EXHIBIT 10.5
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REVOLVING CREDIT AGREEMENT
Dated as of July 25, 2000
among
DIGITAS LLC,
as the Borrower
and
DIGITAS INC.
VESUVIO, INC.
XXXXXXX XXXXXXXX XXXXXXXX CO.
and
BSH HOLDING LLC,
as Guarantors
and
FLEET NATIONAL BANK
and the other lending institutions set forth
on Schedule 1 hereto
and
FLEET NATIONAL BANK, as Agent
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TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION. .................................1
1.1. Definitions. .................................................1
1.2. Rules of Interpretation. .....................................19
2. THE REVOLVING CREDIT FACILITY. ...........................................21
2.1. Commitment to Lend. ..........................................21
2.2. Commitment Fee. ..............................................21
2.3. Reduction of Total Commitment. ...............................21
2.4. The Revolving Credit Notes. ..................................22
2.5. Interest on Revolving Credit Loans. ..........................22
2.6. Requests for Revolving Credit Loans. .........................22
2.7. Conversion Options. ..........................................23
2.7.1. Conversion to Different Type of Revolving Credit
Loan. .................................................23
2.7.2. Continuation of Type of Revolving Credit Loan. ........23
2.7.3. Eurocurrency Rate Loans. ..............................24
2.8. Funds for Revolving Credit Loan. .............................24
2.8.1. Funding Procedures. ...................................24
2.8.2. Advances by Agent. ....................................25
2.9. Optional Currency. ...........................................25
2.9.1. Request for Optional Currency. ........................25
2.9.2. Exchange Rate. ........................................26
2.9.3. Denominations. ........................................26
2.9.4. Repayment. ............................................26
2.9.5. Funding. ..............................................27
2.10. Settlements. .................................................27
2.10.1. General. .............................................27
2.10.2. Failure to Make Funds Available. .....................28
2.10.3. No Effect on Other Banks. ............................28
3. REPAYMENT OF THE REVOLVING CREDIT LOANS. .................................28
3.1. Maturity. ....................................................28
3.2. Mandatory Repayments of Revolving Credit Loans. ..............29
3.3. Optional Repayments of Revolving Credit Loans. ...............29
4. LETTERS OF CREDIT. .......................................................29
4.1. Letter of Credit Commitments. ................................29
4.1.1. Commitment to Issue Letters of Credit. ................29
4.1.2. Letter of Credit Applications. ........................30
4.1.3. Terms of Letters of Credit. ...........................30
4.1.4. Reimbursement Obligations of Banks. ...................30
4.1.5. Participations of Banks. ..............................30
4.2. Reimbursement Obligation of the Borrower. ....................31
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4.3. Letter of Credit Payments. ...................................31
4.4. Obligations Absolute. ........................................32
4.5. Reliance by Issuer. ..........................................32
4.6. Letter of Credit Fee. ........................................33
5. CERTAIN GENERAL PROVISIONS. ..............................................33
5.1. Closing Fee. .................................................33
5.2. Agent's Fee. .................................................33
5.3. Funds for Payments. ..........................................33
5.3.1. Payments to Agent. ....................................33
5.3.2. No Offset, etc. .......................................34
5.4. Computations. ................................................34
5.5. Inability to Determine Eurocurrency Rate. ....................35
5.6. Illegality. ..................................................35
5.7. Additional Costs, etc. .......................................36
5.8. Capital Adequacy. ............................................37
5.9. Certificate. .................................................37
5.10. Indemnity. ...................................................38
5.11. Interest After Default. ......................................38
5.11.1. Overdue Amounts. .....................................38
5.11.2. Amounts Not Overdue. .................................38
5.12. Currency Matters. ............................................38
5.12.1. Currency of Account. .................................38
5.12.2. Currency Fluctuations. ...............................39
5.13. European Monetary Union. .....................................40
5.14. Lending Office. ..............................................42
5.15. Replacement of Banks. ........................................42
6. GUARANTY. ................................................................43
6.1. Guaranty of Payment and Performance. .........................43
6.2. Parent Companies' Agreement to Pay Enforcement Costs, etc. ...43
6.3. Waivers by the Parent Companies, Banks; Freedom to Act. ......44
6.4. Unenforceability of Obligations Against Borrower. ............45
6.5. Subrogation; Subordination. ..................................45
6.5.1. Postponement of Rights Against Borrower. ..............45
6.5.2. Subordination. ........................................45
6.5.3. Provisions Supplemental. ..............................46
6.6. Security, Setoff. ............................................46
6.7. Further Assurances. ..........................................46
6.8. Reinstatement. ...............................................46
6.9. Successors and Assigns. ......................................47
7. COLLATERAL SECURITY AND GUARANTIES. ......................................47
7.1. Security of Borrower. ........................................47
7.2. Guaranties and Security of Subsidiaries. .....................47
8. REPRESENTATIONS AND WARRANTIES. ..........................................47
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8.1. Corporate Authority. .........................................47
8.1.1. Incorporation; Good Standing. .........................47
8.1.2. Authorization. ........................................48
8.1.3. Enforceability. .......................................48
8.2. Governmental Approvals. ......................................48
8.3. Title to Properties; Leases. .................................49
8.4. Financial Statements, Projections and Solvency. ..............49
8.4.1. Fiscal Year. ..........................................49
8.4.2. Financial Statements. .................................49
8.4.3. Projections. ..........................................49
8.4.4. Solvency. .............................................50
8.5. No Material Changes, etc. ....................................50
8.6. Franchises, Patents, Copyrights, etc. ........................50
8.7. Litigation. ..................................................50
8.8. No Materially Adverse Contracts, etc. ........................50
8.9. Compliance with Other Instruments, Laws, etc. ................51
8.10. Tax Status. ..................................................51
8.11. No Event of Default. .........................................51
8.12. Holding Company and Investment Company Acts. .................51
8.13. Absence of Financing Statements, etc. ........................51
8.14. Perfection of Security Interest. .............................52
8.15. Certain Transactions. ........................................52
8.16. Employee Benefit Plans. ......................................52
8.16.1. In General. ..........................................52
8.16.2. Terminability of Welfare Plans. ......................52
8.16.3. Guaranteed Pension Plans. ............................53
8.16.4. Multiemployer Plans. .................................53
8.17. Use of Proceeds. .............................................53
8.17.1. General. .............................................53
8.17.2. Regulations U and X. .................................53
8.17.3. Ineligible Securities. ...............................54
8.18. Environmental Compliance. ....................................54
8.19. Subsidiaries, etc. ...........................................55
8.20. Bank Accounts. ...............................................55
8.21. Disclosure. ..................................................55
8.22. No Filing, Recording Required. Each of t. ....................56
8.23. No Withholding, Etc. .........................................56
9. AFFIRMATIVE COVENANTS OF THE BORROWER. ...................................56
9.1. Punctual Payment. ............................................56
9.2. Maintenance of Office. .......................................56
9.3. Records and Accounts. ........................................57
9.4. Financial Statements, Certificates and Information. ..........57
9.5. Notices. .....................................................58
9.5.1. Defaults. .............................................58
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9.5.2. Environmental Events. .................................58
9.5.3. Notification of Claim against Collateral. .............59
9.5.4. Notice of Litigation and Judgments. ...................59
9.6. Corporate Existence; Maintenance of Properties. ..............59
9.7. Insurance. ...................................................60
9.8. Taxes. .......................................................60
9.9. Inspection of Properties and Books, etc. .....................60
9.9.1. General. ..............................................60
9.9.2. Communications with Accountants. ......................60
9.10. Compliance with Laws, Contracts, Licenses, and Permits. ......61
9.11. Employee Benefit Plans. ......................................61
9.12. Use of Proceeds. .............................................61
9.13. Bank Accounts. ...............................................61
9.14. New Guarantors. ..............................................62
9.15. Additional Subsidiaries. .....................................62
9.16. Replacement Instruments. .....................................62
9.17. Landlord Consents. ...........................................62
9.18. Further Assurances. ..........................................62
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. .............................63
10.1. Restrictions on Indebtedness. ................................63
10.2. Restrictions on Liens. .......................................64
10.3. Restrictions on Investments. .................................65
10.4. Restricted Payments. .........................................67
10.5. Merger, Consolidation and Disposition of Assets. .............67
10.5.1. Mergers and Acquisitions. ............................67
10.5.2. Disposition of Assets. ...............................67
10.6. Sale and Leaseback. ..........................................67
10.7. Compliance with Environmental Laws. ..........................68
10.8. Subordinated Debt. ...........................................68
10.9. Upstream Limitations. ........................................68
10.10. Employee Benefit Plans. ......................................68
10.11. Business Activities. .........................................69
10.12. Fiscal Year. .................................................69
10.13. Transactions with Affiliates. ................................69
10.14. Bank Accounts. ...............................................69
10.15. Inconsistent Agreements. .....................................70
10.16. Modification of Documents and Charter Documents. .............70
11. FINANCIAL COVENANTS OF THE BORROWER. ....................................70
11.1. Leverage Ratio. ..............................................70
11.2. Minimum EBITDA. ..............................................70
11.3. Fixed Charge Coverage Ratio. .................................70
12. CLOSING CONDITIONS. .....................................................71
12.1. Loan Documents. ..............................................71
12.2. Certified Copies of Charter Documents. .......................71
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12.3. Corporate Action. ............................................71
12.4. Incumbency Certificate. ......................................71
12.5. Validity of Liens. ...........................................71
12.6. Perfection Certificates and UCC Search Results. ..............71
12.7. Certificates of Insurance. ...................................72
12.8. Replacement Letter of Credit. ................................72
12.9. Solvency Certificate. ........................................72
12.10. Opinion of Counsel. ..........................................72
12.11. Payment of Fees. .............................................72
12.12. Payoff Letter. ...............................................72
13. CONDITIONS TO ALL BORROWINGS. ...........................................72
13.1. Representations True; No Event of Default. ...................72
13.2. No Legal Impediment. .........................................73
13.3. Governmental Regulation. .....................................73
13.4. Proceedings and Documents. ...................................73
13.5. Exchange Limitations. ........................................73
14. EVENTS OF DEFAULT; ACCELERATION; ETC. ...................................73
14.1. Events of Default and Acceleration. ..........................73
14.2. Termination of Commitments. ..................................77
14.3. Remedies. ....................................................78
14.4. Distribution of Collateral Proceeds. .........................78
14.5. Judgement Currency. ..........................................79
15. SETOFF. .................................................................79
16. THE AGENT. ..............................................................80
16.1. Authorization. ...............................................80
16.2. Employees and Agents. ........................................81
16.3. No Liability. ................................................81
16.4. No Representations. ..........................................81
16.4.1. General. .............................................81
16.4.2. Closing Documentation, etc. ..........................82
16.5. Payments. ....................................................82
16.5.1. Payments to Agent. ...................................82
16.5.2. Distribution by Agent. ...............................82
16.5.3. Delinquent Banks. ....................................82
16.6. Holders of Notes. ............................................83
16.7. Indemnity. ...................................................83
16.8. Agent as Bank. ...............................................83
16.9. Resignation. .................................................83
16.10. Notification of Defaults and Events of Default. ..............84
16.11. Duties in the Case of Enforcement. ...........................84
17. EXPENSES AND INDEMNIFICATION. ...........................................84
17.1. Expenses. ....................................................84
17.2. Indemnification. .............................................85
17.3. Survival. ....................................................86
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18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. ..........................86
18.1. Confidentiality. .............................................86
18.2. Prior Notification. ..........................................86
18.3. Other. .......................................................87
19. SURVIVAL OF COVENANTS, ETC. .............................................87
20. ASSIGNMENT AND PARTICIPATION. ...........................................87
20.1. Conditions to Assignment by Banks. ...........................87
20.2. Certain Representations and Warranties; Limitations;
Covenants. ...................................................88
20.3. Register. ....................................................89
20.4. New Notes. ...................................................89
20.5. Participations. ..............................................90
20.6. Disclosure. ..................................................90
20.7. Assignee or Participant Affiliated with the Borrower. ........90
20.8. Miscellaneous Assignment Provisions. .........................91
20.9. Assignment by Borrower. ......................................91
21. NOTICES, ETC. ...........................................................91
22. GOVERNING LAW. ..........................................................92
23. HEADINGS. ...............................................................92
24. COUNTERPARTS. ...........................................................92
25. ENTIRE AGREEMENT, ETC. ..................................................93
26. WAIVER OF JURY TRIAL. ...................................................93
27. CONSENTS, AMENDMENTS, WAIVERS, ETC. .....................................93
28. USURY. ..................................................................94
29. SEVERABILITY. ...........................................................94
30. LETTER OF CREDIT TRANSITIONAL ARRANGEMENTS. .............................94
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List of Schedules and Exhibits
@@ SCHEDULES
---------
Schedule 1 Banks; Commitment
Schedule 8.3 Title to Properties; Leases
Schedule 8.7 Litigation
Schedule 8.16 Employee Benefit Plans
Schedule 8.18 Environmental Compliance
Schedule 8.19(a) Subsidiaries
Schedule 8.19(b) Joint Ventures; Partnerships
Schedule 8.20 Bank Accounts
Schedule 10.1 Existing Indebtedness
Schedule 10.2 Existing Liens
Schedule 10.3 Existing Investments
EXHIBITS
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Exhibit A Revolving Credit Note
Exhibit B Loan Request
Exhibit C Guaranty
Exhibit D Compliance Certificate
Exhibit E Assignment and Acceptance
Exhibit F OC (Optional Currency) Notice
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of July 25, 2000, by and among
DIGITAS LLC (the "Borrower"), a Delaware limited liability company having its
principal place of business at The Prudential Tower, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, and DIGITAS INC., a Delaware corporation, VESUVIO, INC. a
Delaware corporation, XXXXXXX XXXXXXXX XXXXXXXX CO., a Massachusetts business
trust, and BSH HOLDING LLC, a Delaware limited liability company, as guarantors,
and FLEET NATIONAL BANK, a national banking association, and the other lending
institutions listed on Schedule 1 and FLEET NATIONAL BANK as agent for itself
and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accounts Receivable. All rights of the Borrower or any of its Subsidiaries
to payment for goods sold, leased or otherwise marketed in the ordinary course
of business and all rights of the Borrower or any of its Subsidiaries to payment
for services rendered in the ordinary course of business and all sums of money
or other proceeds due thereon pursuant to transactions with account debtors,
except for that portion of the sum of money or other proceeds due thereon that
relate to sales, use or property taxes in conjunction with such transactions,
recorded on books of account in accordance with generally accepted accounting
principles.
Adjustment Date. The first Business Day which is five (5) Business Days
after receipt by the Agent of the most recent Compliance Certificate required to
be delivered by the Borrower pursuant to ss.9.4(c).
Affiliate. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agent. Fleet National Bank, acting as agent for the Banks.
Agent's Head Office. The Agent's office located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
Agent's Special Counsel. Xxxxxxx Xxxx LLP or such other counsel as may be
approved by the Agent.
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Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Leverage Ratio as determined for the period
ending on the fiscal quarter ended immediately preceding the applicable Rate
Adjustment Period.
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PRIME LETTER OF COMMITMENT
RATE EUROCURRENCY RATE CREDIT FEE
LEVERAGE RATIO LOANS LOANS FEE RATE
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Greater than or equal 0% 2.00% 2.00% 0.250%
to 2.00:1.00
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Less than 2.00:1.00
but greater than or
equal to 1.50:1.00 0% 1.75% 1.75% 0.250%
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Less than 1.50:1.00 but
greater than or equal to
1.00:1.00 0% 1.50% 1.50% 0.125%
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Less than 1.00:1.00 0% 1.25% 1.25% 0.125%
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Notwithstanding the foregoing, if the Borrower fails to deliver any
Compliance Certificate pursuant to ss.9.4(c) hereof then, for the period
commencing on the next Adjustment Date to occur subsequent to such failure
through the date immediately following the date on which such Compliance
Certificate is delivered, the Applicable Margin shall be the highest Applicable
Margin set forth above.
Assignment and Acceptance. See ss.20.1.
Balance Sheet Date. December 31, 1999.
Banks. Fleet and the other lending institutions listed on Schedule 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to ss.20.
Borrower. As defined in the preamble hereto.
BSHC. Xxxxxxx Xxxxxxxx Xxxxxxxx Co., a Massachusetts business trust and
the sole member-manager of BSH Holding.
BSH Holding. BSH Holding LLC, a Delaware limited liability company and the
sole member-manager of the Borrower.
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Business Day. Any day other than a Saturday or Sunday on which banking
institutions in Boston, Massachusetts, are open for the transaction of banking
business and, in addition, (a) if Eurocurrency Rate Loans denominated in Dollars
are involved, a day which is also a day in which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other Eurocurrency Interbank Market as may be selected by the Agent in its sole
discretion acting in good faith; and (b) if Eurocurrency Rate Loans denominated
in an Optional Currency are involved, a day (i) on which dealings and exchange
in Dollars and the relevant Optional Currency can be carried on in the relevant
Eurocurrency Interbank Market and Dollar settlements of such dealings may be
effected in Boston, Massachusetts and London, England, and (ii) on which
dealings in Dollars and the relevant Optional Currency and exchange can be
carried on in the principal financial center of the country in which such
currency is legal tender.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense, depreciated or
amortized over a useful life of twelve (12) months or less in accordance with
generally accepted accounting principles.
Capital Expenditures. Amounts paid or Indebtedness incurred by any of the
Parent Companies, the Borrower or any of their Subsidiaries in connection with
(a) the purchase or lease by any of the Parent Companies, the Borrower or any of
its Subsidiaries of Capital Assets that would be required to be capitalized and
shown on the balance sheet of such Person in accordance with generally accepted
accounting principles or (b) the lease of any assets by any of the Parent
Companies, the Borrower or any of their Subsidiaries as lessee under any
Synthetic Lease to the extent that such assets would have been Capital Assets
had the Synthetic Lease been treated for accounting purposes as a Capitalized
Lease.
Capitalization Documents. Collectively, the formation documents
(including, without limitation, any certificate of incorporation and by-laws) of
the Borrower and its Subsidiaries.
Capitalized Leases. Leases under which any of the Parent Companies, the
Borrower or any of their Subsidiaries is the lessee or obligor, the discounted
future rental payment obligations under which are required to be capitalized on
the balance sheet of the lessee or obligor in accordance with generally accepted
accounting principles.
CERCLA. See ss.8.18(a).
Closing Date. The first date on which the conditions set forth in ss.13
have been satisfied and any Revolving Credit Loans are to be made or any Letter
of Credit is to be issued hereunder.
Code. The Internal Revenue Code of 1986.
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Collateral. All of the property, rights and interests of the Borrower and
its Subsidiaries that are or are intended to be subject to the security
interests and mortgages created by the Security Documents.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's commitment to make Revolving Credit Loans
to, and to participate in the issuance, extension and renewal of Letters of
Credit for the account of, the Borrower, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions hereof,
zero.
Commitment Fee. See ss.2.2.
Commitment Fee Rate. The applicable rate per annum set forth in the chart
contained in the definition of Applicable Margin under the heading "Commitment
Fee Rate".
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks.
Compliance Certificate. See ss.9.4(c).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Parent Companies, the
Borrower and their Subsidiaries, consolidated in accordance with generally
accepted accounting principles.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Parent Companies, the Borrower and their Subsidiaries, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with generally accepted accounting principles, after eliminating
therefrom all extraordinary nonrecurring items of income and nonrecurring
extraordinary non-cash losses.
Consolidated Total Debt Service. With respect to the Parent Companies,
Borrower and their Subsidiaries and for any period, the sum, without
duplication, of (a) Consolidated Total Interest Expense for such period plus (b)
any and all scheduled repayments of principal during such period in respect to
Indebtedness that becomes due and payable or that are to become due and payable
during such period pursuant to any agreement or instrument to which any of the
Parent Companies, the Borrower or any of their Subsidiaries is a party relating
to (i) the borrowing of money or the obtaining of credit, (ii) the deferred
purchase price of assets (other than trade payables incurred in the ordinary
course of business), (iii) in respect of any Synthetic Lease or any Capitalized
Leases, (iv) in respect of any reimbursement obligations in respect of letters
of credit (other than letters of credit issued for the account of any of the
Parent Companies, the Borrower or their Subsidiaries in support of obligations
which constitute operating expenses of such Person) or bankers acceptances due
and payable during such period, and (v) Indebtedness described above of another
Person guaranteed by any of the Parent
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Companies, the Borrower or any of their Subsidiaries. Demand obligations shall
be deemed to be due and payable during any fiscal period during which such
obligations are outstanding.
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Parent Companies, the Borrower
and their Subsidiaries during such period on all Indebtedness of the Parent
Companies, the Borrower and their Subsidiaries outstanding during all or any
part of such period on a consolidated basis, whether such interest was or is
required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of any Capitalized Lease, or any
Synthetic Lease and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees or expenses in connection with the
borrowing of money.
Conversion Request. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with ss.2.7.
Copyright Mortgages. The several Copyright Mortgage and Security
Agreements, dated or to be dated on or prior to the Closing Date, made by the
Parent Companies, the Borrower and their Subsidiaries in favor of the Agent and
in form and substance satisfactory to the Banks and the Agent.
Credit Agreement. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
Default. See ss.14.1.
Delinquent Bank. See ss.16.5.3.
Digitas. Digitas Inc., a Delaware corporation and the sole stockholder of
BSHC.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of any Person, other than dividends
payable solely in shares of common stock of such Person; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
such Person, directly or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by such Person to its shareholders as such; or
any other distribution on or in respect of any shares of any class of capital
stock of such Person.
Dollar Equivalent. On any particular date, with respect to any amount
denominated in Dollars, such amount in Dollars, and with respect to any amount
denominated in a currency other than Dollars, the amount (as conclusively
ascertained by the Agent absent manifest error) of Dollars which could be
purchased by the Agent (in accordance with its normal banking practices) in the
London foreign currency deposit market with such amount of such currency at the
spot rate of exchange prevailing at or about 11:00 a.m. (London time) on such
date.
Dollars or $. Dollars in lawful currency of the United States of America.
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Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Prime Rate
Loans.
Drawdown Date. The date on which any Revolving Credit Loan is made or is
to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with ss.2.7.
EBITDA: With respect to any fiscal period, an amount equal to the sum of
(a) Consolidated Net Income of the Parent Companies, the Borrower and their
Subsidiaries for such fiscal period, plus (b) in each case to the extent
deducted in the calculation of such Person's Consolidated Net Income and without
duplication, (i) depreciation and amortization for such period, plus (ii) income
tax expense for such period, plus (iii) Consolidated Total Interest Expense paid
or accrued during such period, plus (iv) other noncash charges for such period,
and minus, to the extent added in computing Consolidated Net Income, and without
duplication, all noncash gains (including income tax benefits) for such period,
all as determined in accordance with generally accepted accounting principles.
Eligible Assignee. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, any
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution or other
Person approved by the Agent, such approval not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
EMU. The European Economic and Monetary Union formed pursuant to the EU
Treaties.
Environmental Laws. See ss.8.18(a).
EPA. See ss.8.18(b).
ERISA. The Employee Retirement Income Security Act of 1974.
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ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Euro or e. The single currency of Participating Member States.
Euro Interbank Rate: With respect to any Revolving Credit Loan denominated
or to be denominated in Euros, the annual rate of interest at which the Agent is
able to obtain deposits for comparable amounts in Euros for the relevant
Interest Period in the London interbank market for a period comparable to the
duration of such Interest Period, as determined by the Agent.
Eurocurrency Interbank Market. Any lawful recognized market in which
deposits of Dollars and the relevant Optional Currencies are offered by
international banking units of United States banking institutions and by foreign
banking institutions to each other and in which foreign currency and exchange
operations or eurocurrency funding operations are customarily conducted.
Eurocurrency Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining Eurocurrency Rate Loans.
Eurocurrency Offered Rate. With respect to the Interest Period of any
Eurocurrency Rate Loan denominated in a currency other than Dollars, the rate
per annum (rounded upwards to the nearest 1/16 of one percent) equal to the rate
at which the Agent is offered deposits in the relevant Optional Currency two (2)
Business Days prior to the beginning of such Interest Period in the Eurocurrency
Interbank Market where the foreign currency and exchange operations or
eurocurrency funding operations of the Agent are customarily conducted at or
about 11:00 a.m. (London time) for delivery on the first day of such Interest
Period and for the number of days comprised therein and in an amount equal (as
nearly as may be) to the Eurocurrency Rate Loan to which such Interest Period
applies.
Eurocurrency Rate. With respect to amounts denominated in Dollars, the
Eurodollar Rate, and with respect to amounts denominated in any currency other
than Dollars, the International Eurocurrency Rate.
Eurocurrency Rate Loans. Revolving Credit Loans bearing interest
calculated by reference to the Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to a Eurocurrency Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The
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Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
EU Treaties. The treaty establishing the European Community being the
Treaty of Rome of 25 March 1957 as amended by the Single Xxxxxxxx Xxx 0000 and
by the Treaty on European Union which was signed at Maastricht on 7 February
1992 (and came into being on November 0, 0000), (xxx Xxxxxxxxxx Treaty) as
further amended from time to time.
Eurodollar Rate. For any Interest Period with respect to a Eurocurrency
Rate Loan denominated in Dollars, the rate of interest equal to (i) the
arithmetic average of the rates per annum for each Reference Bank (rounded
upwards to the nearest 1/16 of one percent) of the rate at which such Reference
Bank's Eurocurrency Lending Office is offered Dollar deposits two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations of such
Eurocurrency Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurocurrency Rate Loan of such Reference
Bank to which such Interest Period applies, divided by (ii) a number equal to
1.00 minus the Eurocurrency Reserve Rate, if applicable.
Event of Default. See ss.14.1.
Fleet. Fleet National Bank, a national banking association, in its
individual capacity.
generally accepted accounting principles. (a) When used in ss.10, whether
directly or indirectly through reference to a capitalized term used therein,
means (i) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the Balance Sheet Date, and (ii) to the
extent consistent with such principles, the accounting practice of the Borrower
reflected in its financial statements for the year ended on the Balance Sheet
Date, and (b) when used in general, other than as provided above, means
principles that are (i) consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors, as in effect from
time to time, and (ii) consistently applied with past financial statements of
the Borrower adopting the same principles, provided that in each case referred
to in this definition of "generally accepted accounting principles" a certified
public accountant would, insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted accounting principles) as
to financial statements in which such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
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Guarantors. Collectively, each Parent Company and each domestic Subsidiary
of the Borrower or any Parent Company existing on the Closing Date and each
other Person which is required to be or become a guarantor from time to time
pursuant to ss.9.14 hereof. Each such Person shall be a party to a Guaranty.
Guaranty. The Guaranty, set forth in ss.6 of this Credit Agreement, made
by each Parent Company in favor the Banks and the Agent pursuant to which each
Parent Company guaranties to the Banks and the Agent the payment and performance
of the Obligations. The Guaranty shall include any Guaranty made by a Subsidiary
of any Parent Company or the Borrower in favor of the Banks and the Agent
entered into on or prior to the Closing Date (or such later date as is required
by ss.9.14 hereof) substantially in the form of Exhibit C attached hereto.
Hazardous Substances. See ss.8.18(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(e) every obligation of such Person under any Capitalized Lease,
(f) every obligation of such Person under any lease (a "Synthetic
Lease") treated as an operating lease under generally accepted accounting
principles and as a loan or financing for U.S. income tax purposes,
(g) all sales by such Person of (i) accounts or general intangibles
for money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or (iii)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or
a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to
pay any discount, interest, fees,
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indemnities, penalties, recourse, expenses or other amounts in connection
therewith,
(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of capital stock of any class issued by such Person, any
warrants, options or other rights to acquire any such shares, or any
rights measured by the value of such shares, warrants, options or other
rights,
(i) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a "derivative contract"),
(j) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are enforceable under
applicable law, and
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(a) through (j) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (v) any Capitalized Lease shall be the principal
component of the aggregate of the rentals obligation under such Capitalized
Lease payable over the term thereof that is not subject to termination by the
lessee, (w) any sale of receivables shall be the amount of unrecovered capital
or principal investment of the purchaser (other than the Borrower or any of its
wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or
interest earned on such investment, (x) any Synthetic Lease shall be the
stipulated loss value, termination value or other equivalent amount, (y) any
derivative contract shall be the maximum amount of any termination or loss
payment required to be paid by such Person if such derivative
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contract were, at the time of determination, to be terminated by reason of any
event of default or early termination event thereunder, whether or not such
event of default or early termination event has in fact occurred and (z) any
equity related purchase obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
Ineligible Securities. Securities 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. ss.24, Seventh), as amended.
Interest Payment Date. (a) As to any Prime Rate Loan, the last day of the
calendar month with respect to interest accrued during such calendar month,
including, without limitation, the calendar month which includes the Drawdown
Date of such Prime Rate Loan; and (b) as to any Eurocurrency Rate Loan in
respect of which the Interest Period is (i) three (3) months or less, the last
day of such Interest Period and (ii) more than three (3) months, the date that
is three (3) months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Loan and ending on
the last day of one of the periods set forth below, as selected by the Borrower
in a Loan Request or as otherwise required by the terms of this Credit Agreement
(i) for any Prime Rate Loan, the last day of the calendar month; and (ii) for
any Eurocurrency Rate Loan, 1, 2, 3 or 6 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Revolving Credit Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in a Conversion Request; provided that
all of the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period with respect to a Eurocurrency Rate Loan
would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) if any Interest Period with respect to a Prime Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(iii) if the Borrower shall fail to give notice as provided in ss.
2.7, (A) for Revolving Credit Loans denominated in Dollars, the Borrower
shall be deemed to have requested a conversion of the affected
Eurocurrency Rate Loan to a Prime Rate Loan and the continuance of all
Prime Rate Loans as Prime Rate Loans on the last day of the then current
Interest Period with respect thereto and (B) for any Revolving Credit Loan
denominated in any
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Optional Currency, the Borrower shall repay such Revolving Credit Loan on
the last day of the then current Interest Period with respect thereto;
(iv) any Interest Period relating to any Eurocurrency Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month; and
(v) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date shall end on the Revolving Credit Loan
Maturity Date.
International Eurocurrency Rate. With respect to all Eurocurrency Rate
Loans denominated in an Optional Currency for any Interest Period, the annual
rate of interest, rounded to the nearest l/l6th of one percent (1/16%),
determined by the Agent for such Interest Period in accordance with the
following formula:
Eurocurrency Offered Rate
International Eurocurrency Rate = -----------------------------
1 - Eurocurrency Reserve Rate
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property (without
consideration for such transfers) to, or in respect of any guaranties (or other
commitments as described under Indebtedness), or obligations of, any Person. In
determining the aggregate amount of Investments outstanding at any particular
time: (a) the amount of any Investment represented by a guaranty shall be taken
at not less than the principal amount of the obligations guaranteed and still
outstanding; (b) there shall be included as an Investment all interest accrued
with respect to Indebtedness constituting an Investment unless and until such
interest is paid; (c) there shall be deducted in respect of each such Investment
any amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (d)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Letter of Credit. See ss.4.1.1.
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Letter of Credit Application. See ss.4.6.
Letter of Credit Fee. See ss.4.1.1.
Letter of Credit Participation. See ss.4.1.4.
Leverage Ratio. As of any date of determination, the ratio of (a) Total
Funded Indebtedness of the Parent Companies, the Borrower and their Subsidiaries
outstanding on such date to (b) the EBITDA of the Parent Companies, the Borrower
and their Subsidiaries for the Reference Period ended on such date.
Loan Documents. This Credit Agreement, the Revolving Credit Notes, the
Letter of Credit Applications, the Letters of Credit and the Security Documents.
Loan Request. See ss.2.6.
Majority Banks. As of any date, if as of such date there are three or more
Banks, Banks holding at least fifty-one percent (51%) of the outstanding
principal amount of the Revolving Credit Notes on such date; and if no such
principal is outstanding, the Banks whose aggregate Commitments constitute at
least fifty-one percent (51%) of the Total Commitment. If as of such date there
are less than three Banks, Majority Banks shall mean the Banks holding at least
sixty-six and two thirds percent (66 2/3%) of the outstanding principal amount
of the Revolving Credit Notes on such date; and if no such principal is
outstanding, the Banks whose aggregate Commitments constitute at least sixty-six
and two thirds percent (66 2/3%) of the Total Commitment.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemplover Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Revolving Credit Loans made or Reimbursement Obligations incurred or any of the
Revolving Credit Notes, Letter of Credit Applications, Letters of Credit or
other instruments at any time evidencing any thereof.
Optional Currency. Any currency other than Dollars which is freely
convertible into Dollars and which is traded on any recognized Eurocurrency
Interbank Market selected by the Agent in good faith; provided, however, in the
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event the Borrower requests an Optional Currency other than the Euro, such
request for such other Optional Currency shall be subject to the consent of the
Banks.
outstanding. With respect to the Revolving Credit Loans, the aggregate
unpaid principal thereof as of any date of determination.
Overnight Rate. For any day, (a) as to Revolving Credit Loans denominated
in Dollars, the weighted average interest rate paid by the Agent for federal
funds acquired by the Agent, and (b) as to Revolving Credit Loans denominated in
an Optional Currency, the rate of interest per annum at which overnight deposits
in the applicable Optional Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by the Agent to major banks in the London interbank market.
Participating Member State. A member state of the European Union that
adopts a single currency in accordance with the EU Treaties.
Parent Companies. Digitas, Vesuvio, BSHC and BSH Holding.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreements.
Permitted Acquisitions. Any acquisition by any of the Parent Companies,
the Borrower or any of their domestic Subsidiaries of assets or capital stock or
other equity interests of a Person, provided (a) such assets or capital stock or
other equity interests are related to the business of such Parent Company, the
Borrower or such Subsidiary, as the case may be, (b) no Default or Event of
Default exists prior to or immediately after such acquisition, (c) the Agent is
granted a valid first priority perfected security interest in the assets or
capital stock or other equity interests so acquired, pursuant to the Security
Documents (subject to any Permitted Liens), (d) the seller of such assets or
capital stock or other equity interests is not an Affiliate of any Parent
Company, the Borrower or any of their Subsidiaries, (e) the terms of such
acquisition are on an arms length basis, (f) ss.9.15 is complied with at the
time of consummation of such acquisition (or concurrently therewith), (g) the
Borrower has demonstrated to the reasonable satisfaction of the Agent, set forth
in a pro forma Compliance Certificate, compliance with ss.11 on a Pro Forma
Basis immediately prior to and after giving effect to any such acquisition, the
calculation of which shall be based upon the financial statements most recently
required to be delivered pursuant to ss.9.4(a) or (b) and such other financial
statements requested by the Agent for the twelve (12) full calendar month period
immediately preceding such acquisition, (h) the board of directors and (if
required by applicable law) the shareholders, or the equivalent thereof, of the
business to be acquired has approved such acquisition, and (i) if such
acquisition is made by a merger, the Borrower or any wholly-owned domestic
Subsidiary of a Parent Company or the Borrower, as the case
-15-
may be, shall be the surviving entity (provided that the Borrower shall not be
merged into another entity). In addition, Permitted Acquisitions may include the
acquisition by any of the Parent Companies, the Borrower or their Subsidiaries
of the capital stock or other equity interests of a foreign Person so long as
such Parent Company, the Borrower or such Subsidiary has complied with
provisions set forth in clauses (a), (b), (d), (e) and (g) through (i) above
and, if such acquired foreign Person becomes a direct Subsidiary of such Parent
Company, the Borrower or one of their domestic Subsidiaries, sixty-five percent
(65%) of the capital stock of or other equity interests in such Person so
acquired shall have been pledged to the Agent for the benefit of the Banks and
the Agent.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.10.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pledge Agreement. The Pledge Agreement, dated or to be dated on or prior
to the Closing Date among BSHC, BSH Holding and the Agent and in form and
substance satisfactory to the Banks and the Agent.
Prime Rate. The higher of (i) the annual rate of interest announced from
time to time by Fleet at its head office in Boston, MA, as its "prime rate" or
"base rate" and (ii) one-half of one percent (1/2%) above the Federal Funds
Effective Rate. For the purposes of this definition, "Federal Funds Effective
Rate" shall mean for any day, the rate per annum equal to the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, 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 that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent. In addition, the Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate charged to any
customer. Changes in the rate of interest resulting from any changes in the
"Prime Rate" shall take place immediately without notice or demand of any kind.
Prime Rate Loans. Revolving Credit Loans bearing interest calculated by
reference to the Prime Rate.
Pro Forma Basis. In connection with any proposed Permitted Acquisition
after the Closing Date, the calculation of compliance with the financial
covenants set forth in ss.11 hereof as required by the terms of the definition
of Permitted Acquisition by the Parent Companies, the Borrower and their
Subsidiaries (including the Person to be acquired) with reference to the audited
historical financial results of such Person and the Parent Companies, the
Borrower and their Subsidiaries for the applicable Test Period after giving
effect on a pro forma basis to
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such Permitted Acquisition in the manner described in (a), (b) and (c) below;
and, following a Permitted Acquisition, the calculation of the EBITDA component
of the Leverage Ratio for purposes of determining the Applicable Margin and
compliance with the financial covenants set forth in ss.11 for the fiscal
quarter in which such Permitted Acquisition occurred and each of the three
fiscal quarters immediately following such Permitted Acquisition with reference
to the audited historical financial results of the Person so acquired and the
Parent Companies, the Borrower and their Subsidiaries for the applicable Test
Period after giving effect on a pro forma basis to such Permitted Acquisition in
the manner described in (a), (b) and (c) below, provided, however, that, in each
case, in the event that no audited historical financial results are available
with respect to the Person or assets to be acquired, such calculations shall be
made with reference to reasonable estimates of such past performance made by the
Borrower based on existing data and other available information, such estimates
to be agreed upon by the Borrower and the Majority Banks:
(a) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all Indebtedness
of the Person acquired or to be acquired in such Permitted Acquisition
which was or will have been repaid in connection with the consummation of
the Permitted Acquisition shall be deemed to have been repaid concurrently
with the incurrence of the Indebtedness incurred in connection with the
Permitted Acquisition;
(b) all Indebtedness assumed to have been incurred pursuant to
the preceding clause (a) shall be deemed to have borne interest at the sum
of (i) the arithmetic mean of (x) the Eurocurrency Rate for Eurocurrency
Rate Loans having an Interest Period of one month in effect on the first
day of the Test Period and (y) the Eurocurrency Rate for Eurocurrency Rate
Loans having an Interest Period of one month in effect on the last day of
the Test Period plus (ii) the Applicable Margin then in effect (after
giving effect to the Permitted Acquisition on a Pro Forma Basis); and
(c) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to the
change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Agent in writing (which approval
shall not be unreasonably withheld) shall be deemed to have been realized
on the first day of the Test Period.
Rate Adjustment Period. See definition of Applicable Margin.
Rate of Exchange. See ss.2.9.2.
RCRA. See ss.8.18(a).
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Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Revolving Credit Note, or the continuation
of such grid, or any other similar record, including computer records,
maintained by any Bank with respect to any Revolving Credit Loan referred to in
such Revolving Credit Note.
Reference Bank. Fleet.
Reference Period. The period of four (4) consecutive fiscal quarters of
the Borrower ending on the relevant date.
Register. See ss.20.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in ss.4.2.
Restricted Payment. In relation to the Parent Companies, the Borrower and
their Subsidiaries, any (a) Distribution or (b) payment or prepayment by the
Parent Companies, the Borrower or their Subsidiaries to any Parent Company's,
the Borrower's or any Subsidiary's shareholders (or other equity holders) or to
any Affiliate of the Parent Companies, the Borrower or any Subsidiary or any
Affiliate of the Parent Companies', the Borrower's or such Subsidiary's
shareholders except for payments to such shareholders or Affiliates for services
rendered in the ordinary course of such shareholder's or Affiliate's business to
any Parent Company, the Borrower or any such Subsidiary.
Revolving Credit Loan Maturity Date. July 25, 2003.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Banks to the Borrower pursuant to ss.2.
Revolving Credit Notes. See ss.2.4.
Same Day Funds. With respect to disbursements and payments in (a) Dollars,
immediately available funds, and (b) an Optional Currency, same day or other
funds as may be determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Optional Currency.
XXXX. See ss.8.18(a).
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
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Security Agreements. The several Security Agreements, dated or to be dated
on or prior to the Closing Date, between the Parent Companies, the Borrower and
their Subsidiaries and the Agent and in form and substance satisfactory to the
Banks and the Agent.
Security Documents. The Guaranty, the Security Agreements, the Trademark
Assignments, [the Copyright Mortgages,] the Stock Pledge Agreement, the Pledge
Agreement and all other instruments and documents, including without limitation
Uniform Commercial Code financing statements, required to be executed or
delivered pursuant to any Security Document.
Settlement. The making or receiving of payments, in Same Day Funds, by the
Banks, to the extent necessary to cause each Bank's actual share of the
outstanding amount of Revolving Credit Loans (after giving effect to any Loan
Request) to be equal to such Bank's Commitment Percentage of the outstanding
amount of such Revolving Credit Loans (after giving effect to any Loan Request),
in any case where, prior to such event or action, the actual share is not so
equal.
Settlement Amount. See ss.2.10.1.
Settlement Date. (a) At the option of the Agent, the Drawdown Date
relating to any Loan Request, (b) the date which is thirty (30) days after the
Drawdown Date relating to any Loan Request, (c) at the option of the Agent, on
any Business Day following a day on which the account officers of the Agent
active upon the Borrower's account become aware of the existence of an Event of
Default, (d) any Business Day on which the amount of Revolving Credit Loans
outstanding from Fleet plus Fleet's Commitment Percentage of the sum of the
Maximum Drawing Amount and any Unpaid Reimbursement Obligations is equal to or
greater than Fleet's Commitment Percentage of the Total Commitment, or (e) any
day on which any conversion of a Prime Rate Loan to a Eurocurrency Rate Loan
occurs.
Settling Bank. See ss.2.10.1.
Stock Pledge Agreement. The Stock Pledge Agreement, dated or to be dated
on or prior to the Closing Date, between each of Digitas, the Borrower and the
Agent and in form and substance satisfactory to the Banks and the Agent.
Subordinated Debt. Unsecured Indebtedness of the Parent Companies, the
Borrower or any of their Subsidiaries that is expressly subordinated and made
junior to the payment and performance in full of the Obligations, and evidenced
as such by a written instrument containing subordination provisions in form and
substance approved by the Majority Banks in writing.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
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Synthetic Lease. As defined in paragraph (f) of the definition of
"Indebtedness".
Test Period. (a) In connection with the calculation of financial covenant
compliance on a Pro Forma Basis as required in connection with any proposed
Permitted Acquisition, the period of four fiscal quarters most recently ended
prior to such Permitted Acquisition, and (b) in connection with the calculation
of the financial covenants set forth in ss.11 hereof following any Permitted
Acquisition, the period of all fiscal quarters (and any portion of a fiscal
quarter) prior to the date of such Permitted Acquisition included in the
calculation of such financial covenant.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Total Funded Indebtedness. At any time of determination, the sum of (a)
the aggregate outstanding amount of the Revolving Credit Loans, (b) the
aggregate outstanding amount of all Subordinated Debt and (c) all other
Indebtedness for borrowed money, purchase money Indebtedness and with respect to
Capitalized Leases and Synthetic Leases, determined on a consolidated basis in
accordance with generally accepted accounting principles.
Trademark Assignments. The several Trademark Assignments, dated or to be
dated on or prior to the Closing Date, made by the Parent Companies, the
Borrower and their Subsidiaries in favor of the Agent and in form and substance
satisfactory to the Banks and the Agent.
Type. As to any Revolving Credit Loan, its nature as a Prime Rate Loan, or
a Eurocurrency Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, ss.4.2.
Vesuvio. Vesuvio, Inc., a Delaware corporation and the sole trustee of
BSHC.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. Rules of Interpretation.
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(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof', "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Agent and the Borrower and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or
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any of the Banks merely on account of the Agent's or any Bank's
involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time from
the Closing Date up to but not including the Revolving Credit Loan Maturity Date
upon notice by the Borrower to the Agent given in accordance with ss.2.6, such
sums, in Dollars or at the Borrower's option from time to time, subject to
ss.2.9, in an Optional Currency, as are requested by the Borrower up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Bank's Commitment minus such Bank's
Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations, provided that the Dollar Equivalent the sum of the
outstanding amount of the Revolving Credit Loans (after giving effect to all
amounts requested) plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total Commitment. The Revolving
Credit Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrower that the conditions set forth in
ss.12 and ss.13, in the case of the initial Revolving Credit Loans to be made on
the Closing Date, and ss.13, in the case of all other Revolving Credit Loans,
have been satisfied on the date of such request. Each Prime Rate Loan shall be
denominated in Dollars, and each Eurocurrency Rate Loan shall be denominated in
Dollars, or subject to ss.2.9, in an Optional Currency.
2.2. Commitment Fee. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee (the "Commitment Fee") calculated at the rate of Commitment Fee
Rate per annum on the average daily amount during each calendar quarter or
portion thereof from the date hereof to the Revolving Credit Loan Maturity Date
by which the Total Commitment minus the sum of the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations exceeds the outstanding amount of Revolving
Credit Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Loan
Maturity Date or any earlier date on which the Commitments shall terminate.
2.3. Reduction of Total Commitment. The Borrower shall have the right at
any time and from time to time upon three (3) Business Days prior written notice
to the Agent to reduce by $100,000 or an integral multiple thereof or terminate
entirely the Total Commitment, whereupon the Commitments of the Banks shall be
reduced pro rata in accordance with their respective Commitment Percentages of
the amount specified in such notice or, as the case may be, terminated. Promptly
after receiving any notice of the Borrower delivered pursuant to this ss.2.3,
the Agent will notify the Banks of the substance thereof. Upon the effective
date of any such
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reduction or termination, the Borrower shall pay to the Agent for the respective
accounts of the Banks the full amount of any Commitment Fee then accrued on the
amount of the reduction. No reduction or termination of the Commitments may be
reinstated.
2.4. The Revo1ving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A hereto (each a "Revolving Credit Note"), dated as of the Closing
Date and completed with appropriate insertions. One Revolving Credit Note shall
be payable to the order of each Bank in a principal amount equal to such Bank's
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Record reflecting the making of such
Revolving Credit Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Revolving Credit Loans set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise provided
in ss.5.11,
(a) Each Prime Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Prime Rate plus the Applicable Margin.
(b) Each Eurocurrency Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Eurocurrency Rate determined for such Interest Period plus the
Applicable Margin.
(c) The Borrower promises to pay interest on each Revolving Credit
Loan in arrears on each Interest Payment Date with respect thereto.
Interest on the Revolving Credit Loans calculated by reference to the
Prime Rate shall be payable in Dollars, and interest on the Revolving
Credit Loans calculated by reference to the Eurocurrency Rate shall be
payable in Dollars or in the applicable Optional Currency in which the
underlying Revolving Credit Loan was made, as the case may be.
2.6. Requests for Revo1ving Credit Loans.
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The Borrower shall give to the Agent written notice in the form of
Exhibit B hereto (or telephonic notice confirmed in a writing in the form
of Exhibit B hereto) of each Revolving Credit Loan requested hereunder (a
"Loan Request") (a) no later than 10:00 a.m. on the proposed Drawdown Date
of any Prime Rate Loan and (b) three (3) Business Days prior to the
proposed Drawdown Date of any Eurocurrency Rate Loan; provided that any
notice requesting an Optional Currency must comply with the requirements
of this ss.2.6 and the requirements of an OC Notice pursuant to ss.2.9.1.
Each such notice shall specify (i) the principal amount of the Revolving
Credit Loan requested, stated in Dollars, or subject to ss.2.9, in an
Optional Currency, (ii) the proposed Drawdown Date of such Revolving
Credit Loan, (iii) the Interest Period for any Eurocurrency Rate Loan and
(iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Agent shall notify each of the Banks thereof. Each Loan
Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from
the Banks on the proposed Drawdown Date. Each Loan Request shall be in a
minimum aggregate amount of $500,000 or a whole multiple of $100,000 in
excess thereof.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan. The
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan denominated in Dollars to a Revolving Credit Loan of another
Type denominated in Dollars, provided that (a) with respect to any such
conversion of a Revolving Credit Loan to a Prime Rate Loan, the Borrower
shall give the Agent at least three (3) Business Days prior written notice
of such election; (b) with respect to any such conversion of a Prime Rate
Loan to a Eurocurrency Rate Loan, the Borrower shall give the Agent at
least three (3) Business Days prior written notice of such election; (c)
with respect to any such conversion of a Eurocurrency Rate Loan into a
Prime Rate Loan, such conversion shall only be made on the last day of the
Interest Period with respect thereto; and (d) no Revolving Credit Loan may
be converted into a Eurocurrency Rate Loan when any Default or Event of
Default has occurred and is continuing. On the date on which such
conversion is being made each Bank shall take such action as is necessary
to transfer its Commitment Percentage of such Revolving Credit Loans to
its Domestic Lending Office or its Eurocurrency Lending Office, as the
case may be. All or any part of outstanding Revolving Credit Loans
denominated in Dollars of any Type may be converted into a Revolving
Credit Loan of another Type as provided herein, provided that any partial
conversion shall be in an aggregate principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Conversion Request
relating to the conversion of a Revolving Credit Loan to a Eurocurrency
Rate Loan shall be irrevocable by the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving
Credit Loan of any Type may be continued as a Revolving Credit
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Loan of the same Type upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the notice provisions
contained in ss.2.7.1; provided that (a) as to Eurocurrency Rate Loans
denominated in Dollars, no Eurocurrency Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Prime Rate Loan on the last day of
the first Interest Period relating thereto ending during the continuance
of any Default or Event of Default of which officers of the Agent active
upon the Borrower's account have actual knowledge; and (b) as to
Eurocurrency Rate Loans denominated in an Optional Currency, no such
Eurocurrency Rate may be continued as such when any Default or Event of
Default has occurred or is continuing or the provisions of ss.2.9 hereof
have not or cannot be met at the time of such continuation but shall be
repaid by the Borrower on the last day of the Interest Period relating
thereto. In the event that the Borrower fails to provide any such notice
with respect to the continuation of any Eurocurrency Rate Loan as such,
then (a) as to Eurocurrency Rate Loans denominated in Dollars, such
Eurocurrency Rate Loan shall be automatically converted to a Prime Rate
Loan on the last day of the first Interest Period relating thereto, and
(b) as to Eurocurrency Rate Loans denominated in an Optional Currency,
such Eurocurrency Rate Loans shall be repaid on the last day of the
Interest Period relating thereto. The Agent shall notify the Banks
promptly when any such automatic conversion contemplated by this ss.2.7
is scheduled to occur.
2.7.3. Eurocurrency Rate Loans. Any conversion to or from
Eurocurrency Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurocurrency Rate Loans having the same Interest
Period shall not be less than $500,000 or a whole multiple of $100,000 in
excess thereof (or, in the case of Eurocurrency Rate Loans denominated in
an Optional Currency, the whole number which is nearest the Dollar
Equivalent of $500,000 or $100,000, as the case may be rounded to the
nearest one thousandth). No more than five (5) Eurocurrency Rate Loans
having different Interest Periods may be outstanding at any time.
2.8. Funds for Revolving Credit Loan.
2.8.1. Funding Procedures. Not later than 11:00 a.m. (Boston time)
on the proposed Drawdown Date of any Revolving Credit Loans, each of the
Banks will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon
receipt from each Bank of such amount, and upon receipt of the documents
required by ss.ss.12 and 13 and the satisfaction of the other conditions
set forth therein, to the extent applicable, the Agent will make available
to the Borrower the aggregate amount of such Revolving Credit Loans made
available to the Agent by the Banks. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested
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Revolving Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit
Loans.
2.8.2. Advances by Agent. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such
Bank's Commitment Percentage of the Revolving Credit Loans to be made on
such Drawdown Date, and the Agent may (but it shall not be required to),
in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such amount
on a date after such Drawdown Date, such Bank shall pay to the Agent on
demand an amount equal to the product of (a) the average computed for the
period referred to in clause (c) below, of the Overnight Rate for each day
included in such period, times (b) the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans, times (c) a fraction, the
numerator of which is the number of days that elapse from and including
such Drawdown Date to the date on which the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount due
and owing to the Agent by such Bank. If the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans is not made available
to the Agent by such Bank within three (3) Business Days following such
Drawdown Date, the Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum applicable
to the Revolving Credit Loans made on such Drawdown Date.
2.9. Optional Currency.
2.9.1. Request for Optional Currency. Subject to the limitations set
forth in ss.2.1, the Borrower may, upon at least three (3) Business Days'
notice to the Agent in substantially the form of Exhibit F hereto (an "OC
Notice"), request that one or more Revolving Credit Loans be made as
Eurocurrency Rate Loans in an Optional Currency, provided that any
Revolving Credit Loan proposed to be made under this ss.2.9.1 shall be in
an amount not less than $500,000, or a greater amount which is an integral
multiple of $100,000, or the Dollar Equivalent in an Optional Currency.
Each OC Notice requesting a Revolving Credit Loan in an Optional Currency
shall be by telephone, telex, telecopy or cable (in each case confirmed in
writing by the Borrower), specifying (a) the amount of the Revolving
Credit Loan to be made, (b) the requested date of the proposed borrowing,
(c) the requested currency in which the Revolving Credit Loan is to be
made, (d) the initial Interest Period for the Revolving Credit Loan to be
borrowed, and (e) the Borrower's account with the Agent, or, in the case
of an Optional Currency which is the legal tender of a country in which
the Agent has no office, with another depository specified by the Borrower
in such country, to
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which payment of the proceeds of such Revolving Credit Loan is to be made.
If any Bank, on or prior to the second Business Day preceding the first
day of any Interest Period for which an OC Notice has been delivered
requesting a Revolving Credit Loan in an Optional Currency or on any
funding date, determines (which determination shall be conclusive) that
the Optional Currency is not freely transferable and convertible into
Dollars or that it will be impracticable for such Bank to fund the
Revolving Credit Loan in such Optional Currency, then such Bank shall so
notify Agent, which notification shall be given immediately by the Agent
to the Borrower, and such Bank's portion of the requested Revolving Credit
Loan shall, notwithstanding any contrary election by the Borrower or any
other provisions hereof, be denominated in Dollars as a Prime Rate Loan
unless the Borrower, one Business Day prior to the commencement of the
Interest Period and pursuant to the terms of ss.2.6, elects to have such
Revolving Credit Loan denominated in Dollars as a Eurocurrency Rate Loan.
Subject to the foregoing and to the satisfaction of the terms and
conditions of ss.ss.12 and 13, each Revolving Credit Loan requested to
be made in an Optional Currency will be made on the date specified
therefor in the OC Notice, in the currency requested in the OC Notice and,
upon being so made, will have the Interest Period requested in the OC
Notice. Notwithstanding anything to the contrary contained herein, the
aggregate outstanding amount of all Revolving Credit Loans denominated in
an Optional Currency shall not exceed the Dollar Equivalent of $15,000,000
at any time.
2.9.2. Exchange Rate. For purposes of this Credit Agreement, the
amount in one currency which shall be equivalent on any particular date to
a specified amount in another currency shall be that amount (as
conclusively ascertained by the Agent by its normal banking practices,
absent manifest error) in the first currency which is or could be
purchased by the Agent (in accordance with normal banking practices) with
such specified amount in the second currency in any recognized
Eurocurrency Interbank Market selected by the Agent in good faith for
delivery on such date at the spot rate of exchange prevailing at 10:00
A.M. (Boston time) (or as soon thereafter as practicable) on such date
(such amount described in this ss.2.9.2, the "Rate of Exchange").
2.9.3. Denominations. In the event that any portion of the funds
available under the terms of this Credit Agreement is denominated in an
Optional Currency, the Dollar Equivalent of such portion of the funds
shall be calculated pursuant to ss.2.9.2 above. The amount so determined
shall then be added to the amount already outstanding in Dollars for the
purpose of determining the remaining availability of funds under ss.2.1
and ss.2.9.1 hereof and any required repayments under the following
ss.2.9.4.
2.9.4. Repayment. If at any time prior to the Revolving Credit Loan
Maturity Date, the Dollar Equivalent of the aggregate principal amount
outstanding of all Revolving Credit Loans, Unpaid Reimbursement
Obligations and the Maximum Drawing Amount hereunder shall exceed the
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Total Commitment as a result of fluctuations in respective conversion
rates, the Borrower shall pay or cause to be paid immediately, upon demand
made by the Agent, such amounts as are sufficient to eliminate such excess
and to reduce the aggregate principal amount outstanding to the Dollar
Equivalent of the Total Commitment. In the event there are any Revolving
Credit Loans outstanding which are denominated in an Optional Currency,
the Agent shall provide the Banks and the Borrower with calculations on
the last day of each calendar month that such Revolving Credit Loans are
outstanding as to the Dollar Equivalents of such Revolving Credit Loans.
2.9.5. Funding. Each Bank may make any Eurocurrency Rate Loan
denominated in an Optional Currency by causing any of its foreign branches
or foreign affiliates to make such Eurocurrency Rate Loan (whether or not
such branch or affiliate is named as a lending office on the signature
pages hereof); provided that in such event the obligation of the Borrower
to repay such Eurocurrency Rate Loan shall nevertheless be to such Bank
and shall, for all purposes of this Credit Agreement (including without
limitation for purposes of the definition of the term "Majority Banks") be
deemed made by such Bank, to the extent of such Eurocurrency Rate Loan,
for the account of such branch or affiliate.
2.10. Settlements.
2.10.1. General. On each Settlement Date, the Agent shall, not later
than 11:00 a.m. (Boston time), give telephonic or facsimile notice (a) to
the Banks and the Borrower of the respective outstanding amount of
Revolving Credit Loans made by the Agent on behalf of the Banks from the
immediately preceding Settlement Date through the close of business on the
prior day and the amount of any Eurocurrency Rate Loans to be made
(following the giving of notice pursuant to ss.2.6.1(ii)) on such date
pursuant to a Loan Request and (b) to the Banks of the amount (a
"Settlement Amount") that each Bank (a "Settling Bank") shall pay to
effect a Settlement of any Revolving Credit Loan. A statement of the Agent
submitted to the Banks and the Borrower or to the Banks with respect to
any amounts owing under this ss.2.10 shall be prima facie evidence of the
amount due and owing. Each Settling Bank shall, not later than 3:00 p.m.
(Boston time) on such Settlement Date, effect a wire transfer of Same Day
Funds to the Agent in the amount of the Settlement Amount for such
Settling Bank. All funds advanced by any Bank as a Settling Bank pursuant
to this ss.2.10 shall for all purposes be treated as a Revolving Credit
Loan made by such Settling Bank to the Borrower and all funds received by
any Bank pursuant to this ss.2.10 shall for all purposes be treated as
repayment of amounts owed with respect to Revolving Credit Loans made by
such Bank. In the event that any bankruptcy, reorganization, liquidation,
receivership or similar cases or proceedings in which the Borrower is a
debtor prevent a Settling Bank from making any Revolving Credit Loan to
effect a Settlement as contemplated hereby, such Settling Bank will make
such dispositions and arrangements with the other Banks with respect to
such Revolving Credit Loans, either by way of purchase of
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participations, distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Bank's share of the outstanding
Revolving Credit Loans being equal, as nearly as may be, to such Bank's
Commitment Percentage of the outstanding amount of the Revolving Credit
Loans.
2.10.2. Failure to Make Funds Available. The Agent may, unless
notified to the contrary by any Settling Bank prior to a Settlement Date,
assume that such Settling Bank has made or will make available to the
Agent on such Settlement Date the amount of such Settling Bank's
Settlement Amount, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Settling Bank makes available to the Agent
such amount on a date after such Settlement Date, such Settling Bank shall
pay to the Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
Overnight Rate for each day included in such period, times (b) the amount
of such Settlement Amount, times (c) a fraction, the numerator of which is
the number of days that elapse from and including such Settlement Date to
the date on which the amount of such Settlement Amount shall become
immediately available to the Agent, and the denominator of which is 360. A
statement of the Agent submitted to such Settling Bank with respect to any
amounts owing under this ss.2.10.2 shall be prima facie evidence of the
amount due and owing to the Agent by such Settling Bank. If such Settling
Bank's Settlement Amount is not made available to the Agent by such
Settling Bank within three (3) Business Days following such Settlement
Date, the Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans as of such Settlement Date.
2.10.3. No Effect on Other Banks. The failure or refusal of any
Settling Bank to make available to the Agent at the aforesaid time and
place on any Settlement Date the amount of such Settling Bank's Settlement
Amount shall not (a) relieve any other Settling Bank from its several
obligations hereunder to make available to the Agent the amount of such
other Settling Bank's Settlement Amount or (b) impose upon any Bank, other
than the Settling Bank so failing or refusing, any liability with respect
to such failure or refusal or otherwise increase the Commitment of such
other Bank.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. The Borrower promises to pay on the Revolving Credit Loan
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
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3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the outstanding principal amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Commitment; then the Borrower shall immediately pay the amount of such
excess to the Agent for the respective accounts of the Banks for application:
first, to any Unpaid Reimbursement Obligations; second, to the Revolving Credit
Loans; and third, to provide to the Agent cash collateral for Reimbursement
Obligations as contemplated by ss.4.2(b) and (c). Each payment of any Unpaid
Reimbursement Obligations or prepayment of Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid principal
amount of each Bank's Revolving Credit Note, with adjustments to the extent
practicable to equalize any prior payments or repayments not exactly in
proportion.
3.3. Optional Repayments of Revolving Credit Loans. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Eurocurrency Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrower shall give the
Agent, no later than 10:00 a.m., Boston time, on the day of the proposed
prepayment prior written notice (or telephonic notice conformed in a writing by
the end of such day) of such proposed prepayment pursuant to this ss.3.3 of
Prime Rate Loans, and three (3) Business Days notice of any proposed prepayment
pursuant to this ss.3.3 of Eurocurrency Rate Loans, in each case specifying the
proposed date of prepayment of Revolving Credit Loans and the principal amount
to be prepaid. Each such partial prepayment of the Revolving Credit Loans shall
be in the amount of $100,000 or an integral multiple thereof (or the Dollar
Equivalent) in excess thereof, and shall be applied, in the absence of
instruction by the Borrower, first to the principal of Prime Rate Loans and then
to the principal of Eurocurrency Rate Loans. Each partial prepayment shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Banks Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior repayments not
exactly in proportion.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of Credit. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Agent's customary form (a "Letter of
Credit Application"), the Agent on behalf of the Banks and in reliance
upon the agreement of the Banks set forth in ss.4.1.4 and upon the
representations and warranties of the Borrower contained herein, agrees,
in its individual capacity, to issue, extend and renew for the account of
the Borrower one or more standby or documentary letters of credit
(individually, a "Letter of Credit"), in such form as may be requested
from time to time by the Borrower
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and agreed to by the Agent; provided, however, that, after giving effect
to such request, the sum of (a) the Maximum Drawing Amount on all Letters
of Credit, (b) all Unpaid Reimbursement Obligations, and (c) the Dollar
Equivalent of the amount of all Revolving Credit Loans outstanding shall
not exceed the Total Commitment. Notwithstanding the foregoing, the Agent
shall have no obligation to issue any Letter of Credit to support or
secure any Indebtedness of the Borrower or any of its Subsidiaries to the
extent that such Indebtedness was incurred prior to the proposed issuance
date of such Letter of Credit, unless in any such case the Borrower
demonstrates to the satisfaction of the Agent that (x) such prior incurred
Indebtedness were then fully secured by a prior perfected and unavoidable
security interest in collateral provided by the Borrower or such
Subsidiary to the proposed beneficiary of such Letter of Credit or (y)
such prior incurred Indebtedness were then secured or supported by a
letter of credit issued for the account of the Borrower or such Subsidiary
and the reimbursement obligation with respect to such letter of credit was
fully secured by a prior perfected and unavoidable security interest in
collateral provided to the issuer of such letter of credit by the Borrower
or such Subsidiary.
4.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
4.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) have an expiry date no later than the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
forty-five (45) days) prior to the Revolving Credit Loan Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject to
the Uniform Customs or, in the case of a standby Letter of Credit, either
the Uniform Customs or the International Standby Practices.
4.1.4. Reimbursement Obligations of Banks. Each Bank severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Commitment Percentage,
to reimburse the Agent on demand for the amount of each draft paid by the
Agent under each Letter of Credit to the extent that such amount is not
reimbursed by the Borrower pursuant to ss.4.2 (such agreement for a Bank
being called herein the "Letter of Credit Participation" of such Bank).
4.1.5. Participations of Banks. Each such payment made by a Bank
shall be treated as the purchase by such Bank of a participating
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interest in the Borrower's Reimbursement Obligation under ss.4.2 in an
amount equal to such payment. Each Bank shall share in accordance with its
participating interest in any interest which accrues pursuant to ss.4.2.
4.2. Reimbursement Obligation of the Borrower. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in ss.4.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Agent, or the Agent otherwise makes a payment with respect thereto,
(i) the amount paid by the Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs and
expenses whatsoever incurred by the Agent or any Bank in connection with
any payment made by the Agent or any Bank under, or with respect to, such
Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the benefit of the
Banks and the Agent as cash collateral for all Reimbursement Obligations,
and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters
of Credit in accordance with ss.14, an amount equal to the then Maximum
Drawing Amount on all Letters of Credit, which amount shall be held by the
Agent for the benefit of the Banks and the Agent as cash collateral for
all Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid by
the Borrower under this ss.4.2 at any time from the date such amounts become due
and payable (whether as stated in this ss.4.2, by acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Agent on demand at the rate specified in ss.5.11 for overdue principal on the
Revolving Credit Loans.
4.3. Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Agent shall
notify the Borrower of the date and amount of the draft presented or demand for
payment and of the date and time when it expects to pay such draft or honor such
demand for payment. If the Borrower fails to reimburse the Agent as provided in
ss.4.2 on or before the date that such draft is paid or other payment is made by
the Agent, the Agent may at any time thereafter notify the Banks of the amount
of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m. (Boston
time) on
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the Business Day next following the receipt of such notice, each Bank shall make
available to the Agent, at the Agent's Head Office, in Same Day Funds, such
Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, together
with an amount equal to the product of (a) the average, computed for the period
referred to in clause (c) below, of the Overnight Rate for each day included in
such period, times (b) the amount equal to such Bank's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of
which is the number of days that elapse from and including the date the Agent
paid the draft presented for honor or otherwise made payment to the date on
which such Bank's Commitment Percentage of such Unpaid Reimbursement obligation
shall become immediately available to the Agent, and the denominator of which is
360. The responsibility of the Agent to the Borrower and the Banks shall be only
to determine that the documents (including each draft) delivered under each
Letter of Credit in connection with such presentment shall be in conformity in
all material respects with such Letter of Credit.
4.4. Obligations Absolute. The Borrower's obligations under this ss.4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under ss.4.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrower agrees that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith and absent gross negligence,
shall be binding upon the Borrower and shall not result in any liability on the
part of the Agent or any Bank to the Borrower.
4.5. Reliance by Issuer. To the extent not inconsistent with ss.4.4, the
Agent shall be entitled to rely, and shall be fully protected in relying upon,
any Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Credit Agreement unless it shall first
have received such advice or concurrence of the Majority Banks as it reasonably
deems appropriate or it shall first be
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indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Credit Agreement
in accordance with a request of the Majority Banks, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the Banks
and all future holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
4.6. Letter of Credit Fee. The Borrower shall pay a fee (in each case, a
"Letter of Credit Fee") to the Agent quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter commencing
on the first such date following the date hereof (a) in respect of each standby
Letter of Credit an amount equal to the Applicable Margin for letter of credit
fees per annum of the face amount of such standby Letter of Credit, of which an
amount equal to one eighth of one percent (1/8%) per annum of the face amount of
such standby Letter of Credit shall be for the account of the Agent, as a
fronting fee, and the balance of which Letter of Credit Fee shall be for the
accounts of the Banks in accordance with their respective Commitment Percentages
and (b) in respect of each documentary Letter of Credit an amount equal to the
Applicable Margin for letter of credit fees per annum of the face amount of such
documentary Letter of Credit, of which an amount equal to one eighth of one
percent (1/8%) per annum of the face amount of such documentary Letter of Credit
shall be for the account of the Agent, as a fronting fee, and the balance of
which Letter of Credit Fee shall be for the accounts of the Banks in accordance
with their respective Commitment Percentages. In respect of each Letter of
Credit, the Borrower shall also pay to the Agent for the Agent's own account, on
date of issuance or any extension or renewal of any Letter of Credit and at such
other time or times as such charges are customarily made by the Agent, the
Agent's customary issuance, amendment, negotiation or document examination and
other administrative fees as in effect from time to time.
5. CERTAIN GENERAL PROVISIONS.
5.1. Closing Fee. The Borrower agrees to pay to the Agent for the pro rata
accounts of the Banks on the Closing Date a closing fee in the amount of
$50,000.
5.2. Agent's Fee. The Borrower shall pay to the Agent annually in advance,
for the Agent's own account, on the date on which any other Bank (other than
Fleet) shall become a party to this Agreement and on each anniversary of such
date, an Agent's fee in an amount to be mutually agreed upon by the Agent and
the Borrower.
5.3. Funds for Payments.
5.3.1. Payments to Agent. All payments of principal and interest on
Revolving Credit Loans made to the Borrower which are denominated in
Dollars, Reimbursement Obligations with respect to Letters of Credit
issued in Dollars, Commitment Fees, Letter of Credit Fees and any other
amounts due hereunder or under any of the other Loan Documents shall be
made on
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the due date thereof to the Agent in Dollars, for the respective accounts
of the Banks and the Agent, at the Agent's Head Office or at such other
place that the Agent may from time to time designate, in each case at or
about 11:00 a.m. (Boston, Massachusetts, time or other local time at the
place of payment) and in Same Day Funds. All payments of principal and
interest on Revolving Credit Loans made to the Borrower which are
denominated in an Optional Currency, all Reimbursement Obligations with
respect to Letters of Credit issued in an Optional Currency and all other
fees hereunder by any local branch or affiliate of any Bank or the Agent
located outside of the United States shall be made by the Borrower to the
Agent in the currency of such Revolving Credit Loan or Letter of Credit,
as the case may be, at or prior to 11:00 a.m., local time, on any payment
date, in Same Day Funds, for the account of the Agent, at a depository
designated by the Agent in the country in which such Optional Currency is
legal tender. Each payment in respect of any Revolving Credit Loan and any
Reimbursement Obligations made by the Borrower shall be made in the same
currency in which such Revolving Credit Loan was made unless otherwise
agreed by the Banks.
5.3.2. No Offset, etc. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the
Borrower will pay to the Agent, for the account of the Banks or (as the
case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the Agent
to receive the same net amount which the Banks or the Agent would have
received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such
other Loan Document.
5.4. Computations. All computations of interest on the Prime Rate Loans
and of Commitment Fees, Letter of Credit Fees or other fees shall, unless
otherwise expressly provided herein, be based on a 365-day year and paid for the
actual number of days elapsed, and all computations of interest on Eurocurrency
Rate Loans shall be based on a 360-day year and paid for the actual number of
days elapsed. Except as otherwise provided in the definition of the term
"Interest Period" with respect to Eurocurrency Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of
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the Revolving Credit Loans as reflected on the Records from time to time shall
be considered correct and binding on the Borrower unless within ten (10)
Business Days after receipt of any notice by the Agent or any of the Banks of
such outstanding amount, the Agent or such Bank shall notify the Borrower to the
contrary.
5.5. Inability to Determine Eurocurrency Rate. In the event, prior to the
commencement of any Interest Period relating to any Eurocurrency Rate Loan, the
Agent shall determine or be notified by the Majority Banks that (a) adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate or the
International Eurocurrency Rate, as the case may be, that would otherwise
determine the rate of interest to be applicable to any Eurocurrency Rate Loan
during any Interest Period or deposits of Dollars or the relevant Optional
Currency, as the case may be, in the relevant Interest Period are not available
to the Agent or the Banks in any Eurocurrency Interbank Market, or (b) the
Eurodollar Rate or the International Eurocurrency Rate, as the case may be,
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to the Banks of making or maintaining their Eurocurrency
Rate Loans during such period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurocurrency Rate Loans shall be
automatically withdrawn and, in the case of Revolving Credit Loans denominated
in Dollars, shall be deemed a request for Prime Rate Loans to be denominated in
Dollars and in the case of any Eurocurrency Rate Loan denominated in an Optional
Currency, shall be withdrawn, (b) each Eurocurrency Rate Loan will
automatically, on the last day of the then current Interest Period relating
thereto, if denominated in Dollars, become a Prime Rate Loan and if denominated
in an Optional Currency, be repaid, and (c) the obligations of the Banks to make
Eurocurrency Rate Loans shall be suspended until the Agent or the Majority Banks
determine that the circumstances giving rise to such suspension no longer exist,
whereupon the Agent or, as the case may be, the Agent upon the instruction of
the Majority Banks, shall so notify the Borrower and the Banks.
5.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurocurrency Rate Loans or perform its obligations in respect of any
Eurocurrency Rate Loans in an Optional Currency or Currencies, such Bank shall
forthwith give notice of such circumstances to the Borrower and the other Banks
and thereupon (a) the commitment of such Bank to make Eurocurrency Rate Loans or
convert Loans of another Type to Eurocurrency Rate Loans shall forthwith be
suspended and (b) such Bank's Revolving Credit Loans then outstanding as
Eurocurrency Rate Loans and denominated in Dollars, if any, shall be converted
automatically to Prime Rate Loans on the last day of each Interest Period
applicable to such Eurocurrency Rate Loans or within such earlier period as may
be required by law and the Eurocurrency Rate Loans then outstanding and
denominated in an Optional Currency, if any, shall be repaid on the last day of
each Interest Period applicable to such Eurocurrency Rate Loan or within such
earlier period as may be required by law.
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The Borrower hereby agrees promptly to pay the Agent for the account of such
Bank, upon demand by such Bank, any additional amounts necessary to compensate
such Bank for any costs incurred by such Bank in making any conversion in
accordance with this ss.5.6, including any interest or fees payable by such Bank
to lenders of funds obtained by it in order to make or maintain its Eurocurrency
Rate Loans hereunder.
5.7. Additional Costs, etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Bank or
the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Revolving Credit Loans (other than taxes based
upon or measured by the income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Revolving Credit Loans or any other amounts payable to
any Bank or the Agent under this Credit Agreement or any of the other Loan
Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Revolving Credit Loans, such Bank's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Revolving Credit Loans or such Bank's Commitment forms a
part, and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Revolving
Credit Loans or such Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank or
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the Agent hereunder on account of such Bank's Commitment, any Letter
of Credit or any of the Revolving Credit Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest
or Reimbursement Obligation or other sum is calculated by reference
to the gross amount of any sum receivable or deemed received by such
Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent such additional
amounts as will be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or Reimbursement
Obligation or other sum.
5.8. Capital Adequacy. If after the date hereof any Bank or the Agent
determines that (a) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (b) compliance by such Bank or the
Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Revolving Credit Loans to a level below that which such Bank or
the Agent could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or the Agent's then existing policies
with respect to capital adequacy and assuming full utilization of such entity's
capital) by any amount deemed by such Bank or (as the case may be) the Agent to
be material, then such Bank or the Agent may notify the Borrower of such fact.
To the extent that the amount of such reduction in the return on capital is not
reflected in the Prime Rate, the Borrower and such Bank shall thereafter attempt
to negotiate in good faith, within thirty (30) days of the day on which the
Borrower receives such notice, an adjustment payable hereunder that will
adequately compensate such Bank in light of these circumstances. If the Borrower
and such Bank are unable to agree to such adjustment within thirty (30) days of
the date on which the Borrower receives such notice, then commencing on the date
of such notice (but not earlier than the effective date of any such increased
capital requirement), the fees payable hereunder shall increase by an amount
that will, in such Bank's reasonable determination, provide adequate
compensation. Each Bank shall allocate such cost increases among its customers
in good faith and on an equitable basis.
5.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.5.7 or 5.8 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are due and owing.
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5.10. Indemnity. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (a)
default by the Borrower in payment of the principal amount of or any interest on
any Eurocurrency Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurocurrency Rate Loans, (b)
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) a Loan Request or a Conversion Request
relating thereto in accordance with ss.2.6 or ss.2.7 or (c) the making of any
payment of principal of a Eurocurrency Rate Loan or the making of any conversion
of any such Revolving Credit Loan to a Prime Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain any such Revolving Credit Loans.
5.11. Interest After Default.
5.11.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Revolving Credit Loans and
all other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand at
a rate per annum equal to four percent (4%) above the interest rate
otherwise applicable to such Revolving Credit Loans until such amount
shall be paid in full (after as well as before judgment).
5.11.2. Amounts Not Overdue. During the continuance of an Event of
Default the principal of the Revolving Credit Loans not overdue shall,
until such Default or Event of Default has been cured or remedied or such
Default or Event of Default has been waived by the Majority Banks pursuant
to ss.27, bear interest at a rate per annum equal to four percent (4%)
above the interest rate otherwise applicable to such Revolving Credit
Loans pursuant to ss.2.5. Notwithstanding the co-existence of a payment
Default or Event of Default (as described in ss.5.11.1) and a non-payment
Default or Event of Default (as described in this ss.5.11.2), the rate of
interest on the Revolving Credit Loans and (to the extent permitted by
applicable law) interest thereon shall not be greater than four percent
(4%) above the interest rate otherwise applicable to such Revolving Credit
Loans.
5.12. Currency Matters.
5.12.1. Currency of Account. Dollars are the currency of account and
payment for each and every sum at any time due from the Borrower
hereunder; provided that:
(a) except as expressly provided in this Credit Agreement, each
repayment of a Revolving Credit Loan or a part thereof and each repayment
of a Reimbursement Obligation shall be made in the currency in which such
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Revolving Credit Loan or Letter of Credit is denominated at the time of
that repayment;
(b) each payment of interest shall be made in the currency in which
such principal or other sum in respect of which such interest is payable,
is denominated;
(c) each payment of Letter of Credit Fees and the Commitment Fee
shall be in Dollars;
(d) each payment in respect of costs, expenses and indemnities shall
be made in the currency in which the same were incurred; and
(e) any amount expressed to be payable in a currency other than
Dollars shall be paid in that other currency.
No payment to the Agent or any Bank (whether under any judgment or
court order or otherwise) shall discharge the obligation or liability in
respect of which it was made unless and until the Agent or such Bank shall
have received payment in full in the currency in which such obligation or
liability was incurred, and to the extent that the amount of any such
payment shall, on actual conversion into such currency, fall short of such
obligation or liability actual or contingent expressed in that currency,
the Borrower shall indemnify and hold harmless the Agent or such Bank, as
the case may be, with respect to the amount of the shortfall, with such
indemnity surviving the termination of this Credit Agreement and any legal
proceeding, judgment or court order pursuant to which the original payment
was made which resulted in the shortfall.
5.12.2. Currency Fluctuations.
(a) Not later than 11:00 a.m. (Boston time) on the last Business Day
of each calendar month (the "Calculation Date"), the Agent shall determine
the Dollar Equivalent as of such date. The Dollar Equivalent so determined
shall become effective on the first Business Day immediately following
such determination (a "Reset Date") and shall remain effective until the
next succeeding Reset Date.
(b) If, on any Reset Date and on the Revolving Credit Loan Maturity
Date the Dollar Equivalent of the aggregate outstanding amount of all
Revolving Credit Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment for three (3) or
more consecutive Business Days (but only as to the Reset Date), then the
Borrower shall repay or prepay the Revolving Credit Loans in accordance
with this Credit Agreement in an aggregate principal amount such that,
after giving effect thereto, the aggregate outstanding amount (expressed
in Dollars) of all Revolving Credit Loans plus the Maximum Drawing Amount
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and all Unpaid Reimbursement Obligations no longer exceeds the Total
Commitment (expressed in Dollars).
(c) Without limiting subsection ss.5.12.2(b), if, on any day prior
to the Revolving Credit Loan Maturity Date, the aggregate outstanding
amount (expressed in Dollars) of all Revolving Credit Loans plus the
Maximum Drawing Amount plus the Unpaid Reimbursement Obligations exceeds
the Total Commitment by five percent (5%) or more, then (x) the Agent
shall give notice thereof to the Borrower and the Banks and (y) within two
(2) Business Days thereafter, the Borrower shall repay or prepay the
Revolving Credit Loans in accordance with this Credit Agreement in an
aggregate principal amount such that, after giving effect thereto, the
aggregate outstanding amount (expressed in Dollars) of all Revolving
Credit Loans plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations no longer exceeds the Total Commitment (expressed in Dollars).
Nothing set forth in this ss.5.12.2 shall be construed to require the
Agent to calculate daily compliance under this ss.5.12.2 unless expressly
requested to do so by a Bank.
5.13. European Monetary Union.
(a) If, as a result of the implementation of the EMU in any country which
has not, as of the date hereof, so implemented the EMU
(i) such country's currency ceases to be the lawful currency of such
country and is replaced by the Euro as the lawful currency of such nation, or
(ii) such currency and the Euro are at the same time recognized by the
central bank or comparable authority of such country as lawful currency of such
nation and the Agent or the Majority Banks shall so request or the Borrower
shall so request and the Agent or the Majority Banks shall so consent, in a
notice delivered to the Borrower,
then:
(A) any amount payable hereunder by the Banks to the Borrower, or by
the Borrower to the Banks in such local currency shall instead be payable in the
Euro and the amount so payable shall be determined by translating the amount
payable in such currency to the Euro at the exchange rate recognized by the
European Central Bank for the purpose of implementing the EMU; and
(B) if so specified in the notice delivered under the foregoing
clause (ii) or in any subsequent notice referring to such clause, such local
currency recognized at the same time as the Euro shall no longer be available as
an Optional Currency for purposes of this Credit Agreement, effective at the
expiration of the period of five (5) Business Days following the Borrower's
receipt of such notice. Such notice shall apply to (1) any Revolving Credit Loan
to be made on or after the expiration of such five (5) Business Day period or
(2) any Revolving Credit Loan outstanding at the end of such five (5) Business
Day period and denominated in such
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Optional Currency, following the expiration of the Interest Period applicable to
such outstanding Revolving Credit Loan at the time of the expiration of such
five (5) Business Day period.
(b) The Agent may in its discretion by notice to the Banks and the
Borrower:
(i) modify the definition of "Business Day" to include a principal
financial center of any Participating Member State where Revolving Credit Loans
to bear interest by reference to the Euro Interbank Rate are funded, or any
amounts are or are to be paid in Euros;
(ii) designate an account or accounts at a bank in a principal financial
center of any Participating Member State for receiving payments to the Agent,
whether for the account of the Agent or for the account of the Banks, in
immediately available funds, in Euros or for disbursing Revolving Credit Loans
to bear interest by reference to the Euro Interbank Rate;
(iii) designate the date or time for fixing the Euro Interbank Rate for
any Interest Period to be consistent with any practice or convention in the
London interbank market;
(iv) designate other mechanics for fixing the Euro Interbank Rate to be,
in the reasonable judgment of the Agent, as nearly as may be, consistent with
the mechanics for determining rates for other Optional Currencies (e.g. by
reference to Reuters screen or page) and also consistent with any practice or
convention in the London interbank market (e.g. by reference to a comparable
Reuters screen or page for the Euro);
(v) designate the period of notice from the Borrower to the Agent required
for the Borrower to borrow any Revolving Credit Loan to be denominated in Euros
or to convert any Revolving Credit Loan denominated in another Optional Currency
to a Revolving Credit Loan denominated in Euros;
(vi) designate the basis of accrual of interest, fees or other amounts to
be consistent with any practice or convention in the London interbank market
with respect to amounts calculated or payable in Euros;
(vii) where this Credit Agreement specifies a minimum amount or integral
multiple thereof, designate what the Agent considers a reasonably comparable and
convenient minimum amount and integral multiple for the Euro; and
(viii) where this Credit Agreement specifies an amount to be paid in an
Optional Currency that is, under the terms of this ss.5.13, to be paid in Euros,
designate a convenient amount in Euros to account for de minimis rounding.
(c) Section 5.5 shall not apply in the event that the local currency is
not available or an interbank offered rate may not be quoted for such currency,
solely because such currency ceases to be lawful currency of the nation issuing
such currency and is replaced by the Euro as the lawful currency of such nation,
so long
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as the Euro is available as an Optional Currency and the Euro Interbank Rate may
be quoted for the Euro.
(d) The Borrower agrees, at the request of the Majority Banks, at the time
of or at any time following the implementation of the EMU in any country after
the Closing Date and within thirty (30) days following such request, to enter
into an agreement amending this Credit Agreement in such manner as the Majority
Banks shall reasonably specify in order further to reflect the implementation of
the EMU and to place the parties hereto in the position they would have been in
had the EMU not been implemented in such country.
(e) The Borrower agrees, at the request of any Bank, to compensate such
Bank for any reasonable loss, cost, expense or reduction in return that shall be
incurred or sustained by such Bank as a result of the implementation of the EMU
and that would not have been incurred or sustained but for the transactions
provided for herein. A certificate of a Bank setting forth (i) the amount or
amounts necessary to compensate such Bank, (ii) a description of the nature of
the loss or expense sustained or incurred by such Bank as a consequence thereof
and (iii) a reasonably detailed explanation of the calculation thereof shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Bank the amount shown as due on any such certificate
within ten (10) days after receipt thereof.
5.14. Lending Office. Each Revolving Credit Loan made by any Bank in an
Optional Currency, and each payment by the Borrower in respect thereof, shall be
made by, or, as the case may be, for the account of, such applicable lending
office of the Agent as the Agent shall designate.
5.15. Replacement of Banks. If any Bank (an "Affected Bank") (a) makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to ss.ss.5.7 or 5.8, (b) is unable to make or maintain
Eurocurrency Rate Loans as a result of a condition described in ss.5.6 or (c) is
unable to make any Revolving Credit Loan or issue, extend or renew any Letter of
Credit as described in ss.13.2, the Borrower may, within ninety (90) days of
receipt of such demand, notice (or the occurrence of such other event causing
the Borrower to be required to pay such compensation or causing ss.5.6 or
ss.13.2 to be applicable), or default, as the case may be, by notice (a
"Replacement Notice") in writing to the Agent and such Affected Bank (1) request
the Affected Bank to cooperate with the Borrower in obtaining a replacement bank
satisfactory to the Agent and the Borrower (the "Replacement Bank"); (2) request
the non-Affected Banks to acquire and assume all of the Affected Bank's
Revolving Credit Loans and Commitment, as provided herein, but none of such
Banks shall be under an obligation to do so; or (3) designate a Replacement Bank
which is an Eligible Assignee that is reasonably satisfactory to the Agent. If
any satisfactory Replacement Bank shall be obtained, and/or if any one or more
of the non-Affected Banks shall agree to acquire and assume all of the Affected
Bank's Loans and Commitment, then such Affected Bank shall assign, in accordance
with ss.20, all of its Commitment and Revolving Credit Loans, its Revolving
Credit Note
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and other rights and obligations under this Credit Agreement and all other Loan
Documents to such Replacement Bank or non-Affected Banks, as the case may be, in
exchange for payment of the principal amount so assigned and all interest and
fees accrued on the amount so assigned, plus all other Obligations then due and
payable to the Affected Bank; provided, however, that (x) such assignment shall
be without recourse, representation or warranty (except as to the Affected
Bank's authority to convey the transferred interests) and shall be on terms and
conditions reasonably satisfactory to such Affected Bank and such Replacement
Bank and/or non-Affected Banks, as the case may be, and (4) prior to any such
assignment, the Borrower shall have paid to such Affected Bank all amounts
properly demanded and unreimbursed under ss.ss.5.7 and 5.8. Upon the effective
date of such assignment, the Borrower shall issue replacement Note(s) to such
Replacement Bank and/or non-Affected Banks, as the case may be, and such
institution shall become a "Bank" for all purposes under this Credit Agreement
and the other Loan Documents.
6. GUARANTY.
6.1. Guaranty of Payment and Performance. Each of the Parent Companies
hereby jointly and severally guarantees to the Agent and the Banks, the full and
punctual payment when due (whether at stated maturity, by required pre-payment,
by acceleration or otherwise), as well as the performance, of all of the
Obligations including all such which would become due but for the operation of
the automatic stay pursuant to ss.362(a) of the Federal Bankruptcy Code and the
operation of ss.ss.502(b) and 506(b) of the Federal Bankruptcy Code. This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of all of the Obligations and not of their
collectability only and is in no way conditioned upon any requirement that the
Agent or any Bank first attempt to collect any of the Obligations from the
Borrower or resort to any collateral security or other means of obtaining
payment. Should an Event of Default have occurred and be continuing, the
obligations of each Parent Company hereunder with respect to the Obligations
shall, upon demand by the Agent, become immediately due and payable to the
Agent, for the benefit of the Banks and the Agent, without demand or notice of
any nature, all of which are expressly waived by each such Parent Company.
Payments by any Parent Company hereunder may be required by the Agent on any
number of occasions. All payments by the Parent Companies hereunder shall be
made to the Agent, in the manner and at the place of payment specified therefor
in ss.5.3.1 hereof, for the account of the Banks and the Agent.
6.2. Parent Companies' Agreement to Pay Enforcement Costs, etc. Each of
the Parent Companies further jointly and severally agrees, as the principal
obligor and not as a guarantor only, to pay to the Agent, on written demand, all
reasonable costs and expenses (including court costs and reasonable legal
expenses and either of (but not both) external or internal counsel) incurred or
expended by any Agent or any Bank in connection with the Obligations, this
Guaranty and the enforcement thereof, together with interest on amounts
recoverable under this ss.6 from the time when such amounts become due until
payment, whether before or after judgment, at the rate of interest for overdue
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principal set forth in ss.5.11 hereof, provided that if such interest exceeds
the maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
6.3. Waivers by the Parent Companies: Banks' Freedom to Act. Each of the
Parent Companies jointly and severally agrees that the Obligations will be paid
and performed strictly in accordance with their respective terms, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Bank with respect
thereto. Each of the Parent Companies waives promptness, diligence, presentment,
demand, protest, notice of acceptance, notice of any Obligations incurred and
all other notices of any kind, all defenses which may be available by virtue of
any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshalling of assets of the Borrower or any
other entity or other Person primarily or secondarily liable with respect to any
of the Obligations, and all suretyship defenses generally. Without limiting the
generality of the foregoing, each of the Parent Companies agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of such Parent
Company hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by (a) the failure of the Agent or any Bank to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other entity or other person primarily or secondarily liable with respect to any
of the Obligations; (b) any extensions, compromise, refinancing, consolidation
or renewals of any Obligation; (c) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of this Credit Agreement, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations; (d) the addition, substitution or release of any entity
or other person primarily or secondarily liable for any Obligation; (e) the
adequacy of any rights which the Agent or any Bank may have against any
collateral security or other means of obtaining repayment of any of the
Obligations; (f) the impairment of any Collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (g) any other act or omission which might in any manner
or to any extent vary the risk of such Parent Company or otherwise operate as a
release or discharge of such Parent Company (other than the indefeasible payment
in full, in cash, of all of the Obligations and the irrevocable termination of
the Total Commitment), all of which may be done without notice to the Parent
Companies. To the fullest extent permitted by law, each of the Parent Companies
hereby expressly waives any and all rights or defenses arising by reason of (i)
any "one action" or "anti-deficiency" law which would otherwise prevent the
Agent or any Bank from bringing any action, including any claim for a
deficiency, or exercising any other right or remedy (including any right of
set-off), against such Parent Company before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale
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or otherwise, or (ii) any other law which in any other way would otherwise
require any election of remedies by the Agent or any Bank.
6.4. Unenforceability of Obligations Against Borrower. If for any reason
the Borrower has no legal existence or is under no legal obligation to discharge
any of the Obligations, or if any of the Obligations have become irrecoverable
from the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason (other than
the indefeasible payment in full, in cash, of all of the Obligations and the
irrevocable termination of the Total Commitment), to the extent permitted by
law, this Guaranty shall nevertheless be binding on the Parent Companies to the
same extent as if the Parent Companies at all times had been the principal
obligors on all such Obligations. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of this Credit Agreement, the
other Loan Documents or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by the Parent Companies.
6.5. Subrogation; Subordination.
6.5.1. Postponement of Rights Against Borrower. Until the
termination of the Total Commitment and final payment and performance in
full in cash of all of the Revolving Credit Loans and other accrued
Obligations: none of the Parent Companies shall exercise any rights
against the Borrower arising as a result of payment by any Parent Company
hereunder, by way of subrogation, reimbursement, restitution, contribution
or otherwise, and will not prove any claim in competition with the Agent
or any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; none of
the Parent Companies will claim any setoff, recoupment or counterclaim
against the Borrower in respect of any liability of any Parent Company to
the Borrower; and each of the Parent Companies waives any benefit of and
any right to participate in any collateral security which may be held by
the Agent or any Bank.
6.5.2. Subordination. The payment of any amounts due with respect to
any indebtedness of the Borrower for money borrowed or credit received now
or hereafter owed to any Parent Company is hereby subordinated to the
prior payment in full in cash of all of the Obligations. Each of the
Parent Companies agrees that, after the occurrence and during the
continuance of any Event of Default, the Parent Companies will not demand,
xxx for or otherwise attempt to collect any such indebtedness of the
Borrower to the Parent Companies until all of the Obligations shall have
been paid in full. If, notwithstanding the foregoing sentence, each of the
Parent Companies shall collect, enforce or receive any amounts in respect
of such indebtedness while an Event of Default shall have occurred and be
continuing, such amounts shall be collected, enforced and received by each
of
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the Parent Companies as trustee for the Banks and the Agent and be paid
over to the Agent, for the benefit of the Banks and the Agent, on account
of the Obligations without affecting in any manner the liability of any of
the Parent Companies under the other provisions of this Guaranty.
6.5.3. Provisions Supplemental. The provisions of this ss.6.5 shall
be supplemental to and not in derogation of any rights and remedies of the
Banks and the Agent under any separate subordination agreement which the
Agent may at any time and from time to time enter into with any of the
Parent Companies for the benefit of the Banks and the Agent.
6.6. Security; Setoff. Each of the Parent Companies grants to the Agent
and the Banks, as security for the full and punctual payment and performance of
all of the Parent Companies' obligations hereunder, a continuing lien on and
security interest in all securities or other property belonging to such Parent
Company now or hereafter held by the Agent or such Bank and in all deposits
(general or special, time or demand, provisional or final) and other sums
credited by or due from the Agent or such Bank to such Parent Company or subject
to withdrawal by such Parent Company. Regardless of the adequacy of any
collateral security or other means of obtaining payment of any of the
Obligations, each of the Agent and the Banks is hereby authorized at any time
and from time to time during the continuance of any payment Default or any Event
of Default, without notice to any Parent Companies (any such notice being
expressly waived by each of the Parent Companies) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of each of the Parent Companies under this Guaranty, whether or not
the Agent or such Bank shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured. The Agent and the
Banks shall endeavor to give the Borrower prompt notice, in no event later than
five (5) days after the application of such deposits, of such application,
provided, however, that failure of the Agent or any Bank to give the Borrower
such notice shall not affect any of the Agent's or Banks' rights hereunder.
6.7. Further Assurances. Each of the Parent Companies agrees that it will
from time to time, at the request of the Agent, do all such things and execute
all such documents as the Agent may reasonably consider necessary or desirable
to give full effect to this Guaranty and to perfect and preserve the rights and
powers of the Banks and the Agent hereunder. Each of the Parent Companies
acknowledges and confirms that it has established its own adequate means of
obtaining from the Borrower on a continuing basis all information desired by it
concerning the financial condition of the Borrower and that it will look to the
Borrower and not to the Agent or any Bank in order for it to keep adequately
informed of changes in any of the Borrower's financial condition.
6.8. Reinstatement. Notwithstanding any termination of this Guaranty upon
the final payment in full, in cash, of the Obligations, this Guaranty shall
continue to be effective or be reinstated, if at any time any payment made or
value received with respect to any Obligation is rescinded or must otherwise be
returned by the Agent or any Bank upon the insolvency, bankruptcy or
reorganization of the
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Borrower, or otherwise, all as though such payment had not been made or value
received.
6.9. Successors and Assigns. This Guaranty shall be binding upon each of
the Parent Companies, its successors and assigns, and shall inure to the benefit
of the Agent and the Banks and their respective successors, and permitted
transferees and assigns. Without limiting the generality of the foregoing
sentence, each Bank may, in accordance with the provisions of ss.20 and subject
to the limitations set forth therein, assign or otherwise transfer this Credit
Agreement, the other Loan Documents or any other agreement or note held by it
evidencing, securing or otherwise executed in connection with the Obligations,
or sell participations in any interest therein, to any other entity or other
person, and such other entity or other person shall thereupon become vested, to
the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Bank
herein. None of the Parent Companies may assign any of its obligations hereunder
except as otherwise expressly permitted under this Credit Agreement.
7. COLLATERAL SECURITY AND GUARANTIES.
7.1. Security of Borrower. The Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the assets of the Borrower, whether now
owned or hereafter acquired, including all of the stock or other equity
interests of each of its domestic Subsidiaries and up to sixty-five percent
(65%) of the stock or other equity interests in each of its direct foreign
Subsidiaries, pursuant to the terms of the Security Documents to which the
Borrower is a party.
7.2. Guaranties and Security of Subsidiaries. The Obligations shall also
be guaranteed pursuant to the terms of the Guaranty. The obligations of the
Guarantors under the Guaranty shall be in turn secured by a perfected first
priority security interest (subject only to Permitted Liens entitled to priority
under applicable law) in all of the assets of each such Guarantor, whether now
owned or hereafter acquired, pursuant to the terms of the Security Documents to
which such Guarantor is a party.
8. REPRESENTATIONS AND WARRANTIES.
Each of the Parent Companies and the Borrower represents and warrants to
the Banks and the Agent as follows:
8.1. Corporate Authority.
8.1.1. Incorporation; Good Standing. Each of the Parent Companies,
the Borrower and their Subsidiaries (a) is a corporation, business trust
or limited liability company, as the case may be, duly organized, validly
existing and in good standing under the laws of its state or country of
incorporation or formation, (b) has all requisite power to own its
property and
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conduct its business as now conducted and as presently contemplated, and
(c) is in good standing as a foreign corporation, business trust, limited
liability company or similar business entity, as the case may be, and is
duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified would
not have a materially adverse effect on the business, assets or financial
condition of such Parent Company, the Borrower or such Subsidiary.
8.1.2. Authorization. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which any of the
Parent Companies, the Borrower or any of their Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby (a)
are within the authority of such Person, (b) have been duly authorized by
all necessary corporate (or similar organizational) proceedings, (c) do
not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which any of the Parent
Companies, the Borrower or any of their Subsidiaries is subject or any
judgment, order, writ, injunction, license or permit applicable to any of
the Parent Companies, the Borrower or any of their Subsidiaries and (d) do
not conflict with any provision of the corporate charter, memorandum and
articles of association, or bylaws or similar organization document of, or
any agreement or other instrument binding upon, any of the Parent
Companies, the Borrower or any of their Subsidiaries.
8.1.3. Enforceability. The execution and delivery of this Credit
Agreement and the other Loan Documents to which any of the Parent
Companies, the Borrower or any of their Subsidiaries is or is to become a
party will result in valid and legally binding obligations of such Person
enforceable against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting generally the enforcement of creditors' rights and except
to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceeding therefor may be brought.
8.2. Governmental Approvals. The execution, delivery and performance by
any of the Parent Companies, the Borrower and any of their Subsidiaries of this
Credit Agreement and the other Loan Documents to which any of the Parent
Companies, the Borrower or any of their Subsidiaries is or is to become a party
and the transactions contemplated hereby and thereby do not require the approval
or consent, order or authorization of or license by, or giving of notice to, or
taking any other action with respect to, or filing with, any governmental agency
or authority of any jurisdiction, or other fiscal, monetary or other authority
under any provision of any laws or governmental rules, regulations, orders or
decrees of any jurisdiction or the central bank of any jurisdiction or other
fiscal, monetary or other authority under any provision of any laws or
governmental rules, regulations, orders or
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decrees of any jurisdiction applicable to and binding on such Person other than
those already obtained.
8.3. Title to Properties; Leases. Except as indicated on Schedule 8.3
hereto, each of the Parent Companies, the Borrower and their Subsidiaries own
all of the assets reflected in the consolidated balance sheet of Digitas and its
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
8.4. Financial Statements, Projections and Solvency.
8.4.1. Fiscal Year. Each of the Parent Companies, the Borrower and
each of their Subsidiaries has a fiscal year which is the twelve months
ending on December 31 of each calendar year.
8.4.2. Financial Statements. There has been furnished to each of the
Banks a consolidated balance sheet of the Parent Companies, the Borrower
and their Subsidiaries as at the Balance Sheet Date, and a consolidated
statement of income of the Parent Companies, the Borrower and their
Subsidiaries for the fiscal year then ended, certified by Xxxxxx Xxxxxxxx
LLP. Such balance sheet and statement of income have been prepared in
accordance with generally accepted accounting principles and fairly
present the financial condition of the Parent Companies, the Borrower and
their Subsidiaries as at the close of business on the date thereof and the
results of operations for the fiscal year then ended. There are no
contingent liabilities of or any of the Parent Companies, the Borrower or
any of their Subsidiaries as of such date involving material amounts,
known to the officers of the Borrower, which were not disclosed in such
balance sheet and the notes related thereto.
8.4.3. Projections. The projections of the annual operating budgets
of the Parent Companies, the Borrower and their Subsidiaries on a
consolidated basis, balance sheets and cash flow statements for the 2000
to 2003 fiscal years, copies of which have been delivered to each Bank,
disclose all assumptions made in formulating such projections. To the
knowledge of any of the Parent Companies, the Borrower or any of their
Subsidiaries, no facts exist that (individually or in the aggregate) could
reasonably be expected to result in any material change in any of such
projections taking into account any updates to such projections pursuant
to ss.9.4(g). The projections are based upon reasonable estimates and
assumptions, have been prepared on the basis of the assumptions stated
therein and reflect the reasonable estimates of the Parent Companies, the
Borrower and their Subsidiaries of the results of operations and other
information projected therein.
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8.4.4. Solvency. The Parent Companies, the Borrower and their
Subsidiaries, on a consolidated and consolidating basis, both before and
after giving effect to the transactions contemplated by this Credit
Agreement and the other Loan Documents (a) are solvent; (b) have assets
having a fair value in excess of their liabilities; (c) have assets having
a fair value in excess of the amount required to pay their liabilities on
existing debts as such debts become due and payable, and (d) have, and
expect to continue to have, access to adequate capital for the conduct of
their business and the ability to pay their debts from time to time
incurred in connection with the operation of their business as such debts
mature.
8.5. No Material Changes, etc. Since the Balance Sheet Date there has
occurred no materially adverse change in the financial condition or business of
the Parent Companies, the Borrower and their Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Parent Companies, the
Borrower and their Subsidiaries as at the Balance Sheet Date, or the
consolidated statement of income for the fiscal year then ended, other than
changes in the ordinary course of business that have not had any materially
adverse effect either individually or in the aggregate on the business or
financial condition of any of the Parent Companies, the Borrower or any of their
Subsidiaries. Since the Balance Sheet Date, the Borrower has not made any
Distribution, except as may be permitted by ss.10.4 hereof.
8.6. Franchises, Patents, Copyrights, etc. Each of the Parent Companies,
Borrower and their Subsidiaries possesses all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict with any rights of others.
8.7. Litigation. Except as set forth in Schedule 8.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or threatened
against any of the Parent Companies, the Borrower or any of their Subsidiaries
before any court, tribunal or administrative agency or board that, if adversely
determined, might, either in any case or in the aggregate, materially adversely
affect the properties, assets, financial condition or business of the Parent
Companies, the Borrower and their Subsidiaries or materially impair the right of
the Parent Companies, the Borrower and their Subsidiaries, considered as a
whole, to carry on business substantially as now conducted by them, or result in
any substantial liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the consolidated balance sheet of the
Parent Companies, the Borrower and their Subsidiaries, or which question the
validity of this Credit Agreement or any of the other Loan Documents, or any
action taken or to be taken pursuant hereto or thereto.
8.8. No Materially Adverse Contracts, etc. None of the Parent Companies,
the Borrower nor any of their Subsidiaries is subject to any charter, corporate
or other legal restriction, or any judgment, decree, order, rule or regulation
that has or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of any of the Parent Companies, the
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Borrower or any of their Subsidiaries. None of the Parent Companies, the
Borrower nor any of their Subsidiaries is a party to any contract or agreement
that has or is expected, in the judgment of the Borrower's officers, to have any
materially adverse effect on the business of the Parent Companies, the Borrower
or any of their Subsidiaries.
8.9. Compliance with Other Instruments, Laws, etc. None of the Parent
Companies, the Borrower nor any of their Subsidiaries is in violation of any
provision of its charter documents, bylaws, or any agreement or instrument to
which it may be subject or by which it or any of its properties may be bound or
any decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of any of the Parent Companies, the Borrower or any of their
Subsidiaries.
8.10. Tax Status. The Parent Companies, the Borrower and their
Subsidiaries (a) have made or filed all federal and state income and, if
applicable, foreign income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (b) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (c) have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of each of the Parent Companies,
the Borrower and their Subsidiaries know of no basis for any such claim.
8.11. No Event of Default. No Default or Event of Default has occurred and
is continuing.
8.12. Holding Company and Investment Company Acts. None of the Parent
Companies, the Borrower nor any of their Subsidiaries is a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; nor is it an "investment company", or an "affiliated company" or a
"principal underwriter" of an "investment company", as such terms are defined in
the Investment Company Act of 1940.
8.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of any of the Parent Companies, the Borrower or any
of their Subsidiaries or any rights relating thereto.
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8.14. Perfection of Security Interest. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect (or establish a comparable interest in the case of
Collateral located outside of the United States of America) the Agent's security
interest in the Collateral. The Collateral and the Agent's rights with respect
to the Collateral are not subject to any setoff, claims, withholdings or other
defenses. A Parent Company, the Borrower or a Subsidiary thereof party to one of
the Security Agreements is the owner of the Collateral free from any lien,
security interest, encumbrance and any other claim or demand, except for
Permitted Liens.
8.15. Certain Transactions. Except for arm's length transactions pursuant
to which any of the Parent Companies, the Borrower or any of their Subsidiaries
makes payments in the ordinary course of business upon terms no less favorable
than the Parent Companies, the Borrower or such Subsidiary could obtain from
third parties, none of the officers, directors, or employees of any of the
Parent Companies, the Borrower or any of their Subsidiaries is presently a party
to any transaction with any of the Parent Companies, the Borrower or any of
their Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
8.16. Employee Benefit Plans.
8.16.1. In General. Except as set forth in Schedule 8.16 hereto,
each Employee Benefit Plan and each Guaranteed Pension Plan has been
maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the Code, including but
not limited to the provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other persons handling
plan funds as required by ss.412 of ERISA. The Borrower has heretofore
delivered to the Agent the most recently completed annual report, Form
5500, with all required attachments, and actuarial statement required to
be submitted under ss.103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
8.16.2. Terminability of Welfare Plans. No Employee Benefit Plan,
which is an employee welfare benefit plan within the meaning of ss.3(1) or
ss.3(2)(B) of ERISA, provides benefit coverage subsequent to termination
of employment, except as required by Title I, Part 6 of ERISA or the
applicable state insurance laws. The Borrower may terminate each such Plan
at any time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower without liability
to any Person other than for claims arising prior to termination.
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8.16.3. Guaranteed Pension Plans. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan, and
neither the Borrower nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan
pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to
the PBGC (other than required insurance premiums, all of which have been
paid) has been incurred by the Borrower or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the date
of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not
exceed the aggregate value of the assets of all such Guaranteed Pension
Plans, disregarding for this purpose the benefit liabilities and assets of
any Guaranteed Pension Plan with assets in excess of benefit liabilities,
by more than $100,000.
8.16.4. Multiemployer Plans. None of the Parent Companies, the
Borrower nor any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under ss.4201
of ERISA or as a result of a sale of assets described in ss.4204 of ERISA.
None of the Parent Companies, the Borrower nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of ss.4241 or ss.4245 of ERISA or
is at risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
8.17. Use of Proceeds.
8.17.1. General. The proceeds of the Revolving Credit Loans shall be
used for working capital, Capital Expenditures, Permitted Acquisitions and
general corporate purposes. The Borrower will obtain Letters of Credit
solely for working capital purposes and to secure rental obligations owing
to landlords of the Parent Companies, the Borrower or any of their
Subsidiaries.
8.17.2. Regulations U and X. No portion of any Revolving Credit Loan
is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of purchasing or carrying any "margin security" or "margin
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stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
8.17.3. Ineligible Securities. No portion of the proceeds of any
Revolving Credit Loans is to be used, and no portion of any Letter of
Credit is to be obtained, for the purpose of knowingly purchasing, or
providing credit support for the purchase of, during the underwriting or
placement period or within 30 days thereafter, any Ineligible Securities
underwritten or privately placed by a Section 20 Subsidiary.
8.18. Environmental Compliance. To the best of the Borrower's knowledge:
(a) none of the Parent Companies, the Borrower, their Subsidiaries
or any operator of the Real Estate or any operations thereon is in
violation, or alleged violation, of any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control
Act, or any state or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment (hereinafter "Environmental
Laws"), which violation would have a material adverse effect on the
environment or the business, assets or financial condition of the Borrower
or any of its Subsidiaries;
(b) none of the Parent Companies, the Borrower nor any of their
Subsidiaries has received notice from any third party including, without
limitation, any federal, state or local governmental authority, (i) that
any one of them has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under CERCLA
with respect to a site listed on the National Priorities List, 40 C.F.R.
Part 000 Xxxxxxxx X; (ii) that any hazardous waste, as defined by 42
U.S.C. ss.6903(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) and any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or disposed
of has been found at any site at which a federal, state or local agency or
other third party has conducted or has ordered that any Parent Company,
the Borrower or any of their Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any
third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
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(c) except as set forth on Schedule 8.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of the Real Estate; (ii) in the course of any activities conducted
by the Parent Companies, the Borrower, their Subsidiaries or operators of
its properties, no Hazardous Substances have been generated or are being
used on the Real Estate except in accordance with applicable Environmental
Laws; (iii) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened
releases of Hazardous Substances on, upon, into or from the properties of
the Parent Companies, the Borrower or their Subsidiaries, which releases
would have a material adverse effect on the value of any of the Real
Estate or adjacent properties or the environment; (iv) there have been no
releases on, upon, from or into any real property in the vicinity of any
of the Real Estate which, through soil or groundwater contamination, may
have come to be located on, and which would have a material adverse effect
on the value of, the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and are,
to the best of the Borrower's knowledge, operating in compliance with such
permits and applicable Environmental Laws; and
(d) none of the Parent Companies, the Borrower and their
Subsidiaries or any of the Real Estate is subject to any applicable
environmental law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any governmental agency or the recording or delivery
to other Persons of an environmental disclosure document or statement by
virtue of the transactions set forth herein and contemplated hereby, or as
a condition to the effectiveness of any other transactions contemplated
hereby.
8.19. Subsidiaries, etc. Schedule 8.19(a) sets forth the Subsidiaries of
Digitas. Except as set forth on Schedule 8.19(b) hereto, none of the Parent
Companies, the Borrower nor any of their Subsidiaries is engaged in any joint
venture or partnership with any other Person.
8.20. Bank Accounts. Schedule 8.20 sets forth the account numbers and
location of all bank accounts of any of the Parent Companies, the Borrower or
any of their Subsidiaries.
8.21. Disclosure. None of this Credit Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to any of the Parent Companies, the Borrower or any of
their
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Subsidiaries in the case of any document or information not furnished by it or
any of its Subsidiaries) necessary in order to make the statements herein or
therein not misleading. There is no fact known to any of the Parent Companies,
the Borrower or any of their Subsidiaries which materially adversely affects, or
which is reasonably likely in the future to materially adversely affect, the
business, assets, financial condition or prospects of any of the Parent
Companies, the Borrower or any of their Subsidiaries, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
8.22. No Filing, Recording Required. Each of the Parent Companies, the
Borrower and their Subsidiaries represents and warrants to the Banks that no
filing, recording or enrolling of this Credit Agreement or any other Loan
Document is required to ensure the legality, validity, enforceability or
admissibility in evidence of this Credit Agreement or any other Loan Document.
8.23. No Withholding, Etc. None of the Parent Companies, the Borrower nor
their Subsidiaries is required by the laws of any jurisdiction to make any
deduction or withholding of any nature whatsoever from any payment to be made by
it hereunder unless disclosed in writing to the Agent and such deductions or
withholdings are not, in the Agent's reasonable discretion, material. Neither
this Credit Agreement nor any of the Loan Documents is subject to any
registration or stamp tax or any other similar or like taxes payable in any
jurisdiction.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
Each of the Parent Companies and the Borrower covenants and agrees that,
so long as any Revolving Credit Loan, Unpaid Reimbursement Obligation, Letter of
Credit or Revolving Credit Note is outstanding or any Bank has any obligation to
make any Revolving Credit Loans or the Agent has any obligation to issue, extend
or renew any Letters of Credit:
9.1. Punctual Payment. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Revolving Credit Loans, all
Reimbursement Obligations, the Letter of Credit Fees, the Commitment Fees, the
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
9.2. Maintenance of Office. The Borrower will maintain its chief executive
office in Boston, MA, or at such other place in the United States of America as
the Borrower shall designate upon written notice to the Agent, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents to which the Borrower is a party may be given or made.
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9.3. Records and Accounts. Each of the Parent Companies and the Borrower
will (a) keep, and cause each of their Subsidiaries to keep, true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with generally accepted accounting principles, (b) maintain
adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of their Subsidiaries, contingencies, and other reserves, and (c) at
all times engage Xxxxxx Xxxxxxxx LLP or other independent certified public
accountants satisfactory to the Agent as the independent certified public
accountants of the Parent Companies, the Borrower and their Subsidiaries and
will not permit more than thirty (30) days to elapse between the cessation of
such firm's (or any successor firm's) engagement as the independent certified
public accountants of the Parent Companies, the Borrower and their Subsidiaries
and the appointment in such capacity of a successor firm as shall be
satisfactory to the Agent.
9.4. Financial Statements, Certificates and Information. The Borrower will
deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than one
hundred twenty (120) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Parent Companies, the
Borrower and their Subsidiaries and the consolidating balance sheet of the
Parent Companies, the Borrower and their Subsidiaries, each as at the end
of such year, and the related consolidated statement of income and
consolidated statement of cash flow and consolidating statement of income
and consolidating statement of cash flow for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
consolidated and consolidating statements to be in reasonable detail,
prepared in accordance with generally accepted accounting principles, and
certified, without qualification and without an expression of uncertainty
as to the ability of any of the Parent Companies, the Borrower or any of
their Subsidiaries to continue as going concerns, by Xxxxxx Xxxxxxxx LLP
or by other independent certified public accountants reasonably
satisfactory to the Agent;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal
quarters of the Borrower in each fiscal year, copies of the unaudited
consolidated balance sheet of the Parent Companies, the Borrower and their
Subsidiaries and the unaudited consolidating balance sheet of the Borrower
and its Subsidiaries, each as at the end of such quarter, and the related
consolidated statement of income and consolidated statement of cash flow
and consolidating statement of income and consolidating statement of cash
flow for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted
accounting principles, together with a certification by the principal
financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents
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the financial position of the Borrower and its Subsidiaries on the date
thereof (subject to year-end adjustments and the exclusion of footnotes);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of the Borrower in substantially
the form of Exhibit D hereto and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in ss.11
and (if applicable) reconciliations to reflect changes in generally
accepted accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed by Digitas with the Securities
and Exchange Commission or sent to the stockholders of the Borrower;
(e) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each fiscal year, the Borrower's
annual budget for then current fiscal year;
(f) simultaneously with the receipt thereof, copies of any
accountants' management letters received by any of the Parent Companies,
the Borrower or any of their Subsidiaries; and
(g) from time to time such other financial data and information
(including updated projections) as the Agent may reasonably request or as
the Borrower may provide to the Agent.
9.5. Notices.
9.5.1. Defaults. The Borrower will promptly notify the Agent and
each of the Banks in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which or with respect to
which any of the Parent Companies, the Borrower or any of their
Subsidiaries is a party or obligor, whether as principal, guarantor,
surety or otherwise, the Borrower shall forthwith give written notice
thereof to the Agent and each of the Banks, describing the notice or
action and the nature of the claimed default.
9.5.2. Environmental Events. The Borrower will promptly give notice
to the Agent and each of the Banks (a) of any violation of any
Environmental Law that any of the Parent Companies, the Borrower or any of
their Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral report
is made) to any federal, state or local environmental agency and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or
other action, including a notice from any agency of potential
environmental
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liability, of any federal, state or local environmental agency or board,
that has the potential to materially affect the assets, liabilities,
financial conditions or operations of any of the Parent Companies, the
Borrower or any of their Subsidiaries, or the Agent's security interests
pursuant to the Security Documents.
9.5.3. Notification of Claim against Collateral. The Borrower will,
immediately upon becoming aware thereof, notify the Agent and each of the
Banks in writing of any setoff, claims (including, with respect to the
Real Estate, environmental claims), withholdings or other defenses to
which any of the Collateral, or the Agent's rights with respect to the
Collateral, are subject.
9.5.4. Notice of Litigation and Judgments. Each of the Parent
Companies and the Borrower will, and will cause each of their Subsidiaries
to, give notice to the Agent and each of the Banks in writing within
fifteen (15) days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings affecting
any of the Parent Companies, the Borrower or any of their Subsidiaries or
to which any of the Parent Companies, the Borrower or any of their
Subsidiaries is or becomes a party involving an uninsured claim against
any of the Parent Companies, the Borrower or any of their Subsidiaries
that could reasonably be expected to have a materially adverse effect on
any of the Parent Companies, the Borrower or any of their Subsidiaries and
stating the nature and status of such litigation or proceedings. Each of
the Parent Companies, the Borrower will, and will cause each of their
Subsidiaries to, give notice to the Agent and each of the Banks, in
writing, in form and detail satisfactory to the Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise, against
any of the Parent Companies, the Borrower or any of their Subsidiaries in
an amount in excess of $500,000.
9.6. Corporate Existence; Maintenance of Properties. Each of the Parent
Companies and the Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence, rights and
franchises and those of their Subsidiaries and will not, and will not cause or
permit any of their Subsidiaries to, change its current legal form. They (a)
will cause all of their properties and those of their Subsidiaries used or
useful in the conduct of their business or the business of their Subsidiaries to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (c) will, and will cause each of their Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
provided that nothing in this ss.9.6 shall prevent any of the Parent Companies
or the Borrower from discontinuing the operation and maintenance of any of their
properties or any of those of their Subsidiaries if such discontinuance is, in
the judgment of the Parent Companies and the Borrower,
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desirable in the conduct of their or their business and that do not in the
aggregate materially adversely affect the business of the Parent Companies, the
Borrower and their Subsidiaries on a consolidated basis.
9.7. Insurance. Each of the Parent Companies and the Borrower will, and
will cause each of their Subsidiaries to, maintain with financially sound and
reputable insurers insurance with respect to their properties and business
against such casualties and contingencies as shall be in accordance with the
general practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms and for
such periods as may be reasonable and prudent and in accordance with the terms
of the Security Agreements.
9.8. Taxes. Each of the Parent Companies and the Borrower will, and will
cause each of their Subsidiaries to, duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if any Parent Company, the Borrower or such Subsidiary shall have set aside
on its books adequate reserves with respect thereto; and provided further that
each Parent Company, the Borrower and each of their Subsidiaries will pay all
such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien that may have attached as
security therefor.
9.9. Inspection of Properties and Books, etc.
9.9.1. General. Each of the Parent Companies and the Borrower shall
permit the Banks, through the Agent or any of the Banks' other designated
representatives, during normal business hours and, so long as no Event of
Default shall have occurred and be continuing, upon at least ten (10) days
prior written notice from the Agent, to visit and inspect any of any of
the Parent Companies the properties of any of the Parent Companies, the
Borrower or any of their Subsidiaries, to examine the books of account of
Parent Companies and the Borrower and their Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Parent Companies, and the Borrower and their
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Bank may reasonably request.
9.9.2. Communications with Accountants. Each of Digitas and the
Borrower on behalf of themselves and their Subsidiaries authorizes the
Agent and, if accompanied by the Agent, the Banks and, so long as no
Default or Event of Default shall have occurred and be continuing, upon at
least ten
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(10) days prior written notice from the Agent, to communicate directly
with Digitas' and/or the Borrower's independent certified public
accountants and authorizes such accountants to disclose to the Agent and
the Banks any and all financial statements and other supporting financial
documents and schedules including copies of any management letter with
respect to the business, financial condition and other affairs of any of
the Parent Companies, the Borrower or any of their Subsidiaries. At the
request of the Agent, the Borrower shall deliver a letter addressed to
such accountants instructing them to comply with the provisions of this
ss.9.9.2.
9.10. Compliance with Laws, Contracts, Licenses, and Permits. Each of the
Parent Companies and the Borrower will, and will cause each of their
Subsidiaries to, comply with (a) the applicable laws and regulations wherever
its business is conducted, including all Environmental Laws, (b) the provisions
of its charter documents and by-laws, (c) all agreements and instruments by
which it or any of its properties may be bound and (d) all applicable decrees,
orders, and judgments. If any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government shall
become necessary or required in order that any of the Parent Companies, the
Borrower or any of their Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Parent Companies, the
Borrower or such Subsidiary is a party, each of the Parent Companies and the
Borrower will, or (as the case may be) will cause such Subsidiary to,
immediately take or cause to be taken all reasonable steps within the power of
the Parent Companies, the Borrower or such Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
9.11. Employee Benefit Plans. The Borrower will (a) promptly upon filing
the same with the Department of Labor or Internal Revenue Service furnish to the
Agent a copy of the most recent actuarial statement required to be submitted
under ss.103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (b) promptly upon
receipt or dispatch, furnish to the Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
9.12. Use of Proceeds. The Borrower will use the proceeds of the Loans
solely for working capital, Capital Expenditures, Permitted Acquisitions and
general corporate purposes. The Borrower will obtain Letters of Credit solely
for working capital purposes and to secure rental obligations owing to landlords
of the Parent Companies, the Borrower or any of their Subsidiaries.
9.13. Bank Accounts. Each of the Parent Companies and the Borrower will,
and will cause each of their domestic Subsidiaries to, together with the
employees, agents and other Persons acting on behalf of any Parent Company, the
Borrower or such Subsidiary, receive and hold in trust for the Agent and the
Banks all payments constituting proceeds of Accounts Receivable or other
Collateral which
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come into their possession or under their control and, immediately upon receipt
thereof, deposit such payments in the form received, with any appropriate
endorsements, in one of the accounts designated as a depositary account on
Schedule 8.20.
9.14. New Guarantors. Each of the Parent Companies and the Borrower will
cause each of their domestic Subsidiaries created, acquired or otherwise
existing, on or after the Closing Date to immediately become a Guarantor and
shall cause such Subsidiary to execute and deliver to the Agent, for the benefit
of the Agent and the Banks, (a) a Guaranty, and (b) further Security Documents
or other instruments and documents as the Agent may require in order to grant to
the Agent a first priority perfected security interest in such Subsidiary's
assets (subject only to Permitted Liens entitled to priority under applicable
law), together with legal opinions in form and substance satisfactory to the
Agent to be delivered to the Agent and the Banks opining as to authorization
validity and enforceability of such Guaranty and Security Documents and (as to
the applicable Security Documents) the perfection of such Security interests.
9.15. Additional Subsidiaries. If, after the Closing Date, any of the
Parent Companies, the Borrower or any of their Subsidiaries creates or acquires,
either directly or indirectly, any Subsidiary, it will immediately notify the
Agent of such creation or acquisition, as the case may be, and provide the Agent
with an updated Schedule 8.19(a) and take all other actions required by ss.9.14
hereof.
9.16. Replacement Instruments. Upon receipt of an affidavit and statement
of indemnification of an officer of the Agent or any Bank as to the loss, theft,
destruction or mutilation of any Revolving Credit Note or other Security
Document, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of such Revolving Credit Note, the Borrower shall issue, in
lieu thereof, a replacement Revolving Credit Note or Security Document, as the
case may be, in the same principal amount thereof and otherwise of like tenor.
9.17. Landlord Consents. Each of the Parent Companies and the Borrower
will, and will cause each of their domestic Subsidiaries to, execute and deliver
to the Agent no later than thirty (30) days after the Closing Date, and with
respect to any Subsidiary acquired or formed after the Closing Date, on the date
of such acquisition or formation, a landlord consent, in form and substance
satisfactory to the Agent, with respect to each property leased by a Parent
Company, the Borrower and such Subsidiaries at which such Person maintains it
books and records.
9.18. Further Assurances. Each of the Parent Companies and the Borrower
will, and will cause each of their Subsidiaries to, cooperate with the Banks and
the Agent and execute such further instruments and documents as the Banks or the
Agent shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Credit Agreement and the other Loan Documents.
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10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Parent Companies and the Borrower covenants and agrees that,
so long as any Revolving Credit Loan, Unpaid Reimbursement Obligation, Letter of
Credit or Revolving Credit Note is outstanding or any Bank has any obligation to
make any Revolving Credit Loans or the Agent has any obligations to issue,
extend or renew any Letters of Credit:
10.1. Restrictions on Indebtedness. Each of the Parent Companies and the
Borrower will not, and will not permit any of their Subsidiaries to, create,
incur, assume, guarantee or be or remain liable, contingently or otherwise, with
respect to any Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(c) Subordinated Debt;
(d) Indebtedness incurred in connection with the acquisition after
the date hereof of any real or personal property by the Parent Companies,
the Borrower or such Subsidiary, provided that the principal amount of all
such Indebtedness of the Parent Companies, the Borrower and their
Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any
one time;
(e) Indebtedness existing on the date hereof and listed and
described on Schedule 10.1 hereto;
(f) Indebtedness to any Bank in connection with any derivative
contract (as defined in clause (i) of the definition of Indebtedness)
provided by such Bank to the Borrower;
(g) unsecured Indebtedness incurred in connection with foreign
exchange contracts or letter of credit facilities provided by lending
institutions other than the Agent to any Subsidiary of the Borrower or to
the Borrower, provided that the principal amount of all such Indebtedness
shall not exceed the aggregate amount of $5,000,000 at any one time;
(h) unsecured Indebtedness in connection with any derivative
contract provided by a third party to the Borrower;
(i) Indebtedness incurred by the Parent Companies, the Borrower or
any of their Subsidiaries under any Capitalized Leases, provided that the
principal amount of all such Indebtedness of the Parent Companies, the
Borrower and their Subsidiaries shall not exceed the aggregate amount of
$35,000,000 at any one time; and
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(j) Indebtedness of any Guarantor to the Borrower or to another
Guarantor which is a Subsidiary of the Borrower or of the Borrower to any
Guarantor so long as such Guarantor remains a Guarantor hereunder, has
otherwise complied with the provisions of ss.8.14 hereof and remains a
Subsidiary of the Borrower.
10.2. Restrictions on Liens. Each of the Parent Companies and the Borrower
will not, and will not permit any of their Subsidiaries to, (a) create or incur
or suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any of
its property or assets of any character whether now owned or hereafter acquired,
or upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom for the purpose of subjecting the same
to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; (d)
suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that if unpaid
might by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors; (e) sell, assign, pledge or
otherwise transfer any "receivables" as defined in clause (g) of the definition
of the term "Indebtedness," with or without recourse; or (f) enter into or
permit to exist any arrangement or agreement, enforceable under applicable law,
which directly or indirectly prohibits any Parent Company, the Borrower or any
of their Subsidiaries from creating or incurring any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest other than in
favor of the Agent for the benefit of the Banks and the Agent under the Loan
Documents and other than customary anti-assignment provisions in agreements
entered into by any Parent Company, the Borrower or such Subsidiary in the
ordinary course of its business, provided that any of the Parent Companies, the
Borrower or any of their Subsidiaries may create or incur or suffer to be
created or incurred or to exist:
(i) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries
of the Borrower to the Borrower;
(ii) liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or liens to secure claims for labor,
material or supplies in respect of obligations not overdue;
(iii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iv) liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the
Parent Companies, the Borrower or such Subsidiary shall at the time in
good faith
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be prosecuting an appeal or proceedings for review and in respect of which
a stay of execution shall have been obtained pending such appeal or
review;
(v) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(vi) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which a Parent Company, the Borrower or a Subsidiary
thereof is a party, and other minor liens or encumbrances none of which in
the opinion of the Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of the Parent
Company, the Borrower and their Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of any of the Parent Companies or the Borrower individually or of
the Parent Companies, the Borrower and their Subsidiaries on a
consolidated basis;
(vii) liens existing on the date hereof and listed on Schedule 10.2
hereto;
(viii) liens to secure Capitalized Lease obligations to the extent
permitted by ss.10.1(i);
(ix) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof to
secure purchase money Indebtedness of the type and amount permitted by
ss.10.1(d), incurred in connection with the acquisition of such property,
which security interests or mortgages cover only the real or personal
property so acquired; and
(x) liens and negative pledges in favor of the Agent for the benefit
of the Banks and the Agent under the Loan Documents.
10.3. Restrictions on Investments. Each of the Parent Companies and the
Borrower will not, and will not permit any of their Subsidiaries to, make or
permit to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by
the Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
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America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Xxxxx'x
Investors Service, Inc., and not less than "A 1" if rated by Standard and
Poor's Rating Group;
(d) Investments existing on the date hereof and listed on Schedule
10.3 hereto and renewals and replacements thereof;
(e) Investments with respect to Indebtedness permitted by ss.10.1(j)
so long as such entities remain Subsidiaries of the Borrower and remain a
Guarantor hereunder;
(f) equity Investments in companies other than Subsidiaries,
provided that (i) no Default or Event of Default shall have occurred and
be continuing at the time of the making of such Investments or result
after giving effect thereto, (ii) no proceeds of any Revolving Credit Loan
shall be used for the making of such Investments and (iii) the amount of
all such Investments shall not exceed $15,000,000 in the aggregate during
the term of this Credit Agreement;
(g) Investments (i) consisting of the Guaranty, (ii) by the Borrower
or any Guarantor in a Guarantor, so long as such Guarantor remains a
Guarantor and a Subsidiary of the Borrower hereunder, (iii) by any Parent
Company in the Borrower or in any Guarantor so long as such Guarantor
remains a Guarantor hereunder, and (iv) by a Subsidiary of the Borrower in
the Borrower, provided that, with respect to clauses (ii) through (iv) to
the extent applicable, the Borrower and each such Guarantor shall have
complied with the provisions of ss.7 hereof;
(h) Investments by the Borrower, any Parent Company or any other
Guarantor in foreign Subsidiaries of the Borrower, provided that (i) no
Default or Event of Default shall have occurred and be continuing at the
time of the making of such Investment or result after giving effect
thereto and (ii) the amount of all such Investments shall not exceed
$5,000,000 in the aggregate during the term of this Credit Agreement; and
(i) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $50,000 in the aggregate at any time
outstanding;
provided, however, that, with the exception of demand deposits referred to in
ss.10.3(b) and loans and advances referred to in ss.10.3(h), such Investments
will be considered Investments permitted by this ss.10.3 only if all actions
have been taken to the reasonable satisfaction of the Agent to provide to the
Agent, for the benefit of the Banks and the Agent, a first priority perfected
security interest in all of such Investments free of all encumbrances other than
Permitted Liens.
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10.4. Restricted Payments. None of the Parent Companies, the Borrower nor
any Subsidiary thereof will make any Restricted Payment, provided, however,
notwithstanding anything to the contrary contained in this Credit Agreement, so
long as no Default or Event of Default has occurred and is continuing or would
exist as a result thereof, (a) any Subsidiary of the Borrower shall be permitted
to make Restricted Payments to the Borrower and (b) the Borrower shall be
permitted to make Restricted Payments to Digitas (i) to permit Digitas to pay
income, franchise and other taxes and governmental levies owed or payable by
Digitas or any other Parent Company, provided such Restricted Payment shall not
be made more than five (5) Business Days prior to the date such payments are
paid by Digitas or (ii) to permit Digitas to pay ordinary course expenses of
Digitas or any other Parent Company, provided such Restricted Payment shall not
be made more than five (5) Business Days prior to the date such payments are
paid by Digitas and shall not exceed $300,000 in the aggregate in any fiscal
year.
10.5. Merger, Consolidation and Disposition of Assets.
10.5.1. Mergers and Acquisitions. Each of the Parent Companies and
the Borrower will not, and will not permit any of their Subsidiaries to,
become a party to any merger or consolidation, or agree to or effect any
asset acquisition or stock acquisition (other than the acquisition of
assets in the ordinary course of business consistent with past practices)
except (a) the merger or consolidation of one or more of the Subsidiaries
of the Borrower with and into the Borrower, (b) the merger or
consolidation of two or more domestic Subsidiaries of the Borrower, (c)
the merger or consolidation of two or more foreign Subsidiaries of the
Borrower, and (d) Permitted Acquisitions by the Borrower or any domestic
Subsidiary, provided that (i) not less than twenty (20) Business Days
prior to the closing of each such Permitted Acquisition, the Agent shall
have received written notice thereof along with financial information in
form and substance satisfactory to the Agent with respect to the business
or entity to be acquired and (ii) the aggregate total purchase price of
all such Permitted Acquisitions shall not exceed $20,000,000.
10.5.2. Disposition of Assets. Each of the Parent Companies and the
Borrower will not, and will not permit any of their Subsidiaries to,
become a party to or agree to or effect any disposition of assets, other
than the sale of inventory, the licensing of intellectual property and the
disposition of obsolete assets or assets no longer used or useful in the
business of such Parent Company, the Borrower or such Subsidiary, in each
case in the ordinary course of business consistent with past practices.
10.6. Sale and Leaseback. Each of the Parent Companies and the Borrower
will not, and will not permit any of their Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby any Parent Company, the Borrower or
any Subsidiary thereof shall sell or transfer any property owned by it in order
then or thereafter to lease such property or lease other property that any
Parent
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Company, the Borrower or any Subsidiary thereof intends to use for substantially
the same purpose as the property being sold or transferred.
10.7. Compliance with Environmental Laws. Each of the Parent Companies and
the Borrower will not, and will not permit any of their Subsidiaries to, (a) use
any of the Real Estate or any portion thereof for the handling, processing,
storage or disposal of Hazardous Substances, (b) cause or permit to be located
on any of the Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any Hazardous Substances on
any of the Real Estate, (d) conduct any activity at any Real Estate or use any
Real Estate in any manner so as to cause a release (i.e. releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Hazardous Substances
on, upon or into the Real Estate or (e) otherwise conduct any activity at any
Real Estate or use any Real Estate in any manner that would violate any
Environmental Law or bring such Real Estate in violation of any Environmental
Law.
10.8. Subordinated Debt. Each of the Parent Companies and the Borrower
will not, and will not permit any of their Subsidiaries to, amend, supplement or
otherwise modify the subordination terms of any of the Subordinated Debt or
amend, supplement or otherwise modify any other terms of the Subordinated Debt
in a manner which could reasonably be expected to be adverse to the Banks or
prepay, redeem or repurchase any of the Subordinated Debt unless such Person has
obtained the prior written consent of the Banks.
10.9. Upstream Limitations. Each of the Parent Companies and the Borrower
will not, and will not permit any of their Subsidiaries to, enter into any
agreement, contract or arrangement (other than the Credit Agreement and the
other Loan Documents) restricting the ability of any Subsidiary to pay or make
dividends or distributions in cash or kind to the Borrower, to make loans,
advances or other payments of whatsoever nature to the Borrower, or to make
transfer or distributions of all or any part of its assets to the Borrower.
10.10. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in
a material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA,
whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower or any of its Subsidiaries pursuant to ss.302(f) or ss.
4068 of ERISA; or
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(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to ss.307 of ERISA or ss.
401(a)(29) of the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities, by
more than the amount set forth in ss.8.16.3.
10.11. Business Activities. Each of the Parent Companies and the Borrower
will not, and will not permit any of their Subsidiaries to, engage directly or
indirectly (whether through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by them on the Closing Date and in related
businesses.
10.12. Fiscal Year. Each of the Parent Companies and the Borrower will
not, and will not permit any of their Subsidiaries to, change the date of the
end of its fiscal year from that set forth in ss.8.4.1.
10.13. Transactions with Affiliates. Each of the Parent Companies and the
Borrower will not, and will not permit any of their Subsidiaries to, engage in
any transaction with any Affiliate (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of any Parent Company or the Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an arm's-length
basis in the ordinary course of business.
10.14. Bank Accounts. Each of the Parent Companies and the Borrower will
not, and will not permit any of their domestic Subsidiaries to, (a) establish
any bank accounts other than those accounts listed on Schedule 8.20 without at
least ten (10) Business Days' prior written notice to the Agent of the opening
of such proposed account and compliance with the immediately succeeding sentence
of this ss.10.14, (b) violate directly or indirectly any agency account
agreement or other basic agency or lock box agreement in favor of the Agent for
the benefit of the Banks and the Agent with respect to such account, or (c)
deposit into any of the payroll accounts listed on Schedule 8.20 any amounts in
excess of amounts necessary to pay current payroll obligations from such
accounts. With respect to all investment or depository accounts listed on
Schedule 8.20 and maintained with financial institutions other than Fleet, each
of the Parent Companies, the Borrower or their domestic Subsidiaries, as the
case may be, and each such financial institution shall have executed and
delivered to the Agent no later than forty-five (45) days after the Closing
Date, or if established after such date, simultaneously with the opening of
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such account, an agency account agreement, in form and substance satisfactory to
the Banks, pursuant to which such financial institution shall have agreed, upon
each request of the Agent, to transfer to the Agent on behalf of the Banks and
the Agent all funds held in such account.
10.15. Inconsistent Agreements. Each of the Parent Companies and the
Borrower will not, and will not permit any of their Subsidiaries to, enter into
any agreement containing any provision which would be violated or breached by
the performance by any Parent Company, the Borrower or any of their Subsidiaries
of their respective obligations hereunder or under any of the Loan Documents.
10.16. Modification of Documents and Charter Documents. Each of the Parent
Companies and the Borrower will not, nor will it permit any of their
Subsidiaries to, consent to or agree to any amendment, supplement or other
modification to the Capitalization Documents without the prior written consent
of the Agent unless such amendment, supplement or modification would not have
any material adverse effect on the Agent's or the Bank's rights under the Loan
Documents or the Borrower's or any of its Subsidiaries' obligations under the
Loan Documents.
11. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Unpaid Reimbursement Obligation, Letter of Credit or Revolving Credit Note
is outstanding or any Bank has any obligation to make any Revolving Credit Loans
or the Agent has any obligation to issue, extend or renew any Letters of Credit:
11.1. Leverage Ratio. The Borrower will not, as of the last day of any
fiscal quarter, permit the Leverage Ratio for such fiscal quarter to exceed
2.50:1.00.
11.2. Minimum EBITDA. The Borrower will not, as of the end of any
Reference Period, permit the consolidated EBITDA of the Borrower and its
Subsidiaries for such Reference Period to be less than $20,000,000.
11.3. Fixed Charge Coverage Ratio. The Borrower will not, during any
Reference Period, permit the ratio of (a) consolidated EBITDA of the Parent
Companies, the Borrower and their Subsidiaries for the Reference Period, minus
the sum of (i) Capital Expenditures made during such Reference Period, (ii) cash
taxes paid during such Reference Period and (iii) Dividends paid or accrued
during such Reference Period to (b) the sum of (i) Consolidated Total Interest
Expense for such Reference Period and (ii) all scheduled payments of principal
on Indebtedness of the Parent Companies, the Borrower and their Subsidiaries
(including, without limitation, the principal component of Capitalized Lease
payments) made or required to be made in such Reference Period, but excluding
any interest that was required to be paid or accrued and any scheduled payments
of principal on Indebtedness made prior to the effective date of a Permitted
Acquisition by the Person acquired in connection with such Permitted
Acquisition, to be less than 1.50:1.00.
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12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans
and the Term Loan and of the Agent to issue any initial Letters of Credit shall
be subject to the satisfaction of the following conditions precedent:
12.1. Loan Documents Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
12.2. Certified Copies of Charter Documents. Each of the Banks shall have
received from each of the Parent Companies, the Borrower and each of their
Subsidiaries a copy, certified by a duly authorized officer of such Person to be
true and complete on the Closing Date, of each of (a) its charter or other
incorporation documents as in effect on such date of certification, and (b) its
by-laws as in effect on such date.
12.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of the Guarantors
of this Credit Agreement and the other Loan Documents to which it is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each of the Banks.
12.4. Incumbency Certificate. Each of the Banks shall have received from
each of the Parent Companies, the Borrower and each Guarantor an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized officer
of the Borrower or such Guarantor, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (a) to sign, in the name
and on behalf of each of the Borrower or such Guarantor, each of the Loan
Documents to which the Borrower or such Guarantor is or is to become a party;
(b) in the case of the Borrower, to make Loan Requests and Conversion Requests
and to apply for Letters of Credit; and (c) to give notices and to take other
action on its behalf under the Loan Documents.
12.5. Validity of Liens. The Security Documents shall be effective to
create in favor of the Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law) security interest in
and lien upon the Collateral. All filings, recordings, deliveries of instruments
and other actions necessary or desirable in the opinion of the Agent to protect
and preserve such security interests shall have been duly effected. The Agent
shall have received evidence thereof in form and substance satisfactory to the
Agent.
12.6. Perfection Certificates and UCC Search Results. The Agent shall have
received from the Borrower and each Guarantor a completed and fully executed
Perfection Certificate and the results of UCC searches with respect to the
Collateral, indicating no liens other than Permitted Liens and otherwise in form
and substance satisfactory to the Agent.
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12.7. Certificates of Insurance. The Agent shall have received (a) a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance
with the provisions of the Security Agreements and (b) certified copies of all
policies evidencing such insurance (or certificates therefore signed by the
insurer or an agent authorized to bind the insurer).
12.8. Replacement Letter of Credit. The Borrower shall have replaced the
letter of credit issued to ______ by US Bank under the Borrower's senior credit
facility in existence prior to the Closing Date with a Letter of Credit, and if
required by the beneficiary thereof, confirmed by Xxxxx Fargo.
12.9. Solvency Certificate. Each of the Banks shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Parent Companies, the Borrower and their Subsidiaries following
the consummation of the transactions contemplated herein and in form and
substance satisfactory to the Banks.
12.10. Opinion of Counsel. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agent, from Ropes & Xxxx, counsel to the Parent Companies, the Borrower and
their Subsidiaries.
12.11. Payment of Fees. The Borrower shall have paid to the Banks or the
Agent, as appropriate, the closing fee pursuant to ss.5.1.
12.12. Payoff Letter. The Agent shall have received a payoff letter from
Bankers Trust Company, as agent under the Borrower's senior credit facility
prior to the Closing Date, indicating the amount of the loan obligations of the
Borrower to the lenders under such senior credit facility to be discharged on
the Closing Date and an acknowledgment by Bankers Trust Company that upon
receipt of such funds it will forthwith execute and deliver to the Agent for
filing all termination statements and take such other actions as may be
necessary to discharge all mortgages, deeds of trust and security interests
granted by the Borrower or any of its Subsidiaries in favor of the Lenders and
the agent under such senior credit facility.
13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Revolving Credit Loan, including
the Revolving Credit Loan, and of the Agent to issue, extend or renew any Letter
of Credit, in each case whether on or after the Closing Date, shall also be
subject to the satisfaction of the following conditions precedent:
13.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Parent Companies, the Borrower and
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their Subsidiaries contained in this Credit Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection with
this Credit Agreement shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making of such Revolving
Credit Loan or the issuance, extension or renewal of such Letter of Credit, with
the same effect as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or permitted by this Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate expressly to
an earlier date) and no Default or Event of Default shall have occurred and be
continuing.
13.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Revolving Credit
Loan or to participate in the issuance, extension or renewal of such Letter of
Credit or in the reasonable opinion of the Agent would make it illegal for the
Agent to issue, extend or renew such Letter of Credit.
13.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
13.4. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
13.5. Exchange Limitations. There exists no reason whatsoever, including
without limitation, by reason of the application of any so-called "currency
exchange" laws or regulations (as in effect at the time of any proposed
borrowing hereunder) which could reasonably be expected to interfere with the
Borrower satisfying any of its Obligations hereunder in full at such time as
such Obligations become due and payable pursuant to the terms hereof.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
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(a) the Borrower shall fail to pay any principal of the Revolving
Credit Loans or any Reimbursement Obligation when the same shall become
due and payable, whether at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any
interest on the Revolving Credit Loans, the Commitment Fee, any Letter of
Credit Fee, the Agent's fee, or other sums due hereunder or under any of
the other Loan Documents, when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment within five (5) days of the due
date thereof;
(c) the Borrower shall fail to comply with any of its covenants
contained in ss.9.4, the first sentence of 9.6, 9.9.1, 10.1-10.6,
10.8, 10.16, or 11;
(d) any of the Parent Companies, the Borrower or any of their
Subsidiaries shall fail to perform any term, covenant or agreement
contained herein or in any of the other Loan Documents (other than those
specified elsewhere in this ss.14.1) for twenty (20) days after
written notice of such failure has been given to the Borrower by the
Agent;
(e) any representation or warranty of any of the Parent Companies,
the Borrower or any of their Subsidiaries in this Credit Agreement or any
of the other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit Agreement shall
prove to have been false in any material respect upon the date when made
or deemed to have been made or repeated;
(f) any of the Parent Companies, the Borrower or any of their
Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money or credit received or
in respect of any Capitalized Leases or Synthetic Leases in excess of
$1,000,000, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received or in respect of any
Capitalized Leases or Synthetic Leases for such period of time as would
permit (assuming the giving of appropriate notice if required) the holder
or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof, or any such holder or holders shall rescind or shall
have a right to rescind the purchase of any such obligations;
(g) any of the Parent Companies, the Borrower or any of their
Subsidiaries shall make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver of any
of the Parent Companies, the
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Borrower or any of their Subsidiaries or of any substantial part of the
assets of any of the Parent Companies, the Borrower or any of their
Subsidiaries or shall commence any case or other proceeding relating to
any of the Parent Companies, the Borrower or any of their Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other
proceeding shall be commenced against any of the Parent Companies, the
Borrower or any of their Subsidiaries and any of the Parent Companies, the
Borrower or any of their Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within forty-five (45) days following the
filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Parent
Companies, the Borrower or any of their Subsidiaries bankrupt or
insolvent, or approving a petition in any such case or other proceeding,
or a decree or order for relief is entered in respect of any Parent
Company, the Borrower or any such Subsidiary in an involuntary case under
federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against any of the Parent Companies, the Borrower or any of their
Subsidiaries that, with other outstanding final judgments, undischarged,
against the Borrower or any of its Subsidiaries exceeds in the aggregate
$1,000,000 excluding any portion covered by insurance;
(j) (i) the holders of all or any part of the Subordinated Debt
shall accelerate the maturity of all or any part of the Subordinated Debt
or (ii) the Subordinated Debt shall be prepaid, redeemed or repurchased in
whole or in part;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or liens
in a substantial portion of the Collateral shall cease to be perfected, or
shall cease to have the priority contemplated by the Security Documents,
in each case otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Banks, or
any action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of
their respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan
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Documents is illegal, invalid or unenforceable in accordance with the
terms thereof;
(l) the Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $500,000, or the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$500,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of ss.
302(f)(1) of ERISA), provided that the Agent determines in its reasonable
discretion that such event (A) could be expected to result in liability
of the Borrower or any of its Subsidiaries to the PBGC or such Guaranteed
Pension Plan in an aggregate amount exceeding $500,000 and (B) could
constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC, for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan or for the
imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the
appointment by a United States District Court of a trustee to administer
such Guaranteed Pension Plan; or (iii) the institution by the PBGC of
proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than thirty
(30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than thirty
(30) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of any of the Parent Companies, the
Borrower or any of their Subsidiaries if such event or circumstance is not
covered by business interruption insurance and would have a material
adverse effect on the business or financial condition of any Parent
Company, the Borrower or such Subsidiary;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
any of the Parent Companies, the Borrower or any of their Subsidiaries if
such loss, suspension, revocation or failure to renew would have a
material adverse effect on the business or financial condition of any
Parent Company, the Borrower or such Subsidiary;
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(p) any of the Parent Companies, the Borrower or any of their
Subsidiaries shall be indicted for a state or federal crime, or any civil
or criminal action shall otherwise have been brought against any of the
Parent Companies, the Borrower or any of their Subsidiaries, a punishment
for which in any such case could include the forfeiture of any assets of
any Parent Company, the Borrower or such Subsidiary included having a fair
market value in excess of $500,000; or
(q) Digitas shall at any time, legally or beneficially own directly
or indirectly less than 100% of the shares of the common stock or other
equity interests of each of its Subsidiaries, except with respect to any
foreign Subsidiary, if such 100% ownership is not permitted by the laws of
the jurisdiction of its incorporation or formation, less than the sum of
(i) 100% of the shares of the common stock or other equity interests of
each of such foreign Subsidiaries minus (ii) the minimum number of shares
required to comply with applicable law; or
(r) any person or group of persons (within the meaning of ss.13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired after the Closing Date beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange Commission under
said Act) of twenty percent (20%) or more of the outstanding shares of
common stock of Digitas;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Revolving Credit Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of any Event of Default specified in ss.14.1(g), 14.1(h) or
14.1(j)(i), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Agent or any Bank.
14.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.14.1(g), ss.14.1(h) or ss.14.1(j)(i)
shall occur, any unused portion of the credit hereunder shall forthwith
terminate and each of the Banks shall be relieved of all further obligations
to make Revolving Credit Loans to the Borrower and the Agent shall be
relieved of all further obligations to issue, extend or renew Letters of
Credit. If any other Event of Default shall have occurred and be continuing,
the Agent may and, upon the request of the Majority Banks, shall, by notice
to the Borrower, terminate the unused portion of the credit hereunder, and
upon such notice being given such unused portion of the credit hereunder
shall terminate immediately and each of the Banks shall be relieved of all
further obligations to make Loans and the Agent shall be relieved of all
further obligations to issue, extend or renew Letters of Credit. No
termination of the credit hereunder shall relieve the Borrower or any of its
Subsidiaries of any of the Obligations.
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14.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Revolving Credit Loans pursuant to ss.
14.1, each Bank, if owed any amount with respect to the Revolving Credit
Loans or the Reimbursement Obligations, may, with the consent of the Majority
Banks but not otherwise, proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Credit
Agreement and the other Loan Documents or any instrument pursuant to which
the Obligations to such Bank are evidenced, including as permitted by
applicable law the obtaining of the ex parte appointment of a receiver, and,
if such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of such
Bank. No remedy herein conferred upon any Bank or the Agent or the holder of
any Revolving Credit Note or purchaser of any Letter of Credit Participation
is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
any other provision of law.
14.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the Security Documents, or otherwise with respect to the
realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and privileges of the Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have,
priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; provided, however, that (i)
distributions shall be made (A) pari passu among Obligations with respect
to the Agent's fee payable pursuant to ss.5.2 and all other
Obligations and (B) with respect to each type of Obligation owing to the
Banks, such as interest, principal, fees and expenses, among the Banks
pro rata, and (ii) the Agent may in its discretion make proper allowance
to take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations required to be paid
pursuant
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to ss.9-504(1)(c) of the Uniform Commercial Code of the Commonwealth
of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
14.5. Judgement Currency. If, for the purpose of obtaining judgment in
any court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Credit Agreement or the other Loan
Documents in Dollars (hereinafter in this ss.14.5 called the "first
currency") into any other currency (hereinafter in this ss.14.5 called
the "second currency"), then the conversion shall be made at the Agent's spot
rate of exchange for buying the first currency with the second currency
prevailing at the Agent's close of business on the Business Day next
preceding the day on which the judgment is given or (as the case may be) the
order is made. Any payment made to the Agent or any Bank pursuant to this
Credit Agreement or the other Loan Documents in the second currency shall
constitute a discharge of the obligations of the Borrower to pay to the Agent
and the Banks any amount originally due to the Agent and the Banks in the
first currency under the Loan Documents only to the extent of the amount of
the first currency which the Agent and each of the Banks is able, on the date
of the receipt by it of such payment in any second currency, to purchase, in
accordance with the Agent's and such Bank's normal banking procedures, with
the amount of such second currency so received. If the amount of the first
currency falls short of the amount originally due to the Agent and the Banks
in the first currency under the Loan Documents, the Borrower hereby agrees
that it will indemnify the Agent and each of the Banks against and save the
Agent and each of the Banks harmless from any shortfall so arising. This
indemnity shall constitute an obligation of the Borrower separate and
independent from the other obligations contained in this Credit Agreement,
shall give rise to a separate and independent cause of action and shall
continue in full force and effect notwithstanding any judgment or order for a
liquidated sum or sums in respect of amounts due to the Agent or any Bank
under this Credit Agreement or under any such judgment or order and shall be
secured by the Collateral. Any such shortfall shall be deemed to constitute a
loss suffered by the Agent and each such Bank, as the case may be, and the
Borrower shall not be entitled to require any proof or evidence of any actual
loss. The covenant contained in this ss.14.5 shall survive the payment
in full of all of the other obligations of the Borrower under this Credit
Agreement.
15. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Banks to the Borrower and any securities or other property of the Borrower
in the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such
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Bank, other than Indebtedness evidenced by the Revolving Credit Notes held by
such Bank or constituting Reimbursement Obligations owed to such Bank, such
amount shall be applied ratably to such other Indebtedness and to the
Indebtedness evidenced by all such Revolving Credit Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank
shall receive from the Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Revolving Credit Notes held by, or constituting Reimbursement Obligations
owed to, such Bank by proceedings against the Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Revolving Credit Note or Notes held by, or Reimbursement Obligations owed
to, such Bank any amount in excess of its ratable portion of the payments
received by all of the Banks with respect to the Revolving Credit Notes held by,
and Reimbursement Obligations owed to, all of the Banks, such Bank will make
such disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Bank receiving in respect of
the Revolving Credit Notes held by it or Reimbursement Obligations owed it, its
proportionate payment as contemplated by this Credit Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
16. THE AGENT.
16.1. Authorization.
(a) The Agent is authorized to take such action on behalf of each of
the Banks and to exercise all such powers as are hereunder and under any
of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein
or therein shall be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that
of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other fiduciary
relationship between the Agent and any of the Banks.
(c) As an independent contractor empowered by the Banks to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Agent is nevertheless a
"representative" of the Banks, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the
Banks and the Agent with respect to all collateral security and guaranties
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contemplated by the Loan Documents. Such actions include the designation
of the Agent as "secured party", "mortgagee" or the like on all financing
statements and other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection, priority or enforcement
of any security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agent.
16.2. Employees and Agents. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Credit Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
16.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.4. No Representations.
16.4.1. General. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Revolving Credit Notes, the Letters of Credit, any of the other Loan
Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Revolving Credit Notes, or for the
value of any such collateral security or for the validity, enforceability
or collectability of any such amounts owing with respect to the Revolving
Credit Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf of
any of the Parent Companies, the Borrower or any of their Subsidiaries, or
be bound to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements herein or in any
instrument at any time constituting, or intended to constitute, collateral
security for the Revolving Credit Notes or to inspect any of the
properties, books or records of any of the Parent Companies, the Borrower
or any of their Subsidiaries. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the
Borrower or any holder of any of the Revolving Credit Notes shall have
been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or
implied, nor does it assume any liability to the Banks, with respect to
the credit worthiness or
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financial conditions of the Borrower or any of its Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, and based upon such information and documents as
it has deemed appropriate, made its own credit analysis and decision to
enter into this Credit Agreement.
16.4.2. Closing Documentation, etc. For purposes of determining
compliance with the conditions set forth in ss.12, each Bank that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank,
unless an officer of the Agent active upon the Borrower's account shall
have received notice from such Bank prior to the Closing Date specifying
such Bank's objection thereto and such objection shall not have been
withdrawn by notice to the Agent to such effect on or prior to the Closing
Date.
16.5. Payments.
16.5.1. Payments to Agent. A payment by the Borrower to the Agent
hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of payments received by
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
16.5.2. Distribution by Agent. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder,
under the Revolving Credit Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the Agent is to
be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court.
16.5.3. Delinquent Banks. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (a) to make available to the Agent its pro rata share of
any Revolving Credit Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of ss.15 with
respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Banks, in each case as, when and to the full extent
required by the provisions
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of this Credit Agreement, shall be deemed delinquent (a "Delinquent Bank")
and shall be deemed a Delinquent Bank until such time as such delinquency
is satisfied. A Delinquent Bank shall be deemed to have assigned any and
all payments due to it from the Borrower, whether on account of
outstanding Revolving Credit Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of all
outstanding Revolving Credit Loans and Unpaid Reimbursement Obligations.
The Delinquent Bank hereby authorizes the Agent to distribute such
payments to the nondelinquent Banks in proportion to their respective pro
rata shares of all outstanding Revolving Credit Loans and Unpaid
Reimbursement Obligations. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Revolving Credit Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Revolving Credit Loans and
Unpaid Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
16.6. Holders of Notes. The Agent may deem and treat the payee of any
Revolving Credit Note or the purchaser of any Letter of Credit Participation as
the absolute owner or purchaser thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
16.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has
not been reimbursed by the Borrower as required by ss.17), and
liabilities of every nature and character arising out of or related to this
Credit Agreement, the Revolving Credit Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that
any of the same shall be directly caused by the Agent's willful misconduct or
gross negligence.
16.8. Agent as Bank. In its individual capacity, Fleet shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Revolving Credit Loans made by it, and as the holder of any
of the Revolving Credit Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Agent.
16.9. Resignation. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless an Event of Default shall have occurred and be continuing, such
successor Agent shall be reasonably acceptable to the Borrower. If no successor
Agent shall
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have been so appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a financial institution having a rating of not
less than A or its equivalent by Standard & Poor's Corporation. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation, the provisions of this Credit Agreement and the
other Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
16.10. Notification of Defaults and Events of Default. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this ss.16.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
16.11. Duties in the Case of Enforcement. In case one or more Events of
Default shall have occurred and be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (a) so requested by
the Majority Banks and (b) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Security Documents
authorizing the sale or other disposition of all or any part of the Collateral
and exercise all or any such other legal and equitable and other rights or
remedies as it may have in respect of such Collateral. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such sale or
other disposition, the Banks hereby agreeing to indemnify and hold the Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
17. EXPENSES AND INDEMNIFICATION.
17.1. Expenses. The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (b) any taxes (including
any interest and penalties in respect thereto) payable by the Agent or any of
the Banks (other than taxes based upon the Agent's or any Bank's net income) on
or with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Agent and each Bank with respect
thereto), (c) the reasonable fees, expenses and disbursements of the Agent's
Special Counsel or any local counsel to the Agent incurred in connection with
the preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, each closing hereunder, any
amendments,
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modifications, approvals, consents or waivers hereto or hereunder, or the
cancellation of any Loan Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document for providing for
such cancellation, (d) the fees, expenses and disbursements of the Agent or any
of its affiliates incurred by the Agent or such affiliate in connection with any
commercial finance examination or the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
charges, (e) any fees, costs, expenses and bank charges, including bank charges
for returned checks, incurred by the Agent in establishing, maintaining or
handling agency accounts, lock box accounts and other accounts for the
collection of any of the Collateral, (f) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent, and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or any of its Subsidiaries or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to any
Bank's or the Agent's relationship with the Borrower or any of its Subsidiaries
except to the extent that any such litigation, proceeding or dispute is directly
caused by the gross negligence or willful misconduct of such Bank or the Agent,
as the case may be, and (g) all reasonable fees, expenses and disbursements of
any Bank or the Agent incurred in connection with UCC and intellectual property
searches, UCC and intellectual property filings or mortgage recordings.
17.2. Indemnification. The Borrower agrees to indemnify and hold harmless
the Agent, its affiliates and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any actual
or proposed use by the Borrower or any of its Subsidiaries of the proceeds of
any of the Revolving Credit Loans or Letters of Credit, (b) the reversal or
withdrawal of any provisional credits granted by the Agent upon the transfer of
funds from lock box, bank agency or concentration accounts or in connection with
the provisional honoring of checks or other items, (c) any actual or alleged
infringement of any patent, copyright, trademark, service xxxx or similar right
of the Borrower or any of its Subsidiaries comprised in the Collateral, (d) the
Borrower or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (e) with respect to the Borrower
and its Subsidiaries and their respective properties and assets, the violation
of any Environmental Law, the presence, disposal, escape, seepage, leakage,
spillage, discharge, emission, release or threatened release of any Hazardous
Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
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connection with any such investigation, litigation or other proceeding except to
the extent that any of the foregoing are directly caused by the gross negligence
or willful misconduct of the otherwise indemnified party. In litigation, or the
preparation therefor, the Banks and the Agent and its affiliates shall be
entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this ss.17.2 are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law.
17.3. Survival. The covenants contained in this ss.17 shall survive
payment or satisfaction in full of all other Obligations.
18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
18.1. Confidentiality. Each of the Banks and the Agent agrees, on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any of the Parent Companies, the
Borrower or any of their Subsidiaries pursuant to this Credit Agreement and the
other Loan Documents, provided that nothing herein shall limit the disclosure of
any such information (a) after such information shall have become public other
than through a violation of this ss.18, (b) to the extent required by statute,
rule, regulation or judicial process, (c) to counsel for any of the Banks or the
Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Bank or the Agent, or to auditors or accountants, (e) to
the Agent, any Bank or any affiliate of the foregoing, (f) in connection with
any litigation to which any one or more of the Banks, the Agent or any affiliate
of the Agent or any Bank is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank or (h) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant
agrees to be bound by the provisions of ss.20.6. Moreover, each of the Agent,
the Banks and any affiliate of the Agent or any Bank is hereby expressly
permitted by any Parent Company and the Borrower to refer to any of the Parent
Companies, the Borrower and their Subsidiaries in connection with any
advertising, promotion or marketing undertaken by the Agent, such Bank or such
affiliate and, for such purpose, the Agent, such Bank or such affiliate may
utilize any trade name, trademark, logo or other distinctive symbol associated
with any of the Parent Companies, the Borrower or any of their Subsidiaries or
any of their businesses.
18.2. Prior Notification. Unless specifically prohibited by applicable law
or court order, each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request
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in connection with an examination of the financial condition of such Bank by
such governmental agency) or pursuant to legal process.
18.3. Other. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it or any affiliate thereof by the
Borrower or any of its Subsidiaries. The obligations of each Bank under this
ss.18 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Borrower prior to the date hereof and shall be binding upon any
assignee of, or purchaser of any participation in, any interest in any of the
Revolving Credit Loans or Reimbursement Obligations from any Bank.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Revolving Credit Notes, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of any of the Parent
Companies, the Borrower or any of their Subsidiaries pursuant hereto shall be
deemed to have been relied upon by the Banks and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the
making by the Banks of any of the Revolving Credit Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any Letter of Credit or any amount
due under this Credit Agreement or the Revolving Credit Notes or any of the
other Loan Documents remains outstanding or any Bank has any obligation to make
any Revolving Credit Loans or the Agent has any obligation to issue, extend or
renew any Letter of Credit, and for such further time as may be otherwise
expressly specified in this Credit Agreement. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time by or
on behalf of any of the Parent Companies, the Borrower or any of their
Subsidiaries pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by such Parent Company,
the Borrower or such Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. Conditions to Assignment by Banks. Except as provided herein, each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Revolving Credit Loans at the time owing to it, the Revolving Credit Notes
held by it and its participating interest in the risk relating to any Letters of
Credit); provided that (a) each of the Agent and, unless an Event of Default
shall have occurred and be continuing, the Borrower shall have given its prior
written consent to such assignment, which consent, in the case of the Borrower,
will not be unreasonably withheld, (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Credit Agreement, (c) each assignment shall be in an
amount that is a whole multiple of $5,000,000 (or such smaller amount which
represents the assigning Bank's entire
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Commitment) and (d) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an Assignment
and Acceptance, substantially in the form of Exhibit E hereto (an "Assignment
and Acceptance"), together with any Revolving Credit Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, (i) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Bank hereunder, and (ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Agent of the registration fee referred
to in ss.20.3, be released from its obligations under this Credit Agreement.
20.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority of any
security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Parent Companies, the Borrower and their Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations, or
the performance or observance by the Parent Companies, the Borrower and
their Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under this
Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.8.4 and ss.9.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue
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to make its own credit decisions in taking or not taking action under this
Credit Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with
the assigning Bank satisfactory to such assignee with respect to its pro
rata share of Letter of Credit Fees in respect of outstanding Letters of
Credit.
20.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to and
Letter of Credit Participations purchased by, the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $3,500.
20.4. New Notes. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Revolving Credit Note
subject to such assignment, the Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrower and
the Banks (other than the assigning Bank). Within five (5) Business Days after
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for each surrendered Revolving Credit Note, a
new Revolving Credit Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained some portion
of its obligations hereunder, a new Revolving Credit Note to the order of the
assigning Bank in an amount equal to the amount retained by it hereunder. Such
new Revolving Credit Notes shall
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provide that they are replacements for the surrendered Revolving Credit Notes,
shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Revolving Credit Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of the assigned Revolving Credit Notes. The surrendered Revolving
Credit Notes shall be cancelled and returned to the Borrower.
20.5. Participations. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (a) any such sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Borrower and (b) the only rights granted to
the participant pursuant to such participation arrangements with respect to
waivers, amendments or modifications of the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would reduce the principal
of or the interest rate on any Revolving Credit Loans, extend the term or
increase the amount of the Commitment of such Bank as it relates to such
participant, reduce the amount of any Commitment Fees or Letter of Credit Fees
to which such participant is entitled or extend any regularly scheduled payment
date for principal or interest.
20.6. Disclosure. The Borrower agrees that in addition to disclosures made
in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation. For purposes of this ss.20.6 an
assignee or participant or potential assignee or participant may include a
counterparty with whom such Bank has entered into or potentially might enter
into a derivative contract referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document.
20.7. Assignee or Participant Affiliated with the Borrower. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to ss.14.1 or ss.14.2, and
the determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Revolving Credit Loans or Reimbursement
Obligations. If any Bank sells a participating interest in any of the Revolving
Credit Loans or Reimbursement Obligations to a participant, and such participant
is the Borrower or an Affiliate of the Borrower, then such transferor Bank shall
promptly notify the Agent of the sale of such participation. A transferor Bank
shall have no right to vote as a Bank
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hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to ss.14.1 or ss.14.2 to the extent that such participation is
beneficially owned by the Borrower or any Affiliate of the Borrower, and the
determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to the interest of
such transferor Bank in the Revolving Credit Loans or Reimbursement Obligations
to the extent of such participation.
20.8. Miscellaneous Assignment Provisions. Any assigning Bank shall retain
its rights to be indemnified pursuant to ss.17 with respect to any claims or
actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. Anything contained in
this ss.20 to the contrary notwithstanding, any Bank may at any time pledge all
or any portion of its interest and rights under this Credit Agreement (including
all or any portion of its Revolving Credit Notes) to any of the twelve Federal
Reserve Banks organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341.
No such pledge or the enforcement thereof shall release the pledgor Bank from
its obligations hereunder or under any of the other Loan Documents.
20.9. Assignment by Borrower. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Revolving Credit Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at The Prudential Tower, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx Xxxx, Chief Financial
Officer, or at such other address for notice as the Borrower shall last
have furnished in writing to the Person giving the notice;
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX, Attention: Xxxxxxxx X. Xxxxx, Senior Vice President, or such
other address for notice as the Agent shall last have furnished in writing
to the Person giving the notice; and
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(c) if to any Bank, at such Bank's address set forth on Schedule 1
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.20. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
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25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.28.
26. WAIVER OF JURY TRIAL.
Each of the Parent Companies, the Borrower, the Agent and the Banks hereby
waives their respective right to a jury trial with respect to any action or
claim arising out of any dispute in connection with this Credit Agreement, the
Revolving Credit Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, each of the Parent Companies, the
Borrower hereby waives any right it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Borrower (a) certifies that no representative, agent or
attorney of any Bank or the Agent has represented, expressly or otherwise, that
such Bank or the Agent would not, in the event of litigation, seek to enforce
the foregoing waivers and (b) acknowledges that the Agent and the Banks have
been induced to enter into this Credit Agreement, and the other Loan Documents
to which it is a party by, among other things, the waivers and certifications
contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by the Banks may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by any of the Parent
Companies, the Borrower or any of their Subsidiaries of any terms of this Credit
Agreement, the other Loan Documents or such other instrument or the continuance
of any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrower and the written consent of the
Majority Banks. Notwithstanding the foregoing, the rate of interest on the
Revolving Credit Notes (other than interest accruing pursuant to ss.5.11
following the effective date of any waiver by the Majority Banks of the Default
or Event of Default relating thereto) or the amount of the Commitment Fee or
Letter of Credit Fees may not be decreased without the written consent of each
Bank affected thereby; the amount of the Commitments may not be increased
without the written consent of the Borrower and of each Bank affected thereby;
the Revolving Credit Loan Maturity Date may not be postponed without the written
consent of each Bank affected thereby; this ss.27 and the definition of Majority
Banks may not be amended, without the written consent of all of the Banks; and
the amount of the Agent's Fee or any Letter of Credit Fees payable for the
Agent's account and ss.16 may not be
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amended without the written consent of the Agent. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Agent or
any Bank in exercising any right shall operate as a waiver thereof or otherwise
be prejudicial thereto. No notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
28. USURY.
All agreements between the Borrower and the Agent and the Banks are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of the maturity of the Revolving Credit Notes or
otherwise, shall the amount paid or agreed to be paid to the Agent or any Bank
for the use or the forbearance of the Indebtedness represented by any Revolving
Credit Note exceed the maximum permissible under applicable law. In this regard,
it is expressly agreed that it is the intent of the Borrower, the Agent and the
Banks, in the execution, delivery and acceptance of the Revolving Credit Notes,
to contract in strict compliance with the laws of the Commonwealth of
Massachusetts. If, under any circumstances whatsoever, performance or
fulfillment of any provision of any of the Revolving Credit Notes or any of the
other Loan Documents at the time such provision is to be performed or fulfilled
shall involve exceeding the limit of validity prescribed by applicable law, then
the obligation so to be performed or fulfilled shall be reduced automatically to
the limits of such validity, and if under any circumstances whatsoever the Agent
or any Banks should ever receive as interest an amount which would exceed the
highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced by the Revolving
Credit Notes and not to the payment of interest. The provisions of this ss.28
shall control every other provision of this Credit Agreement and each of the
Revolving Credit Notes.
29. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
30. LETTER OF CREDIT TRANSITIONAL ARRANGEMENTS
Each "Letter of Credit" issued by Fleet for the account of the Borrower
under and as defined in the Credit Agreement (as amended from time to time),
dated as of January 6, 1999, among the Borrower f/k/a Xxxxxxx Xxxxxxxx Xxxxxxxx,
LLC, Strategic Interactive Group, LLC, the lenders listed therein, Bankers Trust
Company, as administrative agent, Fleet National Bank, as documentation agent
and Fleet (f/k/a BankBoston), as syndication agent (the "Prior Credit
Agreement")
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prior to the Closing Date and outstanding on the Closing Date shall, for
purposes of this Credit Agreement, be a Letter of Credit issued hereunder.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
DIGITAS LLC
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: General Counsel, Secretary
and Assistant Treasurer
DIGITAS, INC., as a Guarantor
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President and
Corporate Controller
VESUVIO, INC., as a Guarantor
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President and
Corporate Controller
XXXXXXX, XXXXXXXX XXXXXXXX
CO., as a Guarantor
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President and
Corporate Controller
BSH HOLDING LLC, as a Guarantor
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President and
Corporate Controller
FLEET NATIONAL BANK, individually
and as Agent
By: Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx,
Senior Vice President
