayments...........................................25
2.15 Use of Proceeds.................................................26
2.16 Defaulting Lender...............................................26
III. INTEREST AND FEES.....................................................27
3.1 Interest........................................................27
3.2 [Intentionally Omitted..........................................27
3.3 (a) Closing Fee.................................................27
(b) Facility Fee..............................................27
3.4 (a) Collateral Evaluation Fee...................................27
(b) Collateral Monitoring Fee.................................28
3.5 Computation of Interest and Fees................................28
3.6 Maximum Charges.................................................28
3.7 Increased Costs.................................................29
3.8 Basis For Determining Interest Rate Inadequate or Unfair........29
3.9 Capital Adequacy................................................30
3.10 Taxes...........................................................31
IV. COLLATERAL: GENERAL TERMS.............................................32
4.1 Security Interest in the Collateral.............................32
4.2 Perfection of Security Interest.................................32
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4.3 Disposition of Collateral.......................................33
4.4 Preservation of Collateral......................................33
4.5 Ownership of Collateral.........................................33
4.6 Defense of Agent's and Lenders' Interests.......................33
4.7 Books and Records...............................................34
4.8 Financial Disclosure............................................34
4.9 Compliance with Laws............................................34
4.10 Inspection of Premises..........................................35
4.11 Insurance.......................................................35
4.12 Failure to Pay Insurance........................................36
4.13 Payment of Taxes................................................36
4.14 Payment of Leasehold Obligations................................36
4.15 Receivables.....................................................36
(a) Nature of Receivables.....................................36
(b) Solvency of Customers.....................................37
(c) Locations of Borrower.....................................37
(d) Collection of Receivables.................................37
(e) Notification of Assignment of Receivables.................37
(f) Power of Agent to Act on Borrowers' Behalf................37
(g) No Liability..............................................38
(h) Establishment of a Lockbox Account, Dominion Account......38
(i) Adjustments...............................................38
4.16 Inventory.......................................................39
4.17 Maintenance of Equipment........................................39
4.18 Exculpation of Liability........................................39
4.19 Environmental Matters...........................................39
4.20 Financing Statements............................................41
V. REPRESENTATIONS AND WARRANTIES........................................41
5.1 Authority.......................................................41
5.2 Formation and Qualification.....................................42
5.3 Survival of Representations and Warranties......................42
5.4 Tax Returns.....................................................42
5.5 Financial Statements............................................42
5.6 Corporate Name..................................................43
5.7 O.S.H.A. and Environmental Compliance...........................43
5.8 Solvency; No Litigation, Violation, Indebtedness or Default.....44
5.9 Patents, Trademarks, Copyrights and Licenses....................45
5.10 Licenses and Permits............................................45
5.11 Default of Indebtedness.........................................45
5.12 No Default......................................................46
5.13 No Burdensome Restrictions......................................46
5.14 No Labor Disputes...............................................46
5.15 Margin Regulations..............................................46
5.16 Investment Company Act..........................................46
5.17 Disclosure......................................................46
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5.18 Delivery of Subordinated Loan Documents.........................46
5.19 Swaps...........................................................47
5.20 Conflicting Agreements..........................................47
5.21 Application of Certain Laws and Regulations.....................47
5.22 Business and Property of Borrowers..............................47
5.23 Year 2000.......................................................47
5.24 Section 20 Subsidiaries.........................................47
5.25 Canadian Pension Plans..........................................47
VI. AFFIRMATIVE COVENANTS.................................................48
6.1 Payment of Fees.................................................48
6.2 Conduct of Business and Maintenance of Existence and Assets.....48
6.3 Violations......................................................49
6.4 Government Receivables..........................................49
6.5 Net Worth.......................................................49
6.6 Fixed Charge Coverage Ratio.....................................49
6.7 Intentionally Omitted...........................................49
6.8 Working Capital.................................................49
6.9 Execution of Supplemental Instruments...........................49
6.10 Payment of Indebtedness.........................................49
6.11 Standards of Financial Statements...............................50
6.12 Exercise of Rights..............................................50
6.13 Operation of Canadian Pension Plans.............................50
VII. NEGATIVE COVENANTS....................................................51
7.1 Merger, Amalgamation, Consolidation, Acquisition and Sale of
Assets..........................................................51
7.2 Creation of Liens...............................................51
7.3 Guarantees......................................................51
7.4 Investments.....................................................51
7.5 Loans...........................................................51
7.6 Capital Expenditures............................................52
7.7 Dividends.......................................................52
7.8 Indebtedness....................................................52
7.9 Nature of Business..............................................52
7.10 Transactions with Affiliates....................................52
7.11 Leases..........................................................52
7.12 Subsidiaries....................................................53
7.13 Fiscal Year and Accounting Changes..............................53
7.14 Pledge of Credit................................................53
7.15 Amendment of Articles of Incorporation, By-Laws.................53
7.16 Compliance with ERISA...........................................53
7.17 Prepayment of Indebtedness......................................54
7.18 Subordinated Note...............................................54
7.19 Other Agreements................................................54
7.20 Certain Covenants and Representations Regarding Inactive Subs...54
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7.21 CCAA............................................................54
VIII. CONDITIONS PRECEDENT..................................................54
8.1 Conditions to Initial Revolving Advances........................54
(a) Revolving Credit Notes....................................54
(b) Filings, Registrations and Recordings.....................54
(c) Corporate Proceedings of Borrowers........................55
(d) Incumbency Certificates of Borrowers......................55
(e) Certificates..............................................55
(f) Good Standing Certificates................................55
(g) Legal Opinions............................................55
(h) No Litigation.............................................55
(i) Financial Condition Certificate...........................56
(j) Collateral Examination....................................56
(k) Fees......................................................56
(l) Pro Forma Financial Statements............................56
(m) Subordination Agreements..................................56
(n) Insurance.................................................56
(o) Environmental Reports.....................................56
(p) Payment Instructions......................................56
(q) Blocked Accounts..........................................56
(r) Consents..................................................56
(s) No Adverse Material Change................................57
(t) Leasehold Agreements......................................57
(u) Subordinated Loan Documents...............................57
(v) Net Worth.................................................57
(w) Contract Review...........................................57
(x) Closing Certificate.......................................57
(y) Borrowing Base............................................57
(z) Undrawn Availability......................................57
(aa) Other.....................................................57
8.2 Conditions to Each Revolving Advance............................58
(a) Representations and Warranties............................58
(b) No Default................................................58
(c) Maximum Revolving Advances................................58
IX. INFORMATION AS TO BORROWERS...........................................58
9.1 Disclosure of Material Matters..................................58
9.2 Schedules.......................................................58
9.3 Environmental Reports...........................................59
9.4 Litigation......................................................59
9.5 Material Occurrences............................................59
9.6 Government Receivables..........................................59
9.7 Annual Financial Statements.....................................60
9.8 Quarterly Financial Statements..................................60
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9.9 Monthly Financial Statements....................................60
9.10 Other Reports...................................................61
9.11 Additional Information..........................................61
9.12 Projected Operating Budget......................................61
9.13 Variances From Operating Budget.................................61
9.14 Notice of Suits, Adverse Events.................................61
9.15 ERISA Notices and Requests......................................62
9.16 Additional Documents............................................62
X. EVENTS OF DEFAULT.....................................................62
XI. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT............................65
11.1 Rights and Remedies.............................................65
11.2 Agent's Discretion..............................................67
11.3 Setoff..........................................................67
11.4 Rights and Remedies not Exclusive...............................67
XII. WAIVERS AND JUDICIAL PROCEEDINGS......................................67
12.1 Waiver of Notice................................................67
12.2 Delay...........................................................67
12.3 Jury Waiver.....................................................67
XIII. EFFECTIVE DATE AND TERMINATION........................................68
13.1 Term............................................................68
13.2 Termination.....................................................68
XIV. REGARDING AGENT.......................................................69
14.1 Appointment.....................................................69
14.2 Nature of Duties................................................69
14.3 Lack of Reliance on Agent and Resignation.......................69
14.4 Certain Rights of Agent.........................................70
14.5 Reliance........................................................70
14.6 Notice of Default...............................................70
14.7 Indemnification.................................................71
14.8 Agent in its Individual Capacity................................71
14.9 Delivery of Documents...........................................71
14.10 Borrowers' Undertaking to Agent.................................71
XV. BORROWING AGENCY......................................................71
15.1 Borrowing Agency Provisions.....................................71
15.2 Waiver of Subrogation...........................................72
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XVI. MISCELLANEOUS.........................................................72
16.1 Governing Law...................................................72
16.2 Entire Understanding............................................73
16.3 Successors and Assigns; Participations; New Lenders.............75
16.4 Application of Payments.........................................76
16.5 Indemnity.......................................................76
16.6 Notice..........................................................76
16.7 Survival........................................................77
16.8 Severability....................................................78
16.9 Expenses........................................................78
16.10 Injunctive Relief...............................................78
16.11 Consequential Damages...........................................78
16.12 Captions........................................................78
16.13 Counterparts; Telecopied Signatures.............................78
16.14 Construction....................................................78
16.15 Confidentiality; Sharing Information............................78
16.16 Publicity.......................................................79
16.17 Attachment......................................................79
16.18 Acknowledgement.................................................79
16.19 Judgment Currency...............................................79
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LIST OF EXHIBITS AND SCHEDULES
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Exhibits
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Exhibit 2.1(a) Revolving Credit Note
Exhibit 5.5(b) Financial Projections
Exhibit 8.1(k) Financial Condition Certificate
Exhibit 16.3 Commitment Transfer Supplement
Exhibit A Borrowing Base Certificate
Exhibit B Intercompany Note
Schedules
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Schedule 1.2 Permitted Encumbrances
Schedule 4.5 Equipment and Inventory Locations
Schedule 4.15(a) Non-Assignable DMS Contract Receivables
Schedule 4.15(c) Location of Executive Offices
Schedule 4.19 Real Property
Schedule 5.2(a) States of Qualification and Good Standing
Schedule 5.2(b) Subsidiaries
Schedule 5.4 Federal Tax Identification Number
Schedule 5.6 Prior Names
Schedule 5.8(b) Liabilities
Schedule 5.8(d) Plans
Schedule 5.9 Intellectual Property, Source Code Escrow Agreements
Schedule 5.10 Licenses and Permits
Schedule 5.14 Labor Disputes
Schedule 6.5 Net Worth
Schedule 7.3 Guarantees
Schedule 7.5 Certain Existing Loans
Schedule 7.10 Transactions with Affiliates
Schedule 7.15 Article Amendments
Schedule 7.20 Inactive Subsidiaries
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REVOLVING CREDIT
AND
SECURITY AGREEMENT
REVOLVING CREDIT AND SECURITY AGREEMENT dated as of May 3, 2000 among
VISTA INFORMATION SOLUTIONS, INC., a Delaware corporation ("VISTA"), VISTA
ENVIRONMENTAL INFORMATION, INC., a Delaware corporation ("VEI"), E/RISK
INFORMATION SERVICES, a California corporation ("E/Risk"), GEOSURE, INC., a
Delaware corporation ("GeoSure"), GEOSURE, LP, a New York limited partnership
("LP"), ENSITE CORPORATION OF DENVER, a Colorado corporation ("Ensite"),
ECOSEARCH ACQUISITION, INC., a Delaware corporation ("EcoSearch"), ECOSEARCH
ENVIRONMENTAL RESOURCES, INC., an Indiana corporation ("EIR"), NRC ACQUISITION,
L.L.C, a New York limited liability company ("NRC LLC"), NRC INSURANCE SERVICES,
INC., a North Carolina corporation ("NRC INC."), VISTA DMS, INC., a Delaware
corporation ("DMS") and VISTAINFO CANADA, INC., an Ontario corporation
("VISTAinfo", and together with Vista, VEI, E/Risk, GeoSure, LP, Ensite,
EcoSearch, EIR, NRC LLC, NRC INC. and DMS, the "Borrowers"), the financial
institutions which are now or which hereafter become a party hereto
(collectively, the "Lenders" and individually a "Lender") and PNC BANK, NATIONAL
ASSOCIATION ("PNC"), as agent for Lenders (PNC, in such capacity, the "Agent").
RECITALS
WHEREAS, the Borrowers have requested that the Lenders make available
Revolving Advances (as hereinafter defined) in an aggregate principal amount not
to exceed $10,000,000 at any time outstanding;
WHEREAS, the Lenders are willing to make such Revolving Advances available
upon and subject to the terms and conditions hereinafter set forth;
IN CONSIDERATION of the mutual covenants and undertakings herein
contained, Borrowers, Lenders and Agent hereby agree as follows:
I. DEFINITIONS.
1.1 Accounting Terms. As used in this Agreement or any certificate, report
or other document made or delivered pursuant to this Agreement, accounting terms
not defined in Section 1.2 or elsewhere in this Agreement and accounting terms
partly defined in Section 1.2 to the extent not defined, shall have the
respective meanings given to them under GAAP; provided, however, whenever such
accounting terms are used for the purposes of determining compliance with
financial covenants in this Agreement, such accounting terms shall be defined in
accordance with GAAP as applied in preparation of the audited financial
statements of Borrowers for the fiscal year ended December 31, 1999.
1.2 General Terms. For purposes of this Agreement the following terms
shall have the following meanings:
"Accountants" shall have the meaning set forth in Section 9.7
hereof.
"Acquisition Agreement" shall mean the Agreement for Purchase and
Sale of Assets, including all exhibits and schedules thereto, dated as of July
28, 1999 as amended, by and among Xxxxx North America, Inc., a Delaware
corporation ("Seller"), VISTA and DMS.
"Advance Rates" shall have the meaning set forth in Section 2.1(a)
hereof.
"Affiliate" of any Person shall mean (a) any Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such Person, or (b) any Person who is a director or officer (i) of such
Person, (ii) of any Subsidiary of such Person or (iii) of any Person described
in clause (a) above. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (x) to vote 5% or more of the securities
having ordinary voting power for the election of directors of such Person, or
(y) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the preamble to this
Agreement and shall include its successors and assigns.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the higher of (i) the Base Rate in effect on such day and (ii) the
Federal Funds Rate in effect on such day plus 1/2 of 1%.
"Authority" shall have the meaning set forth in Section 4.19(d).
"Base Rate" shall mean the base commercial lending rate of PNC as
publicly announced to be in effect from time to time, such rate to be adjusted
automatically, without notice, on the effective date of any change in such rate.
This rate of interest is determined from time to time by PNC as a means of
pricing some loans to its customers and is neither tied to any external rate of
interest or index nor does it necessarily reflect the lowest rate of interest
actually charged by PNC to any particular class or category of customers of PNC.
"Blocked Accounts" shall have the meaning set forth in Section
4.15(h).
"Borrower" shall mean each of VISTA, VEI, E/Risk, GeoSure, LP,
Ensite, EcoSearch, EIR, NRC LLC, NRC INC., DMS and VISTAinfo and shall extend to
all permitted successors and assigns.
"Borrowers on a consolidated basis" shall mean all Borrowers, and,
in connection with any accounting matters, shall mean Borrowers on a
consolidated basis in accordance with GAAP.
"Borrowers' Account" shall have the meaning set forth in Section
2.8.
"Borrowing Agent" shall mean VISTA.
"Borrowing Base Certificate" shall mean a certificate duly executed
by an officer of Borrowing Agent appropriately completed and in substantially
the form of Exhibit A hereto.
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"Business Day" shall mean any day other than Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required by law to be
closed for business in East Brunswick, New Jersey and, if the applicable
Business Day relates to any Eurodollar Rate Loans, such day must also be a day
on which dealings are carried on in the London interbank market.
"Capital Stock" shall mean any and all shares of common stock,
preferred stock, general partnership interests, limited partnership interests,
membership interests, limited liability company interests and all other forms of
equity ownership, including all warrants, options and other rights to acquire
such equity interests.
"CCAA" shall mean the Companies' Creditors Arrangement Act (Canada),
as the same now exists or may from time to time hereafter be amended, modified
or supplemented, together with all official rules, regulations, and
interpretations thereunder or related thereto.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.ss.9601 et seq.
"Change of Control" shall mean (a) the occurrence of any event
(whether in one or more transactions) which results in a transfer of control of
any Borrower to a Person who is not an Original Owner or (b) any merger or
consolidation of or with any Borrower or sale of all or substantially all of the
property or assets of any Borrower. For purposes of this definition, "control of
Borrower" shall mean the power, direct or indirect (x) to vote 20% or more of
the securities having ordinary voting power for the election of directors of any
Borrower or (y) to direct or cause the direction of the management and policies
of any Borrower by contract or otherwise.
"Charges" shall mean all taxes, charges, fees, imposts, levies or
other assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation and property
taxes, custom duties, fees, assessments, liens, claims and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts, imposed by any taxing or other authority, domestic or
foreign (including, without limitation, the Pension Benefit Guaranty Corporation
or any environmental agency or superfund), upon the Collateral, any Borrower or
any of its Affiliates.
"Closing Date" shall mean May 3, 2000 or such other date as may be
agreed to by the parties hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated thereunder.
"Collateral" shall mean and include:
(a) all Receivables;
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(b) all Equipment (excluding, however, Equipment owned by
VISTAinfo and located in Canada);
(c) all General Intangibles;
(d) all Inventory;
(e) all Investment Property;
(f) all Subsidiary Stock;
(g) all of each Borrower's right, title and interest in and
to (i) its respective goods and other property including, but not limited to,
all merchandise returned or rejected by Customers, relating to or securing any
of the Receivables; (ii) all of each Borrower's rights as a consignor, a
consignee, an unpaid vendor, mechanic, artisan, or other lienor, including
stoppage in transit, setoff, detinue, replevin, reclamation and repurchase;
(iii) all additional amounts due to any Borrower from any Customer relating to
the Receivables; (iv) other property, including warranty claims, relating to any
goods securing this Agreement; (v) all of each Borrower's contract rights,
rights of payment which have been earned under a contract right, instruments,
documents, chattel paper, warehouse receipts, deposit accounts and money; (vi)
if and when obtained by any Borrower, all real and personal property of third
parties in which such Borrower has been granted a lien or security interest as
security for the payment or enforcement of Receivables; and (vii) any other
goods, personal property or real property now owned or hereafter acquired in
which any Borrower has expressly granted a security interest or may in the
future grant a security interest to Agent hereunder, or in any amendment or
supplement hereto or thereto, or under any other agreement between Agent and any
Borrower;
(h) all of each Borrower's ledger sheets, ledger cards,
files, correspondence, records, books of account, business papers, computers,
computer software (owned by any Borrower or in which it has an interest),
computer programs, tapes, disks and documents relating to (a), (b), (c), (d),
(e), (f) or (g) of this Paragraph; and
(i) all proceeds and products of (a), (b), (c), (d), (e),
(f), (g) or (h) in whatever form, including, but not limited to: cash, deposit
accounts (whether or not comprised solely of proceeds), certificates of deposit,
insurance proceeds (including hazard, flood and credit insurance), negotiable
instruments and other instruments for the payment of money, chattel paper,
security agreements, documents, eminent domain proceeds, condemnation proceeds
and tort claim proceeds. Notwithstanding the foregoing, Collateral shall not
include (a) the last day of the term of any lease of any Borrower located in
Canada (but upon the enforcement of Agent's rights hereunder, Agent shall stand
possessed of such last day in trust to assign the same to any person acquiring
such term) or (b) any consumer goods (as defined in the PPSA.)
"Commitment Percentage" of any Lender shall mean the percentage set
forth below such Lender's name on the signature page hereof as same may be
adjusted upon any assignment by a Lender pursuant to Section 16.3(b) hereof.
"Commitment Transfer Supplement" shall mean a document in the form
of Exhibit 16.3 hereto, properly completed and otherwise in form and substance
satisfactory to
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Agent by which the Purchasing Lender purchases and assumes a portion of the
obligation of Lenders to make Revolving Advances under this Agreement.
"Consents" shall mean all filings and all licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities and other third parties, domestic or foreign, necessary to carry on
any Borrower's business, including, without limitation, any Consents required
under all applicable federal, state or other applicable law.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Borrower, are treated as a single
employer under Section 414 of the Code.
"Current Assets" at a particular date, shall mean all cash, cash
equivalents, accounts and inventory of Borrowers on a consolidated basis and all
other items which would, in conformity with GAAP, be included under current
assets on a balance sheet of Borrowers on a consolidated basis as at such date;
provided, however, that such amounts shall not include (a) any amounts for any
Indebtedness owing by an Affiliate of any Borrower, unless such Indebtedness
arose in connection with the sale of goods or rendition of services in the
ordinary course of business and would otherwise constitute current assets in
conformity with GAAP, (b) any shares of stock issued by an Affiliate of any
Borrower, or (c) the cash surrender value of any life insurance policy.
"Current Liabilities" at a particular date, shall mean all amounts
which would, in conformity with GAAP, be included under current liabilities on a
balance sheet of Borrowers on a consolidated basis, as at such date, but in any
event including, without limitation, the amounts of (a) all Indebtedness of
Borrowers on a consolidated basis payable on demand, or, at the option of the
Person to whom such Indebtedness is owed, not more than twelve (12) months after
such date, (b) any payments in respect of any Indebtedness of any Borrower
(whether installment, serial maturity, sinking fund payment or otherwise)
required to be made not more than twelve (12) months after such date, (c) all
reserves in respect of liabilities or Indebtedness payable on demand or, at the
option of the Person to whom such Indebtedness is owed, not more than twelve
(12) months after such date, the validity of which is not contested at such
date, and (d) all accruals for federal or other taxes measured by income payable
within a twelve (12) month period.
"Customer" shall mean and include the account debtor with respect to
any Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into or
proposes to enter into any contract or other arrangement with any Borrower,
pursuant to which such Borrower is to deliver any personal property or perform
any services.
"Default" shall mean an event which, with the giving of notice or
passage of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth in Section 3.1
hereof.
"Defaulting Lender" shall have the meaning set forth in Section
2.16(a) hereof.
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"Depository Accounts" shall have the meaning set forth in Section
4.15(h) hereof.
"DMS Contract Receivable" shall mean Receivables of DMS consisting
of regularly scheduled, recurring payments (but excluding any residual, balloon
or other "tail end" payment) arising out of long term contracts for leases of
hardware and software, and related maintenance services.
"DMS Contract Receivables Advance Rate" shall have the meaning set
forth in Section 2.1(a)(ii) hereof.
"Documents" shall have the meaning set forth in Section 8.1(c)
hereof.
"Dollar" and the sign "$" shall mean lawful money of the United
States of America.
"Domestic Rate Loan" shall mean any Revolving Advance that bears
interest based upon the Alternate Base Rate.
"Early Termination Date" shall have the meaning set forth in Section
13.1 hereof.
"Earnings Before Interest and Taxes" shall mean for any period the
sum of (i) net income (or loss) of Borrowers on a consolidated basis for such
period (excluding extraordinary gains and extraordinary non-cash losses), plus
(ii) all interest expense of Borrowers on a consolidated basis for such period,
plus (iii) all charges against income of Borrowers on a consolidated basis for
such period for federal, state, provincial and local taxes actually paid.
"EBITDA" shall mean for any period the sum of (i) Earnings Before
Interest and Taxes for such period plus (ii) depreciation expenses for such
period, plus (iii) amortization expenses for such period.
"Eligible DMS Contract Receivables" shall mean and include each DMS
Contract Receivable arising in the ordinary course of business and which Agent,
in its sole credit judgment, shall deem to be an Eligible DMS Contract
Receivable, based on such considerations as Agent may from time to time deem
appropriate. A DMS Contract Receivable shall not be deemed eligible unless such
DMS Contract Receivable is subject to Agent's first priority perfected security
interest and no other Lien (other than Permitted Encumbrances), and is evidenced
by an invoice or other documentary evidence satisfactory to Agent. In addition,
no DMS Contract Receivable shall be an Eligible DMS Contract Receivable if:
(a) it arises out of a sale made by any Borrower to any
other Borrower, an Affiliate of any Borrower or to a Person controlled by an
Affiliate of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the
original invoice date;
(c) twenty-five percent (25%) or more of the DMS Contract
Receivables from such Customer are not deemed Eligible DMS Contract Receivables
hereunder. Such percentage may, in Agent's sole discretion, be increased or
decreased from time to time;
-6-
(d) any covenant, representation or warranty contained in
this Agreement with respect to such Receivable has been breached;
(e) the Customer shall (i) apply for, suffer, or consent to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property
or call a meeting of its creditors, (ii) admit in writing its inability, or be
generally unable, to pay its debts as they become due or cease operations of its
present business, (iii) make a general assignment for the benefit of creditors,
(iv) commence a voluntary case under any state or federal bankruptcy laws (as
now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi)
file a petition seeking to take advantage of any other law providing for the
relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition
which is filed against it in any involuntary case under such bankruptcy laws, or
(viii) take any action for the purpose of effecting any of the foregoing;
(f) the sale is to a Customer outside the continental United
States of America, unless the sale is on letter of credit, guaranty or
acceptance terms, in each case acceptable to Agent in its sole discretion;
(g) the sale to the Customer is on a xxxx-and-hold,
guaranteed sale, sale-and-return, sale on approval, consignment or any other
repurchase or return basis or is evidenced by chattel paper;
(h) Agent believes, in its sole judgment, that collection of
such Receivable is insecure or that such Receivable may not be paid by reason of
the Customer's financial inability to pay;
(i) the Customer is the United States of America, any state
or any department, agency or instrumentality of any of them, unless the
applicable Borrower assigns its right to payment of such Receivable to Agent
pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C.
Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise
complied with other applicable statutes or ordinances;
(j) the goods giving rise to such Receivable have not been
shipped to the Customer or the services giving rise to such Receivable have not
been performed by the applicable Borrower or the Receivable otherwise does not
represent a final sale;
(k) the Receivables of the Customer exceed a credit limit
determined by Agent, in its sole discretion, to the extent such DMS Contract
Receivable exceeds such limit;
(l) the Receivable is subject to any offset, deduction,
defense, dispute, or counterclaim, the Customer is also a creditor or supplier
of a Borrower or the Receivable is contingent in any respect or for any reason;
(m) the applicable Borrower has made any agreement with any
Customer for any deduction therefrom, except for discounts or allowances made in
the ordinary course of business for prompt payment, all of which discounts or
allowances are reflected in the calculation of the face value of each respective
invoice related thereto;
-7-
(n) any return, rejection or repossession of the merchandise
has occurred or the rendition of services with respect to such Receivable has
been disputed;
(o) such Receivable is not payable to DMS;
(p) such Receivable is not otherwise satisfactory to Agent
as determined in good faith by Agent in the exercise of its discretion in a
reasonable manner;
(q) Customer deposits; and
(r) such receivable represents deferred revenue.
"Eligible Receivables" shall mean and include with respect to each
Borrower, each Receivable of such Borrower (other than any DMS Contract
Receivables) arising in the ordinary course of such Borrower's business and
which Agent, in its sole credit judgment, shall deem to be an Eligible
Receivable, based on such considerations as Agent may from time to time deem
appropriate. A Receivable shall not be deemed eligible unless such Receivable is
subject to Agent's first priority perfected security interest and no other Lien
(other than Permitted Encumbrances), and is evidenced by an invoice or other
documentary evidence satisfactory to Agent. In addition, no Receivable shall be
an Eligible Receivable if:
(a) it arises out of a sale made by any Borrower to any
Borrower, an Affiliate of any Borrower or to a Person controlled by an Affiliate
of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the
original invoice date or for Receivables for the Environmental and Home
Disclosure Divisions (as presently accounted for by VISTA) only, it is due or
unpaid more than one hundred twenty (120) days after the original invoice date;
(c) twenty-five percent (25%) or more of the Receivables
from such Customer are not deemed Eligible Receivables hereunder. Such
percentage may, in Agent's sole discretion, be increased or decreased from time
to time;
(d) any covenant, representation or warranty contained in
this Agreement with respect to such Receivable has been breached;
(e) the Customer shall (i) apply for, suffer, or consent to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property
or call a meeting of its creditors, (ii) admit in writing its inability, or be
generally unable, to pay its debts as they become due or cease operations of its
present business, (iii) make a general assignment for the benefit of creditors,
(iv) commence a voluntary case under any state or federal bankruptcy laws (as
now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi)
file a petition seeking to take advantage of any other law providing for the
relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition
which is filed against it in any involuntary case under such bankruptcy laws, or
(viii) take any action for the purpose of effecting any of the foregoing;
-8-
(f) the sale is to a Customer outside the continental United
States of America or Canada, unless the sale is on letter of credit, guaranty or
acceptance terms, in each case acceptable to Agent in its sole discretion;
(g) the sale to the Customer is on a xxxx-and-hold,
guaranteed sale, sale-and-return, sale on approval, consignment or any other
repurchase or return basis or is evidenced by chattel paper;
(h) Agent believes, in its sole judgment, that collection of
such Receivable is insecure or that such Receivable may not be paid by reason of
the Customer's financial inability to pay;
(i) the Customer is (i) the United States of America, any
state or any department, agency or instrumentality of any of them, unless the
applicable Borrower assigns its right to payment of such Receivable to Agent
pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C.
Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise
complied with other applicable statutes or ordinances or (ii) the federal
government of Canada, any province, or any municipality, or any department,
agency or instrumentality thereof, unless the applicable Borrower has, with
respect to such Receivable, complied with the Financial Administration Act
(Canada) or has otherwise complied with other applicable statutes or ordinances;
(j) the goods giving rise to such Receivable have not been
shipped to the Customer or the services giving rise to such Receivable have not
been performed by the applicable Borrower or the Receivable otherwise does not
represent a final sale;
(k) the Receivables of the Customer exceed a credit limit
determined by Agent, in its sole discretion, to the extent such Receivable
exceeds such limit;
(l) the Receivable is subject to any offset, deduction,
defense, dispute, or counterclaim, the Customer is also a creditor or supplier
of a Borrower or the Receivable is contingent in any respect or for any reason;
(m) the applicable Borrower has made any agreement with any
Customer for any deduction therefrom, except for discounts or allowances made in
the ordinary course of business for prompt payment, all of which discounts or
allowances are reflected in the calculation of the face value of each respective
invoice related thereto;
(n) any return, rejection or repossession of the merchandise
has occurred or the rendition of services with respect to such Receivable has
been disputed;
(o) such Receivable is not payable to a Borrower;
(p) such Receivable is not otherwise satisfactory to Agent
as determined in good faith by Agent in the exercise of its discretion in a
reasonable manner;
(q) such Receivable arises out of long-term leases of
Equipment and/or related software;
-9-
(r) Customer deposits; and
(s) such Receivable represents deferred revenue.
"Environmental Complaint" shall have the meaning set forth in
Section 4.19(d) hereof.
"Environmental Laws" shall mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and sanitation
laws, statutes, ordinances and codes relating to the protection of the
environment and/or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous
Substances and the rules, regulations, policies, guidelines, interpretations,
decisions, orders and directives of federal, state, provincial and local
governmental agencies and authorities with respect thereto.
"Equipment" shall mean and include as to each Borrower all of such
Borrower's goods (other than Inventory) whether now owned or hereafter acquired
and wherever located including, without limitation, all equipment, machinery,
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts,
accessories and all replacements and substitutions therefor or accessions
thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and the rules and regulations promulgated
thereunder.
"Eurodollar Rate" shall mean for any Eurodollar Rate Loan for the
then current Interest Period relating thereto the interest rate per annum
determined by PNC by dividing (the resulting quotient rounded upwards, if
necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest
determined by PNC in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the average of the London
interbank offered rates for U.S. Dollars quoted by the British Bankers'
Association as set forth on Dow Xxxxx Markets Service (formerly known as
Telrate) (or appropriate successor or, if British Banker's Association or its
successor ceases to provide such quotes, a comparable replacement determined by
PNC) display page 3750 (or such other display page on the Dow Xxxxx Markets
Service system as may replace display page 3750) two (2) Business Days prior to
the first day of such Interest Period for an amount comparable to such
Eurodollar Rate Loan and having a borrowing date and a maturity comparable to
such Interest Period by (ii) a number equal to 1.00 minus the Reserve
Percentage. The Eurodollar Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted by BBA as shown on
Eurodollar Rate=Dow Xxxxx Markets Service display page 3750
or appropriate successor
--------------------------------------------------------------------------------
1.00 - Reserve Percentage
"Eurodollar Rate Loan" shall mean a Revolving Advance at any time
that bears interest based on the Eurodollar Rate.
"Event of Default" shall mean the occurrence of any of the events
set forth in Article X hereof.
-10-
"Federal Funds Rate" shall mean, for any day, the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published for any
day which is a Business Day, the average of quotations for such day on such
transactions received by PNC from three Federal funds brokers of recognized
standing selected by PNC.
"Fee Letter" shall mean the fee letter dated as of the date hereof
among Borrowers and PNC.
"Fixed Charge Coverage Ratio" shall mean and include, with respect
to any fiscal period, the ratio of (a) EBITDA plus capitalized lease payments
during such period, minus capital expenditures made during such period (net of
Indebtedness incurred to finance such expenditures), minus dividends paid during
such period in respect of any capital stock of Vista to (b) the sum of all
Senior Debt Payments plus all Subordinated Debt Payments during such period.
"Formula Amount" shall have the meaning set forth in Section 2.1(a).
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time, except that in the case of
VISTAinfo, GAAP shall mean generally accepted accounting principles in Canada as
in effect from time to time as set forth in the opinions and pronouncements of
the relevant Canadian public and private accounting boards and institutes which
are applicable to the circumstances as of the date of determination consistently
applied.
"General Intangibles" shall mean and include as to each Borrower all
of such Borrower's general intangibles, whether now owned or hereafter acquired
including, without limitation, all choses in action, causes of action, corporate
or other business records, inventions, designs, patents, patent applications,
equipment formulations, manufacturing procedures, quality control procedures,
trademarks, service marks, trade secrets, goodwill, copyrights, design rights,
registrations, licenses, franchises, customer lists, tax refunds, tax refund
claims, computer programs, all claims under guaranties, security interests or
other security held by or granted to such Borrower to secure payment of any of
the Receivables by a Customer all rights of indemnification and all other
intangible property of every kind and nature (other than Receivables).
"Governmental Body" shall mean any nation or government, any state,
province or other political subdivision thereof or any entity exercising the
legislative, judicial, regulatory or administrative functions of or pertaining
to a government.
"Guarantor" shall mean any Person who may hereafter guarantee
payment or performance of the whole or any part of the Obligations and
"Guarantors" means collectively all such Persons.
-11-
"Guarantor Security Agreement" shall mean any Security Agreement
executed by any Guarantor in favor of Agent securing the Guaranty of such
Guarantor.
"Guaranty" shall mean any guaranty of the obligations of Borrowers
executed by a Guarantor in favor of Agent for its benefit and for the ratable
benefit of Lenders.
"Hazardous Discharge" shall have the meaning set forth in Section
4.19(d) hereof.
"Hazardous Substance" shall mean, without limitation, any flammable
explosives, radon, radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum products,
methane, hazardous materials, Hazardous Wastes, hazardous or Toxic Substances or
related materials as defined in CERCLA, the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Sections 1801, et seq.), RCRA, Articles 15 and 27 of
the New York State Environmental Conservation Law or any other applicable
Environmental Law and in the regulations adopted pursuant thereto.
"Hazardous Wastes" shall mean all waste materials subject to
regulation under CERCLA, RCRA or applicable state or provincial law, and any
other applicable Federal and state or provincial laws now in force or hereafter
enacted relating to hazardous waste disposal.
"Indebtedness" of a Person at a particular date shall mean all
obligations of such Person which in accordance with GAAP would be classified
upon a balance sheet as liabilities (except capital stock and surplus earned or
otherwise) and in any event, without limitation by reason of enumeration, shall
include all indebtedness, debt and other similar monetary obligations of such
Person whether direct or guaranteed, and all premiums, if any, due at the
required prepayment dates of such indebtedness, and all indebtedness secured by
a Lien on assets owned by such Person, whether or not such indebtedness actually
shall have been created, assumed or incurred by such Person. Any indebtedness of
such Person resulting from the acquisition by such Person of any assets subject
to any Lien shall be deemed, for the purposes hereof, to be the equivalent of
the creation, assumption and incurring of the indebtedness secured thereby,
whether or not actually so created, assumed or incurred.
"Individual Formula Amount" shall mean at the date of determination
thereof, with respect to each Borrower an amount equal to: (a) up to the
Receivables Advance Rate of Eligible Receivables of such Borrower, plus (b) with
respect to DMS, up to the DMS Contract Receivables Advance Rate of the Eligible
DMS Contract Receivables, minus (c) such reserves as Agent may reasonably deem
proper and necessary from time to time.
"Ineligible Security" shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
"Interest Period" shall mean the period provided for any Eurodollar
Rate Loan pursuant to Section 2.2(b).
"Intercompany Note" means a promissory note in substantially the
form of Exhibit B.
-12-
"Internet Investment Expenditures" shall mean for any period those
expenditures made by VISTA during such period to: develop real estate
information content of value to individuals or organizations involved in
commercial and residential real estate transactions; build out VISTA's related
web site infrastructure to sustain fast and reliable access; develop staffing
with the capabilities to sustain VISTA's product content and packaging
advantages; fund business development activities to position VISTA's products in
favorable locations around the web; and support public relations and advertising
programs necessary to build up demand for and awareness of VISTA's services and
information; provided, however, that for purposes of calculating EBITDA, these
expenditures for any period shall be calculated on a basis net of any cash
funding actually received by VISTA during such period from a non-affiliated
third party pursuant to a marketing, strategic alliance or similar arrangement
that has been formed with such third party for purposes of providing funding
support for VISTA's internet investment initiatives.
"Inventory" shall mean and include as to each Borrower all of such
Borrower's now owned or hereafter acquired goods, merchandise and other personal
property, wherever located, to be furnished under any contract of service or
held for sale or lease, all raw materials, work in process, finished goods and
materials and supplies of any kind, nature or description which are or might be
used or consumed in such Borrower's business or used in selling or furnishing
such goods, merchandise and other personal property, and all documents of title
or other documents representing them.
"Investment Property" shall mean and include as to each Borrower,
all of such Borrower's now owned or hereafter acquired securities (whether
certificated or uncertificated), securities entitlements, securities accounts,
commodities contracts and commodities accounts.
"IP Security Agreements" shall mean the Intellectual Property
Security Agreement dated as of the date hereof executed by the Borrowers in
favor of the Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Lender" and "Lenders" shall have the meaning ascribed to such term
in the preamble to this Agreement and shall include each Person which becomes a
transferee, successor or assign of any Lender.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, lien (whether statutory or
otherwise), Charge, claim or encumbrance, or preference, priority or other
security agreement or preferential arrangement held or asserted in respect of
any asset of any kind or nature whatsoever including, without limitation, any
conditional sale or other title retention agreement, any lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement under the Uniform Commercial
Code, Personal Property Security Legislation or comparable law of any
jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the condition, operations, assets, business or prospects of the applicable
Person or Persons, (b) any Borrower's ability to pay the Obligations in
accordance with the terms thereof, (c) the value of the Collateral, or Agent's
Liens on the Collateral or the priority of any such Lien or (d) the
-13-
practical realization of the benefits of Agent's and each Lender's rights and
remedies under this Agreement and the Other Documents.
"Maximum Revolving Advance Amount" shall mean $10,000,000.
"Monthly Advances" shall have the meaning set forth in Section 3.1
hereof.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Sections 3(37) and 4001(a)(3) of ERISA.
"Net Worth" at a particular date, shall mean all amounts which would
be included under shareholders' equity on a balance sheet of the Borrowers on a
consolidated basis determined in accordance with GAAP as at such date.
"Obligations" shall mean and include any and all loans, advances,
debts, liabilities, obligations, covenants and duties owing by Borrowers to
Lenders or Agent or to any other direct or indirect subsidiary or affiliate of
Agent or any Lender of any kind or nature, present or future (including, without
limitation, any interest accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to any Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether or not evidenced by any note, guaranty or other instrument, whether
arising under any agreement, instrument or document, (including, without
limitation, this Agreement and the Other Documents) whether or not for the
payment of money, whether arising by reason of an extension of credit, opening
of a letter of credit, loan, equipment lease or guarantee, under any interest or
currency swap, future, option or other similar agreement, or in any other
manner, whether arising out of overdrafts or deposit or other accounts or
electronic funds transfers (whether through automated clearing houses or
otherwise) or out of the Agent's or any Lenders non-receipt of or inability to
collect funds or otherwise not being made whole in connection with depository
transfer check or other similar arrangements, whether direct or indirect
(including those acquired by assignment or participation), absolute or
contingent, joint or several, due or to become due, now existing or hereafter
arising, contractual or tortious, liquidated or unliquidated, regardless of how
such indebtedness or liabilities arise or by what agreement or instrument they
may be evidenced or whether evidenced by any agreement or instrument, including,
but not limited to, any and all of any Borrower's Indebtedness and/or
liabilities under this Agreement, the Other Documents or under any other
agreement between Agent or Lenders and any Borrower and any amendments,
extensions, renewals or increases and all costs and expenses of Agent and any
Lender incurred in the documentation, negotiation, modification, enforcement,
collection or otherwise in connection with any of the foregoing, including but
not limited to reasonable attorneys' fees and expenses and all obligations of
any Borrower to Agent or Lenders to perform acts or refrain from taking any
action.
"Other Documents" shall mean the Revolving Credit Note, the
Questionnaire, any Guaranty, the IP Security Agreements, the Pledge Agreement,
the Subordination Agreement, any Guarantor Security Agreement and any and all
other agreements, instruments and documents, including, without limitation,
guaranties, pledges, powers of attorney, consents, and all other
-14-
writings heretofore, now or hereafter executed by any Borrower or any Guarantor
and/or delivered to Agent or any Lender in respect of the transactions
contemplated by this Agreement.
"Parent" of any Person shall mean a corporation or other entity
owning, directly or indirectly at least 50% of the shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
directors of the Person, or other Persons performing similar functions for any
such Person.
"Participant" shall mean each Person who shall be granted the right
by any Lender to participate in any of the Revolving Advances and who shall have
entered into a participation agreement in form and substance satisfactory to
such Lender.
"Payment Office" shall mean initially Xxx Xxxxx Xxxxxx Xxxxxxxxx,
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000; thereafter, such other office of Agent, if
any, which it may designate by notice to Borrowing Agent and to each Lender to
be the Payment Office.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" shall mean (a) Liens in favor of Agent for
the benefit of Agent and Lenders; (b) Liens for taxes, assessments or other
governmental charges not delinquent or being contested in good faith and by
appropriate proceedings and with respect to which proper reserves have been
taken by Borrowers; provided, that, the Lien shall have no effect on the
priority of the Liens in favor of Agent or the value of the assets in which
Agent has such a Lien and a stay of enforcement of any such Lien shall be in
effect; (c) Liens disclosed in the financial statements referred to in Section
5.5, the existence of which Agent has consented to in writing; (d) deposits or
pledges to secure obligations under worker's compensation, social security or
similar laws, or under unemployment insurance; (e) deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations of
like nature arising in the ordinary course of any Borrower's business; (f)
judgment Liens that have been stayed or bonded and mechanics', workers',
materialmen's or other like Liens arising in the ordinary course of any
Borrower's business with respect to obligations which are not due or which are
being contested in good faith by the applicable Borrower; (g) Liens placed upon
fixed assets hereafter acquired to secure a portion of the purchase price
thereof, provided that (x) any such lien shall not encumber any other property
of the Borrowers and (y) the aggregate amount of Indebtedness secured by such
Liens incurred as a result of such purchases during any fiscal year shall not
exceed the amount provided for in Section 7.6; (h) other Liens incidental to the
conduct of Borrowers' business or the ownership of its property and assets which
were not incurred in connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially detract from
Agent's or Lenders' rights in and to the Collateral or the value of Borrowers'
property or assets or which do not materially impair the use thereof in the
operation of Borrowers' business; (i) Liens in favor of the Subordinated Lender
which are subordinate and junior to the Liens of Agent on the Collateral on
terms and conditions acceptable to Agent; and (j) Liens disclosed on Schedule
1.2.
"Person" shall mean any individual, sole proprietorship,
partnership, corporation, business trust, joint stock company, trust,
unincorporated organization, association, limited
-15-
liability company, institution, public benefit corporation, joint venture,
entity or government (whether Federal, state, county, city, municipal or
otherwise, including any instrumentality, division, agency, body or department
thereof).
"Personal Property Security Legislation" shall mean any applicable
personal property security legislation as all such legislation now exists or may
from time to time hereafter be amended, modified, recodified, supplemented or
replaced, together with all rules, regulations thereunder or related thereto.
"Plan" shall mean any employee benefit plan within the meaning of
Section 3(3) of ERISA, maintained for employees of Borrowers or any member of
the Controlled Group or any such Plan to which any Borrower or any member of the
Controlled Group is required to contribute on behalf of any of its employees.
"Pledge Agreement" means the Pledge Agreement dated as of the date
hereof executed by the Borrowers in favor of the Agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"PPSA" shall mean the Personal Property Security Act (Ontario) as
such legislation now exists or may from time to time hereafter be amended,
modified, recodified, supplemented or replaced, together with all rules,
regulations thereunder or related thereto. Reference to sections of the PPSA
shall be construed to also refer to any successor sections.
"Priority Payables Reserve" shall mean, at any time, the full amount
of the liabilities at such time which have a trust imposed by any Governmental
Body or under applicable law to provide for payment or security interest, lien
or charge ranking or capable of ranking senior to or pari passu with security
interests, liens or charges securing the Obligations on any of the Collateral
under federal, provincial, state, county, municipal, or local law including, but
not limited, to claims for unremitted and accelerated rents, taxes, wages,
workers' compensation obligations, government royalties or pension fund
obligations.
"Pro Forma Balance Sheet" shall have the meaning set forth in
Section 5.5(a) hereof.
"Pro Forma Financial Statements" shall have the meaning set forth in
Section 5.5(b) hereof.
"Projections" shall have the meaning set forth in Section 5.5(b)
hereof.
"Purchasing Lender" shall have the meaning set forth in Section 16.3
hereof.
"Questionnaire" shall mean the Documentation Information
Questionnaire and the responses thereto provided by Borrowers and delivered to
Agent.
"RCRA" shall mean the Resource Conservation and Recovery Act, 42
U.S.C. xx.xx. 6901 et seq., as same may be amended from time to time.
-16-
"Receivables" shall mean and include, as to each Borrower, all of
such Borrower's accounts, contract rights, instruments (including those
evidencing indebtedness owed to Borrowers by their Affiliates), documents,
chattel paper, general intangibles relating to accounts, drafts and acceptances,
and all other forms of obligations owing to such Borrower arising out of or in
connection with the sale or lease of Inventory or the rendition of services, all
guarantees and other security therefor, whether secured or unsecured, now
existing or hereafter created, and whether or not specifically sold or assigned
to Agent hereunder.
"Receivables Advance Rate" shall have the meaning set forth in
Section 2.1(a)(y)(i) hereof.
"Release" shall have the meaning set forth in Section 5.7(c)(i)
hereof.
"Reportable Event" shall mean a reportable event described in
Section 4043(b) of ERISA or the regulations promulgated thereunder.
"Required Lenders" shall mean Lenders holding at least fifty percent
(50%) of the Revolving Advances and, if no Revolving Advances are outstanding,
shall mean Lenders holding at least fifty percent (50%) of the Commitment
Percentages.
"Reserve Percentage" shall mean the maximum effective percentage in
effect on any day as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the reserve requirements (including,
without limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding.
"Revolving Advances" has the meaning set forth in Section 2.1(a).
"Revolving Credit Note" shall mean the promissory note or notes
referred to in Section 2.1(a) hereof.
"Revolving Interest Rate" shall mean an interest rate per annum
equal to the sum of the Alternate Base Rate plus three-quarters percent (0.75%)
with respect to Domestic Rate Loans, provided, however, effective as of the
first day of the month following the delivery of the audited financial
statements of Borrowers for fiscal year 2000, if EBITDA for such fiscal year of
Borrowers on a consolidated basis is at least $3,400,000, as determined based on
such audited financial statements of Borrowers, and no Default or Event of
Default has occurred and is continuing as of such date or as of the end of such
fiscal year, the Revolving Interest Rate shall also mean an interest rate per
annum equal to the sum of the Eurodollar Rate plus three percent (3%).
"Section 20 Subsidiary" shall mean the Subsidiary of the bank
holding company controlling PNC, which Subsidiary has been granted authority by
the Federal Reserve Board to underwrite and deal in certain Ineligible
Securities.
"Senior Debt Payments" shall mean and include all cash actually
expended by Borrowers to make (a) interest payments on any Revolving Advances
hereunder, plus (b) payments for all fees, commissions and charges set forth
herein and with respect to any
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Revolving Advances, plus (c) capitalized lease payments, plus (d) payments with
respect to any other Indebtedness for borrowed money other than Subordinated
Debt payments.
"Settlement Date" shall mean the Closing Date and thereafter
Wednesday of each week unless such day is not a Business Day in which case it
shall be the next succeeding Business Day.
"Subordinated Debt Payments" shall mean and include all cash
actually expended to make payments of principal and interest on the Subordinated
Note.
"Subordinated Lender" shall mean Xxxxx North America, Inc. and shall
extend to its successors and assigns.
"Subordinated Loan" shall mean the loan evidenced by the
Subordinated Note.
"Subordinated Loan Documents" shall mean the Subordinated Note, the
Security agreement dated as of December 17, 1999 among VISTA, DMS, VEI, E/Risk,
GeoSure, LP, NRC Inc., NRC LLC, Ensite, EcoSearch, EIR in favor of the
Subordinated Lender and Xxxxx Corporation Limited; the Pledge Agreement dated as
of December 17, 1999 by VISTA, DMS, VEI, E/Risk, GeoSure, LP, NRC LLC, and
EcoSearch in favor of the Subordinated Lender and Xxxxx Corporation Limited; and
all documents, instruments and agreements executed and delivered in connection
therewith.
"Subordinated Note" shall mean the VISTA Information Systems, Inc.
Amended and Restated Secured Convertible Note issued by VISTA and DMS in favor
of Subordinated Lender dated May 3, 2000 in the principal sum of $18,700,000.
"Subordination Agreement" shall mean the Subordination Agreement
dated May 3, 2000 among Agent, Borrowers and Subordinated Lender.
"Subsidiary" shall mean a corporation or other entity of whose
shares of stock or other ownership interests having ordinary voting power (other
than stock or other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the directors of such
corporation, or other Persons performing similar functions for such entity, are
owned, directly or indirectly, by such Person.
"Subsidiary Stock" shall mean all of the issued and outstanding
shares of Capital Stock owned by any Borrower.
"Term" shall have the meaning set forth in Section 13.1 hereof.
"Termination Event" shall mean (i) a Reportable Event with respect
to any Plan or Multiemployer Plan; (ii) the withdrawal of any Borrower or any
member of the Controlled Group from a Plan or Multiemployer Plan during a plan
year in which such entity was a "substantial employer" as defined in Section
4001(a)(2) of ERISA; (iii) the providing of notice of intent to terminate a Plan
in a distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC of proceedings to terminate a Plan or Multiemployer
Plan; (v) any event or condition (a) which might constitute grounds under
Section 4042 of ERISA for the
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termination of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan, or (b) that may result in termination of a Multiemployer
Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete
withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of any
Borrower or any member of the Controlled Group from a Multiemployer Plan.
"Toxic Substance" shall mean and include any material present on the
Real Property or the Leasehold Interests which has been shown to have
significant adverse effect on human health or which is subject to regulation
under the Toxic Substances Control Act (TSCA), 15 U.S.C. xx.xx. 2601 et seq.,
applicable state law, or any other applicable Federal, provincial or state laws
now in force or hereafter enacted relating to toxic substances. "Toxic
Substance" includes but is not limited to asbestos, polychlorinated biphenyls
(PCBs) and lead-based paints.
"Transferee" shall have the meaning set forth in Section 16.3(b)
hereof.
"Undrawn Availability" at a particular date shall mean an amount
equal to (a) the lesser of (i) the Formula Amount or (ii) the Maximum Revolving
Advance Amount, minus (b) the sum of (i) the outstanding amount of Revolving
Advances plus (ii) all amounts due and owing to Borrowers' trade creditors which
are outstanding beyond normal trade terms, plus (iii) fees and expenses for
which Borrowers are liable but which have not been paid or charged to Borrowers'
Account.
"Week" shall mean the time period commencing with the opening of
business on a Wednesday and ending on the end of business the following Tuesday.
"Working Capital" at a particular date, shall mean the excess, if
any, of Current Assets over Current Liabilities at such date.
1.3 Uniform Commercial Code Terms. All terms used herein and defined in
the Uniform Commercial Code as adopted in the State of New York shall have the
meaning given therein unless otherwise defined herein.
1.4 Certain Matters of Construction. The terms "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. Wherever appropriate in the context, terms
used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations. Unless otherwise provided, all
references to any instruments or agreements to which Agent is a party,
including, without limitation, references to any of the Other Documents, shall
include any and all modifications or amendments thereto and any and all
extensions or renewals thereof.
II. REVOLVING ADVANCES, PAYMENTS.
2.1 (a) Revolving Advances. Subject to the terms and conditions set forth
in this Agreement including, without limitation, Section 2.1(b), each Lender,
severally and not jointly, will make advances to Borrowers (each a "Revolving
Advance") in an aggregate principal amount for all such Revolving Advances
outstanding at any time not to exceed such Lender's
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Commitment Percentage of the lesser of (x) the Maximum Revolving Advance Amount
or (y) an amount equal to the sum of:
(i) up to 85%, subject to the provisions of Section 2.1(c)
hereof ("Receivables Advance Rate"), of Eligible Receivables, plus
(ii) up to the lesser of (A) three (3) times the average of
the recurring monthly collections received by DMS on Eligible DMS Contract
Receivables, determined for the immediately preceding three (3) months, subject
to the provisions of Section 2.1(c) hereof (the "DMS Contract Receivables
Advance Rate") (the Receivables Advance Rate and the DMS Contract Receivables
Advance Rate shall be referred to collectively as the "Advance Rates") or (b)
$5,000,000 in the aggregate at any one time; minus
(iii) such reserves as Agent may reasonably deem proper and
necessary from time to time, including, without limitation, Priority Payables
Reserves.
The amount derived from the sum of (x) Sections 2.1(a)(y)(i) and (ii)
minus (y) Section 2.1 (a)(y)(iii) and (iv) at any time and from time to time
shall be referred to as the "Formula Amount". The Revolving Advances shall be
evidenced by one or more secured promissory notes (collectively, the "Revolving
Credit Note") substantially in the form attached hereto as Exhibit 2.1(a).
(b) Individual Revolving Advances. Each Lender, severally and not
jointly, will make Revolving Advances to each Borrower in aggregate amounts
outstanding at any time not greater than such Lender's Commitment Percentage of
the lesser of such Borrower's Individual Formula Amount.
(c) Discretionary Rights. The Advance Rates may be increased or
decreased by Agent at any time and from time to time in the exercise of its
reasonable discretion. Each Borrower consents to any such increases or decreases
and acknowledges that decreasing the Advance Rates or increasing the reserves
may limit or restrict Revolving Advances requested by Borrowing Agent.
2.2 Procedure for Borrowing Revolving Advances.
(a) Borrowing Agent on behalf of any Borrower may notify Agent prior
to 11:00 a.m. on a Business Day of a Borrower's request to incur, on that day, a
Revolving Advance hereunder. Should any amount required to be paid as interest
hereunder, or as fees or other charges under this Agreement or any other
agreement with Agent or Lenders, or with respect to any other Obligation, become
due, same shall be deemed a request for a Revolving Advance as of the date such
payment is due, in the amount required to pay in full such interest, fee, charge
or Obligation under this Agreement or any other agreement with Agent or Lenders,
and such request shall be irrevocable.
(b) Notwithstanding the provisions of (a) above, in the event any
Borrower desires to obtain a Eurodollar Rate Loan and the Eurodollar Rate is
then available hereunder, Borrowing Agent shall give Agent at least three (3)
Business Days' prior written notice, specifying (i) the date of the proposed
borrowing (which shall be a Business Day), (ii) the type of
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borrowing and the amount on the date of such Revolving Advance to be borrowed,
which amount shall be in a minimum amount of $1,000,000 and in integral
multiples of $500,000 thereafter, and (iii) the duration of the first Interest
Period therefor. Interest Periods for Eurodollar Rate Loans shall be for one,
two or three months; provided, if an Interest Period would end on a day that is
not a Business Day, it shall end on the next succeeding Business Day unless such
day falls in the next succeeding calendar month in which case the Interest
Period shall end on the next preceding Business Day. No Eurodollar Rate Loan
shall be made available to any Borrower during the continuance of a Default or
an Event of Default or if the conditions set forth in the proviso of the
definition of the term "Revolving Interest Rate" have not been satisfied.
(c) Each Interest Period of a Eurodollar Rate Loan shall commence on
the date such Eurodollar Rate Loan is made and shall end on such date as
Borrowing Agent may elect as set forth in subsection (b)(iii) above provided
that the exact length of each Interest Period shall be determined in accordance
with the practice of the interbank market for offshore Dollar deposits and no
Interest Period shall end after the last day of the Term.
Borrowing Agent shall elect the initial Interest Period applicable to a
Eurodollar Rate Loan by its notice of borrowing given to Agent pursuant to
Section 2.2(b) or by its notice of conversion given to Agent pursuant to Section
2.2(d), as the case may be. Borrowing Agent shall elect the duration of each
succeeding Interest Period by giving irrevocable written notice to Agent of such
duration not less than three (3) Business Days prior to the last day of the then
current Interest Period applicable to such Eurodollar Rate Loan. If Agent does
not receive timely notice of the Interest Period elected by Borrowing Agent,
Borrowers shall be deemed to have elected to convert to a Domestic Rate Loan
subject to Section 2.2(d) hereinbelow.
(d) Provided that no Event of Default shall have occurred and be
continuing, any Borrower may, on the last Business Day of the then current
Interest Period applicable to any outstanding Eurodollar Rate Loan, or on any
Business Day with respect to Domestic Rate Loans, convert any such loan into a
loan of another type in the same aggregate principal amount provided that any
conversion of a Eurodollar Rate Loan shall be made only on the last Business Day
of the then current Interest Period applicable to such Eurodollar Rate Loan. If
a Borrower desires to convert a loan, Borrowing Agent shall give Agent not less
than three (3) Business Days' prior written notice to convert from a Domestic
Rate Loan to a Eurodollar Rate Loan or one (1) Business Day's prior written
notice to convert from a Eurodollar Rate Loan to a Domestic Rate Loan,
specifying the date of such conversion, the loans to be converted and if the
conversion is from a Domestic Rate Loan to a Eurodollar Rate Loan, the duration
of the first Interest Period therefor. After giving effect to each such
conversion, there shall not be outstanding more than three (3) Eurodollar Rate
Loans, in the aggregate.
(e) At its option and upon three (3) Business Days' prior written
notice, any Borrower may prepay the Eurodollar Rate Loans in whole at any time
or in part from time to time, without premium or penalty, but with accrued
interest on the principal being prepaid to the date of such repayment. Such
Borrower shall specify the date of prepayment of Revolving Advances which are
Eurodollar Rate Loans and the amount of such prepayment. In the event that any
prepayment of a Eurodollar Rate Loan is required or permitted on a date other
than the
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last Business Day of the then current Interest Period with respect thereto, such
Borrower shall indemnify Agent and Lenders therefor in accordance with Section
2.2(f) hereof.
(f) Each Borrower shall indemnify Agent and Lenders and hold Agent
and Lenders harmless from and against any and all losses or expenses that Agent
and Lenders may sustain or incur as a consequence of any prepayment, conversion
of or any default by any Borrower in the payment of the principal of or interest
on any Eurodollar Rate Loan or failure by any Borrower to complete a borrowing
of, a prepayment of or conversion of or to a Eurodollar Rate Loan after notice
thereof has been given, including, but not limited to, any interest payable by
Agent or Lenders to lenders of funds obtained by it in order to make or maintain
its Eurodollar Rate Loans hereunder. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by Agent or any Lender to
Borrowing Agent shall be conclusive absent manifest error.
(g) Notwithstanding any other provision hereof, if any applicable
law, treaty, regulation or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender
(for purposes of this subsection (g), the term "Lender" shall include any Lender
and the office or branch where any Lender or any corporation or bank controlling
such Lender makes or maintains any Eurodollar Rate Loans to make or maintain its
Eurodollar Rate Loans, the obligation of Lenders to make Eurodollar Rate Loans
hereunder shall forthwith be cancelled and Borrowers shall, if any affected
Eurodollar Rate Loans are then outstanding, promptly upon request from Agent,
either (at the Borrower's option) pay all such affected Eurodollar Rate Loans or
convert such affected Eurodollar Rate Loans into loans of another type. If any
such payment or conversion of any Eurodollar Rate Loan is made on a day that is
not the last day of the Interest Period applicable to such Eurodollar Rate Loan,
Borrowers shall pay Agent, upon Agent's request, such amount or amounts as may
be necessary to compensate Lenders for any loss or expense sustained or incurred
by Lenders in respect of such Eurodollar Rate Loan as a result of such payment
or conversion, including (but not limited to) any interest or other amounts
payable by Lenders to lenders of funds obtained by Lenders in order to make or
maintain such Eurodollar Rate Loan. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by any Lender to Borrowing
Agent shall be conclusive absent manifest error.
2.3 Disbursement of Revolving Advance Proceeds. All Revolving Advances
shall be disbursed from whichever office or other place Agent may designate from
time to time and, together with any and all other Obligations of Borrowers to
Agent or Lenders, shall be charged to Borrowers' Account on Agent's books.
During the Term, Borrowers may use the Revolving Advances by borrowing,
prepaying and reborrowing, all in accordance with the terms and conditions
hereof. The proceeds of each Revolving Advance requested by Borrowers or deemed
to have been requested by Borrowers under Section 2.2(a) hereof shall, with
respect to requested Revolving Advances to the extent Lenders make such
Revolving Advances, be made available to the applicable Borrower on the day so
requested by way of credit to VISTA's operating account at PNC, or such other
bank as Borrowing Agent may designate following notification to Agent, in
immediately available federal funds or other immediately available funds or,
with respect to Revolving Advances deemed to have been requested by any
Borrower, be disbursed to Agent to be applied to the outstanding Obligations
giving rise to such deemed request.
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2.4 [intentionally omitted]
2.5 Maximum Revolving Advances. The aggregate balance of Revolving
Advances outstanding at any time shall not exceed the lesser of (a) Maximum
Revolving Advance Amount or (b) the Formula Amount.
2.6 Repayment of Revolving Advances.
(a) The Revolving Advances shall be due and payable in full on the
last day of the Term subject to earlier prepayment as herein provided.
(b) Each Borrower recognizes that the amounts evidenced by checks,
notes, drafts or any other items of payment relating to and/or proceeds of
Collateral may not be collectible by Agent on the date received. In
consideration of Agent's agreement to conditionally credit Borrowers' Account as
of the Business Day on which Agent receives those items of payment, each
Borrower agrees that, in computing the charges under this Agreement, all items
of payment shall be deemed applied by Agent on account of the Obligations one
(1) Business Day after the Business Day Agent receives such payments via wire
transfer or electronic depository check. Agent is not, however, required to
credit Borrowers' Account for the amount of any item of payment which is
unsatisfactory to Agent and Agent may charge Borrowers' Account for the amount
of any item of payment which is returned to Agent unpaid.
(c) All payments of principal, interest and other amounts payable
hereunder, or under any of the Other Documents shall be made to Agent at the
Payment Office not later than 1:00 P.M. (New York Time) on the due date therefor
in lawful money of the United States of America in federal funds or other funds
immediately available to Agent. Agent shall have the right to effectuate payment
on any and all Obligations due and owing hereunder by charging Borrowers'
Account or by making Revolving Advances as provided in Section 2.2 hereof.
(d) Borrowers shall pay principal, interest, and all other amounts
payable hereunder, or under any related agreement, without any deduction
whatsoever, including, but not limited to, any deduction for any setoff or
counterclaim.
2.7 Repayment of Excess Revolving Advances. The aggregate balance of
Revolving Advances outstanding at any time in excess of the maximum amount of
Revolving Advances permitted hereunder shall be immediately due and payable
without the necessity of any demand, at the Payment Office, whether or not a
Default or Event of Default has occurred.
2.8 Statement of Account. Agent shall maintain, in accordance with its
customary procedures, a loan account ("Borrowers' Account") in the name of
Borrowers in which shall be recorded the date and amount of each Revolving
Advance made by Agent and the date and amount of each payment in respect
thereof; provided, however, the failure by Agent to record the date and amount
of any Revolving Advance shall not adversely affect Agent or any Lender. Each
month, Agent shall send to Borrowing Agent a statement showing the accounting
for the Revolving Advances made, payments made or credited in respect thereof,
and other transactions between Agent and Borrowers, during such month. The
monthly statements shall be deemed correct and binding upon Borrowers in the
absence of manifest error and shall constitute an account stated between Lenders
and Borrowers unless Agent receives a written statement of
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Borrowers' specific exceptions thereto within thirty (30) days after such
statement is received by Borrowing Agent. The records of Agent with respect to
the loan account shall be conclusive evidence absent manifest error of the
amounts of Revolving Advances and other charges thereto and of payments
applicable thereto.
2.9 [Intentionally Omitted.]
2.10 [Intentionally Omitted.]
2.11 [Intentionally Omitted.]
2.12 Additional Payments. Any sums expended by Agent or any Lender due to
any Borrower's failure to perform or comply with its obligations under this
Agreement or any Other Document including, without limitation, any Borrower's
obligations under Sections 4.2, 4.4, 4.12, 4.13, 4.14 and 6.1 hereof, may be
charged to Borrowers' Account as a Revolving Advance and added to the
Obligations.
2.13 Manner of Borrowing and Payment.
(a) Each borrowing of Revolving Advances shall be advanced according
to the applicable Commitment Percentages of Lenders.
(b) Each payment (including each prepayment) by Borrowers on account
of the principal of and interest on the Revolving Advances shall be applied to
the Revolving Advances pro rata according to the applicable Commitment
Percentages of Lenders. Except as expressly provided herein, all payments
(including prepayments) to be made by any Borrower on account of principal,
interest and fees shall be made without set off or counterclaim and shall be
made to Agent on behalf of the Lenders to the Payment Office, in each case on or
prior to 1:00 P.M., New York time, in Dollars and in immediately available
funds.
(c) (i) Notwithstanding anything to the contrary contained in
Sections 2.13(a) and (b) hereof, commencing with the first Business Day
following the Closing Date, each borrowing of Revolving Advances shall be
advanced by Agent and each payment by any Borrower on account of Revolving
Advances shall be applied first to those Revolving Advances advanced by Agent.
On or before 1:00 P.M., New York time, on each Settlement Date commencing with
the first Settlement Date following the Closing Date, Agent and Lenders shall
make certain payments as follows: (I) if the aggregate amount of new Revolving
Advances made by Agent during the preceding Week (if any) exceeds the aggregate
amount of repayments applied to outstanding Revolving Advances during such
preceding Week, then each Lender shall provide Agent with funds in an amount
equal to its applicable Commitment Percentage of the difference between (w) such
Revolving Advances and (x) such repayments and (II) if the aggregate amount of
repayments applied to outstanding Revolving Advances during such Week exceeds
the aggregate amount of new Revolving Advances made during such Week, then Agent
shall provide each Lender with funds in an amount equal to its applicable
Commitment Percentage of the difference between (y) such repayments and (z) such
Revolving Advances.
(ii) Each Lender shall be entitled to earn interest at the
applicable Revolving Interest Rate on outstanding Revolving Advances which it
has funded.
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(iii) Promptly following each Settlement Date, Agent shall
submit to each Lender a certificate with respect to payments received and
Revolving Advances made during the Week immediately preceding such Settlement
Date. Such certificate of Agent shall be conclusive in the absence of manifest
error.
(d) If any Lender or Participant (a "benefited Lender") shall at any
time receive any payment of all or part of its Revolving Advances, or interest
thereon, or receive any Collateral in respect thereof (whether voluntarily or
involuntarily or by set-off) in a greater proportion than any such payment to
and Collateral received by any other Lender, if any, in respect of such other
Lender's Revolving Advances, or interest thereon, and such greater proportionate
payment or receipt of Collateral is not expressly permitted hereunder, such
benefited Lender shall purchase for cash from the other Lenders a participation
in such portion of each such other Lender's Revolving Advances, or shall provide
such other Lender with the benefits of any such Collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such Collateral or proceeds ratably with each of
the other Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Lender so purchasing a
portion of another Lender's Revolving Advances may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(e) Unless Agent shall have been notified by telephone, confirmed in
writing, by any Lender that such Lender will not make the amount which would
constitute its applicable Commitment Percentage of the Revolving Advances
available to Agent, Agent may (but shall not be obligated to) assume that such
Lender shall make such amount available to Agent on the next Settlement Date
and, in reliance upon such assumption, make available to Borrowers a
corresponding amount. Agent will promptly notify Borrowers of its receipt of any
such notice from a Lender. If such amount is made available to Agent on a date
after such next Settlement Date, such Lender shall pay to Agent on demand an
amount equal to the product of (i) the daily average Federal Funds Rate
(computed on the basis of a year of 360 days) during such period as quoted by
Agent, times (ii) such amount, times (iii) the number of days from and including
such Settlement Date to the date on which such amount becomes immediately
available to Agent. A certificate of Agent submitted to any Lender with respect
to any amounts owing under this paragraph (e) shall be conclusive, in the
absence of manifest error. If such amount is not in fact made available to Agent
by such Lender within three (3) Business Days after such Settlement Date, Agent
shall be entitled to recover such an amount, with interest thereon at the rate
per annum then applicable to such Revolving Advances hereunder, on demand from
Borrowers; provided, however, that Agent's right to such recovery shall not
prejudice or otherwise adversely affect Borrowers' rights (if any) against such
Lender.
2.14 Mandatory Prepayments. Subject to Section 4.3 hereof, when any
Borrower sells or otherwise disposes of any Collateral (other than Inventory in
the ordinary course of business), Borrowers shall repay the Revolving Advances
in an amount equal to the net proceeds of such sale (i.e., gross proceeds less
the reasonable costs of such sales or other dispositions), such repayments to be
made promptly but in no event more than one (1) Business Day following receipt
of such net proceeds, and until the date of payment, such proceeds shall be held
in trust
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for Agent. The foregoing shall not be deemed to be implied consent to any such
sale otherwise prohibited by the terms and conditions hereof. Such repayments
shall be applied to the Revolving Advances in such order as Agent may determine,
subject to Borrower's ability to reborrow Revolving Advances in accordance with
the terms hereof.
2.15 Use of Proceeds. Borrowers shall apply the proceeds of Revolving
Advances to (i) repay existing working capital indebtedness owed to Subordinated
Lender in the outstanding principal amount of $7,500,000, (ii) pay fees and
expenses relating to this transaction, and (iii) to provide for their working
capital needs.
2.16 Defaulting Lender.
(a) Notwithstanding anything to the contrary contained herein, in
the event any Lender (x) has refused (which refusal constitutes a breach by such
Lender of its obligations under this Agreement) to make available its portion of
any Revolving Advance or (y) notifies either Agent or Borrowing Agent that it
does not intend to make available its portion of any Revolving Advance (if the
actual refusal would constitute a breach by such Lender of its obligations under
this Agreement) (each, a "Lender Default"), all rights and obligations hereunder
of such Lender (a "Defaulting Lender") as to which a Lender Default is in effect
and of the other parties hereto shall be modified to the extent of the express
provisions of this Section 2.16 while such Lender Default remains in effect.
(b) Revolving Advances shall be incurred pro rata from Lenders (the
"Non-Defaulting Lenders") which are not Defaulting Lenders based on their
respective Commitment Percentages, and no Commitment Percentage of any Lender or
any pro rata share of any Revolving Advances required to be advanced by any
Lender shall be increased as a result of such Lender Default. Amounts received
in respect of principal of any type of Revolving Advances shall be applied to
reduce the applicable Revolving Advances of each Lender pro rata based on the
aggregate of the outstanding Revolving Advances of that type of all Lenders at
the time of such application; provided, that, such amount shall not be applied
to any Revolving Advances of a Defaulting Lender at any time when, and to the
extent that, the aggregate amount of Revolving Advances of any Non-Defaulting
Lender exceeds such Non-Defaulting Lender's Commitment Percentage of all
Revolving Advances then outstanding.
(c) A Defaulting Lender shall not be entitled to give instructions
to Agent or to approve, disapprove, consent to or vote on any matters relating
to this Agreement and the Other Documents. All amendments, waivers and other
modifications of this Agreement and the Other Documents may be made without
regard to a Defaulting Lender and, for purposes of the definition of "Required
Lenders", a Defaulting Lender shall be deemed not to be a Lender and not to have
Revolving Advances outstanding.
(d) Other than as expressly set forth in this Section 2.16, the
rights and obligations of a Defaulting Lender (including the obligation to
indemnify Agent) and the other parties hereto shall remain unchanged. Nothing in
this Section 2.16 shall be deemed to release any Defaulting Lender from its
obligations under this Agreement and the Other Documents, shall alter such
obligations, shall operate as a waiver of any default by such Defaulting Lender
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hereunder, or shall prejudice any rights which any Borrower, Agent or any Lender
may have against any Defaulting Lender as a result of any default by such
Defaulting Lender hereunder.
(e) In the event a Defaulting Lender retroactively cures to the
satisfaction of Agent the breach which caused such Lender to become a Defaulting
Lender, such Defaulting Lender shall no longer be a Defaulting Lender and shall
be treated as a Lender under this Agreement.
III. INTEREST AND FEES.
3.1 Interest. Interest on Revolving Advances shall be payable in arrears
on the first day of each month with respect to Domestic Rate Loans and, with
respect to Eurodollar Rate Loans, at the end of each Interest Period. Interest
charges shall be computed on the actual principal amount of Revolving Advances
outstanding during the month (the "Monthly Advances") at a rate per annum equal
to the applicable Revolving Interest Rate. Whenever, subsequent to the date of
this Agreement, the Alternate Base Rate is increased or decreased, the Revolving
Interest Rate for Domestic Rate Loans shall be similarly changed without notice
or demand of any kind by an amount equal to the amount of such change in the
Alternate Base Rate during the time such change or changes remain in effect. The
Eurodollar Rate shall be adjusted with respect to Eurodollar Rate Loans without
notice or demand of any kind on the effective date of any change in the Reserve
Percentage as of such effective date. Upon and after the occurrence of an Event
of Default, and during the continuation thereof, (i) the Obligations other than
Eurodollar Rate Loans shall bear interest at the Revolving Interest Rate for
Domestic Loans plus two percent (2%) per annum (the "Default Rate") and (ii)
Eurodollar Rate Loans shall bear interest at the Revolving Interest Rate for
Eurodollar Rate Loans plus two percent (2%) per annum.
3.2 [Intentionally Omitted.]
3.3 (a) Closing Fee. Upon the execution of this Agreement, Borrowers
shall pay to Agent for the ratable benefit of Lenders a closing fee of $75,000
less that portion of the deposit fee of $45,000 heretofore paid by Borrowers to
Agent remaining after application of such fee to out of pocket expenses.
(b) Facility Fee. If, for any month during the Term, the average
daily unpaid balance of the Revolving Advances for each day of such month does
not equal the Maximum Revolving Advance Amount, then Borrowers shall pay to
Agent for the ratable benefit of Lenders a fee at a rate equal to one half of
one percent (0.50%) per annum on the amount by which the Maximum Revolving
Advance Amount exceeds such average daily unpaid balance. Such fee shall be
calculated on the basis of a 360-day year for the actual number of days elapsed
and shall be payable to Agent quarterly in arrears on the last day of each
fiscal quarter of Vista (with the first such payment due June 30, 2000).
3.4 (a) Collateral Evaluation Fee. Borrowers shall pay Agent a
collateral evaluation fee equal to $3,000 per month for up to three (3)
Borrowers whose assets are included in the calculation of the Formula Amount,
plus $1,000 for each additional Borrower whose assets are so included,
commencing on the first day of the month following the Closing Date and on the
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first day of each month thereafter until payment in full of the Obligations and
termination of this Agreement. The collateral evaluation fee shall be deemed
earned in full on the date when same is due and payable hereunder and shall not
be subject to rebate or proration upon termination of this Agreement for any
reason.
(b) Collateral Monitoring Fee. Borrowers shall pay to Agent on the
first day of each month following any month in which Agent performs any
collateral monitoring - namely any field examination, collateral analysis or
other business analysis, the need for which is to be determined by Agent and
which monitoring is undertaken by Agent or for Agent's benefit - a collateral
monitoring fee in an amount equal to $750 per day for each person (including
Agent's management personnel) employed to perform such monitoring, plus all
costs and disbursements incurred by Agent in the performance of such examination
or analysis.
3.5 Computation of Interest and Fees. Interest and fees hereunder shall be
computed on the basis of a year of 360 days and for the actual number of days
elapsed. If any payment to be made hereunder becomes due and payable on a day
other than a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and interest thereon shall be payable at the Revolving
Interest Rate for Domestic Rate Loans during such extension.
For purposes of disclosure under the Interest Act (Canada), where interest is
calculated pursuant hereto at a rate based upon a 360 day year (the "First
Rate"), it is hereby agreed that the rate or percentage of interest on a yearly
basis is equivalent to such First Rate multiplied by the actual number of days
in the year divided by 360.
3.6 Maximum Charges. In no event whatsoever shall interest and other
charges charged hereunder exceed the highest rate permissible under law. In the
event interest and other charges as computed hereunder would otherwise exceed
the highest rate permitted under law, such excess amount shall be first applied
to any unpaid principal balance owed by Borrowers, and if the then remaining
excess amount is greater than the previously unpaid principal balance, Lenders
shall promptly refund such excess amount to Borrowers and the provisions hereof
shall be deemed amended to provide for such permissible rate.
In no event shall the aggregate "interest" (as defined in Section 347 of the
Criminal Code (Canada), as amended or replaced from time to time) payable under
this Agreement exceed the effective annual rate of interest on the "credit
advanced" (as defined in that section) under this Agreement lawfully permitted
under that section. To the extent that any payment or demand under this
Agreement is determined to be contrary to that section, such payment or demand
shall be deemed to have been made by mutual mistake of the applicable Borrower,
Agent and Lenders and the amount of any such payment (to such extent) shall be
repaid to such Borrower. For purposes of this Agreement, the effective annual
rate of interest shall be determined over the term of the Loan on the basis of
annual compounding. In the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by Agent will be conclusive in the
absence of manifest error for the purposes of such determination. No Borrower
shall have any action against Agent or any Lender for any damages whatsoever
arising out of the payment or collection of any amounts in excess of the amounts
of interest lawfully permitted to be paid pursuant to the Criminal Code
(Canada). The parties agree that (i) the principle of deemed reinvestment of
interest shall not apply to any interest calculation under this Agreement, and
(ii)
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the rates of interest stipulated in this Agreement are intended to be nominal
rates and not effective rates or yields.
3.7 Increased Costs. In the event that any applicable law, treaty or
governmental regulation, or any change therein or in the interpretation or
application thereof, or compliance by any Lender (for purposes of this Section
3.7, the term "Lender" shall include Agent or any Lender and any corporation or
bank controlling Agent or any Lender) and the office or branch where Agent or
any Lender (as so defined) makes or maintains any Eurodollar Rate Loans with any
request or directive (whether or not having the force of law) from any central
bank or other financial, monetary or other authority, shall:
(a) subject Agent or any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Other Document or change the basis of
taxation of payments to Agent or any Lender of principal, fees, interest or any
other amount payable hereunder or under any Other Documents (except for changes
in the rate of tax on the overall net income of Agent or any Lender by the
jurisdiction in which it maintains its principal office);
(b) impose, modify or hold applicable any reserve, special deposit,
assessment or similar requirement against assets held by, or deposits in or for
the account of, advances or loans by, or other credit extended by, any office of
Agent or any Lender, including (without limitation) pursuant to Regulation D of
the Board of Governors of the Federal Reserve System; or
(c) impose on Agent or any Lender or the London interbank Eurodollar
market any other condition with respect to this Agreement or any Other Document;
and the result of any of the foregoing is to increase the cost to Agent or any
Lender of making, renewing or maintaining its Revolving Advances hereunder by an
amount that Agent or such Lender deems to be material or to reduce the amount of
any payment (whether of principal, interest or otherwise) in respect of any of
the Revolving Advances by an amount that Agent or such Lender deems to be
material, then, in any case Borrowers shall promptly pay Agent or such Lender,
upon its demand, such additional amount as will compensate Agent or such Lender
for such additional cost or such reduction, as the case may be, provided that
the foregoing shall not apply to increased costs which are reflected in the
Eurodollar Rate. Agent or such Lender shall certify the amount of such
additional cost or reduced amount to Borrowers, and such certification shall be
conclusive absent manifest error.
3.8 Basis For Determining Interest Rate Inadequate or Unfair. In the event
that Agent or any Lender shall have determined that:
(a) reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period; or
(b) Dollar deposits in the relevant amount and for the relevant
maturity are not available in the London interbank Eurodollar market, with
respect to an outstanding Eurodollar Rate Loan, a proposed Eurodollar Rate Loan,
or a proposed conversion of a Domestic Rate Loan into a Eurodollar Rate Loan;
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then Agent shall give Borrowing Agent prompt written, telephonic or telegraphic
notice of such determination. If such notice is given, (i) any such requested
Eurodollar Rate Loan shall be made as a Domestic Rate Loan, unless Borrowing
Agent shall notify Agent no later than 10:00 a.m. (New York City time) two (2)
Business Days prior to the date of such proposed borrowing, that its request for
such borrowing shall be cancelled or made as an unaffected type of Eurodollar
Rate Loan, (ii) any Domestic Rate Loan or Eurodollar Rate Loan which was to have
been converted to a Eurodollar Rate Loan shall be continued as or converted into
a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than
10:00 a.m. (New York City time) two (2) Business Days prior to the proposed
conversion, shall be maintained as an unaffected type of Eurodollar Rate Loan,
and (iii) any outstanding affected Eurodollar Rate Loans shall be converted into
a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than
10:00 a.m. (New York City time) two (2) Business Days prior to the last Business
Day of the then current Interest Period applicable to such affected Eurodollar
Rate Loan, shall be converted into an unaffected type of Eurodollar Rate Loan,
on the last Business Day of the then current Interest Period for such affected
Eurodollar Rate Loans. Until such notice has been withdrawn, Lenders shall have
no obligation to make an affected type of Eurodollar Rate Loan or maintain
outstanding affected Eurodollar Rate Loans and no Borrower shall have the right
to convert a Domestic Rate Loan or an unaffected type of Eurodollar Rate Loan
into an affected type of Eurodollar Rate Loan.
3.9 Capital Adequacy.
(a) In the event that Agent or any Lender shall have determined that
any applicable law, rule, treaty, regulation or guideline regarding capital
adequacy, reserve requirements or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Agent or any Lender (for purposes of this Section 3.9,
the term "Lender" shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or any
Lender (as so defined) makes or maintains any Eurodollar Rate Loans with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on Agent or any Lender's capital
as a consequence of its obligations hereunder to a level below that which Agent
or such Lender could have achieved but for such adoption, change or compliance
(taking into consideration Agent's and each Lender's policies with respect to
capital adequacy) by an amount deemed by Agent or any Lender to be material,
then, from time to time, Borrowers shall pay upon demand to Agent or such Lender
such additional amount or amounts as will compensate Agent or such Lender for
such reduction. In determining such amount or amounts, Agent or such Lender may
use any reasonable averaging or attribution methods. The protection of this
Section 3.9 shall be available to Agent and each Lender regardless of any
possible contention of invalidity or inapplicability with respect to the
applicable law, regulation or condition.
(b) A certificate of Agent or such Lender setting forth such amount
or amounts as shall be necessary to compensate Agent or such Lender with respect
to Section 3.9(a) hereof when delivered to Borrowers shall be conclusive absent
manifest error.
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3.10 Taxes.
(1) No Deductions. Any and all payments or
reimbursements made by a Borrower hereunder shall be made free and clear of and
without deduction for any and all present and future taxes, surtaxes, duties,
levies, imposts, rates, fees, assessments, withholdings, dues and other charges
of any nature imposed by any governmental authority (including income, capital
(including large corporations), withholding, consumption, sales, use, transfer,
goods and services or other value-added, excise, customs, anti-dumping,
countervail, net worth, stamp, registration, franchise, payroll, employment,
health, education, business, school, property, local improvement, development,
education development and occupation taxes, surtaxes, duties, levies, imposts,
rates, fees, assessments, withholdings, dues and charges) together with all
fines, interest, penalties on or in respect of, or in lieu of or for
non-collection of, those taxes, surtaxes, duties, levies, imposts, rates, fees,
assessments, withholdings, dues and other charges (excluding taxes imposed on
the net income or capital of Agent or any Lender) ("Taxes"); excluding, however,
the following: taxes imposed on the net income or capital of any Lender or Agent
by the jurisdiction under the laws of which Agent or such Lender is organized or
is resident or carrying on business or any political subdivision thereof and
taxes imposed on its net income or capital by the jurisdiction of Agent's or
such Lender's applicable lending office or any political subdivision thereof .
If any Borrower shall be required by law or by the interpretation or
administration thereof to deduct or withhold any such Taxes from or in respect
of any sum payable hereunder or under this Agreement or any Other Document to
Agent or any Lender, then the Borrower will pay such additional amounts
("Additional Amounts") as may be necessary so that every net payment under this
Agreement (including Additional Amounts) after withholding or deduction for or
on account of such Taxes will not be less than the amount the Agent and Lenders
would have received if such Taxes had not been withheld or deducted . The
applicable Borrower will also (i) make such withholding or deduction and (ii)
remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. The applicable Borrower will furnish to Agent,
within 15 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by such
Borrower. The applicable Borrower will indemnify and hold Agent and Lenders
harmless against and upon written request shall reimburse Agent and Lenders for
the amount of (i) any Taxes levied or imposed and paid by the Lenders as a
result of payments in respect of any Revolving Advances (including any such
Taxes imposed with respect to such reimbursement) and (ii) any liability
(including penalties, interest and expenses) arising from or with respect to
such Taxes described in (1).
(2) Changes in Tax Laws. In the event that, after the
date hereof, (i) any changes in any existing law, regulation, treaty or
directive or in the interpretation or application thereof, (ii) any new law,
regulation, treaty or directive enacted or any interpretation or application
thereof, or (iii) compliance by Agent or any Lender with any request or
directive (whether or not having the force of law) from any governmental
authority, agency or instrumentality does or shall subject Agent or any Lender
to any tax of any kind whatsoever or causes the withdrawal or termination of a
previously granted tax exemption with respect to this Agreement, the Other
Documents or any Loans made, or change the basis of taxation of payments to
Agent or such Lender of principal, fees, interest or any other amount payable
hereunder (except for net income taxes or capital taxes, or franchise taxes
imposed in lieu of net income taxes or capital taxes, or changes in the rate of
tax on the overall net income or capital of
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Agent or such Lender) and the result of any of the foregoing is to increase the
cost to Agent or such Lender of making or continuing any Loan hereunder, as the
case may be, or to reduce any amount receivable hereunder; then, in any such
case, Borrowers shall promptly pay to Agent or such Lender, upon its demand, any
additional amounts necessary to compensate Agent or such Lender, on an after-tax
basis, for such additional cost or reduced amount receivable, as determined by
Agent or such Lender with respect to this Agreement or the Other Documents. If
Agent or any Lender becomes entitled to claim any additional amounts pursuant to
this subsection, it shall promptly notify Borrowers of the event by reason of
which Agent or such Lender has become so entitled (with any such Lender
concurrently notifying Agent). A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by Agent or any Lender to
Borrowers shall, absent manifest error, be final, conclusive and binding for all
purposes.
(3) Survival. Without prejudice to the survival of any
other agreement of any Loan Party under this Agreement, the agreements and
obligations of each Borrower contained in this Section 3.10 shall survive the
Termination Date.
IV. COLLATERAL: GENERAL TERMS.
4.1 Security Interest in the Collateral. To secure the prompt payment and
performance to Agent and each Lender of the Obligations, each Borrower hereby
assigns, pledges and grants to Agent for its benefit and for the ratable benefit
of each Lender a continuing security interest in and to all of its Collateral,
whether now owned or existing or hereafter acquired or arising and wheresoever
located. Each Borrower shall xxxx its books and records as may be necessary or
appropriate to evidence, protect and perfect Agent's security interest and shall
cause its financial statements to reflect such security interest.
4.2 Perfection of Security Interest. Each Borrower shall take all action
that may be necessary or desirable, or that Agent may request, so as at all
times to maintain the validity, perfection, enforceability and priority of
Agent's security interest in the Collateral or to enable Agent to protect,
exercise or enforce its rights hereunder and in the Collateral, including, but
not limited to, (i) immediately discharging all Liens other than Permitted
Encumbrances, (ii) obtaining landlords' or mortgagees' lien waivers, (iii)
delivering to Agent, endorsed or accompanied by such instruments of assignment
as Agent may specify, and stamping or marking, in such manner as Agent may
specify, any and all chattel paper, instruments, letters of credits and advices
thereof and documents evidencing or forming a part of the Collateral, (iv)
entering into warehousing, lockbox and other custodial arrangements satisfactory
to Agent, and (v) executing and delivering financing statements, instruments of
pledge, mortgages, hypothecs notices and assignments, in each case in form and
substance satisfactory to Agent, relating to the creation, validity, perfection,
maintenance or continuation of Agent's security interest under the Uniform
Commercial Code, Personal Property Security Legislation or other applicable law.
Agent is hereby authorized to file financing statements signed by Agent instead
of Borrower in accordance with the Uniform Commercial Code as adopted in the
State of New York or any other Personal Property Security Legislation. All
charges, expenses and fees Agent may incur in doing any of the foregoing, and
any taxes relating thereto, shall be charged to Borrowers' Account as a
Revolving Advance of a Domestic Rate Loan and added to the Obligations, or, at
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Agent's option, shall be paid to Agent for the ratable benefit of Lenders
immediately upon demand.
4.3 Disposition of Collateral. Each Borrower will safeguard and protect
all Collateral for Agent's general account and make no disposition thereof
whether by sale, lease or otherwise except (a) the sale of Inventory in the
ordinary course of business and (b) the disposition or transfer of obsolete and
worn-out Equipment in the ordinary course of business during any fiscal year
having an aggregate fair market value of not more than $100,000 and only to the
extent that the proceeds thereof are remitted to Agent to be applied pursuant to
Section 2.14. Reference is made to Section 14 of the Subordination Agreement
which may contain provisions (including, without limitation, notice provisions)
applicable to releases of Collateral.
4.4 Preservation of Collateral. During the continuance of a Default or
Event of Default, in addition to the rights and remedies set forth in Section
11.1 hereof, Agent: (a) may at any time take such steps as Agent deems necessary
to protect Agent's interest in and to preserve the Collateral, including the
hiring of such security guards or the placing of other security protection
measures as Agent may deem appropriate; (b) may employ and maintain at any of
any Borrower's premises a custodian who shall have full authority to do all acts
necessary to protect Agent's interests in the Collateral; (c) may lease
warehouse facilities to which Agent may move all or part of the Collateral; (d)
may use any Borrower's owned or leased lifts, hoists, trucks and other
facilities or equipment for handling or removing the Collateral; and (e) shall
have, and is hereby granted, a right of ingress and egress to the places where
the Collateral is located, and may proceed over and through any of Borrower's
owned or leased property. Each Borrower shall cooperate fully with all of
Agent's efforts to preserve the Collateral and will take such actions to
preserve the Collateral as Agent may direct. All of Agent's expenses of
preserving the Collateral, including any expenses relating to the bonding of a
custodian, shall be charged to Borrowers' Account as a Revolving Advance of a
Domestic Rate Loan and added to the Obligations.
4.5 Ownership of Collateral. With respect to the Collateral, at the time
the Collateral becomes subject to Agent's security interest: (a) each Borrower
shall be the sole owner of and fully authorized and able to sell, transfer,
pledge and/or grant a first priority security interest in each and every item of
its respective Collateral to Agent; and, except for Permitted Encumbrances the
Collateral shall be free and clear of all Liens and encumbrances whatsoever; (b)
each document and agreement executed by each Borrower or delivered to Agent or
any Lender in connection with this Agreement shall be true and correct in all
respects; (c) all signatures and endorsements of each Borrower that appear on
such documents and agreements shall be genuine and each Borrower shall have full
capacity to execute same; and (d) each Borrower's Equipment and Inventory shall
be located as set forth on Schedule 4.5 and shall not be removed from such
location(s) without the prior written consent of Agent except with respect to
the sale of Inventory in the ordinary course of business and Equipment to the
extent permitted in Section 4.3 hereof.
4.6 Defense of Agent's and Lenders' Interests. Until (a) payment and
performance in full of all of the Obligations and (b) termination of this
Agreement, Agent's interests in the Collateral shall continue in full force and
effect. During such period no Borrower shall, without Agent's prior written
consent, pledge, sell (except Inventory in the ordinary course of business
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and Equipment to the extent permitted in Section 4.3 hereof), assign, transfer,
create or suffer to exist a Lien upon or encumber or allow or suffer to be
encumbered in any way except for Permitted Encumbrances, any part of the
Collateral. Each Borrower shall defend Agent's interests in the Collateral
against any and all Persons whatsoever. At any time during the continuance of an
Event of Default, Agent shall have the right to take possession of the indicia
of the Collateral and the Collateral in whatever physical form contained,
including without limitation: labels, stationery, documents, instruments and
advertising materials. If Agent exercises this right to take possession of the
Collateral, Borrowers shall, upon demand, assemble it in the best manner
possible and make it available to Agent at a place reasonably convenient to
Agent. In addition, with respect to all Collateral, Agent and Lenders shall be
entitled to all of the rights and remedies set forth herein and further provided
by the Uniform Commercial Code or other applicable law. Each Borrower shall, and
Agent may, at its option, instruct all suppliers, carriers, forwarders,
warehousers or others receiving or holding cash, checks, Inventory, documents or
instruments in which Agent holds a security interest to deliver same to Agent
and/or subject to Agent's order and if they shall come into any Borrower's
possession, they, and each of them, shall be held by such Borrower in trust as
Agent's trustee, and such Borrower will immediately deliver them to Agent in
their original form together with any necessary endorsement.
4.7 Books and Records. Each Borrower shall (a) keep proper books of record
and account in which full, true and correct entries will be made of all dealings
or transactions of or in relation to its business and affairs; (b) set up on its
books accruals with respect to all taxes, assessments, charges, levies and
claims; and (c) on a reasonably current basis set up on its books, from its
earnings, allowances against doubtful Receivables, advances and investments and
all other proper accruals (including without limitation by reason of
enumeration, accruals for premiums, if any, due on required payments and
accruals for depreciation, obsolescence, or amortization of properties), which
should be set aside from such earnings in connection with its business. All
determinations pursuant to this subsection shall be made in accordance with, or
as required by, GAAP consistently applied in the opinion of such independent
public accountant as shall then be regularly engaged by Borrowing Agent.
4.8 Financial Disclosure. Each Borrower hereby irrevocably authorizes and
directs all accountants and auditors employed by such Borrower at any time
during the Term to exhibit and deliver to Agent and each Lender copies of any of
any Borrower's financial statements, trial balances or other accounting records
of any sort in the accountant's or auditor's possession, and to disclose to
Agent and each Lender any information such accountants may have concerning such
Borrower's financial status and business operations. Each Borrower hereby
authorizes all federal, state, provincial and municipal authorities to furnish
to Agent and each Lender copies of reports or examinations relating to such
Borrower, whether made by such Borrower or otherwise; however, Agent and each
Lender will attempt to obtain such information or materials directly from such
Borrower prior to obtaining such information or materials from such accountants
or such authorities.
4.9 Compliance with Laws. Each Borrower shall comply with all acts, rules,
regulations and orders of any legislative, administrative or judicial body or
official applicable to its respective Collateral or any part thereof or to the
operation of such Borrower's business the non-compliance with which could
reasonably be expected to have a Material Adverse Effect on
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such Borrower. Each Borrower may, however, contest or dispute any acts, rules,
regulations, orders and directions of those bodies or officials in any
reasonable manner, provided that any related Lien is inchoate or stayed and
sufficient reserves are established to the reasonable satisfaction of Agent to
protect Agent's Lien on or security interest in the Collateral. The assets of
Borrowers at all times shall be maintained in accordance with the requirements
of all insurance carriers which provide insurance with respect to the assets of
Borrowers so that such insurance shall remain in full force and effect.
4.10 Inspection of Premises. At all reasonable times Agent and each Lender
shall have full access to and the right to audit, check, inspect and make
abstracts and copies from each Borrower's books, records, audits, correspondence
and all other papers relating to the Collateral and the operation of each
Borrower's business. Agent, any Lender and their agents may enter upon any of
each Borrower's premises at any time during business hours and at any other
reasonable time, and from time to time, for the purpose of inspecting the
Collateral and any and all records pertaining thereto and the operation of such
Borrower's business.
4.11 Insurance. Each Borrower shall bear the full risk of any loss of any
nature whatsoever with respect to the Collateral. At each Borrower's own cost
and expense in amounts and with carriers acceptable to Agent, each Borrower
shall (a) keep all its insurable properties and properties in which each
Borrower has an interest insured against the hazards of fire, flood, sprinkler
leakage, those hazards covered by extended coverage insurance and such other
hazards, and for such amounts, as is customary in the case of companies engaged
in businesses similar to such Borrower's including, without limitation, business
interruption insurance; (b) maintain a bond in such amounts as is customary in
the case of companies engaged in businesses similar to such Borrower insuring
against larceny, embezzlement or other criminal misappropriation of insured's
officers and employees who may either singly or jointly with others at any time
have access to the assets or funds of such Borrower either directly or through
authority to draw upon such funds or to direct generally the disposition of such
assets; (c) maintain public and product liability insurance against claims for
personal injury, death or property damage suffered by others; (d) maintain all
such worker's compensation or similar insurance as may be required under the
laws of any state or jurisdiction in which such Borrower is engaged in business;
(e) furnish Agent with (i) copies of all policies and evidence of the
maintenance of such policies by the renewal thereof at least thirty (30) days
before any expiration date, and (ii) appropriate loss payable endorsements in
form and substance satisfactory to Agent, naming Agent as a co-insured and loss
payee as its interests may appear with respect to all insurance coverage
referred to in clauses (a), and (c) above, and providing (A) that all proceeds
thereunder shall be payable to Agent, (B) no such insurance shall be affected by
any act or neglect of the insured or owner of the property described in such
policy, and (C) that such policy and loss payable clauses may not be cancelled,
amended or terminated unless at least thirty (30) days' prior written notice is
given to Agent. In the event of any loss thereunder, the carriers named therein
hereby are directed by Agent and the applicable Borrower to make payment for
such loss to Agent and not to such Borrower and Agent jointly. If any insurance
losses are paid by check, draft or other instrument payable to any Borrower and
Agent jointly, Agent may endorse such Borrower's name thereon and do such other
things as Agent may deem advisable to reduce the same to cash. Agent is hereby
authorized to adjust and compromise claims under insurance coverage referred to
in clauses (a), and (b)above. All loss recoveries received by Agent upon any
such insurance may be applied to the Obligations, in such order as Agent in its
sole discretion shall determine. Any
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surplus shall be paid by Agent to Borrowers or applied as may be otherwise
required by law. Any deficiency thereon shall be paid by Borrowers to Agent, on
demand.
4.12 Failure to Pay Insurance. If any Borrower fails to obtain insurance
as hereinabove provided, or to keep the same in force, Agent, if Agent so
elects, may obtain such insurance and pay the premium therefor on behalf of such
Borrower, and charge Borrowers' Account therefor as a Revolving Advance of a
Domestic Rate Loan and such expenses so paid shall be part of the Obligations.
4.13 Payment of Taxes. Each Borrower will pay, when due, (or, if contested
as set forth below, provide for payment of) all taxes, assessments and other
Charges lawfully levied or assessed upon such Borrower or any of the Collateral
including, without limitation, real and personal property taxes, assessments and
charges and all franchise, capital, income, employment, social security
benefits, withholding, and sales taxes. If any tax by any governmental authority
is or may be imposed on or as a result of any transaction between any Borrower
and Agent or any Lender which Agent or any Lender may be required to withhold or
pay or if any taxes, assessments, or other Charges remain unpaid after the date
fixed for their payment, or if any claim shall be made which, in Agent's or any
Lender's opinion, may possibly create a valid Lien on the Collateral, Agent may
without notice to Borrowers pay the taxes, assessments or other Charges and each
Borrower hereby indemnifies and holds Agent and each Lender harmless in respect
thereof. Agent will not pay any taxes, assessments or Charges to the extent that
any Borrower has contested or disputed those taxes, assessments or Charges in
good faith, by expeditious protest, administrative or judicial appeal or similar
proceeding provided that any related tax lien is stayed and sufficient reserves
are established to the reasonable satisfaction of Agent to protect Agent's
security interest in or Lien on the Collateral. The amount of any payment by
Agent under this Section 4.13 shall be charged to Borrowers' Account as a
Revolving Advance of a Domestic Rate Loan and added to the Obligations and,
until Borrowers shall furnish Agent with an indemnity therefor (or supply Agent
with evidence satisfactory to Agent that due provision for the payment thereof
has been made), Agent may hold without interest any balance standing to
Borrowers' credit and Agent shall retain its security interest in any and all
Collateral held by Agent.
4.14 Payment of Leasehold Obligations. Each Borrower shall at all times
pay, when and as due, its rental obligations under all leases under which it is
a tenant, and shall otherwise comply, in all material respects, with all other
terms of such leases and keep them in full force and effect and, at Agent's
request will provide evidence of having done so.
4.15 Receivables.
(a) Nature of Receivables. Each of the Receivables shall be a bona
fide and valid account representing a bona fide indebtedness incurred by the
Customer therein named, for a fixed sum as set forth in the invoice relating
thereto (provided immaterial or unintentional invoice errors shall not be deemed
to be a breach hereof) with respect to an absolute sale or lease and delivery of
goods upon stated terms of a Borrower, or work, labor or services theretofore
rendered by a Borrower as of the date each Receivable is created. Same shall be
due and owing in accordance with the applicable Borrower's standard terms of
sale without dispute, setoff or counterclaim except as may be stated on the
accounts receivable schedules delivered by
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Borrowers to Agent. Except as set forth on Schedule 4.15(a), all contracts
giving rise to DMS Contract Receivables are assignable by DMS and the grant of a
security interest to Agent does not cause a breach or a default under any such
contract.
(b) Solvency of Customers. Each Customer, to the best of the
respective Borrower's knowledge, as of the date each Receivable is created, is
and will be solvent and able to pay all Receivables on which the Customer is
obligated in full when due or with respect to such Customers of any Borrower who
are not solvent such Borrower has set up on its books and in its financial
records bad debt reserves adequate to cover such Receivables.
(c) Locations of Borrower. Each Borrower's chief executive office is
located at the addresses set forth on Schedule 4.15(c) hereto. Until written
notice is given to Agent by Borrowing Agent of any other office at which any
Borrower keeps its records pertaining to Receivables, all such records shall be
kept at such executive office.
(d) Collection of Receivables. Until any Borrower's authority to do
so is terminated by Agent (which notice Agent may give at any time following the
occurrence of an Event of Default or a Default or when Agent in its sole
discretion deems it to be in Lenders' best interest to do so), each Borrower
will, at such Borrower's sole cost and expense, but on Agent's behalf and for
Agent's account, collect as Agent's property and in trust for Agent all amounts
received on Receivables, and shall not commingle such collections with any
Borrower's funds or use the same except to pay Obligations. Each Borrower shall,
upon request, deliver to Agent, or deposit in the Blocked Account, in original
form and on the date of receipt thereof, all checks, drafts, notes, money
orders, acceptances, cash and other evidences of Indebtedness.
(e) Notification of Assignment of Receivables. At any time, Agent
shall have the right to send notice of the assignment of, and Agent's security
interest in, the Receivables to any and all Customers or any third party holding
or otherwise concerned with any of the Collateral. Thereafter, Agent shall have
the sole right to collect the Receivables, take possession of the Collateral, or
both. Agent's actual collection expenses, including, but not limited to,
stationery and postage, telephone and telegraph, secretarial and clerical
expenses and the salaries of any collection personnel used for collection, may
be charged to Borrowers' Account and added to the Obligations.
(f) Power of Agent to Act on Borrowers' Behalf. Agent shall have the
right to receive, endorse, assign and/or deliver in the name of Agent or any
Borrower any and all checks, drafts and other instruments for the payment of
money relating to the Receivables, and each Borrower hereby waives notice of
presentment, protest and non-payment of any instrument so endorsed. Each
Borrower hereby constitutes Agent or Agent's designee as such Borrower's
attorney with power (i) to endorse such Borrower's name upon any notes,
acceptances, checks, drafts, money orders or other evidences of payment or
Collateral; (ii) to sign such Borrower's name on any invoice or xxxx of lading
relating to any of the Receivables, drafts against Customers, assignments and
verifications of Receivables; (iii) to send verifications of Receivables to any
Customer; (iv) to sign such Borrower's name on all financing statements or any
other documents or instruments deemed necessary or appropriate by Agent to
preserve, protect, or perfect Agent's interest in the Collateral and to file
same; (v) to demand payment of the Receivables; (vi) to enforce payment of the
Receivables by legal proceedings or otherwise;
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(vii) to exercise all of Borrowers' rights and remedies with respect to the
collection of the Receivables and any other Collateral; (viii) to settle,
adjust, compromise, extend or renew the Receivables; (ix) to settle, adjust or
compromise any legal proceedings brought to collect Receivables; (x) to prepare,
file and sign such Borrower's name on a proof of claim in bankruptcy or similar
document against any Customer; (xi) to prepare, file and sign such Borrower's
name on any notice of Lien, assignment or satisfaction of Lien or similar
document in connection with the Receivables; and (xii) to do all other acts and
things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall
not be liable for any acts of omission or commission nor for any error of
judgment or mistake of fact or of law, unless done maliciously or with gross
(not mere) negligence; this power being coupled with an interest is irrevocable
while any of the Obligations remain unpaid. Agent shall have the right at any
time following the occurrence of an Event of Default or Default, to change the
address for delivery of mail addressed to any Borrower to such address as Agent
may designate and to receive, open and dispose of all mail addressed to any
Borrower.
(g) No Liability. Neither Agent nor any Lender shall, under any
circumstances or in any event whatsoever, have any liability for any error or
omission or delay of any kind occurring in the settlement, collection or payment
of any of the Receivables or any instrument received in payment thereof, or for
any damage resulting therefrom. Following the occurrence of an Event of Default
or Default, Agent may, without notice or consent from any Borrower, xxx upon or
otherwise collect, extend the time of payment of, compromise or settle for cash,
credit or upon any terms any of the Receivables or any other securities,
instruments or insurance applicable thereto and/or release any obligor thereof.
Agent is authorized and empowered to accept following the occurrence of an Event
of Default or Default the return of the goods represented by any of the
Receivables, without notice to or consent by any Borrower, all without
discharging or in any way affecting any Borrower's liability hereunder.
(h) Establishment of a Lockbox Account, Dominion Account. All
proceeds of Collateral shall, at the direction of Agent, be deposited by
Borrowers into a lockbox account, dominion account or such other "blocked
account" ("Blocked Accounts") as Agent may require pursuant to an arrangement
with such bank as may be selected by Borrowers and be acceptable to Agent.
Borrowers shall issue to any such bank, a letter of instruction (which shall be
irrevocable during the Term) directing said bank to transfer such funds so
deposited to Agent, either to any account maintained by Agent at said bank or by
wire transfer to appropriate account(s) of Agent. All funds deposited in such
Blocked Account shall immediately become the property of Agent and Borrowers
shall obtain the agreement by such bank to waive any offset rights against the
funds so deposited. Neither Agent nor any Lender assumes any responsibility for
such blocked account arrangement, including without limitation, any claim of
accord and satisfaction or release with respect to deposits accepted by any bank
thereunder. Alternatively, Agent may establish depository accounts ("Depository
Accounts") in the name of Agent at a bank or banks for the deposit of such funds
and Borrowers shall deposit all proceeds of Collateral or cause same to be
deposited, in kind, in such Depository Accounts of Agent in lieu of depositing
same to the Blocked Accounts.
(i) Adjustments. No Borrower will, without Agent's consent,
compromise or adjust any Receivables (or extend the time for payment thereof) or
accept any returns of
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merchandise or grant any additional discounts, allowances or credits thereon
except for those compromises, adjustments, returns, discounts, credits and
allowances as have been heretofore customary in the business of such Borrower.
(j) Agent may obtain, at the expense of Borrowers, an updated
appraisal of the DMS Contract Receivables at any time and from time to time;
provided that in the absence of an Event of Default, Borrower shall not be
required to pay for more than one such appraisal per calendar year.
(k) Borrowers shall notify Agent promptly, and in any event within 3
days, after the cancellation or non-renewal of any contract giving rise to DMS
Contract Receivables.
4.16 Inventory. To the extent Inventory held for sale or lease has been
produced by any Borrower, it has been and will be produced by such Borrower in
accordance with the Federal Fair Labor Standards Act of 1938, as amended, and
all rules, regulations and orders thereunder.
4.17 Maintenance of Equipment. The Equipment shall be maintained in good
operating condition and repair (reasonable wear and tear excepted) and all
necessary replacements of and repairs thereto shall be made so that the value
and operating efficiency of the Equipment shall be maintained and preserved. No
Borrower shall use or operate the Equipment in violation of any law, statute,
ordinance, code, rule or regulation. Each Borrower shall have the right to sell
Equipment to the extent set forth in Section 4.3 hereof.
4.18 Exculpation of Liability. Nothing herein contained shall be construed
to constitute Agent or any Lender as any Borrower's agent for any purpose
whatsoever, nor shall Agent or any Lender be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof. Neither
Agent nor any Lender, whether by anything herein or in any assignment or
otherwise, assume any of any Borrower's obligations under any contract or
agreement assigned to Agent or such Lender, and neither Agent nor any Lender
shall be responsible in any way for the performance by any Borrower of any of
the terms and conditions thereof.
4.19 Environmental Matters. (a) Borrowers shall ensure that the Real
Property remains in compliance with all Environmental Laws and they shall not
place or permit to be placed any Hazardous Substances on any Real Property
except as permitted by applicable law or appropriate governmental authorities.
(b) Borrowers shall establish and maintain a system to assure and
monitor continued compliance with all applicable Environmental Laws which system
shall include periodic reviews of such compliance.
(c) Borrowers shall (i) employ in connection with the use of the
Real Property appropriate technology necessary to maintain compliance with any
applicable Environmental Laws and (ii) dispose of any and all Hazardous Waste
generated at the Real Property only at facilities and with carriers that
maintain valid permits under RCRA and any other applicable Environmental Laws.
Borrowers shall use their best efforts to obtain certificates of disposal, such
as hazardous waste manifest receipts, from all treatment, transport, storage or
disposal
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facilities or operators employed by Borrowers in connection with the transport
or disposal of any Hazardous Waste generated at the Real Property.
(d) In the event any Borrower obtains, gives or receives notice of
any Release or threat of Release of a reportable quantity of any Hazardous
Substances at the Real Property (any such event being hereinafter referred to as
a "Hazardous Discharge") or receives any notice of violation, request for
information or notification that it is potentially responsible for investigation
or cleanup of environmental conditions at the Real Property, demand letter or
complaint, order, citation, or other written notice with regard to any Hazardous
Discharge or violation of Environmental Laws affecting the Real Property or any
Borrower's interest therein (any of the foregoing is referred to herein as an
"Environmental Complaint") from any Person, including any state agency
responsible in whole or in part for environmental matters in the state or
province in which the Real Property is located or the United States
Environmental Protection Agency or similar agency in any jurisdiction (any such
person or entity hereinafter the "Authority"), then Borrowing Agent shall,
within five (5) Business Days, give written notice of same to Agent detailing
facts and circumstances of which any Borrower is aware giving rise to the
Hazardous Discharge or Environmental Complaint. Such information is to be
provided to allow Agent to protect its security interest in the Real Property
and the Collateral and is not intended to create nor shall it create any
obligation upon Agent or any Lender with respect thereto.
(e) Borrowers shall promptly forward to Agent copies of any request
for information, notification of potential liability, demand letter relating to
potential responsibility with respect to the investigation or cleanup of
Hazardous Substances at any other site owned, operated or used by any Borrower
to dispose of Hazardous Substances and shall continue to forward copies of
correspondence between any Borrower and the Authority regarding such claims to
Agent until the claim is settled. Borrowers shall promptly forward to Agent
copies of all documents and reports concerning a Hazardous Discharge at the Real
Property that any Borrower is required to file under any Environmental Laws.
Such information is to be provided solely to allow Agent to protect Agent's
security interest in the Real Property and the Collateral.
(f) Borrowers shall respond promptly to any Hazardous Discharge or
Environmental Complaint and take all necessary action in order to safeguard the
health of any Person and to avoid subjecting the Collateral or Real Property to
any Lien. If any Borrower shall fail to respond promptly to any Hazardous
Discharge or Environmental Complaint or any Borrower shall fail to comply with
any of the requirements of any Environmental Laws, Agent on behalf of Lenders
may, but without the obligation to do so, for the sole purpose of protecting
Agent's interest in Collateral: (A) give such notices or (B) enter onto the Real
Property (or authorize third parties to enter onto the Real Property) and take
such actions as Agent (or such third parties as directed by Agent) deem
reasonably necessary or advisable, to clean up, remove, mitigate or otherwise
deal with any such Hazardous Discharge or Environmental Complaint. All
reasonable costs and expenses incurred by Agent and Lenders (or such third
parties) in the exercise of any such rights, including any sums paid in
connection with any judicial or administrative investigation or proceedings,
fines and penalties, together with interest thereon from the date expended at
the Default Rate shall be paid upon demand by Borrowers, and until paid shall be
added to and become a part of the Obligations secured by the Liens created by
the terms of this Agreement or any other agreement between Agent, any Lender and
any Borrower.
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(g) Promptly upon the written request of Agent from time to time,
Borrowers shall provide Agent, at Borrowers' expense, with an environmental site
assessment or environmental audit report prepared by an environmental
engineering firm acceptable in the reasonable opinion of Agent, to assess with a
reasonable degree of certainty the existence of a Hazardous Discharge and the
potential costs in connection with abatement, cleanup and removal of any
Hazardous Substances found on, under, at or within the Real Property. Any report
or investigation of such Hazardous Discharge proposed and acceptable to an
appropriate Authority that is charged to oversee the clean-up of such Hazardous
Discharge shall be acceptable to Agent. If such estimates, individually or in
the aggregate, exceed $100,000, Agent shall have the right to require Borrowers
to post a bond, letter of credit or other security reasonably satisfactory to
Agent to secure payment of these costs and expenses.
(h) Borrowers shall defend and indemnify Agent and Lenders and hold
Agent, Lenders and their respective employees, agents, directors and officers
harmless from and against all loss, liability, damage and expense, claims,
costs, fines and penalties, including attorney's fees, suffered or incurred by
Agent or Lenders under or on account of any Environmental Laws, including,
without limitation, the assertion of any Lien thereunder, with respect to any
Hazardous Discharge, the presence of any Hazardous Substances affecting the Real
Property, whether or not the same originates or emerges from the Real Property
or any contiguous real estate, including any loss of value of the Real Property
as a result of the foregoing except to the extent such loss, liability, damage
and expense is attributable to any Hazardous Discharge resulting from actions on
the part of Agent or any Lender. Borrowers' obligations under this Section 4.19
shall arise upon the discovery of the presence of any Hazardous Substances at
the Real Property, whether or not any federal, state, or local environmental
agency has taken or threatened any action in connection with the presence of any
Hazardous Substances. Borrowers' obligation and the indemnifications hereunder
shall survive the termination of this Agreement.
(i) For purposes of Section 4.19 and 5.7, all references to Real
Property shall be deemed to include all of Borrowers' right, title and interest
in and to its owned and leased premises, all of which, as of the date hereof,
are listed on Schedule 4.19.
4.20 Financing Statements. Except as respects the financing statements
filed by Agent and the financing statements described on Schedule 1.2, no
financing statement covering any of the Collateral or any proceeds thereof is on
file in any public office.
V. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants as follows:
5.1 Authority. Each Borrower has full power, authority and legal right to
enter into this Agreement and the Other Documents and to perform all its
respective Obligations hereunder and thereunder. This Agreement and the Other
Documents constitute the legal, valid and binding obligation of such Borrower
enforceable in accordance with their terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally. The execution, delivery and performance
of this Agreement and of the Other Documents (a) are within such Borrower's
corporate powers, have
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been duly authorized, are not in contravention of law or the terms of such
Borrower's by-laws, certificate of incorporation or other applicable documents
relating to such Borrower's formation or to the conduct of such Borrower's
business or of any material agreement or undertaking to which such Borrower is a
party or by which such Borrower is bound, and (b) will not conflict with nor
result in any breach in any of the provisions of or constitute a default under
or result in the creation of any Lien except Permitted Encumbrances upon any
asset of such Borrower under the provisions of any agreement, charter document,
constating documents, instrument, by-law, or other instrument to which such
Borrower is a party or by which it or its property may be bound.
5.2 Formation and Qualification. (a) Each Borrower is duly incorporated
and in good standing under the laws of the applicable jurisdiction listed on
Schedule 5.2(a) and is qualified to do business and is in good standing in the
applicable jurisdictions listed on Schedule 5.2(a) which constitute all
jurisdictions in which qualification and good standing are necessary for such
Borrower to conduct its business and own its property and where the failure to
so qualify could reasonably be expected to have a Material Adverse Effect on
such Borrower. Each Borrower has delivered to Agent true and complete copies of
its certificate of incorporation, constating documents and by-laws and will
promptly notify Agent of any amendment or changes thereto.
(b) The only Subsidiaries of each Borrower are listed on Schedule
5.2(b).
5.3 Survival of Representations and Warranties. All representations and
warranties of such Borrower contained in this Agreement and the Other Documents
shall be true at the time of such Borrower's execution of this Agreement and the
Other Documents, and shall survive the execution, delivery and acceptance
thereof by the parties thereto and the closing of the transactions described
therein or related thereto.
5.4 Tax Returns. Each Borrower's federal tax identification number is set
forth on Schedule 5.4. Each Borrower has filed all federal, provincial, state
and local tax returns and other reports each is required by law to file and has
paid all taxes, assessments, fees and other governmental charges that are due
and payable. Federal, state, provincial and local income tax returns of each
Borrower have been examined and reported upon by the appropriate taxing
authority or closed by applicable statute and satisfied for all fiscal years
prior to and including the fiscal year ending 1998. The provision for taxes on
the books of each Borrower are adequate for all years not closed by applicable
statutes, and for its current fiscal year, and no Borrower has any knowledge of
any deficiency or additional assessment in connection therewith not provided for
on its books.
5.5 Financial Statements.
(a) The pro forma balance sheet of Borrowers on a consolidated basis
(the "Pro Forma Balance Sheet") furnished to Agent on the Closing Date reflects
the consummation of the transactions contemplated under this Agreement (the
"Transactions") and is accurate, complete and correct and fairly reflects the
financial condition of Borrowers on a consolidated basis as of the Closing Date,
and has been prepared in accordance with GAAP, consistently applied. The Pro
Forma Balance Sheet has been certified as accurate, complete and correct in all
material respects by the President and Chief Financial Officer of VISTA. All
financial statements referred to in this subsection 5.5(a), including the
related schedules and notes thereto,
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have been prepared, in accordance with GAAP, except as may be disclosed in such
financial statements.
(b) The twelve-month cash flow projections of the Borrowers on a
consolidated and consolidating basis and their projected balance sheets as of
the Closing Date, copies of which are annexed hereto as Exhibit 5.5(b) (the
"Projections") were prepared by the Chief Financial Officer of VISTA, are based
on underlying assumptions which provide a reasonable basis for the projections
contained therein and reflect Borrowers' judgment based on present circumstances
of the most likely set of conditions and course of action for the projected
period. The cash flow Projections together with the Pro Forma Balance Sheet, are
referred to as the "Pro Forma Financial Statements".
(c) The consolidated and consolidating balance sheets of the
Borrowers as of December 31, 1999, and the related statements of income, changes
in stockholder's equity, and changes in cash flow for the period ended on such
date, all accompanied by reports thereon containing opinions without
qualification by independent certified public accountants, copies of which have
been delivered to Agent, have been prepared in accordance with GAAP,
consistently applied (except for changes in application in which such
accountants concur and present fairly the financial position of the Borrowers at
such date and the results of their operations for such period. Since December
31, 1999 there has been no change in the condition, financial or otherwise, of
Borrowers as shown on the consolidated balance sheet as of such date and no
change in the aggregate value of machinery, equipment and Real Property owned by
Borrowers, except changes in the ordinary course of business, none of which
individually or in the aggregate has been materially adverse.
5.6 Corporate Name. No Borrower has been known by any other corporate name
in the past five years and does not sell Inventory under any other name except
as set forth on Schedule 5.6, nor, except as set forth on Schedule 5.6, has any
Borrower been the surviving corporation of a merger or consolidation or acquired
all or substantially all of the assets of any Person during the preceding five
(5) years.
5.7 O.S.H.A. and Environmental Compliance.
(a) Each Borrower has duly complied with, and its facilities,
business, assets, property, leaseholds and Equipment are in compliance in all
material respects with, the provisions of the Federal Occupational Safety and
Health Act, the Environmental Protection Act, RCRA and all other Environmental
Laws; there have been no outstanding citations, notices or orders of
non-compliance issued to any Borrower or relating to its business, assets,
property, leaseholds or Equipment under any such laws, rules or regulations.
(b) Each Borrower has been issued all required federal, state and
local licenses, certificates or permits relating to all applicable Environmental
Laws.
(c) (i) There are no visible signs of releases, spills, discharges,
leaks or disposal (collectively referred to as "Releases") of Hazardous
Substances at, upon, under or within any Real Property; (ii) there are no
underground storage tanks or polychlorinated biphenyls on the Real Property or
any premises leased by any Borrower; (iii) neither the Real
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Property nor any premises leased by any Borrower has ever been used as a
treatment, storage or disposal facility of Hazardous Waste; and (iv) no
Hazardous Substances are present on the Real Property or any premises leased by
any Borrower, excepting such quantities as are handled in accordance with all
applicable manufacturer's instructions and governmental regulations and in
proper storage containers and as are necessary for the operation of the
commercial business of any Borrower or of its tenants.
5.8 Solvency; No Litigation, Violation, Indebtedness or Default.
(a) Borrowers are solvent, able to pay their debts as they mature,
have capital sufficient to carry on their business and all businesses in which
they are about to engage, and (i) as of the Closing Date, the fair present
saleable value of their assets, calculated on a going concern basis, is in
excess of the amount of their liabilities and (ii) subsequent to the Closing
Date, the fair saleable value of their assets (calculated on a going concern
basis) will be in excess of the amount of their liabilities.
(b) No Borrower has (i) any pending or threatened litigation,
arbitration, actions or proceedings which involve the possibility of having a
Material Adverse Effect on such Borrower, or (ii) except as disclosed in
Schedule 5.8(b), any liabilities nor indebtedness for borrowed money other than
the Obligations.
(c) No Borrower is in violation of any applicable statute,
regulation or ordinance in any respect which could reasonably be expected to
have a Material Adverse Effect on such Borrower, nor is any Borrower in
violation of any order of any court, governmental authority or arbitration board
or tribunal.
(d) No Borrower nor any member of the Controlled Group maintains or
contributes to any Plan other than those listed on Schedule 5.8(d) hereto.
Except as set forth in Schedule 5.8(d), (i) no Plan has incurred any
"accumulated funding deficiency," as defined in Section 302(a)(2) of ERISA and
Section 412(a) of the Code, whether or not waived, and each Borrower and each
member of the Controlled Group has met all applicable minimum funding
requirements under Section 302 of ERISA in respect of each Plan, (ii) each Plan
which is intended to be a qualified plan under Section 401(a) of the Code as
currently in effect has been determined by the Internal Revenue Service to be
qualified under Section 401(a) of the Code and the trust related thereto is
exempt from federal income tax under Section 501(a) of the Code, (iii) no
Borrower nor any member of the Controlled Group has incurred any liability to
the PBGC other than for the payment of premiums, and there are no premium
payments which have become due which are unpaid, (iv) no Plan has been
terminated by the plan administrator thereof nor by the PBGC, and there is no
occurrence which would cause the PBGC to institute proceedings under Title IV of
ERISA to terminate any Plan, (v) at this time, the current value of the assets
of each Plan exceeds the present value of the accrued benefits and other
liabilities of such Plan and no Borrower nor any member of the Controlled Group
knows of any facts or circumstances which would materially change the value of
such assets and accrued benefits and other liabilities, (vi) no Borrower nor any
member of the Controlled Group has breached any of the responsibilities,
obligations or duties imposed on it by ERISA with respect to any Plan, (vii) no
Borrower nor any member of a Controlled Group has incurred any liability for any
excise tax arising under Section 4972 or 4980B of the Code, and no fact exists
which could give rise to any such liability,
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(viii) no Borrower nor any member of the Controlled Group nor any fiduciary of,
nor any trustee to, any Plan, has engaged in a "prohibited transaction"
described in Section 406 of the ERISA or Section 4975 of the Code nor taken any
action which would constitute or result in a Termination Event with respect to
any such Plan which is subject to ERISA, (ix) each Borrower and each member of
the Controlled Group has made all contributions due and payable with respect to
each Plan, (x) there exists no event described in Section 4043(b) of ERISA, for
which the thirty (30) day notice period contained in 29 CFR ss.2615.3 has not
been waived, (xi) no Borrower nor any member of the Controlled Group has any
fiduciary responsibility for investments with respect to any plan existing for
the benefit of persons other than employees or former employees of any Borrower
and any member of the Controlled Group, and (xii) no Borrower nor any member of
the Controlled Group has withdrawn, completely or partially, from any
Multiemployer Plan so as to incur liability under the Multiemployer Pension Plan
Amendments Act of 1980.
5.9 Patents, Trademarks, Copyrights and Licenses. Schedule 5.9 sets forth
all patents, patent applications, trademarks, trademark applications, service
marks, service xxxx applications, copyrights, copyright applications, design
rights, tradenames, assumed names, trade secrets and licenses (other than
commercially available licenses) owned or utilized by any Borrower for which any
filing or registration has been made by any Borrower with a federal or state
governmental authority. All such filings or registrations are valid and have
been duly registered or filed, to the extent required, with all appropriate
governmental authorities. Each Borrower has all of the intellectual property
rights which are necessary for the operation of its business as presently
conducted; there is no objection to or pending challenge to the validity of any
such patent, trademark, copyright, design right, tradename, trade secret or
license and no Borrower is aware of any grounds for any challenge, except as set
forth in Schedule 5.9 hereto. Each patent, patent application, patent license,
trademark, trademark application, trademark license, service xxxx, service xxxx
application, service xxxx license, design right, copyright, copyright
application and copyright license owned or held by any Borrower and all trade
secrets used by any Borrower consist of original material or property developed
by such Borrower or was lawfully acquired by such Borrower from the proper and
lawful owner thereof. Each of such items has been maintained so as to preserve
the value thereof from the date of creation or acquisition thereof. With respect
to all software used by any Borrower (other than commercially available off the
shelf software), such Borrower is in possession of all source and object codes
related to each piece of software or is the beneficiary of a source code escrow
agreement, each such source code escrow agreement being listed on Schedule 5.9
hereto. All licenses to any Borrower of patents, trademarks, copyrights,
designs, trade secrets and other intellectual property rights material to the
Borrowers' businesses are assignable and the granting of Liens to the Agent does
not cause a breach or default under any such license.
5.10 Licenses and Permits. Except as set forth in Schedule 5.10, each
Borrower (a) is in compliance with and (b) has procured and is now in possession
of, all material licenses or permits required by any applicable federal, state,
provincial or local law or regulation for the operation of its business in each
jurisdiction wherein it is now conducting or proposes to conduct business and
where the failure to procure such licenses or permits could reasonably be
expected to have a Material Adverse Effect on such Borrower.
5.11 Default of Indebtedness. No Borrower is in default in the payment of
the principal of or interest on any Indebtedness or under any instrument or
agreement under or
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subject to which any Indebtedness has been issued and no event has occurred
under the provisions of any such instrument or agreement which with or without
the lapse of time or the giving of notice, or both, constitutes or would
constitute an event of default thereunder.
5.12 No Default. No Borrower is in default in the payment or performance
of any of its contractual obligations and no Default has occurred.
5.13 No Burdensome Restrictions. No Borrower is party to any contract or
agreement the performance of which could reasonably be expected to have a
Material Adverse Effect on such Borrower. No Borrower has agreed or consented to
cause or permit in the future (upon the happening of a contingency or otherwise)
any of its property, whether now owned or hereafter acquired, to be subject to a
Lien which is not a Permitted Encumbrance.
5.14 No Labor Disputes. No Borrower is involved in any labor dispute;
there are no strikes or walkouts or union organization of any Borrower's
employees threatened or in existence and no labor contract is scheduled to
expire during the Term other than as set forth on Schedule 5.14 hereto.
5.15 Margin Regulations. No Borrower is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U or
Regulation G of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. No part of the proceeds of any Revolving
Advance will be used for "purchasing" or "carrying" "margin stock" as defined in
Regulation U of such Board of Governors.
5.16 Investment Company Act. No Borrower is an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, nor is it controlled by such a company.
5.17 Disclosure. No representation or warranty made by any Borrower in
this Agreement or in any financial statement, report, certificate or any other
document furnished in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact known to Borrowers
or which reasonably should be known to Borrowers which Borrowers have not
disclosed to Agent in writing with respect to the transactions contemplated by
this Agreement which could reasonably be expected to have a Material Adverse
Effect on any Borrower.
5.18 Delivery of Subordinated Loan Documents. Agent has received complete
copies of the Subordinated Loan Documents (including all exhibits, schedules and
disclosure letters referred to therein or delivered pursuant thereto, if any)
and all amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of such documents and agreements
has been amended or supplemented, nor have any of the provisions thereof been
waived, except pursuant to a written agreement or instrument which has
heretofore been delivered to Agent.
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5.19 Swaps. No Borrower is a party to, nor will it be a party to, any swap
agreement whereby such Borrower has agreed or will agree to swap interest rates
or currencies unless same provides that damages upon termination following an
event of default thereunder are payable on an unlimited "two-way basis" without
regard to fault on the part of either party.
5.20 Conflicting Agreements. No provision of any mortgage, indenture,
contract, agreement, judgment, decree or order binding on any Borrower or
affecting the Collateral conflicts with, or requires any Consent which has not
already been obtained to, or would in any way prevent the execution, delivery or
performance of, the terms of this Agreement or the Other Documents.
5.21 Application of Certain Laws and Regulations. No Borrower nor any
Affiliate of any Borrower is subject to any statute, rule or regulation which
regulates the incurrence of any Indebtedness, including without limitation,
statutes or regulations relative to common or interstate carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services.
5.22 Business and Property of Borrowers. Upon and after the Closing Date,
Borrowers do not propose to engage in any business other than as disclosed in
VISTA's 1999 report or Form 10-K and activities necessary to conduct the
foregoing. Each Borrower owns on the Closing Date and on the date of each
Borrowing thereafter all the property and possesses all of the rights and
Consents necessary for the conduct of the business of such Borrower on such
date.
5.23 Year 2000. Borrowers and their respective Subsidiaries have reviewed
the areas within their business and operations which could be adversely affected
by, and have developed or are developing a program to address on a timely basis,
the risk that certain computer applications used by Borrowers or their
respective Subsidiaries (or any of their respective material suppliers,
customers or vendors) may be unable to recognize and perform properly
date-sensitive functions involving dates prior to and after December 31, 1999
(the "Year 2000 Problem"). The Year 2000 Problem will not have a Material
Adverse Effect on Borrowers.
5.24 Section 20 Subsidiaries. Borrowers do not intend to use and shall not
use any portion of the proceeds of the Revolving Advances, directly or
indirectly, to purchase during the underwriting period, or for 30 days
thereafter, Ineligible Securities being underwritten by a Section 20 Subsidiary.
5.25 Canadian Pension Plans. Except as set forth on Schedule 5.8(d), no
Borrower is party to any, or has any obligations in respect of, any Canadian
Pension Plan (as defined below). For purposes hereof, "Canadian Pension Plans"
means each of the pension plans, if any, registered in accordance with the
Income Tax Act (Canada) which any Borrower sponsors or administers or into which
any Borrower makes contributions.
As to any Canadian Pension Plan of any Borrower:
(1) The Canadian Pension Plans are duly registered under all
applicable provincial pension benefits legislation.
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(2) All obligations of such Borrower (including fiduciary,
funding, investment and administration obligations) required to be performed in
connection with the Canadian Pension Plans or the funding agreements therefor
have been performed in a timely fashion. There are no outstanding disputes
concerning the assets held pursuant to any such funding agreement.
(3) All contributions or premiums required to be made by such
Borrower to the Canadian Pension Plans have been made in a timely fashion in
accordance with the terms of the Canadian Pension Plans and applicable laws and
regulations.
(4) All employee contributions to the Canadian Pension Plans
required to be made by way of authorized payroll deduction have been properly
withheld by the applicable Borrower and fully paid into the Canadian Pension
Plans in a timely fashion.
(5) All reports and disclosures relating to the Canadian
Pension Plans required by any applicable laws or regulations have been filed or
distributed in a timely fashion.
(6) There have been no improper withdrawals, or applications
of, the assets of any of the Canadian Pension Plans.
(7) No amount is owing by any of the Canadian Pension Plans
under the Income Tax Act (Canada) or any provincial taxation statute.
(8) The Canadian Pension Plans are fully funded both on an
ongoing basis and on a solvency basis (using actuarial assumptions and methods
which are consistent with the valuations last filed with the applicable
governmental authorities and which are consistent with generally accepted
actuarial principles).
No Borrower, after diligent enquiry, has any knowledge, or any grounds for
believing, that any of the Canadian Pension Plans is the subject of an
investigation, any other proceeding, an action or a claim. There exists no state
of facts which after notice or lapse of time or both could reasonably be
expected to give rise to any such proceeding, action or claim.
VI. AFFIRMATIVE COVENANTS.
Each Borrower shall, until payment in full of the Obligations and
termination of this Agreement:
6.1 Payment of Fees. Pay to Agent on demand all usual and customary fees
and expenses which Agent incurs in connection with (a) the forwarding of
Revolving Advance proceeds and (b) the establishment and maintenance of any
Blocked Accounts or Depository Accounts as provided for in Section 4.15(h).
Agent may, without making demand, charge Borrowers' Account for all such fees
and expenses.
6.2 Conduct of Business and Maintenance of Existence and Assets. (a)
Conduct continuously and operate actively its business according to good
business practices and maintain all of its properties useful or necessary in its
business in good working order and condition
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(reasonable wear and tear excepted and except as may be disposed of in
accordance with the terms of this Agreement), including, without limitation, all
licenses, patents, copyrights, design rights, tradenames, trade secrets and
trademarks and take all actions necessary to enforce and protect the validity of
any intellectual property right or other right included in the Collateral; (b)
keep in full force and effect its existence and comply in all material respects
with the laws and regulations governing the conduct of its business where the
failure to do so could reasonably be expected to have a Material Adverse Effect
on such Borrower; and (c) make all such reports and pay all such franchise and
other taxes and license fees and do all such other acts and things as may be
lawfully required to maintain its rights, licenses, leases, powers and
franchises under the laws of the United States and Canada or any political
subdivision thereof where the failure to do so could reasonably be expected to
have a Material Adverse Effect on such Borrower.
6.3 Violations. Promptly notify Agent in writing of any violation of any
law, statute, regulation or ordinance of any Governmental Body, or of any agency
thereof, applicable to any Borrower which could reasonably be expected to have a
Material Adverse Effect on any Borrower.
6.4 Government Receivables. Take all steps necessary to protect Agent's
interest in the Collateral under the Federal Assignment of Claims Act, Financial
Administration Act (Canada) or other applicable state, provincial or local
statutes or ordinances and deliver to Agent appropriately endorsed, any
instrument or chattel paper connected with any Receivable arising out of
contracts between any Borrower and the United States or Canada, any state,
province or any department, agency or instrumentality of any of them.
6.5 Net Worth. Maintain for all periods set forth on Schedule 6.5 a Net
Worth in an amount not less than the amount set forth opposite such period on
such Schedule (calculated on a consolidated basis for all Borrowers in
accordance with GAAP).
6.6 Fixed Charge Coverage Ratio. Maintain for each period of four fiscal
quarters ending as of the last day of each fiscal quarter of VISTA a Fixed
Charge Coverage Ratio of not less than 1.0 to 1.0 (calculated on a consolidated
basis for all Borrowers in accordance with GAAP).
6.7 Intentionally Omitted.
6.8 Working Capital. Cause to be maintained as of the end of each month,
Working Capital (excluding deferred revenue) in an amount not less than
$1,000,000 (calculated on a consolidated basis for all Borrowers in accordance
with GAAP).
6.9 Execution of Supplemental Instruments. Execute and deliver to Agent
from time to time, upon demand, such supplemental agreements, statements,
assignments and transfers, or instructions or documents relating to the
Collateral, and such other instruments as Agent may request, in order that the
full intent of this Agreement may be carried into effect.
6.10 Payment of Indebtedness. Pay, discharge or otherwise satisfy at or
before maturity (subject, where applicable, to specified grace periods and, in
the case of the trade payables, to normal payment practices) all its obligations
and liabilities of whatever nature, except when the failure to do so could not
reasonably be expected to have a Material Adverse
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Effect or when the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and each Borrower shall have provided for
such reserves as Agent may reasonably deem proper and necessary, subject at all
times to any applicable subordination arrangement in favor of Agent and/or
Lenders.
6.11 Standards of Financial Statements. Cause all financial statements
referred to in Sections 9.7, 9.8, 9.9, 9.10, 9.11, 9.12, 9.13 and 9.14 as to
which GAAP is applicable to be complete and correct in all material respects
(subject, in the case of interim financial statements, to normal year-end audit
adjustments) and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
concurred in by such reporting accountants or officer, as the case may be, and
disclosed therein).
6.12 Exercise of Rights. Enforce all of its rights under the Acquisition
Agreement including, but not limited to, all indemnification rights and pursue
all remedies available to it with diligence and in good faith in connection with
the enforcement of any such rights.
6.13 Operation of Canadian Pension Plans
. With respect to Canadian Pension Plans maintained by any Borrower:
(1) such Borrower shall administer the Canadian Pension Plans
in accordance with the requirements of the applicable pension plan texts,
funding agreements, the Income Tax Act (Canada) and applicable provincial
pension benefits legislation;
(2) such Borrower shall deliver to Agent a summary of
contributions required to be made in respect of the Canadian Pension Plans, from
time to time, on the same dates, and containing the same information, as is
required in respect of the summary described in section 56.1(1) of the Pension
Benefits Act (Ontario) (and its successors) or similar provincial benefits
legislation;
(3) such Borrower shall, within seven (7) days following the
Closing Date (and, with respect to any Canadian Pension Plan formed after the
date hereof, substantially concurrently with such formation), deliver written
notice to the trustee or trustees of the Canadian Pension Plans that it consents
to the trustee or trustees releasing to Agent from time to time any information
regarding such Borrower's contributions to the Canadian Pension Plans as Agent
may reasonably request;
(4) such Borrower shall not accept payment of any amount from
any of the Canadian Pension Plans without the prior written consent of Agent;
(5) without the prior written consent of Agent, such Borrower
shall not terminate, or cause to be terminated, any of the Canadian Pension
Plans, if such plan would have a solvency deficiency on termination; and
(6) such Borrower shall promptly provide Agent with any
documentation relating to any of the Canadian Pension Plans as Agent may
reasonably request. Such Borrower shall notify Agent within thirty (30) days of
(i) a material increase in the liabilities of any of the Canadian Pension Plans,
(ii) the establishment of a new registered
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pension plan, (iii) commencing payment of contributions to a Pension Plan to
which such Borrower had not previously been contributing.
VII. NEGATIVE COVENANTS.
No Borrower shall, until satisfaction in full of the Obligations and
termination of this Agreement:
7.1 Merger, Amalgamation, Consolidation, Acquisition and Sale of Assets.
(a) Without the prior written consent of the Required Lenders (not
to be unreasonably withheld), enter into any merger, amalgamation, consolidation
or other reorganization with or into any other Person or acquire all or a
substantial portion of the assets or stock of any Person or permit any other
Person to consolidate with or merge with it.
(b) Without the prior written consent of the Required Lenders (not
to be unreasonably withheld), sell, lease, transfer or otherwise dispose of any
of its properties or assets, except in the ordinary course of its business and
except as provided in Section 4.3.
7.2 Creation of Liens. Create or suffer to exist any Lien or transfer upon
or against any of its property or assets now owned or hereafter acquired, except
Permitted Encumbrances.
7.3 Guarantees. Become liable upon the obligations of any Person by
assumption, endorsement or guaranty thereof or otherwise (other than to Lenders)
except (a) as disclosed on Schedule 7.3, and (b) the endorsement of checks in
the ordinary course of business.
7.4 Investments. Purchase or acquire obligations or stock of, or any other
interest in, any Person, except (a) obligations issued or guaranteed by the
United States of America or any agency thereof, (b) commercial paper with
maturities of not more than 180 days and a published rating of not less than A-1
or P-1 (or the equivalent rating), (c) certificates of time deposit and bankers'
acceptances having maturities of not more than 180 days and repurchase
agreements backed by United States government securities of a commercial bank if
(i) such bank has a combined capital and surplus of at least $500,000,000, or
(ii) its debt obligations, or those of a holding company of which it is a
Subsidiary, are rated not less than A (or the equivalent rating) by a nationally
recognized investment rating agency, and (d) U.S. money market funds that invest
solely in obligations issued or guaranteed by the United States of America or an
agency thereof.
7.5 Loans. Make advances, loans or extensions of credit to any Person
(other than a Borrower that has executed and delivered in pledge to the Agent
pursuant to the Pledge Agreement an Intercompany Note evidencing all such
advances, loans and extensions of credit), including without limitation, any
Parent, Subsidiary or Affiliate except with respect to (a) the extension of
commercial trade credit in connection with the sale of Inventory in the ordinary
course of its business, (b) loans described on Schedule 7.5(b), and (c) loans to
its employees in the ordinary course of business not to exceed the aggregate
amount of $50,000 at any time outstanding.
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7.6 Capital Expenditures. Contract for, purchase or make any expenditure
or commitments for fixed or capital assets (including capitalized leases) in any
fiscal year in an aggregate amount for all Borrowers in excess of $2,000,000.
7.7 Dividends. Declare, pay or make any dividend or distribution on any
shares of Capital Stock of any Borrower (other than dividends or distributions
payable in the same class of its Capital Stock, or split-ups or
reclassifications of its Capital Stock) or apply any of its funds, property or
assets to the purchase, redemption or other retirement of any Capital Stock, or
of any options to purchase or acquire any such shares of Capital Stock of any
Borrower except that so long as (a) a notice of termination with regard to this
Agreement shall not be outstanding, (b) no Event of Default or Default shall
have occurred, and (c) the purpose for such purchase, redemption or dividend
shall be as set forth in writing to Agent at least ten (10) days prior to such
purchase, redemption or dividend and such purchase, redemption or dividend shall
in fact be used for such purpose, Borrowers shall be permitted to pay dividends
to VISTA to pay professional fees, franchise taxes and other ordinary course of
business operating expenses (excluding salaries and other employee compensation)
incurred by VISTA solely in its capacity as parent corporation of the other
Borrowers and (ii) to pay interest accrued on the Subordinated Note, to the
extent permitted under the Subordination Agreement, and (iii) to pay dividends
on VISTA's Series F Preferred Stock in an aggregate amount not to exceed
$300,000 per fiscal year, provided, however, that after, and giving pro forma
effect to, the payment of such interest or dividends there shall not exist any
Event of Default or Default.
7.8 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness (exclusive of trade debt) except in respect of (i) Indebtedness to
Lenders; (ii) Indebtedness incurred for capital expenditures permitted under
Section 7.6 hereof; and (iii) Indebtedness due under the Subordinated Loan.
7.9 Nature of Business. Substantially change the nature of the business in
which it is presently engaged, nor except as specifically permitted hereby
purchase or invest, directly or indirectly, in any assets or property other than
in the ordinary course of business for assets or property which are useful in,
necessary for and are to be used in its business as presently conducted.
7.10 Transactions with Affiliates. Except as set forth on Schedule 7.10,
directly or indirectly, purchase, acquire or lease any property from, or sell,
transfer or lease any property to, or otherwise deal with, any Affiliate, except
transactions in the ordinary course of business, on an arm's-length basis on
terms no less favorable than terms which would have been obtainable from a
Person other than an Affiliate.
7.11 Leases. Enter as lessee into any lease arrangement (other than
renewals or extensions of existing real property leases at no greater than fair
market rates) for real or personal property (unless capitalized and permitted
under Section 7.6 hereof) if after giving effect thereto, aggregate annual
rental payments for all such lease arrangements entered into after the date
hereof would exceed $250,000 in any one fiscal year in the aggregate for all
Borrowers.
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7.12 Subsidiaries.
(a) Form any Subsidiary unless (i) such Subsidiary expressly joins
in this Agreement as a borrower and becomes jointly and severally liable for the
obligations of Borrowers hereunder, under the Revolving Credit Notes, and under
any other agreement between any Borrower and Lenders and (ii) Agent shall have
received all documents, including legal opinions, it may reasonably require to
establish compliance with each of the foregoing conditions.
(b) Without the prior written consent of the Required Lenders (which
shall not be unreasonably withheld), enter into any partnership, joint venture
or similar arrangement.
7.13 Fiscal Year and Accounting Changes. Change its fiscal year from
December 31 or make any change (i) in accounting treatment and reporting
practices except as required by GAAP or (ii) in tax reporting treatment except
as required by law.
7.14 Pledge of Credit. Now or hereafter pledge Agent's or any Lender's
credit on any purchases or for any purpose whatsoever or use any portion of any
Revolving Advance in or for any business other than such Borrower's business as
conducted on the date of this Agreement.
7.15 Amendment of Articles of Incorporation, By-Laws. Without the prior
written consent of the Required Lenders (which shall not be unreasonably
withheld), amend, modify or waive any term or material provision of its Articles
of Incorporation or By-Laws unless required by law except as set forth on
Schedule 7.15.
7.16 Compliance with ERISA. (i) (x) Maintain, or permit any member of the
Controlled Group to maintain, or (y) become obligated to contribute, or permit
any member of the Controlled Group to become obligated to contribute, to any
Plan, other than those Plans disclosed on Schedule 5.8(d), (ii) engage, or
permit any member of the Controlled Group to engage, in any non-exempt
"prohibited transaction", as that term is defined in section 406 of ERISA and
Section 4975 of the Code, (iii) incur, or permit any member of the Controlled
Group to incur, any "accumulated funding deficiency", as that term is defined in
Section 302 of ERISA or Section 412 of the Code, (iv) terminate, or permit any
member of the Controlled Group to terminate, any Plan where such event could
result in any liability of any Borrower or any member of the Controlled Group or
the imposition of a lien on the property of any Borrower or any member of the
Controlled Group pursuant to Section 4068 of ERISA, (v) assume, or permit any
member of the Controlled Group to assume, any obligation to contribute to any
Multiemployer Plan not disclosed on Schedule 5.8(d), (vi) incur, or permit any
member of the Controlled Group to incur, any withdrawal liability to any
Multiemployer Plan; (vii) fail promptly to notify Agent of the occurrence of any
Termination Event, (viii) fail to comply, or permit a member of the Controlled
Group to fail to comply, with the requirements of ERISA or the Code or other
applicable laws in respect of any Plan, (ix) fail to meet, or permit any member
of the Controlled Group to fail to meet, all minimum funding requirements under
ERISA or the Code or postpone or delay or allow any member of the Controlled
Group to postpone or delay any funding requirement with respect of any Plan.
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7.17 Prepayment of Indebtedness. At any time, directly or indirectly,
prepay any Indebtedness (other than to Lenders or another Borrower), or
repurchase, redeem, retire or otherwise acquire any Indebtedness of any
Borrower.
7.18 Subordinated Note. At any time, directly or indirectly, pay, prepay,
repurchase, redeem, retire or otherwise acquire, or make any payment on account
of any principal of, interest on or premium payable in connection with the
repayment or redemption of the Subordinated Note, except as expressly permitted
in the Subordination Agreement.
7.19 Other Agreements. Enter into any material amendment, waiver or
modification of the Acquisition Agreement or any related agreements.
7.20 Certain Covenants and Representations Regarding Inactive Subs . Any
contrary provision of this Agreement or any Other Document notwithstanding (i)
no Borrower shall (A) sell, contribute or otherwise transfer any assets to or
for the benefit of any Borrower identified on Schedule 7.20 (each an "Inactive
Sub"), or (B) permit any Inactive Sub to have any material assets or liabilities
(other than liabilities, such as franchise tax obligations, required by law in
connection with the maintenance of its corporate existence but only for so long
as is reasonably required to dissolve such Inactive Sub) or to engage in any
material business activities other than business activities incidental to the
dissolution of such Inactive Sub, and (ii) the Borrowers shall cause each
Inactive Sub to be dissolved as soon after the Closing Date as is reasonably
practicable in the exercise of the Borrowering Agent's reasonable business
judgment. The aggregate fair market value of all assets of each Inactive Sub
does not exceed $50,000. Each Inactive Sub does not engage in any material
business activities.
7.21 CCAA. Each Borrower acknowledges that its business and financial
relationships with Agent and Lenders are unique from its relationship with any
other of its creditors. Each Borrower agrees that it shall not file any plan of
arrangement under the CCAA ("CCAA Plan") which provides for, or would permit
directly or indirectly, Agent or any Lender to be classified with any other
creditor of such Borrower for purposes of such CCAA Plan or otherwise.
VIII. CONDITIONS PRECEDENT.
8.1 Conditions to Initial Revolving Advances. The agreement of Lenders to
make the initial Revolving Advances requested to be made on the Closing Date is
subject to the satisfaction, or waiver by Lenders, immediately prior to or
concurrently with the making of such Revolving Advances, of the following
conditions precedent:
(a) Revolving Credit Notes. Agent shall have received the Revolving
Credit Notes duly executed and delivered by an authorized officer of each
Borrower;
(b) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code or Personal Property Security
Legislation financing statement) required by this Agreement, any related
agreement or under law or reasonably requested by the Agent to be filed,
registered or recorded in order to create, in favor of Agent, a perfected
security interest in or lien upon the Collateral shall have been properly filed,
registered or recorded in each jurisdiction in which the filing, registration or
recordation thereof is so
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required or requested, and Agent shall have received an acknowledgment copy, or
other evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary fee, tax
or expense relating thereto;
(c) Corporate Proceedings of Borrowers. Agent shall have received a
copy of the resolutions in form and substance reasonably satisfactory to Agent,
of the Board of Directors of each Borrower authorizing (i) the execution,
delivery and performance of this Agreement, and the Other Documents and (ii) the
granting by each Borrower of the security interests in and liens upon the
Collateral in each case certified by the Secretary or an Assistant Secretary of
each Borrower as of the Closing Date; and, such certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;
(d) Incumbency Certificates of Borrowers. Agent shall have received
a certificate of the Secretary or an Assistant Secretary of each Borrower, dated
the Closing Date, as to the incumbency and signature of the officers of each
Borrower executing this Agreement, any certificate or other documents to be
delivered by it pursuant hereto, together with evidence of the incumbency of
such Secretary or Assistant Secretary;
(e) Certificates. Agent shall have received a copy of the Articles
or Certificate of Incorporation or other charter documents of each Borrower, and
all amendments thereto, certified by the Secretary of State or other appropriate
official of its jurisdiction of incorporation together with copies of the
By-Laws of each Borrower and all agreements of each Borrower's shareholders
certified as accurate and complete by the Secretary of each Borrower;
(f) Good Standing Certificates. Agent shall have received good
standing certificates (or Certificate of Status (Ontario) with respect to
VISTAinfo) for each Borrower dated not more than 30 days prior to the Closing
Date, issued by the Secretary of State or other appropriate official of each
Borrower's jurisdiction of organization and each jurisdiction where the conduct
of each Borrower's business activities or the ownership of its properties
necessitates qualification;
(g) Legal Opinions. Agent shall have received the executed legal
opinion of Xxxx Xxxx Xxxx & Freidenrich LLP and such other counsel as required
by Agent (including, unless otherwise waived by Agent, for each jurisdiction in
which a Borrower is organized, each in form and substance satisfactory to Agent
which shall cover such matters incident to the transactions contemplated by this
Agreement and the Other Documents as Agent may reasonably require and each
Borrower hereby authorizes and directs such counsel to deliver such opinions to
Agent and Lenders;
(h) No Litigation. (v) No litigation, investigation or proceeding
before or by any arbitrator or Governmental Body shall be continuing or
threatened against any Borrower or against the officers or directors of any
Borrower (A) in connection with this Agreement or the Other Documents or any of
the transactions contemplated thereby and which, in the reasonable opinion of
Agent, is deemed material or (B) which could, in the reasonable opinion of
Agent, have a Material Adverse Effect; and (vi) no injunction, writ, restraining
order or other order of any nature materially adverse to any Borrower or the
conduct of its business or inconsistent with
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the due consummation of the transactions contemplated hereby shall have been
issued by any Governmental Body;
(i) Financial Condition Certificate. Agent shall have received an
executed Financial Condition Certificate in substantially the form of Exhibit
8.1(i).
(j) Collateral Examination. Agent shall have completed Collateral
examinations and received appraisals, the results of which shall be satisfactory
in form and substance to Lenders, of the Receivables, Inventory and General
Intangibles of each Borrower and all books and records in connection therewith;
(k) Fees. Agent shall have received all fees payable to Agent and
Lenders on or prior to the Closing Date pursuant to Article III hereof;
(l) Pro Forma Financial Statements. Agent shall have received a copy
of the Pro Forma Financial Statements which shall be satisfactory in all
respects to Lenders;
(m) Subordination Agreements. Agent shall have entered into a
Subordination Agreement with Borrowers and Subordinated Lender which shall set
forth the basis upon which the Subordinated Lender may receive, and Borrowers
may make, payments under the Subordinated Note, which basis shall be
satisfactory in form and substance to Agent in its sole discretion and shall
subordinate the Lien of Subordinated Lender on the Collateral on terms
satisfactory to Agent in its sole discretion;
(n) Insurance. Agent shall have received in form and substance
satisfactory to Agent, certified copies of Borrowers' casualty insurance
policies, together with loss payable endorsements on Agent's standard form of
loss payee endorsement naming Agent as loss payee, and certified copies of
Borrowers' liability insurance policies, together with endorsements naming Agent
as a co-insured;
(o) Environmental Reports. Agent shall have received all
environmental studies and reports prepared by independent environmental
engineering firms with respect to all Real Property owned or leased by
Borrowers;
(p) Payment Instructions. Agent shall have received written
instructions from Borrowers directing the application of proceeds of the initial
Revolving Advances made pursuant to this Agreement;
(q) Blocked Accounts. Agent shall have received duly executed
agreements establishing the Blocked Accounts or Depository Accounts with
financial institutions acceptable to Agent for the collection or servicing of
the Receivables and proceeds of the Collateral;
(r) Consents. Agent shall have received any and all Consents
necessary to permit the effectuation of the transactions contemplated by this
Agreement and the Other Documents; and, Agent shall have received such Consents
and waivers of such third parties as might assert claims with respect to the
Collateral, as Agent and its counsel shall deem necessary;
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(s) No Adverse Material Change. (i) since December 31, 1999, there
shall not have occurred any event, condition or state of facts which could
reasonably be expected to have a Material Adverse Effect and (ii) no
representations made or information supplied to Agent shall have been proven to
be inaccurate or misleading in any material respect;
(t) Leasehold Agreements. Agent shall, unless otherwise waived by
Agent, have received landlord, mortgagee or warehouseman agreements satisfactory
to Agent with respect to all premises leased by Borrowers (Borrowers acknowledge
and agree that to the extent Agent waives receipt of any such agreement at the
Closing Date with respect to any such leased facility, Agent shall be entitled
to create a reserve against the Formula Amount with respect thereto in the
amount of two times the monthly rent for each such facility which reserves shall
be released on a post-closing basis as and to the extent such agreements are
provided to Agent and the Borrower agrees to use its best efforts to provide
such agreements within 60 days following the Closing Date);
(u) Subordinated Loan Documents. Agent shall have received final
executed copies of the Subordinated Loan Documents which shall contain terms and
provisions satisfactory to Agent;
(v) Net Worth. Agent shall have received the Pro Forma Balance Sheet
as of March 31, 2000 reflecting a Net Worth of at least $31,798,000;
(w) Contract Review. Agent shall have reviewed all material
contracts of Borrowers including, without limitation, leases, union contracts,
labor contracts, vendor supply contracts, license agreements and distributorship
agreements and such contracts and agreements shall be satisfactory in all
respects to Agent;
(x) Closing Certificate. Agent shall have received a closing
certificate signed by an Officer of Borrowing Agent dated as of the date hereof,
stating that (i) all representations and warranties set forth in this Agreement
and the Other Documents are true and correct on and as of such date, (ii)
Borrowers are on such date in compliance with all the terms and provisions set
forth in this Agreement and the Other Documents and (iii) on such date no
Default or Event of Default has occurred or is continuing;
(y) Borrowing Base. Agent shall have received evidence from
Borrowers that the aggregate amount of Eligible Receivables and Eligible DMS
Contract Receivables, is sufficient in value and amount to support Revolving
Advances in the amount requested by Borrowers on the Closing Date;
(z) Undrawn Availability. After giving effect to the initial
Revolving Advances hereunder, Borrowers shall have aggregate cash plus Undrawn
Availability of at least $3,000,000; and
(aa) Other. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated hereby shall be satisfactory in form and substance to Agent and its
counsel.
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8.2 Conditions to Each Revolving Advance. The agreement of Lenders to make
any Revolving Advance requested to be made on any date (including, without
limitation, the initial Revolving Advance), is subject to the satisfaction of
the following conditions precedent as of the date such Revolving Advance is
made:
(a) Representations and Warranties. Each of the representations and
warranties made by any Borrower in or pursuant to this Agreement and any related
agreements to which it is a party, and each of the representations and
warranties contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement or
any related agreement shall be true and correct in all material respects on and
as of such date as if made on and as of such date;
(b) No Default. No Event of Default or Default shall have occurred
and be continuing on such date, or would exist after giving effect to the
Revolving Advances requested to be made, on such date; provided, however that
Lenders, in their sole discretion, may continue to make Revolving Advances
notwithstanding the existence of an Event of Default or Default and that any
Revolving Advances so made shall not be deemed a waiver of any such Event of
Default or Default; and
(c) Maximum Revolving Advances. In the case of any Revolving
Advances requested to be made, after giving effect thereto, the aggregate
Revolving Advances shall not exceed the maximum amount of Revolving Advances
permitted under Section 2.1 hereof.
Each request for a Revolving Advance by any Borrower hereunder shall constitute
a representation and warranty by each Borrower as of the date of such Revolving
Advance that the conditions contained in this subsection shall have been
satisfied.
IX. INFORMATION AS TO BORROWERS.
Each Borrower shall, until satisfaction in full of the Obligations and the
termination of this Agreement:
9.1 Disclosure of Material Matters. Immediately upon learning thereof,
report to Agent all matters materially affecting the value, enforceability or
collectibility of any portion of the Collateral including, without limitation,
any Borrower's reclamation or repossession of, or the return to any Borrower of,
a material amount of goods or claims or disputes asserted by any Customer or
other obligor.
9.2 Schedules. Deliver to Agent (1) on Tuesday of each week, with respect
to the prior week, a report of trade accounts receivable activity during such
prior week and confirmatory assignment schedules with respect thereto, and (2)
on or before the fifteenth (15th) day of each month as and for the prior month
(a) accounts receivable agings, (b) accounts payable schedules and (c) a
Borrowing Base Certificate (which shall be calculated as of the last day of the
prior month and which shall not be binding upon Agent or restrictive of Agent's
rights under this Agreement) (d) a report of Internet Investment Expenditures,
and (e) a report of collections of DMS' Contract Receivables, and an aging of
such DMS Contract Receivables. In addition, Borrowing Agent will deliver to
Agent at such intervals as Agent may require:
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(i) copies of Customer's invoices, (ii) evidence of shipment or delivery, and
(iii) such further schedules, documents and/or information regarding the
Collateral as Agent may require including, without limitation, trial balances
and test verifications. Agent shall have the right to confirm and verify all
Receivables by any reasonable manner and through any reasonable medium it
considers advisable and do whatever it may deem reasonably necessary to protect
its interests hereunder. The items to be provided under this Section are to be
in form satisfactory to Agent and executed by each Borrower and delivered to
Agent from time to time solely for Agent's convenience in maintaining records of
the Collateral, and any Borrower's failure to deliver any of such items to Agent
shall not affect, terminate, modify or otherwise limit Agent's Lien with respect
to the Collateral.
9.3 Environmental Reports. Furnish Agent, concurrently with the delivery
of the financial statements referred to in Sections 9.7 and 9.8, with a
certificate signed by the President of the Borrowing Agent stating, to the best
of his knowledge, that each Borrower is in compliance in all material respects
with all federal, state and local laws relating to environmental protection and
control and occupational safety and health. To the extent any Borrower is not in
compliance with the foregoing laws, the certificate shall set forth with
specificity all areas of non-compliance and the proposed action such Borrower
will implement in order to achieve full compliance.
9.4 Litigation. Promptly notify Agent in writing of any litigation, suit
or administrative proceeding affecting any Borrower, whether or not the claim is
covered by insurance, and of any suit or administrative proceeding, which in any
such case could reasonably be expected to have a Material Adverse Effect on any
Borrower.
9.5 Material Occurrences. Promptly notify Agent in writing upon the
occurrence of (a) any Event of Default or Default; (b) any event of default
under the Subordinated Loan Documents, (c) any event which with the giving of
notice or lapse of time, or both, would constitute an event of default under the
Subordinated Loan Documents; (d) any event, development or circumstance whereby
any financial statements or other reports furnished to Agent fail in any
material respect to present fairly, in accordance with GAAP consistently
applied, the financial condition or operating results of any Borrower as of the
date of such statements; (e) any accumulated retirement plan funding deficiency
which, if such deficiency continued for two plan years and was not corrected as
provided in Section 4971 of the Code, could subject any Borrower to a tax
imposed by Section 4971 of the Code; (f) each and every default by any Borrower
which might result in the acceleration of the maturity of any Indebtedness,
including the names and addresses of the holders of such Indebtedness with
respect to which there is a default existing or with respect to which the
maturity has been or could be accelerated, and the amount of such Indebtedness;
and (g) any other development in the business or affairs of any Borrower which
could reasonably be expected to have a Material Adverse Effect; in each case
describing the nature thereof and the action Borrowers propose to take with
respect thereto.
9.6 Government Receivables. Notify Agent immediately if any of its
Receivables arise out of contracts between any Borrower and the United States or
Canada, any state, or any department, agency or instrumentality of any of them
which notification may be made in the weekly reports required under Section
9.2(1).
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9.7 Annual Financial Statements. Furnish Agent within one hundred and five
(105) days after the end of each fiscal year of Borrowers, financial statements
of Borrowers on a consolidating and consolidated basis including, but not
limited to, statements of income and stockholders' equity and cash flow from the
beginning of the current fiscal year to the end of such fiscal year and the
balance sheet as at the end of such fiscal year, all prepared in accordance with
GAAP applied on a basis consistent with prior practices, and in reasonable
detail and reported upon without qualification by an independent certified
public accounting firm selected by Borrowers and satisfactory to Agent (the
"Accountants"). The report of the Accountants shall be accompanied by a
statement of the Accountants certifying that (i) they have caused the Loan
Agreement to be reviewed, (ii) in making the examination upon which such report
was based either no information came to their attention which to their knowledge
constituted an Event of Default or a Default under this Agreement or any related
agreement or, if such information came to their attention, specifying any such
Default or Event of Default, its nature, when it occurred and whether it is
continuing, and such report shall contain or have appended thereto calculations
which set forth Borrowers' compliance with the requirements or restrictions
imposed by Sections 6.5, 6.6, 6.7, 6.8, 7.6 and 7.11 hereof. In addition, the
reports shall be accompanied by a certificate of Borrowing Agent's Chief
Financial Officer which shall state that, based on an examination sufficient to
permit him to make an informed statement, no Default or Event of Default exists,
or, if such is not the case, specifying such Default or Event of Default, its
nature, when it occurred, whether it is continuing and the steps being taken by
any such Borrower with respect to such event, and such certificate shall have
appended thereto calculations which set forth Borrowers' compliance with the
requirements or restrictions imposed by Sections 6.5, 6.6, 6.7, 6.8, 7.6 and
7.11 hereof.
9.8 Quarterly Financial Statements. Furnish Agent within forty-five (45)
days after the end of each fiscal quarter, an unaudited balance sheet of
Borrowers on a consolidated and consolidating basis and unaudited statements of
income and cash flow of Borrowers on a consolidated and consolidating basis
reflecting results of operations from the beginning of the fiscal year to the
end of such quarter and for such quarter, prepared on a basis consistent with
prior practices and complete and correct in all material respects, subject to
normal and recurring year end adjustments that individually and in the aggregate
are not material to the business of Borrowers. The reports shall be accompanied
by a certificate signed by the Chief Financial Officer of Borrowing Agent, which
shall state that, based on an examination sufficient to permit him to make an
informed statement, no Default or Event of Default exists, or, if such is not
the case, specifying such Default or Event of Default, its nature, when it
occurred, whether it is continuing and the steps being taken by such Borrower
with respect to such default and, such certificate shall have appended thereto
calculations which set forth Borrowers' compliance with the requirements or
restrictions imposed by Sections 6.5, 6.6, 6.7, 6.8, 7.6 and 7.11 hereof.
9.9 Monthly Financial Statements. Furnish Agent within thirty (30) days
after the end of each month, an unaudited balance sheet of Borrowers on a
consolidated and consolidating basis and unaudited statements of income and cash
flow of Borrowers on a consolidated and consolidating basis reflecting results
of operations from the beginning of the fiscal year to the end of such month and
for such month, prepared on a basis consistent with prior practices and complete
and correct in all material respects, subject to normal and recurring year end
adjustments that individually and in the aggregate are not material to the
business of Borrowers. The reports shall be accompanied by a certificate of
Borrowing Agent's Chief Financial Officer,
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which shall state that, based on an examination sufficient to permit him to make
an informed statement, no Default or Event of Default exists, or, if such is not
the case, specifying such Default or Event of Default, its nature, when it
occurred, whether it is continuing and the steps being taken by Borrowers with
respect to such event and, such certificate shall have appended thereto
calculations which set forth Borrowers' compliance with the requirements or
restrictions imposed by Sections 6.5, 6.6, 6.7, 6.8, 7.6 and 7.11 hereof.
9.10 Other Reports. Furnish Agent as soon as available, but in any event
within ten (10) days after the issuance thereof, (i) with copies of such
financial statements, reports and returns as each Borrower shall send to its
stockholders and (ii) copies of all notices sent pursuant to the Subordinated
Loan Documents.
9.11 Additional Information. Furnish Agent with such additional
information as Agent shall reasonably request in order to enable Agent to
determine whether the terms, covenants, provisions and conditions of this
Agreement have been complied with by Borrowers including, without limitation and
without the necessity of any request by Agent, (a) copies of all environmental
audits and reviews, (b) at least thirty (30) days prior thereto, notice of any
Borrower's opening of any new office or place of business or any Borrower's
closing of any existing office or place of business, and (c) promptly upon any
Borrower's learning thereof, notice of any labor dispute to which any Borrower
may become a party, any strikes or walkouts relating to any of its plants or
other facilities, and the expiration of any labor contract to which any Borrower
is a party or by which any Borrower is bound.
9.12 Projected Operating Budget. Furnish Agent, no later than thirty (30)
days prior to the beginning of each Borrowing Agent's fiscal years, a month by
month projected operating budget and cash flow of Borrowers on a consolidated
and consolidating basis for such fiscal year (including an income statement for
each month and a balance sheet as at the end of the last month in each fiscal
quarter), such projections to be accompanied by a certificate signed by the
President or Chief Financial Officer of each Borrowing Agent to the effect that
such projections have been prepared on the basis of sound financial planning
practice consistent with past budgets and financial statements and that such
officer has no reason to question the reasonableness of any material assumptions
on which such projections were prepared.
9.13 Variances From Operating Budget. Furnish Agent, concurrently with the
delivery of the financial statements referred to in Section 9.7 and each monthly
report, a written report summarizing all material variances from budgets
submitted by Borrowers pursuant to Section 9.12 and a discussion and analysis by
management with respect to such variances.
9.14 Notice of Suits, Adverse Events. Furnish Agent with prompt notice of
(i) any lapse or other termination of any Consent issued to any Borrower by any
Governmental Body or any other Person that is material to the operation of any
Borrower's business, (ii) any refusal by any Governmental Body or any other
Person to renew or extend any such Consent; and (iii) copies of any periodic or
special reports filed by any Borrower with any Governmental Body or Person, if
such reports indicate any material change in the business, operations, affairs
or condition of any Borrower, or if copies thereof are requested by Lender, and
(iv) copies of any material notices and other communications from any
Governmental Body or Person which specifically relate to any Borrower.
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9.15 ERISA Notices and Requests. Furnish Agent with immediate written
notice in the event that (i) any Borrower or any member of the Controlled Group
knows or has reason to know that a Termination Event has occurred, together with
a written statement describing such Termination Event and the action, if any,
which such Borrower or any member of the Controlled Group has taken, is taking,
or proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, Department of Labor or PBGC with
respect thereto, (ii) any Borrower or any member of the Controlled Group knows
or has reason to know that a prohibited transaction (as defined in Sections 406
of ERISA and 4975 of the Code) has occurred together with a written statement
describing such transaction and the action which such Borrower or any member of
the Controlled Group has taken, is taking or proposes to take with respect
thereto, (iii) a funding waiver request has been filed with respect to any Plan
together with all communications received by any Borrower or any member of the
Controlled Group with respect to such request, (iv) any increase in the benefits
of any existing Plan or the establishment of any new Plan or the commencement of
contributions to any Plan to which any Borrower or any member of the Controlled
Group was not previously contributing shall occur, (v) any Borrower or any
member of the Controlled Group shall receive from the PBGC a notice of intention
to terminate a Plan or to have a trustee appointed to administer a Plan,
together with copies of each such notice, (vi) any Borrower or any member of the
Controlled Group shall receive any favorable or unfavorable determination letter
from the Internal Revenue Service regarding the qualification of a Plan under
Section 401(a) of the Code, together with copies of each such letter; (vii) any
Borrower or any member of the Controlled Group shall receive a notice regarding
the imposition of withdrawal liability, together with copies of each such
notice; (viii) any Borrower or any member of the Controlled Group shall fail to
make a required installment or any other required payment under Section 412 of
the Code on or before the due date for such installment or payment; (ix) any
Borrower or any member of the Controlled Group knows that (a) a Multiemployer
Plan has been terminated, (b) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan, or (c) the PBGC
has instituted or will institute proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan.
9.16 Additional Documents. Execute and deliver to Agent, upon request,
such documents and agreements as Agent may, from time to time, reasonably
request to carry out the purposes, terms or conditions of this Agreement.
X. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an "Event of Default":
10.1 failure by any Borrower to pay any principal or interest on the
Obligations when due, whether at maturity or by reason of acceleration pursuant
to the terms of this Agreement or by notice of intention to prepay, or by
required prepayment or failure to pay any other liabilities or make any other
payment, fee or charge provided for herein when due or in any Other Document;
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10.2 any representation or warranty made or deemed made by any Borrower in
this Agreement or any related agreement or in any certificate, document or
financial or other statement furnished at any time in connection herewith or
therewith shall prove to have been misleading in any material respect on the
date when made or deemed to have been made;
10.3 failure by any Borrower to (i) furnish financial information when due
or when requested, or (ii) permit the inspection of its books or records;
10.4 issuance of a notice of Lien, levy, assessment, injunction or
attachment against a material portion of any Borrower's property which is not
stayed or released within 10 days;
10.5 except as otherwise provided for in Sections 10.1 and 10.3, failure
or neglect of any Borrower to perform, keep or observe any term, provision,
condition, covenant herein contained, or contained in any other agreement or
arrangement, now or hereafter entered into between any Borrower and Agent or any
Lender except for a failure or neglect of any Borrower to perform, keep or
observe any term, provision, condition or covenant, contained in Sections 4.6,
4.7, 4.9, 4.11, 6.1, 6.3, 6.4, 9.4 or 9.6 hereof which is cured within 10 days
from the occurrence of such failure or neglect;
10.6 any judgment or judgments are rendered or judgment liens filed
against any Borrower (as to which insurance coverage has not been confirmed in
writing by the relevant insurer) for an aggregate amount in excess of $250,000
which within forty-five (45) days of such rendering or filing is not either
satisfied, stayed or discharged of record;
10.7 any Borrower shall (i) apply for, consent to or suffer the
appointment of, or the taking of possession by, a receiver, receiver-manager,
custodian, trustee, liquidator or similar fiduciary of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit
of creditors, (iii) commence a voluntary case under any state, provincial or
federal bankruptcy, insolvency, reorganization or other similar law of any
jurisdiction (or any readjustment of debt, arrangement, moratorium, dissolution
or liquidation law or statute) (as now or hereafter in effect), (iv) be
adjudicated a bankrupt or insolvent, (v) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (vi) acquiesce
to, or fail to have dismissed, within thirty (30) days, any petition filed
against it in any involuntary case under such bankruptcy laws, or (vii) take any
action for the purpose of effecting any of the foregoing;
10.8 any Borrower shall admit in writing its inability, or be generally
unable, to pay its debts as they become due or cease operations of its present
business;
10.9 any Affiliate or any Subsidiary of any Borrower, or any Guarantor,
shall (i) apply for, consent to or suffer the appointment of, or the taking of
possession by, a receiver, receiver-manager, custodian, trustee, liquidator or
similar fiduciary of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
they become due or cease operations of its present business, (iii) make a
general assignment for the benefit of creditors, (iv) commence a voluntary case
under any state, provincial or federal bankruptcy, insolvency, reorganization or
other similar law of any jurisdiction (or any readjustment of debt, arrangement,
moratorium, dissolution or liquidation law or statute) (as now or hereafter in
effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition
seeking to
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take advantage of any other law providing for the relief of debtors, (vii)
acquiesce to, or fail to have dismissed, within thirty (30) days, any petition
filed against it in any involuntary case under such bankruptcy laws, or (viii)
take any action for the purpose of effecting any of the foregoing;
10.10 any change in any Borrower's condition or affairs (financial or
otherwise) which in Agent's opinion has a Material Adverse Effect;
10.11 any Lien created hereunder or provided for hereby or under any
related agreement for any reason ceases to be or is not a valid and perfected
Lien having a first priority interest;
10.12 an event of default has occurred under the Subordinated Loan
Documents which default shall not have been cured or waived within any
applicable grace period.
10.13 a default of the obligations of any Borrower under any other
agreement to which it is a party shall occur which adversely affects its
condition, affairs or prospects (financial or otherwise) which default is not
cured within any applicable grace period;
10.14 termination or breach of any Guaranty or Guaranty Security Agreement
or similar agreement executed and delivered to Agent in connection with the
Obligations of any Borrower, or if any Guarantor attempts to terminate,
challenges the validity of, or its liability under, any such Guaranty or
Guaranty Security Agreement or similar agreement;
10.15 any Change of Control shall occur;
10.16 any material provision of this Agreement or any of the Other
Agreements shall, for any reason, cease to be valid and binding on any Borrower,
or any Borrower shall so claim in writing to Agent;
10.17 (i) any Governmental Body shall (A) revoke, terminate, suspend or
adversely modify any license, permit, patent trademark or tradename of any
Borrower, the continuation of which is material to the continuation of any
Borrower's business, or (B) commence proceedings to suspend, revoke, terminate
or adversely modify any such license, permit, trademark, tradename or patent and
such proceedings shall not be dismissed or discharged within sixty (60) days, or
(c) schedule or conduct a hearing on the renewal of any such license, permit,
trademark, tradename or patent necessary for the continuation of any Borrower's
business and the staff of such Governmental Body issues a report recommending
the termination, revocation, suspension or material, adverse modification of
such license, permit, trademark, tradename or patent; (ii) any agreement which
is necessary or material to the operation of any Borrower's business shall be
revoked or terminated and not replaced by a substitute acceptable to Agent
within thirty (30) days after the date of such revocation or termination, and
such revocation or termination and non-replacement is, in the Agent's opinion,
reasonably be expected to have a Material Adverse Effect on any Borrower;
10.18 any portion of the Collateral shall be seized or taken by a
Governmental Body, or any Borrower or the title and rights of any Borrower or
any Original Owner which is the owner of any material portion of the Collateral
shall have become the subject matter of litigation which might, in the opinion
of Agent, upon final determination, result in impairment or loss of the security
provided by this Agreement or the Other Documents;
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10.19 the operations of any Borrower's facilities are interrupted at any
time in a manner which would have a Material Adverse Effect, unless such
Borrower shall (i) be entitled to receive for such period of interruption,
proceeds of business interruption insurance sufficient to assure that its per
diem cash needs during such period is at least equal to its average per diem
cash needs for the consecutive three month period immediately preceding the
initial date of interruption and (ii) receive such proceeds in the amount
described in clause (i) preceding not later than thirty (30) days following the
initial date of any such interruption; provided, however, that notwithstanding
the provisions of clauses (i) and (ii) of this section, an Event of Default
shall be deemed to have occurred if such Borrower shall be receiving the
proceeds of business interruption insurance for a period of thirty (30)
consecutive days; or
10.20 an event or condition specified in Sections 7.16 or 9.15 hereof
shall occur or exist with respect to any Plan and, as a result of such event or
condition, together with all other such events or conditions, any Borrower or
any member of the Controlled Group shall incur, or in the opinion of Agent be
reasonably likely to incur, a liability to a Plan or the PBGC (or both) which,
in the reasonable judgment of Agent, would have a Material Adverse Effect on any
Borrower; or
10.21 Xxxxxx X. Xxx, Xxxx Xxxxxxx or Xxxxxx Xxxxx shall resign or be
terminated, other than for cause, from their respective positions with VISTA,
and a successor reasonably acceptable to Agent shall not have been elected
within ninety (90) days (provided that such period shall be extended by an
additional 90 days if, in Agent's sole discretion (i) there has been no
substantial deterioration in the financial condition of any Borrower, and (ii)
Borrowing Agent is diligently pursuing the retention of a replacement for such
Person) after such resignation or termination, provided, that if no such
successor is elected, an Event of Default shall be deemed to have occurred and
have been continuing from and after the date of such resignation or termination.
10.22 The three month average DMS Contract Receivables reported in any
monthly report delivered hereunder shall decrease by 10% or more from the three
month average for DMS Contract Receivables reported in the prior month's report.
10.23 Income Tax Act. A requirement from the Minister of National Revenue
for payment pursuant to Section 224 or any successor section of the Income Tax
Act (Canada) or Section 317, or any successor section of the Excise Tax Act
(Canada) or any comparable provision of similar legislation shall have been
received by Agent, any Lender or any other Person in respect of any Borrower or
any of its Subsidiaries or otherwise issued in respect of any Borrower or any of
its Subsidiaries and such requirement is not withdrawn within seven (7) days
after written notice thereof to Borrowing Agent from the Agent.
XI. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT.
11.1 Rights and Remedies. Upon the occurrence of (i) an Event of Default
pursuant to Section 10.7 all Obligations shall be immediately due and payable
and this Agreement and the obligation of Lenders to make Revolving Advances
shall be deemed terminated; and, (ii) any of the other Events of Default and at
any time thereafter (such default not having previously been cured), at the
option of Required Lenders all Obligations shall be immediately due and payable
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and Lenders shall have the right to terminate this Agreement and to terminate
the obligation of Lenders to make Revolving Advances and (iii) a filing of a
petition against any Borrower in any involuntary case under any state,
provincial or federal bankruptcy laws, the obligation of Lenders to make
Revolving Advances hereunder shall be terminated other than as may be required
by an appropriate order of the bankruptcy court having jurisdiction over any
Borrower. Upon the occurrence of any Event of Default, Agent shall have the
right to exercise any and all other rights and remedies provided for herein,
under the Uniform Commercial Code, any Personal Property Security Legislation
and at law or equity generally (all without notice to or consent by Borrowers
except as such notice or consent as expressly provided for hereunder or required
by applicable law), including, without limitation, the right to foreclose the
security interests granted herein and to realize upon any Collateral by any
available judicial procedure and/or to take possession of and sell any or all of
the Collateral with or without judicial process. Agent may enter any of any
Borrower's premises or other premises without legal process and without
incurring liability to any Borrower therefor, and Agent may thereupon, or at any
time thereafter, in its discretion without notice or demand, take the Collateral
and remove the same to such place as Agent may deem advisable and Agent may
require Borrowers to make the Collateral available to Agent at a convenient
place. With or without having the Collateral at the time or place of sale, Agent
may sell the Collateral, or any part thereof, at public or private sale, at any
time or place, in one or more sales, at such price or prices, and upon such
terms, either for cash, credit or future delivery, as Agent may elect. Except as
to that part of the Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market, Agent
shall give Borrowers reasonable notification of such sale or sales, it being
agreed that in all events written notice mailed to Borrowers at least five (5)
days prior to such sale or sales is reasonable notification. At any public sale
Agent or any Lender may bid for and become the purchaser, and Agent, any Lender
or any other purchaser at any such sale thereafter shall hold the Collateral
sold absolutely free from any claim or right of whatsoever kind, including any
equity of redemption and such right and equity are hereby expressly waived and
released by each Borrower. In connection with the exercise of the foregoing
remedies, Agent is granted permission to use all of each Borrower's trademarks,
trade styles, trade names, patents, patent applications, licenses, franchises
and other proprietary rights which are used in connection with (a) Inventory for
the purpose of disposing of such Inventory and (b) Equipment for the purpose of
completing the manufacture of unfinished goods. The proceeds realized from the
sale of any Collateral shall be applied as follows: first, to the reasonable
costs, expenses and attorneys' fees and expenses incurred by Agent for
collection and for acquisition, completion, protection, removal, storage, sale
and delivery of the Collateral; second, to interest due upon any of the
Obligations and any fees payable under this Agreement; and, third, to the
principal of the Obligations. If any deficiency shall arise, Borrowers shall
remain liable to Agent and Lenders therefor.
During the continuance of an Event of Default, Agent and Lenders may appoint,
remove and reappoint any person or persons, including any employee or agent of
Agent and Lenders to be a receiver (the "Receiver") which term shall include a
receiver and manager of, or agent for, all or any part of the Collateral. Any
such Receiver shall, as far as concerns responsibility for his acts, be deemed
to be the agent of Borrowers and not of Agent or any Lender, and Agent and
Lenders shall not in any way be responsible for any misconduct, negligence or
non-feasance of such Receiver, its employees or agents. Except as otherwise
directed by Agent and Lenders, all money received by such Receiver shall be
received in trust for and paid to Agent for the benefit
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of Lenders. Such Receiver shall have all of the powers and rights of Agent and
Lenders described in Section 11.1. Agent may, either directly or through its
agents or nominees, exercise any or all powers and right of a Receiver.
11.2 Agent's Discretion. Agent shall have the right in its sole discretion
to determine which rights, Liens, security interests or remedies Agent may at
any time pursue, relinquish, subordinate, or modify or to take any other action
with respect thereto and such determination will not in any way modify or affect
any of Agent's or Lenders' rights hereunder.
11.3 Setoff. In addition to any other rights which Agent or any Lender may
have under applicable law, upon the occurrence of an Event of Default hereunder,
Agent and such Lender shall have a right to apply any Borrower's property held
by Agent and such Lender to reduce the Obligations.
11.4 Rights and Remedies not Exclusive. The enumeration of the foregoing
rights and remedies is not intended to be exhaustive and the exercise of any
right or remedy shall not preclude the exercise of any other right or remedies
provided for herein or otherwise provided by law, all of which shall be
cumulative and not alternative.
XII. WAIVERS AND JUDICIAL PROCEEDINGS.
12.1 Waiver of Notice. Each Borrower hereby waives notice of non-payment
of any of the Receivables, demand, presentment, protest and notice thereof with
respect to any and all instruments, notice of acceptance hereof, notice of loans
or advances made, credit extended, Collateral received or delivered, or any
other action taken in reliance hereon, and all other demands and notices of any
description, except such as are expressly provided for herein.
12.2 Delay. No delay or omission on Agent's or any Lender's part in
exercising any right, remedy or option shall operate as a waiver of such or any
other right, remedy or option or of any default.
12.3 Jury Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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XIII. EFFECTIVE DATE AND TERMINATION.
13.1 Term. This Agreement, which shall inure to the benefit of and shall
be binding upon the respective successors and permitted assigns of each
Borrower, Agent and each Lender, shall become effective on the date hereof and
shall continue in full force and effect until the earlier of April 17, 2003 and
sixty (60) days prior to the maturity of the Subordinated Note (the "Term")
unless sooner terminated as herein provided. Borrowers may terminate this
Agreement at any time upon ninety (90) days' prior written notice upon payment
in full of the Obligations. In the event the Obligations are prepaid in full
prior to April 17, 2003 (the date of such prepayment hereinafter referred to as
the "Early Termination Date"), Borrowers shall pay to Agent for the benefit of
Lenders an early termination fee in an amount equal to (x) $200,000 if the Early
Termination Date occurs on or after the Closing Date to and including the date
immediately preceding the first anniversary of the Closing Date, (y) $100,000 if
the Early Termination Date occurs on or after the first anniversary of the
Closing Date to and including the date immediately preceding the second
anniversary of the Closing Date; provided, however, that if the Revolving
Advances are prepaid in full with the proceeds of a public offering of VISTA's
Capital Stock and if the Borrowers (or VISTA and/or its Subsidiaries) do not
enter into a new working capital credit facility with another lender within 180
days after the Revolving Advances are prepaid and the Commitments are
terminated, then the early termination fee shall be reduced to $100,000 if the
Early Termination Date occurs on or after the Closing Date to and including the
date immediately preceding the first anniversary of the Closing Date and $50,000
if the Early Termination Date occurs on or after the first anniversary of the
Closing Date to and including the second anniversary of the Closing Date. If the
Borrowers pay the early termination fee provided in the proviso to the preceding
sentence and thereafter enter into a new working capital credit facility with
180 days, then the Borrowers shall pay to the Agent the difference between the
early termination fee actually paid to the Agent and the early termination fee
that is due under this Section.
13.2 Termination. The termination of the Agreement shall not affect any
Borrower's, Agent's or any Lender's rights, or any of the Obligations having
their inception prior to the effective date of such termination, and the
provisions hereof shall continue to be fully operative until all transactions
entered into, rights or interests created or Obligations have been fully
disposed of, concluded or liquidated. The security interests, Liens and rights
granted to Agent and Lenders hereunder and the financing statements filed
hereunder shall continue in full force and effect, notwithstanding the
termination of this Agreement or the fact that Borrowers' Account may from time
to time be temporarily in a zero or credit position, until all of the
Obligations of each Borrower have been paid or performed in full after the
termination of this Agreement or each Borrower has furnished Agent and Lenders
with an indemnification satisfactory to Agent and Lenders with respect thereto.
Accordingly, each Borrower waives any rights which it may have under any
Personal Property Security Legislation or under Section 9-404(1) of the Uniform
Commercial Code to demand the filing of termination statements with respect to
the Collateral, and Agent shall not be required to send such termination
statements to each Borrower, or to file them with any filing office, unless and
until this Agreement shall have been terminated in accordance with its terms and
all Obligations paid in full in immediately available funds. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until all Obligations are paid or performed in
full.
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XIV. REGARDING AGENT.
14.1 Appointment. Each Lender hereby designates PNC to act as Agent for
such Lender under this Agreement and the Other Documents. Each Lender hereby
irrevocably authorizes Agent to take such action on its behalf under the
provisions of this Agreement and the Other Documents and to exercise such powers
and to perform such duties hereunder and thereunder as are specifically
delegated to or required of Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto and Agent shall hold all Collateral,
payments of principal and interest, fees (except the fees set forth in Sections
3.3(a) and 3.4), charges and collections (without giving effect to any
collection days) received pursuant to this Agreement, for the ratable benefit of
Lenders. Agent may perform any of its duties hereunder by or through its agents
or employees. As to any matters not expressly provided for by this Agreement
(including without limitation, collection of the Note) Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding; provided, however, that Agent shall not be
required to take any action which exposes Agent to liability or which is
contrary to this Agreement or the Other Documents or applicable law unless Agent
is furnished with an indemnification reasonably satisfactory to Agent with
respect thereto.
14.2 Nature of Duties. Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the Other Documents.
Neither Agent nor any of its officers, directors, employees or agents shall be
(i) liable for any action taken or omitted by them as such hereunder or in
connection herewith, unless caused by their gross (not mere) negligence or
willful misconduct, or (ii) responsible in any manner for any recitals,
statements, representations or warranties made by any Borrower or any officer
thereof contained in this Agreement, or in any of the Other Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by Agent under or in connection with, this Agreement or any of the
Other Documents or for the value, validity, effectiveness, genuineness, due
execution, enforceability or sufficiency of this Agreement, or any of the Other
Documents or for any failure of any Borrower to perform its obligations
hereunder. Agent shall not be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any of the Other Documents, or
to inspect the properties, books or records of any Borrower. The duties of Agent
as respects the Revolving Advances to Borrowers shall be mechanical and
administrative in nature; Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Lender; and nothing in this Agreement,
expressed or implied, is intended to or shall be so construed as to impose upon
Agent any obligations in respect of this Agreement except as expressly set forth
herein.
14.3 Lack of Reliance on Agent and Resignation. Independently and without
reliance upon Agent or any other Lender, each Lender has made and shall continue
to make (i) its own independent investigation of the financial condition and
affairs of each Borrower in connection with the making and the continuance of
the Revolving Advances hereunder and the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the creditworthiness of each
Borrower. Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether
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coming into its possession before making of the Revolving Advances or at any
time or times thereafter except as shall be provided by any Borrower pursuant to
the terms hereof. Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
agreement, document, certificate or a statement delivered in connection with or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any Other Document, or of the
financial condition of any Borrower, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement, the Note, the Other Documents or the financial
condition of any Borrower, or the existence of any Event of Default or any
Default.
Agent may resign on sixty (60) days' written notice to each of Lenders and
Borrowing Agent and upon such resignation, the Required Lenders will promptly
designate a successor Agent reasonably satisfactory to Borrowers.
Any such successor Agent shall succeed to the rights, powers and duties of
Agent, and the term "Agent" shall mean such successor agent effective upon its
appointment, and the former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent. After any Agent's resignation as Agent, the provisions of this Article
XIV shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
14.4 Certain Rights of Agent. If Agent shall request instructions from
Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any Other Document, Agent shall be entitled to
refrain from such act or taking such action unless and until Agent shall have
received instructions from the Required Lenders; and Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, Lenders shall not have any right of action whatsoever against Agent
as a result of its acting or refraining from acting hereunder in accordance with
the instructions of the Required Lenders.
14.5 Reliance. Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, order or other
document or telephone message believed by it to be genuine and correct and to
have been signed, sent or made by the proper person or entity, and, with respect
to all legal matters pertaining to this Agreement and the Other Documents and
its duties hereunder, upon advice of counsel selected by it. Agent may employ
agents and attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected by Agent with
reasonable care.
14.6 Notice of Default. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder or under
the Other Documents, unless Agent has received notice from a Lender or a
Borrower referring to this Agreement or the Other Documents, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that Agent receives such a notice, Agent shall give
notice thereof to Lenders. Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided, that, unless and until Agent shall have received such
directions, Agent may (but shall not be obligated to) take such action, or
refrain
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from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of Lenders.
14.7 Indemnification. To the extent Agent is not reimbursed and
indemnified by Borrowers, each Lender will reimburse and indemnify Agent in
proportion to its respective portion of the Revolving Advances (or, if no
Revolving Advances are outstanding, according to its Commitment Percentage),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against Agent in performing its duties hereunder, or in any way relating to or
arising out of this Agreement or any Other Document; provided that, Lenders
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross (not mere) negligence or willful misconduct.
14.8 Agent in its Individual Capacity. With respect to the obligation of
Agent to lend under this Agreement, the Revolving Advances made by it shall have
the same rights and powers hereunder as any other Lender and as if it were not
performing the duties as Agent specified herein; and the term "Lender" or any
similar term shall, unless the context clearly otherwise indicates, include
Agent in its individual capacity as a Lender. Agent may engage in business with
any Borrower as if it were not performing the duties specified herein, and may
accept fees and other consideration from any Borrower for services in connection
with this Agreement or otherwise without having to account for the same to
Lenders.
14.9 Delivery of Documents. To the extent Agent receives financial
statements required under Sections 9.7, 9.8, and 9.9 from any Borrower pursuant
to the terms of this Agreement, Agent will promptly furnish such documents and
information to Lenders.
14.10 Borrowers' Undertaking to Agent. Without prejudice to their
respective obligations to Lenders under the other provisions of this Agreement,
each Borrower hereby undertakes with Agent to pay to Agent from time to time on
demand all amounts from time to time due and payable by it for the account of
Agent or Lenders or any of them pursuant to this Agreement to the extent not
already paid. Any payment made pursuant to any such demand shall pro tanto
satisfy the relevant Borrower's obligations to make payments for the account of
Lenders or the relevant one or more of them pursuant to this Agreement.
XV. BORROWING AGENCY.
15.1 Borrowing Agency Provisions.
(a) Each Borrower hereby irrevocably designates Borrowing Agent to
be its attorney and agent and in such capacity to borrow, sign and endorse
notes, and execute and deliver all instruments, documents, writings and further
assurances now or hereafter required hereunder, on behalf of such Borrower or
Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds
hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility
with a borrowing agent in the manner set forth in this Agreement is solely as an
accommodation to
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Borrowers and at their request. Neither Agent nor any Lender shall incur
liability to Borrowers as a result thereof. To induce Agent and Lenders to do so
and in consideration thereof, each Borrower hereby indemnifies Agent and each
Lender and holds Agent and each Lender harmless from and against any and all
liabilities, expenses, losses, damages and claims of damage or injury asserted
against Agent or any Lender by any Person arising from or incurred by reason of
the handling of the financing arrangements of Borrowers as provided herein,
reliance by Agent or any Lender on any request or instruction from Borrowing
Agent or any other action taken by Agent or any Lender with respect to this
Section 15.1 except due to willful misconduct or gross (not mere) negligence by
the indemnified party.
(c) All Obligations shall be joint and several, and each Borrower
shall make payment upon the maturity of the Obligations by acceleration or
otherwise, and such obligation and liability on the part of each Borrower shall
in no way be affected by any extensions, renewals and forbearance granted to
Agent or any Lender to any Borrower, failure of Agent or any Lender to give any
Borrower notice of borrowing or any other notice, any failure of Agent or any
Lender to pursue or preserve its rights against any Borrower, the release by
Agent or any Lender of any Collateral now or thereafter acquired from any
Borrower, and such agreement by each Borrower to pay upon any notice issued
pursuant thereto is unconditional and unaffected by prior recourse by Agent or
any Lender to the other Borrowers or any Collateral for such Borrower's
Obligations or the lack thereof.
15.2 Waiver of Subrogation. Each Borrower expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration, contribution of
any other claim which such Borrower may now or hereafter have against the other
Borrowers or other Person directly or contingently liable for the Obligations
hereunder, or against or with respect to the other Borrowers' property
(including, without limitation, any property which is Collateral for the
Obligations), arising from the existence or performance of this Agreement, until
termination of this Agreement and repayment in full of the Obligations.
XVI. MISCELLANEOUS.
16.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applied to contracts to be
performed wholly within the State of New York. Any judicial proceeding brought
by or against any Borrower with respect to any of the Obligations, this
Agreement or any related agreement may be brought in any court of competent
jurisdiction in the State of New York, United States of America (unless
otherwise specified in any Other Document), and, by execution and delivery of
this Agreement, each Borrower accepts for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Each Borrower hereby waives personal
service of any and all process upon it and consents that all such service of
process may be made by registered mail (return receipt requested) directed to
Borrowing Agent at its address set forth in Section 16.6 and service so made
shall be deemed completed five (5) days after the same shall have been so
deposited in the mails of the United States of America or Canada, or, at the
Agent's and/or any Lender's option, by service upon Borrowing Agent which each
Borrower irrevocably appoints as such Borrower's Agent for the purpose of
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accepting service within the State of New York. Nothing herein shall affect the
right to serve process in any manner permitted by law or shall limit the right
of Agent or any Lender to bring proceedings against any Borrower in the courts
of any other jurisdiction. Each Borrower waives any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon forum non conveniens. Any
judicial proceeding by any Borrower against Agent or any Lender involving,
directly or indirectly, any matter or claim in any way arising out of, related
to or connected with this Agreement or any related agreement, shall be brought
only in a federal or state court located in the County of New York, State of New
York.
16.2 Entire Understanding. (a) This Agreement and the documents executed
concurrently herewith contain the entire understanding between each Borrower,
Agent and each Lender and supersedes all prior agreements and understandings, if
any, relating to the subject matter hereof. Any promises, representations,
warranties or guarantees not herein contained and hereinafter made shall have no
force and effect unless in writing, signed by each Borrower's, Agent's and each
Lender's respective officers. Neither this Agreement nor any portion or
provisions hereof may be changed, modified, amended, waived, supplemented,
discharged, cancelled or terminated orally or by any course of dealing, or in
any manner other than by an agreement in writing, signed by the party to be
charged. Each Borrower acknowledges that it has been advised by counsel in
connection with the execution of this Agreement and Other Documents and is not
relying upon oral representations or statements inconsistent with the terms and
provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the
Required Lenders, and Borrowers may, subject to the provisions of this Section
16.2 (b), from time to time enter into written supplemental agreements to this
Agreement or the Other Documents executed by Borrowers, for the purpose of
adding or deleting any provisions or otherwise changing, varying or waiving in
any manner the rights of Lenders, Agent or Borrowers thereunder or the
conditions, provisions or terms thereof of waiving any Event of Default
thereunder, but only to the extent specified in such written agreements;
provided, however, that no such supplemental agreement shall, without the
consent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar
commitment of any Lender.
(ii) extend the maturity of any Revolving Credit Note or the
due date for any amount payable hereunder, or decrease the rate of interest or
reduce any fee payable by Borrowers to Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Lenders or
alter, amend or modify this Section 16.2(b).
(iv) release any Collateral during any calendar year (other
than in accordance with the provisions of this Agreement) having an aggregate
value in excess of $1,000,000 (including, without limitation, in connection with
any release of Collateral as to which a "Release Notice" is required pursuant to
the terms of Section 14 of the Subordination Agreement).
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(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving
effect thereto the total of Revolving Advances outstanding hereunder would
exceed the Formula Amount for more than sixty (60) consecutive Business Days or
exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in
effect on the Closing Date.
Any such supplemental agreement shall apply equally to each Lender and shall be
binding upon Borrowers, Lenders and Agent and all future holders of the
Obligations. In the case of any waiver, Borrowers, Agent and Lenders shall be
restored to their former positions and rights, and any Event of Default waived
shall be deemed to be cured and not continuing, but no waiver of a specific
Event of Default shall extend to any subsequent Event of Default (whether or not
the subsequent Event of Default is the same as the Event of Default which was
waived), or impair any right consequent thereon.
In the event that Agent requests the consent of a Lender pursuant to this
Section 16.2 and such Lender shall not respond or reply to Agent in writing
within ten (10) days of delivery of such request, such Lender shall be deemed to
have consented to matter that was the subject of the request. In the event that
Agent requests the consent of a Lender pursuant to this Section 16.2 and such
consent is denied, then PNC may, at its option, require such Lender to assign
its interest in the Revolving Advances to PNC or to another Lender or to any
other Person designated by the Agent (the "Designated Lender"), for a price
equal to the then outstanding principal amount thereof plus accrued and unpaid
interest and fees due such Lender, which interest and fees shall be paid when
collected from Borrowers. In the event PNC elects to require any Lender to
assign its interest to PNC or to the Designated Lender, PNC will so notify such
Lender in writing within forty five (45) days following such Lender's denial,
and such Lender will assign its interest to PNC or the Designated Lender no
later than five (5) days following receipt of such notice pursuant to a
Commitment Transfer Supplement executed by such Lender, PNC or the Designated
Lender, as appropriate, and Agent.
Notwithstanding the foregoing, Agent may at its discretion and without the
consent of the Required Lenders, voluntarily permit the outstanding Revolving
Advances at any time to exceed the Formula Amount by up to one hundred and ten
percent (110%) of the Formula Amount for up to thirty (30) consecutive Business
Days. For purposes of the preceding sentence, the discretion granted to Agent
hereunder shall not preclude involuntary overadvances that may result from time
to time due to the fact that the Formula Amount was unintentionally exceeded for
any reason, including, but not limited to, Collateral previously deemed to be
either "Eligible Receivables," or "Eligible DMS Contract Receivables," as
applicable, becomes ineligible, collections of Receivables applied to reduce
outstanding Revolving Advances are thereafter returned for insufficient funds or
overadvances are made to protect or preserve the Collateral. In the event Agent
involuntarily permits the outstanding Revolving Advances to exceed the Formula
Amount by more than ten percent (10%), Agent shall decrease such excess in as
expeditious a manner as is practicable under the circumstances and not
inconsistent with the reason for such excess. Revolving Advances made after
Agent has determined the existence of
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involuntary overadvances shall be deemed to be involuntary overadvances and
shall be decreased in accordance with the preceding sentence.
16.3 Successors and Assigns; Participations; New Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of
Borrowers, Agent, each Lender, all future holders of the Obligations and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Agent and each Lender.
(b) Each Borrower acknowledges that in the regular course of
commercial banking business one or more Lenders may at any time and from time to
time sell participating interests in the Revolving Advances to other financial
institutions (each such transferee or purchaser of a participating interest, a
"Transferee"). Each Transferee may exercise all rights of payment (including
without limitation rights of set-off) with respect to the portion of such
Revolving Advances held by it or other Obligations payable hereunder as fully as
if such Transferee were the direct holder thereof provided that Borrowers shall
not be required to pay to any Transferee more than the amount which it would
have been required to pay to Lender which granted an interest in its Revolving
Advances or other Obligations payable hereunder to such Transferee had such
Lender retained such interest in the Revolving Advances hereunder or other
Obligations payable hereunder and in no event shall Borrowers be required to pay
any such amount arising from the same circumstances and with respect to the same
Revolving Advances or other Obligations payable hereunder to both such Lender
and such Transferee. Each Borrower hereby grants to any Transferee a continuing
security interest in any deposits, moneys or other property actually or
constructively held by such Transferee as security for the Transferee's interest
in the Revolving Advances.
(c) Any Lender may with the consent of Agent which shall not be
unreasonably withheld or delayed sell, assign or transfer all or any part of its
rights under this Agreement and the Other Documents to one or more additional
banks or financial institutions and one or more additional banks or financial
institutions may commit to make Revolving Advances hereunder (each a "Purchasing
Lender"), in minimum amounts of not less than $1,000,000 pursuant to a
Commitment Transfer Supplement, executed by a Purchasing Lender, the transferor
Lender, and Agent and delivered to Agent for recording (reference is made to
Section 21 of the Subordination Agreement which requires that any assignee agree
to be bound by the terms of the Subordination Agreement). Upon such execution,
delivery, acceptance and recording, from and after the transfer effective date
determined pursuant to such Commitment Transfer Supplement, (i) Purchasing
Lender thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Lender
thereunder with a Commitment Percentage as set forth therein, and (ii) the
transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Agreement, the
Commitment Transfer Supplement creating a novation for that purpose. Such
Commitment Transfer Supplement shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of the Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of the
rights and obligations of such transferor Lender under this Agreement and the
Other Documents. Borrowers hereby consent to
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the addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Other Documents. Borrowers shall execute and deliver such
further documents and do such further acts and things in order to effectuate the
foregoing.
(d) Agent shall maintain at its address a copy of each Commitment
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Revolving Advances owing to each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and Borrowers, Agent and Lenders may treat each
Person whose name is recorded in the Register as the owner of the Revolving
Advance recorded therein for the purposes of this Agreement. The Register shall
be available for inspection by Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Agent shall receive a fee in
the amount of $3,500 payable by the applicable Purchasing Lender upon the
effective date of each transfer or assignment to such Purchasing Lender.
(e) Each Borrower authorizes each Lender to disclose to any
Transferee or Purchasing Lender and any prospective Transferee or Purchasing
Lender any and all financial information in such Lender's possession concerning
such Borrower which has been delivered to such Lender by or on behalf of such
Borrower pursuant to this Agreement or in connection with such Lender's credit
evaluation of such Borrower.
16.4 Application of Payments. Agent shall have the continuing and
exclusive right to apply or reverse and re-apply any payment and any and all
proceeds of Collateral to any portion of the Obligations. To the extent that any
Borrower makes a payment or Agent or any Lender receives any payment or proceeds
of the Collateral for any Borrower's benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then, to such
extent, the Obligations or part thereof intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Agent or such Lender.
16.5 Indemnity. Each Borrower shall indemnify Agent, each Lender and each
of their respective officers, directors, Affiliates, employees and agents from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind or
nature whatsoever (including, without limitation, fees and disbursements of
counsel) which may be imposed on, incurred by, or asserted against Agent or any
Lender in any litigation, proceeding or investigation instituted or conducted by
any governmental agency or instrumentality or any other Person with respect to
any aspect of, or any transaction contemplated by, or referred to in, or any
matter related to, this Agreement or the Other Documents, whether or not Agent
or any Lender is a party thereto, except to the extent that any of the foregoing
arises out of the willful misconduct of the party being indemnified.
16.6 Notice. Any notice or request hereunder may be given to any Borrower
or to Agent or any Lender at their respective addresses set forth below or at
such other address as may hereafter be specified in a notice designated as a
notice of change of address under this Section.
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Any notice or request hereunder shall be given by (a) hand delivery, (b)
overnight courier, (c) registered or certified mail, return receipt requested,
(d) telex or telegram, subsequently confirmed by registered or certified mail,
or (e) telecopy to the number set out below (or such other number as may
hereafter be specified in a notice designated as a notice of change of address)
with electronic confirmation of its receipt. Any notice or other communication
required or permitted pursuant to this Agreement shall be deemed given (a) when
personally delivered to any officer of the party to whom it is addressed, (b) on
the earlier of actual receipt thereof or three (3) days following posting
thereof by certified or registered mail, postage prepaid, or (c) upon actual
receipt thereof when sent by a recognized overnight delivery service or (d) upon
actual receipt thereof when sent by telecopier to the number set forth below
with electronic confirmation of its receipt, in each case addressed to each
party at its address set forth below or at such other address as has been
furnished in writing by a party to the other by like notice:
(A) If to Agent or PNC Bank, National Association
PNC at: 0 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to: Xxxxxx & Xxxxxxx
000 Xxxx 0xx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to a Lender other than Agent, as specified on the
signature pages hereof
(C) If to Borrowing Agent
or any Borrower, at: VISTA Information Solutions, Inc.
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
16.7 Survival. The obligations of Borrowers under Sections 2.2(f), 3.7,
3.8, 3.9, 4.19(h), 14.7 and 16.5 shall survive termination of this Agreement and
the Other Documents and payment in full of the Obligations.
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16.8 Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
16.9 Expenses. All costs and expenses including, without limitation,
reasonable legal or attorneys' fees (including the allocated costs of in house
counsel) and disbursements incurred by Agent, Agent on behalf of Lenders and
Lenders (a) in all efforts made to enforce payment of any Obligation or effect
collection of any Collateral, or (b) in connection with the entering into,
modification, amendment, administration and enforcement of this Agreement or any
consents or waivers hereunder and all related agreements, documents and
instruments, or (c) in instituting, maintaining, preserving, enforcing and
foreclosing on Agent's security interest in or Lien on any of the Collateral,
whether through judicial proceedings or otherwise, or (d) in defending or
prosecuting any actions or proceedings arising out of or relating to Agent's or
any Lender's transactions with any Borrower, or (e) in connection with any
advice given to Agent or any Lender with respect to its rights and obligations
under this Agreement and all related agreements, may be charged to Borrowers'
Account and shall be part of the Obligations.
16.10 Injunctive Relief. Each Borrower recognizes that, in the event any
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy at law may prove to be inadequate
relief to Lenders; therefore, Agent, if Agent so requests, shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving that actual damages are not an adequate remedy.
16.11 Consequential Damages. Neither Agent nor any Lender, nor any agent
or attorney for any of them, shall be liable to any Borrower for consequential
damages arising from any breach of contract, tort or other wrong relating to the
establishment, administration or collection of the Obligations.
16.12 Captions. The captions at various places in this Agreement are
intended for convenience only and do not constitute and shall not be interpreted
as part of this Agreement.
16.13 Counterparts; Telecopied Signatures. This Agreement may be executed
in any number of and by different parties hereto on separate counterparts, all
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
16.14 Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments,
schedules or exhibits thereto.
16.15 Confidentiality; Sharing Information. (a) Agent, each Lender and
each Transferee shall hold all non-public information obtained by Agent, such
Lender or such Transferee pursuant to the requirements of this Agreement in
accordance with Agent's, such Lender's and such Transferee's customary
procedures for handling confidential information of this nature;
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provided, however, Agent, each Lender and each Transferee may disclose such
confidential information (a) to its examiners, affiliates, outside auditors,
counsel and other professional advisors, (b) to Agent, any Lender or to any
prospective Transferees and Purchasing Lenders, and (c) as required or requested
by any Governmental Body or representative thereof or pursuant to legal process;
provided, further that (i) unless specifically prohibited by applicable law or
court order, Agent, each Lender and each Transferee shall use its best efforts
prior to disclosure thereof, to notify the applicable Borrower of the applicable
request for disclosure of such non-public information (A) by a Governmental Body
or representative thereof (other than any such request in connection with an
examination of the financial condition of a Lender or a Transferee by such
Governmental Body) or (B) pursuant to legal process and (ii) in no event shall
Agent, any Lender or any Transferee be obligated to return any materials
furnished by any Borrower other than those documents and instruments in
possession of Agent or any Lender in order to perfect its Lien on the Collateral
once the Obligations have been paid in full and this Agreement has been
terminated.
(b) Each Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
such Borrower or one or more of its Affiliates (in connection with this
Agreement or otherwise) by any Lender or by one or more Subsidiaries or
Affiliates of such Lender and each Borrower hereby authorizes each Lender to
share any information delivered to such Lender by such Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, to any such Subsidiary or Affiliate of
such Lender, it being understood that any such Subsidiary or Affiliate of any
Lender receiving such information shall be bound by the provision of Section
16.15 as if it were a Lender hereunder. Such authorization shall survive the
repayment of the other Obligations and the termination of the Loan Agreement.
16.16 Publicity. Each Borrower and each Lender hereby authorizes Agent to
make appropriate announcements of the financial arrangement entered into among
Borrowers, Agent and Lenders, including, without limitation, announcements which
are commonly known as tombstones, in such publications and to such selected
parties as Agent shall in its sole and absolute discretion deem appropriate.
16.17 Attachment. The Security Interest created hereby is intended to
attach when this Agreement is executed by Borrowers and delivered to Agent.
16.18 Acknowledgement. Each Borrower acknowledges receipt of a copy of
this Agreement.
16.19 Judgment Currency. To the extent permitted by applicable law, the
obligations of each Borrower in respect of any amount due under this Agreement
shall, notwithstanding any payment in any other currency (the "Other Currency")
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the currency in which it is due (the "Agreed Currency") that
Agent or any Lender may, in accordance with normal banking procedures, purchase
with the sum paid in the Other Currency (after any premium and costs of
exchange) on the Business Day immediately after the day on which Agent or such
Lender receives the payment. If the amount in the Agreed Currency that may be so
purchased for any reason falls short of the amount originally due, the
applicable Borrower shall pay additional
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amounts, in the Agreed Currency, as may be necessary to compensate for the
shortfall. Any obligation of such Borrower not discharged by that payment shall,
to the extent permitted by applicable law, be due as a separate and independent
obligation and, until discharged as provided in this Section 16.19, continue in
full force and effect.
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Each of the parties has signed this Agreement as of the day and year first
above written.
VISTA INFORMATION SOLUTIONS, INC.,
a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
VISTA ENVIRONMENTAL INFORMATION, INC.,
a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
E/RISK INFORMATION SERVICES, a
California corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
GEOSURE, INC., a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
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GEOSURE, L.P., a New York limited
partnership
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
ENSITE CORPORATION OF DENVER,
a Colorado corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
ECOSEARCH ACQUISITION, INC., a
Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
ECOSEARCH ENVIRONMENTAL RESOURCES, INC.,
an Indiana corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
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NRC ACQUISITION, L.L.C., a Delaware
limited liability company
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
NRC INSURANCE SERVICES, INC., a
North Carolina corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
VISTA DMS, INC., a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
VISTAINFO CANADA, INC.,
an Ontario corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
Address
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Commitment Percentage: 100%
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