EXECUTION COPY
================================================================================
364-DAY CREDIT AGREEMENT
dated as of
June 15, 1998
among
Cognizant Corporation
(to be renamed Xxxxxxx Media Research, Inc.)
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$225,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY
CHASE SECURITIES INC.,
as Arranger
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms......................................... 1
SECTION 1.02. Classification of Loans and
Borrowings........................................ 22
SECTION 1.03. Terms Generally ...................................... 22
SECTION 1.04. Accounting Terms; GAAP................................ 23
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................... 23
SECTION 2.02. Loans and Borrowings.................................. 23
SECTION 2.03. Requests for Revolving Borrowings..................... 25
SECTION 2.04. Competitive Bid Procedure............................. 25
SECTION 2.05. Swingline Loans....................................... 29
SECTION 2.06. [Intentionally Omitted] .............................. 30
SECTION 2.07. Funding of Borrowings................................. 30
SECTION 2.08. Interest Elections.................................... 31
SECTION 2.09. Termination and Reduction of
Commitments......................................... 33
SECTION 2.10. Repayment of Loans; Evidence of
Debt.............................................. 34
SECTION 2.11. Prepayment of Loans................................... 35
SECTION 2.12. Fees.................................................. 36
SECTION 2.13. Interest.............................................. 36
SECTION 2.14. Alternate Rate of Interest............................ 38
SECTION 2.15. Increased Costs....................................... 39
SECTION 2.16. Break Funding Payments................................ 40
SECTION 2.17. Taxes................................................. 41
SECTION 2.18. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.................... 43
SECTION 2.19. Mitigation Obligations; Replacement and
Removal of Lenders.................................... 45
SECTION 2.20. Increase in Commitments............................... 46
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................. 49
SECTION 3.02. Authorization; Enforceability......................... 49
SECTION 3.03. Governmental Approvals; No Conflicts.................. 50
SECTION 3.04. Financial Condition; No Material
Adverse Change.................................... 50
SECTION 3.05. Properties............................................ 51
SECTION 3.06. Litigation and Environmental Matters.................. 51
SECTION 3.07. Compliance with Laws and Agreements................... 52
SECTION 3.08. Investment and Holding Company Status................. 52
SECTION 3.09. Taxes................................................. 52
SECTION 3.10. ERISA................................................. 52
SECTION 3.11. Disclosure............................................ 53
SECTION 3.12. Subsidiaries.......................................... 53
SECTION 3.13. Solvency.............................................. 53
SECTION 3.14. Year 2000 Compliance.................................. 54
ARTICLE IV
Conditions
SECTION 4.01. Effective Date........................................ 54
SECTION 4.02. Each Credit Event..................................... 56
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information....................................... 57
SECTION 5.02. Notices of Material Events............................ 59
SECTION 5.03. Existence; Conduct of Business........................ 60
SECTION 5.04. Payment of Obligations................................ 60
SECTION 5.05. Maintenance of Properties; Insurance.................. 60
SECTION 5.06. Books and Records; Inspection Rights.................. 60
SECTION 5.07. Compliance with Laws.................................. 61
SECTION 5.08. Use of Proceeds....................................... 61
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.......................................... 61
SECTION 6.02. Liens................................................. 62
SECTION 6.03. Fundamental Changes................................... 64
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions......................... 66
SECTION 6.05. Transactions with Affiliates.......................... 66
SECTION 6.06. Restrictive Agreements................................ 67
SECTION 6.07. Certain Agreements.................................... 68
SECTION 6.08. Spin-Off and Related Transactions..................... 68
SECTION 6.09. Leverage Ratio........................................ 68
SECTION 6.10. Fixed Charge Coverage Ratio........................... 69
ARTICLE VII
Events of Default............................... 69
ARTICLE VIII
The Administrative Agent.............................. 72
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................... 75
SECTION 9.02. Waivers; Amendments................................... 76
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................... 77
SECTION 9.04. Successors and Assigns................................ 79
SECTION 9.05. Survival.............................................. 82
SECTION 9.06. Counterparts; Integration;
Effectiveness..................................... 83
SECTION 9.07. Severability.......................................... 83
SECTION 9.08. Right of Setoff....................................... 84
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process............................. 84
SECTION 9.10. WAIVER OF JURY TRIAL.................................. 85
SECTION 9.11. Headings.............................................. 85
SECTION 9.12. Confidentiality....................................... 85
SECTION 9.13. Interest Rate Limitation.............................. 86
SECTION 9.14. Conversion of Currencies.............................. 86
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Investments described in the Spin-Off
Schedule 6.06 -- Existing Restrictive Agreements
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Xxxxxxx X. Xxxxxx
Exhibit B-2 -- Form of Opinion of Simpson, Thacher &
Xxxxxxxx
1
CREDIT AGREEMENT (the "Agreement") dated as of June 15,
1998, among COGNIZANT CORPORATION (to be renamed XXXXXXX MEDIA
RESEARCH, INC.), the LENDERS party hereto and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" means the acquisition by the Borrower or a Subsidiary of (a)
the capital stock of a Person not a Subsidiary at the time of such acquisition
which results in such other Person becoming a Subsidiary, (b) all or
substantially all the assets of a Person not a Subsidiary at the time of such
acquisition and (c) all or substantially all of the assets constituting a
business unit of a Person not a Subsidiary at the time of such acquisition.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
2
"Agreement Currency" has the meaning assigned to such term in Section 9.14.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage of
the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurocurrency Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by S&P and Xxxxx'x, respectively, applicable on such date to the Index
Debt:
--------------------------------------------------------------------------------
Category Ratings Eurocurrency Facility Fee
S&P/Xxxxx'x Spread Rate
--------------------------------------------------------------------------------
1 (greater than or equal to)A/A2 .130% .070%
--------------------------------------------------------------------------------
2 A-/A3 .220% .080%
--------------------------------------------------------------------------------
3 BBB+/Baa1 .350% .100%
--------------------------------------------------------------------------------
4 BBB/Baa2 .375% .125%
--------------------------------------------------------------------------------
5 BBB-/Baa3 .400% .150%
--------------------------------------------------------------------------------
6 (less than or equal to) BB+/Ba1 or unrated .380% .220%
--------------------------------------------------------------------------------
For purposes of the foregoing, (i) if either S&P or Xxxxx'x shall not have
in effect a rating for index debt (other than by reason of the circumstances
referred to in the last sentence of this definition) but the other rating agency
shall have such a rating in effect, then the Applicable Rate shall be based upon
the rating of such other rating agency; (ii) if the ratings established or
deemed to have been established by S&P and Xxxxx'x for the Index Debt
3
shall fall within different Categories, the Applicable Rate shall be based on
the higher of the two ratings unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable Rate shall be
based upon the Category next above that of the lower of the two ratings; (iii)
notwithstanding the foregoing provisions, until the earlier of (x) the
completion of the Spin-Off and (y) the date which is six months after the
Effective Date, each rating agency shall be deemed to have established a rating
for Index Debt in Category 4; (iv) during the period of 30 days following the
date of the initial Borrowing hereunder, Eurocurrency Spreads will be deemed to
be .250% per annum above those set forth in the pricing grid above (in the event
the date of the initial Borrowing hereunder does not occur on or prior to July
1, 1998, this clause (iv) shall cease to apply); and (v) if the ratings
established or deemed to have been established by S&P and Xxxxx'x shall be
changed (other than as a result of a change in the rating system of S&P or
Xxxxx'x), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Rate
shall apply (other than as described in the immediately succeeding sentence)
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of S&P or Xxxxx'x shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective Date
to but excluding the earlier of the Maturity Date and the date of termination of
the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Cognizant Corporation, a Delaware corporation, which at or
about the time of the Spin-Off will be renamed Xxxxxxx Media Research, Inc.
4
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect, (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request for a Revolving Borrowing in accordance
with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that when used in connection with a Eurocurrency Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication, capital
expenditures and additions to computer software of the Borrower and its
consolidated Subsidiaries, determined in accordance with GAAP on a basis
consistent with that used in determining the amounts of such items in the
financial statements referred to in Section 3.04(a).
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Cash Interest Expense" means, for any period, Interest Expense paid or
payable in cash during such period.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed in connection with the Spin-
5
Off nor (iii) appointed by directors so nominated or appointed.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpre tation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.15(b), by such Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04 and (c) increased pursuant to Section 2.20. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids in accordance
with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Competitive Loans
at such time.
6
"Consolidated Tangible Assets" means the total assets of the Borrower and
its consolidated Subsidiaries less their consolidated Intangible Assets. For
purposes of this definition, "Intangible Assets" means the amount of (a) all
write-ups in the book value of any asset owned by the Borrower or a consolidated
Subsidiary and (b) all unamortized debt discount and expense, unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names,
copyrights and other intangible assets.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of Default
or which upon notice, lapse of time or both would, unless cured or waived,
become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Disposition" means the sale or transfer by the Borrower or any Subsidiary,
including through a merger or consolidation or through the sale of capital
stock, of any subsidiary, division or business unit of the Borrower or any
Subsidiary.
"dollars" or "$" refers to lawful money of the United States of America.
"Information Statement" means the Borrower's Information Statement on Form
10, as filed with the Securities and Exchange Commission on April 22, 1998.
"Dunedin Facility" means the Borrower's processing facility located in
Dunedin, Florida.
"Dunedin Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Borrower or any of its Subsidiaries of the
Dunedin Facility in connection with the sale of the Dunedin Facility to such
Person.
"EBITDA" means, for any period, the consolidated net income of the Borrower
and its consolidated Subsidiaries for such period plus, to the extent deducted
in computing such consolidated net income for such period, the sum
7
(without duplication) of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) extraordinary losses and (e) any
other non-cash charges or expenses, minus, to the extent added in computing such
consolidated net income for such period the sum (without duplication) of, (a)
consolidated interest income, (b) extraordinary gains and (c) any other non-cash
income.
"Effective Date" means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
8
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any Lender
or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender to the extent they are in effect and would apply as of the date such
Foreign Lender becomes a party to this Agreement or designates a new lending
office, or that is attributable to such Foreign Lender's failure to comply with
Section 2.17(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 2.17(a).
9
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as reported on such day by the Federal
Reserve Bank of New York, or, if such rate is not so reported for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a) EBITDA
for such period to (i) the sum of (i) Cash Interest Expense for such period,
(ii) Maintenance Capital Expenditures for such period, (iii) cash tax payments
by the Borrower and its consolidated Subsidiaries for such period, (iv)
scheduled principal payments (including scheduled principal payments made
pursuant to any amortization or sinking fund provisions) during such period by
the Borrower and its consolidated Subsidiaries in connection with Indebtedness
(other than (i) Indebtedness outstanding hereunder and (ii) scheduled principal
payments financed with the proceeds of other indebtedness (other than
indebtedness outstanding hereunder) incurred on or prior to the date of such
scheduled payment for such purpose) and (v) cash dividend payments by the
Borrower during such period.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed Rate.
"Foreign Lender" means, with respect to any Loan, any Lender making such
Loan that is organized under the laws of a jurisdiction other than that in which
the Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
10
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor"), whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued by any other Person to support
such Indebtedness; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement (excluding spot foreign exchange transactions),
commodity price protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement.
"IJDA" means the Indemnity and Joint Defense Agreement dated as of October
28, 1996, among the Borrower, ACNielsen Corporation and The Dun & Bradstreet
Corporation, as amended by the side letters dated December 10, 1996, and April
1, 1998, from ACNielsen Corporation and confirmed and agreed by The Dun &
Bradstreet Corporation and the Borrower.
"IMS" means IMS Health Incorporated, a newly formed corporation described in
the Spin-Off Information.
11
"Indebtedness" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, whether or not then exercisable (other than any right
under a covenant restricting liens to be ratably secured in the event other debt
is secured), to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed (the
amount of any Indebtedness resulting from this clause (e) shall be equal to the
lesser of (i) the amount secured by such Lien and (ii) the fair market value of
the property subject to such Lien as determined in good faith by the Borrower),
(f) all Guarantees by such Person of Indebtedness of others, (g) all Capital
Lease Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty issued by a bank or other financial institution and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent 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 the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means the senior, unsecured, non-credit enhanced long-term
Indebtedness for borrowed money of the Borrower that is not guaranteed by any
other Person or subject to any other credit enhancement; provided, that if (but
only if) no such Indebtedness shall be outstanding, "Index Debt" shall mean the
obligations of the Borrower under this Agreement.
"Interest Election Request" means a request by the relevant Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Expense" means, for any period, the interest expense of the
Borrower and its consolidated
12
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP including (i) the amortization of debt discounts to the extent
included in interest expense in accordance with GAAP, (ii) the amortization of
all fees (including fees with respect to Hedging Agreements) payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP and (iii) the portion of any rents
payable under capital leases allocable to interest expense in accordance with
GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than a
Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than one day or more than 360
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of
13
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Investment" has the meaning assigned to such term in Section 6.04.
"Judgment Currency" has the meaning assigned to such term in Section 9.14.
"Lenders" means (a) the Persons listed on Schedule 2.01, (b) any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance and (c) any Person that shall become a party
hereto pursuant to Section 2.20. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Leverage Ratio" means, at any time, the ratio of (a) Total Debt at such
time to (b) EBITDA for the most recent period of four consecutive fiscal
quarters of the Borrower ended at or prior to such time (and solely for purposes
of this definition, if, at any time the Leverage Ratio is being determined, the
Borrower or any Subsidiary shall have completed an Acquisition or Disposition or
shall have merged with any Person since the beginning of the relevant four
fiscal quarter period, the Leverage Ratio shall be determined on a pro forma
basis as if such Acquisition or Disposition or such merger, and any related
incurrence or repayment of Indebtedness, had occurred at the beginning of such
period).
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate at
14
which the Administrative Agent is offered dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period in immediately available funds in
the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, securing or intended as security for any obligation of such
Person or any other Person, or (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
"Maintenance Capital Expenditures" means Capital Expenditures that are
related to the maintenance of the properties and assets of the Borrower and the
Subsidiaries and shall be deemed to equal $10,000,000 for any period of four
fiscal quarters for purposes of calculating the Fixed Charge Coverage Ratio;
provided that if the Borrower shall project Capital Expenditures (excluding any
costs of Acquisitions included therein) in excess of $90,000,000 for any fiscal
year, then the Borrower and the Administrative Agent shall negotiate in good
faith to determine whether a modification to this definition is required and, if
required, to agree upon such a modification (which shall become effective upon
such agreement and the consent of the Required Lenders); provided further that
Maintenance Capital Expenditures shall in no event be deemed to be less than
$10,000,000.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Borrower and the
Subsidiaries taken as a whole, or (b) the rights of or benefits available to the
Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of the Borrower and
its Subsidiaries in
15
an aggregate principal amount exceeding $20,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" means any Subsidiary (a) the Consolidated Tangible
Assets of which exceed 3% of the Consolidated Tangible Assets of the Borrower
and its consolidated Subsidiaries as of the end of the most recently completed
fiscal year or (b) the Net Revenue of which exceeds 3% of the Net Revenue of the
Borrower and its consolidated Subsidiaries for the most recently completed
fiscal year; provided, that (i) any Subsidiary that directly or indirectly owns
a Material Subsidiary shall itself be a Material Subsidiary and (ii) in the
event that Subsidiaries that would otherwise not be Material Subsidiaries shall
in the aggregate account for a percentage in excess of 10% of the Consolidated
Tangible Assets or 10% of the Net Revenue of the Borrower and its Consolidated
Subsidiaries as of the end of and for the most recently completed fiscal year,
then one or more of such Subsidiaries designated by the Borrower (or, if the
Borrower shall make no designation, one or more of such Subsidiaries in
descending order based on their respective contributions to Consolidated
Tangible Assets), shall be included as Material Subsidiaries to the extent
necessary to eliminate such excess.
"Maturity Date" means June 14, 1999.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Revenue" means, with respect to any Person for any period, the net
revenue of such Person and its consolidated subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"Other Taxes" means any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
16
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet delinquent or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of
business and deposits securing liabilities to insurance carriers under
insurance or self-insurance arrangements; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a)(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), and (ii)
obligations of the Federal Home Loan Bank, Federal Farm Credit Bank, the
Student Loan Marketing Association and the Tennessee Valley Authority, in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof
17
and having, at such date of acquisition, credit ratings of at least A-2 (or
the equivalent thereof) and P-2 (or the equivalent thereof) from S&P and
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less the
$500,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause (c)
above.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due
18
and payable pursuant to Article VII, and for all purposes after the Loans become
due and payable pursuant to Article VII or the Commitments expire or terminate,
the total Competitive Loan Exposures of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"Revolving Borrowing" means a Borrowing comprised of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
such Lender's Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Spin-Off" means the distribution by the Borrower, to the holders of its
common stock, of all the issued and outstanding shares of common stock of IMS,
and all related transactions, including execution and delivery of any agreements
between the Borrower or any Subsidiary on the one hand, and IMS or any
subsidiary thereof, on the other hand.
"Spin-Off Information" means the Information Statement and the pro forma
financial statements of the Borrower giving effect to the Spin-Off, which have
been delivered to the Lenders prior to the date hereof.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the relevant Lender is subject, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
19
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held.
"Subsidiary" means any subsidiary of the Borrower. After the Spin-Off,
neither IMS nor any of its subsidiaries shall, by virtue of their pre-Spin-Off
relationship with the Borrower, be "Subsidiaries" of the Borrower for any
purpose under this Agreement or any other Loan Document.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposures at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as lender
of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Total Debt" means, at any date all Indebtedness of the Borrower and its
consolidated Subsidiaries at such date to the extent such Indebtedness should be
reflected on the consolidated balance sheet of the Borrower (excluding any such
items which appear only in the notes to such consolidated balance sheet) at such
date in accordance with GAAP.
"Transactions" means the execution, delivery and performance by the Borrower
of this Agreement, the borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBO Rate, the Alternate Base Rate or, in the
case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial
20
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such
21
notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the total Competitive Loan Exposures exceeding the total Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as
part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.04. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in
accordance herewith and (ii) each Competitive Borrowing shall be comprised
entirely of Eurocurrency Competitive Loans or Fixed Rate Loans as the Borrower
may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurocurrency Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
(i) any exercise of such option shall not affect the obligation of any Borrower
to repay such Loan in accordance with the terms of this Agreement and (ii)
unless the Borrower shall request that an Affiliate of a Lender make a Loan, a
Lender may not recover for any increased costs under Sections 2.15 or 2.17
incurred solely as a result of an Affiliate of such Lender, rather than such
Lender, making a Loan, if, without economic disadvantage to, and consistent with
the policies and
22
practices of, such Lender and this Agreement, such Loan could have been made in
a manner that would have avoided such increased costs under Section 2.15 or
2.17.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Each Swingline Loan shall be in an
amount that is an integral multiple of $100,000 and not less than $250,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten
Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower shall
be entitled to request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
23
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds are
to be disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the total Competitive
Loan Exposures at any time shall not exceed the total Commitments. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
24
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which shall
be a period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's account to which funds are
to be disbursed, which shall comply with the requirements of Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or more
Competitive Bids to any Borrower in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form approved by the Administrative
Agent and must be received by the Administrative Agent by telecopy, in the case
of a Eurocurrency Competitive Borrowing, not later than 9:30 a.m., New York City
time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the applicable Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by telecopy
of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
25
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Compet itive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive Loan
may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an hour earlier than the time by
26
which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $15,000,000
or (ii) the sum of the total Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeding the total Commitments; provided that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:30 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan or to such other account
as may be specified in the Borrowing Request.
(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to
each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance
27
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.06. [Intentionally Omitted].
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request or to such other account as may be specified in the
applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in
28
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of (x) the Federal Funds Effective Rate and (y) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable
to the subject Loan. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing and the Administrative Agent shall return to the Borrower any amount
(including interest) paid by the Borrower to the Administrative Agent pursuant
to this paragraph.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
29
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Revolving Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid,
each Eurocurrency Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
30
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Borrower shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.11, the sum of the Revolving Credit Exposures plus the total
Competitive Loan Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
one Business Day (or, to the extent a concurrent prepayment of Loans is required
in accordance with Section 2.10, upon the minimum advance notice required in
connection with such prepayment under such Section) prior to the effective date
of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date, (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Competitive Loan on the last day of the
Interest Period applicable to such Loan and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a Revolving
Borrowing or Competitive Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.
31
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain the Register in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or
(c) of this Section shall be prima facie evidence of the existence and amounts
of the obligations recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and the Borrower. Thereafter, the
Loans evidenced by each such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.11. Prepayment of Loans. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section; provided that
the Borrower shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of
32
a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 1:30 p.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; provided that, if such
Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All facility fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in
33
the amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at
a rate per annum equal to (i) in the case of a Eurocurrency Revolving Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurocurrency Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal to
the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
34
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be
presumed correct absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
presumed correct absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is notified by the Required Lenders (or, in
the case of a Eurocurrency Competitive Loan, the Lender that is required to
make such Loan) that the LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurocurrency Competitive Borrowing shall be
ineffective; provided that if the circumstances giving rise to such notice do
not affect all the Lenders, then requests for Eurocurrency Competitive
Borrowings may be made to Lenders that are not affected thereby and, if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Governmental Authority shall have
in effect any reserve,
35
liquid asset or similar requirement with respect to any category of deposits or
liabilities customarily used to fund Loans, or by reference to which interest
rates applicable to Loans are determined, and the result of such requirement
shall be to increase the cost to such Lender of making or maintaining any Loan
by an amount deemed by such Lender to be material, and such Lender shall deliver
to the Borrower a notice requesting compensation under this paragraph and
setting forth the applicable Statutory Reserve Rate, then the Borrower shall pay
to such Lender on each Interest Payment Date with respect to each affected Loan
an amount that will compensate such Lender for such additional cost.
(b) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement covered by paragraph (a) above); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender in respect of such Loan or any fee
received or receivable hereunder (whether of principal, interest or otherwise),
then the Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction
suffered.
(c) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender setting forth the amount or amounts necessary
to compensate such Lender or its
36
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be presumed correct
absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
(e) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a Lender shall
not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced or be otherwise known to it
prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.11(b) and is revoked in accordance herewith), (d) the
failure to borrow any Eurocurrency Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurocurrency
Loan or Fixed Rate Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.19, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurocurrency
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for
37
a deposit equal to the principal amount of such Loan (and in the same currency
as such Loan) for the period from the date of such payment, conversion, failure
or assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
LIBO Rate for such Interest Period, over (ii) the amount of interest that such
Lender would earn on such principal amount for such period if such Lender were
to invest such principal amount for such period at the interest rate that would
be bid by such Lender (or an affiliate of such Lender) for deposits in the same
currency from other banks in the eurodollar market at the commencement of such
period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be presumed correct absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or an account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section), and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other
38
Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender, or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the relevant jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement, shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
If the Borrower determines in good faith that a reasonable basis exists for
contesting an Indemnified Tax or Other Tax, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Borrower in
challenging such Tax at the Borrower's expense if requested by the Borrower. If
any Lender or the Administrative Agent, as applicable, receives a refund
(whether by way of a direct payment or by offset) of any Indemnified Tax or
Other Tax for which a payment has been made pursuant to Section 2.17 or realizes
any credit or other tax benefit as a result of the payment of such Tax by the
Borrower, which refund, credit or tax benefit in the good faith judgment of such
Lender or the Administrative Agent, as the case may be, is allocable to such
payment made under Section 2.17, the amount of such refund, credit or tax
benefit (together with any interest received from the applicable Governmental
Authority thereon) shall be paid to the Borrower.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest or fees or under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any
39
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made in dollars to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17
and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans or participations in Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
40
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to any Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of (x) the Federal Funds
Effective Rate and (y) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.05(c), 2.07(b) or 2.18(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement and Removal of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
41
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be economically disadvantageous to such Lender.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender requests that any notice be given pursuant to Section 2.14, or
if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, (i) if no Default shall have occurred and be continuing,
terminate the Commitment of such Lender or (ii) require such Lender to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
Borrower, in the case of any such termination, or the assignee , in the case of
any such assignment (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.20. Increase in Commitments. (a) The Borrower may at any time and
from time to time not later than six months prior to the Maturity Date, by
written notice to the Administrative Agent (which shall promptly deliver a copy
to each of the Lenders), request that the
42
total Commitments be increased by an amount of at least $25,000,000 on the
occasion of any increase and not in excess of $100,000,000 in the aggregate
under this Agreement and the three-year Credit Agreement, being entered into on
the date hereof. Such notice shall set forth the amount of the requested
increase in the total Commitments and the date on which such increase is
requested to become effective (which shall be not less than 15 days or more than
30 days after the date of such notice), and shall offer each Lender the
opportunity to increase its Commitment by its Applicable Percentage of the
proposed increased amount. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 15 days after the date of the
Borrower's notice, either agree to increase its Commitment by all or a portion
of the offered amount (each Lender so agreeing being an "Increasing Lender") or
decline to increase its Commitment (and any Lender that does not deliver such a
notice within such period of 15 days shall be deemed to have declined to
increase its Commitment) (each Lender so declining or deemed to have declined
being a "Non-Increasing Lender"). In the event that, on the 15th day after the
Borrower shall have delivered a notice pursuant to the first sentence of this
paragraph, the Lenders shall have agreed pursuant to the preceding sentence to
increase their Commitments by an aggregate amount less than the increase in the
total Commitments requested by the Borrower, the Borrower may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution referred to in this clause (a) being called an "Augmenting Lender"),
which may include any Lender, to extend Commitments or increase their existing
Commitments in an aggregate amount equal to the unsubscribed amount, provided
that each Augmenting Lender, if not already a Lender hereunder, shall be subject
to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld) and each Augmenting Lender shall execute all such
documentation as the Administrative Agent shall specify to evidence its
Commitment and its status as a Lender hereunder. Increases and new Commitments
created pursuant to this clause (a) shall become effective on the date specified
in the notice delivered by the Borrower pursuant to the first sentence of this
paragraph. Notwith standing the foregoing, no increase in the total Commitments
(or in the Commitment of any Lender) shall become effective under this paragraph
unless, (i) on the date of such increase, the conditions set forth in paragraphs
(a),(b) and (c) of Section 4.02 shall be satisfied (with all references in such
paragraphs to a Borrowing being deemed to be references to such increase) and
the Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer of the Borrower and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Lenders) documents
43
consistent with those delivered on the Effective Date under clauses (b) and (c)
of Section 4.01 as to the corporate power and authority of the Borrower to
borrow hereunder after giving effect to such increase.
(b) On the effective date (the "Increase Effective Date") of any increase in
the total Commitments pursuant to paragraph (a) above (the "Commitment
Increase"), (i) the aggregate principal amount of the Loans outstanding (the
"Initial Loans") immediately prior to giving effect to the Commitment Increase
on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing
Lender and each Augmenting Lender that shall have been a Lender prior to the
relevant Commitment Increase shall pay to the Administrative Agent in same day
funds an amount equal to the difference between (A) the product of (1) such
Lender's Applicable Percentage (calculated after giving effect to such
Commitment Increase) multiplied by (2) the amount of the related Subsequent
Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's
Applicable Percentage (calculated without giving effect to such Commitment
Increase) multiplied by (2) the amount of the related Initial Loans, (iii) each
Augmenting Lender that shall not have been a Lender prior to the Commitment
Increase shall pay to Administrative Agent in same day funds an amount equal to
the product of (1) such Augmenting Lender's Applicable Percentage (calculated
after giving effect to such Commitment Increase) multiplied by (2) the amount of
the related Subsequent Borrowings, and (iv) after the Administrative Agent
receives the funds specified in clauses (ii) and (iii) above, the Administrative
Agent shall pay to each Non-Increasing Lender the portion of such funds that is
equal to the difference between (A) the product of (1) such Non-Increasing
Lender's Applicable Percentage (calculated without giving effect to such
Commitment Increase) multiplied by (2) the amount of the related Initial Loans,
and (B) the product of (1) such Non-Increasing Lender's Applicable Percentage
(calculated after giving effect to such Commitment Increase) multiplied by (2)
the amount of the related Subsequent Borrowings, (v) after the effectiveness of
such Commitment Increase, the Borrower shall be deemed to have made new
Borrowings (the "Subsequent Borrowings") in an aggregate principal amount equal
to the aggregate principal amount of related Initial Loans and of the types and
for the Interest Periods specified in a Borrowing Request delivered to the
Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing
Lender, each Increasing Lender and each Augmenting Lender shall be deemed to
hold its Applicable Percentage of each related Subsequent Borrowing (calculated
after giving effect to such Commitment Increase) and (vii) the Borrower shall
pay each Increasing Lender and each Non-Increasing Lender any and all accrued
but unpaid
44
interest on the related Initial Loans. The deemed payments made pursuant to
clause (i) above in respect of each Eurocurrency Loan shall be subject to
indemnification by the Borrower pursuant to the provisions of Section 2.16 if
the relevant Increase Effective Date occurs other than on the last day of the
Interest Period relating thereto.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its Material
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. After giving effect to each Borrowing, the worldwide total of all
notes, credit arrangements and/or other instruments of indebtedness issued and
outstanding at any one time by the Borrower and/or any subsidiary and/or
affiliate (within the meaning of the most recent resolutions of the Board of
Directors of the Borrower) of the Borrower for general corporate purposes will
not exceed the amount duly authorized by the resolutions of the Board of
Directors of the Borrower at the time of such Borrowing.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect and except for such consents,
approvals, registrations, filings
45
and other actions the failure to obtain or make could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, except for such violations which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, except for such
violations and defaults which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, divisional equity and cash flows (i) as of and for the
fiscal year ended December 31, 1997, reported on by Coopers & Xxxxxxx L.L.P.,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended March 31, 1998, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) Except as may otherwise be disclosed in the Spin-Off Information, since
December 31, 1997, there has been no material adverse change in the business,
assets, operations, prospects or financial condition, of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to the business of the Borrower and its Subsidiaries, taken as
a whole, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material
46
to the business of the Borrower and its Subsidiaries taken as a whole, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status
of the Disclosed Matters that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Borrower Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regula tion under, the Public
Utility Holding Borrower Act of 1935.
47
SECTION 3.09. Taxes. Each of the Borrower and each of its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by an amount that could reasonably be
expected to result in a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans by an amount that could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Disclosure. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains or when delivered will contain, taken as a
whole, any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed by
management of the Borrower to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the Effective
Date a list of all Subsidiaries and the percentage ownership interest of the
Borrower and each other Subsidiary therein. As of the Effective Date,
48
the shares of capital stock of such Subsidiaries will be fully paid and
non-assessable and such shares and other ownership interests so indicated by
Schedule 3.12 as being owned by the Borrower or any Subsidiary will be so owned
free and clear of all Liens.
SECTION 3.13. Solvency. On the Effective Date and immediately after the
consummation of the Spin-Off, (a) the fair value of the assets of the Borrower,
at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of
the Borrower will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and other liabilities become absolute and matured;
(c) the Borrower does not intend to incur or does not believe it will incur
debts and liabilities, subordinated, contingent or otherwise, beyond its ability
to pay such debts and liabilities as they become absolute and matured; and (d)
the Borrower will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Effective Date and the Spin-Off.
SECTION 3.14. Year 2000 Compliance. The Borrower has in place plans to
complete all reprogramming required to permit the proper functioning, in and
following the year 2000, of the Borrower's computer systems and equipment and
the testing of all such systems and equipment, as so reprogrammed. Such plans
are expected to be substantially implemented on or about July 1, 1999, and will
in any event be implemented in sufficient time that the proper functioning of
the Borrower's systems and equipment will not be materially interrupted as a
result of the inadequacy of such systems and equipment. As of the date hereof,
the Borrower has not obtained information that leads it to believe that
inadequacies in the computer systems and equipment of other persons are likely,
in and following the year 2000, to result in a Material Adverse Effect. It is
understood that, except as expressly set forth in the preceding sentences, (a)
the Borrower makes no representation as to the adequacy of the computer systems,
software programs and equipment of third parties and (b) the representations
contained in this Section will not be deemed to have been breached by failures
in payment, information or other systems or software programs, in each case
operated by third parties, notwithstanding the possibility that such failures
may adversely affect the Borrower's business.
49
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Xxxxxxx X. Xxxxxx, Associate General Counsel to the
Borrower, and Simpson, Thacher & Xxxxxxxx, counsel for the Borrower,
substantially in the form of Exhibit B-1 and B-2, respectively, and covering
such other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the Chairman, the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with
the conditions set forth in paragraphs (a) (including the representations
and warranties set forth in Section 3.04) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent
50
invoiced, reimbursement or payment of all out-of-pocket expenses required to
be reimbursed or paid by the Borrower hereunder.
(f) The Borrower shall have no existing loan agreements, other than
agreements in respect of which IMS and its Subsidiaries are the only
obligors.
(g) The Lenders shall have received copies of the financial statements
referred to in Section 3.04 and the pro forma financial statements of the
Borrower as of March 31, 1998, giving effect to the Spin-Off as if it had
occurred on such date.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on July
15, 1998 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth in this
Agreement shall be true and correct on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received a certificate, dated
the date of such Borrowing and signed by a Financial Officer of the
Borrower, confirming that after giving effect to such Borrowing, the
worldwide total of all notes, credit arrangements and/or other instruments
of indebtedness issued and outstanding at any one time by the Borrower
and/or any subsidiary and/or affiliate (within the meaning of the most
recent resolutions of the Board of Directors of the Borrower) of the
Borrower for general corporate purposes will not exceed the amount duly
authorized by the resolutions of the Board of Directors of the Borrower at
the time of such Borrowing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date
51
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent (with a copy for each Lender):
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year (such comparison to be included for the first time in the
financial statements delivered with respect to the 2000 fiscal year), all
reported on by Coopers & Xxxxxxx L.L.P. or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet
and related statements of income, stockholders' equity and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year (such comparison to be
included for the first time in the financial statements delivered with
respect to the third fiscal quarter of the 1999 fiscal year), all certified
by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a
52
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) prior to consummation of the Spin-Off, copies of the final form of
the Information Statement relating to the Spin-Off and copies of the
Borrower's pro forma consolidated balance sheet and related statements of
income, stockholders' equity (if any) and cash flow (if any) as of and for
the most recent date/dates and period/periods, prepared giving effect to the
Spin-Off as if it had occurred on such date/dates and for such
period/periods;
(d) concurrently with any delivery of financial statements under clause
(a), (b) or (c) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.09 and 6.10 and (iii)
stating whether any material change in GAAP or in the application thereof
has occurred since the date of the audited financial statements referred to
in Section 3.04 affecting the Borrower and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default
under Section 6.09 or 6.10 (which certificate may be limited to the extent
required by accounting rules or guidelines);
(f) promptly after the same become publicly available, copies of all
periodic and other material reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its stockholders generally, as the case may
be, and all amendments to any of the foregoing; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any
53
Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Subsidiary thereof that could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount that could reasonably be expected to result in a Material Adverse
Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Material Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Borrower and its Subsidiaries, taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP or (c) the failure
54
to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Material Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations; provided that any
such insurance may be maintained through a program of self-insurance to the
extent customary among such companies.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in accordance with GAAP (or, the case of a foreign Subsidiary, generally
accepted accounting principles in the jurisdiction of organization of such
foreign Subsidiary). The Borrower will, and will cause each of its Subsidiaries
to, permit any representatives designated by the Administrative Agent on its own
initiative or at the request of the Required Lenders, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property (including ERISA),
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only
for general corporate purposes, including the repayment of intercompany
obligations in connection with the Spin-Off and acquisitions. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X.
55
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. the Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder:
(b) Indebtedness existing on the date hereof and set forth in Schedule
6.01;
(c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary
to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvement;
(f) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided that (i) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (ii) the aggregate principal
amount of Indebtedness permitted by this clause (f) shall not exceed
$25,000,000 at any time outstanding;
(g) Indebtedness of the Borrower or any Subsidiary as an account party
in respect of (i) trade letters of credit and (ii) performance bonds, bid
bonds, appeal bonds, surety bonds, completion guarantees or other similar
obligations arising in the ordinary course of business, provided that no
such letter of credit, bond
56
or similar obligation is provided to secure the repayment of other
Indebtedness;
(h) Indebtedness consisting of Capital Lease Obligations arising out of
any Dunedin Sale/Leaseback Transaction; and
(i) any other Indebtedness if the sum (without duplication) of all
Indebtedness of the Borrower and the Subsidiaries (other than Indebtedness
permitted under the foregoing clauses (a) through (h)), determined on a
consolidated basis according to GAAP does not exceed $500,000,000.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; provided that
(i) such Lien shall not apply to any other property or asset of the Borrower
or any Subsidiary and (ii) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals, refinancings
and replacements thereof that do not increase the outstanding principal
amount thereof (other than by an amount equal to any costs and expenses
incurred in connection with such extension, renewal, refinancing or
replacement);
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or
asset of any Person that becomes a Subsidiary after the date hereof prior to
the time such Person becomes a Subsidiary or any Lien on any asset of any
Person existing at the time such Person is merged into or consolidated with
the Borrower or a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary or such merger, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary or the date of such merger, as the case may be, and extensions,
57
renewals, refinancings and replacements thereof that do not increase the
outstanding principal amount thereof (other than by an amount equal to any
costs and expenses incurred in connection with such extension, renewal,
refinancing or replacement);
(d) any Lien on any asset (i) initially securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset or (ii) securing Indebtedness incurred
to extend, renew, refinance or replace the Indebtedness then secured by such
Lien, provided that (x) such Lien attaches to such asset concurrently with
or within 90 days after the acquisition thereof and (y) the principal amount
of Indebtedness secured by such Lien shall not be increased in connection
with any extension, renewal, refinancing or replacement of such Indebtedness
(other than by an amount equal to any costs and expenses incurred in
connection with such extension, renewal, refinancing or replacement);
(e) any Lien in favor of the Borrower or any Subsidiary granted by the
Borrower or any Subsidiary in order to secure any intercompany obligations;
(f) Liens on the Dunedin Facility granted in connection with any Dunedin
Sale/Leaseback Transaction; and
(g) any Lien to secure Indebtedness and other obligations if,
immediately after the incurrence thereof, the sum (without duplication) of
all amounts secured by Liens which would not be permitted but for this
clause (g) does not exceed $30,000,000.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not merge into or
consolidate with any other Person (other than a Subsidiary), or permit any other
Person (other than a Subsidiary) to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of the assets of the Borrower and its
consolidated Subsidiaries, taken as a whole, to one or more Persons (other than
a Subsidiary), or all or substantially all of the capital stock of the
consolidated Subsidiaries of the Borrower, taken as a whole, to one or more
Persons (other than a Subsidiary) (in each case, whether now owned or hereafter
acquired), unless (i) the surviving corporation in any such merger or
consolidation (if other than the Borrower) or the Person which acquires all or
substantially all of the assets of the Borrower and its consolidated
Subsidiaries or all or substantially all of the capital stock of the
consolidated Subsidiaries of the Borrower shall
58
be a corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia (the "Successor
Corporation") and shall expressly assume, by amendment to this Agreement
executed by the Borrower, the Successor Corporation and the Administrative
Agent, the due and punctual payment of the principal of and interest on the
Loans and all other amounts payable under this Agreement and the payment and
performance of every covenant hereof on the part of the Borrower to be performed
or observed; (ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; (iii)
immediately after giving effect to such transaction, the Borrower and the
Subsidiaries are in compliance, on a pro-forma basis, with the covenants
contained in Sections 6.09 and 6.10 recomputed as of the last day of the most
recently ended fiscal quarter of the Borrower, as if such transaction had
occurred on the first day of each relevant period for testing such compliance;
(iv) immediately after giving effect to such transaction, the Borrower and the
Subsidiaries, on a pro-forma basis, shall not have a Leverage Ratio in excess of
3.00 to 1.00, recomputated as of the last day of the most recently ended fiscal
quarter of the Borrower, as if such transaction had occurred on the first day of
such period; (v) the Borrower shall have delivered a certificate of a Financial
Officer reasonably satisfactory to the Administrative Agent, indicating that
such transaction and amendment comply with this Section and that all conditions
precedent herein provided for relating to such transaction have been satisfied
and a written opinion of counsel (who may be counsel to the Borrower) reasonably
satisfactory to the Administrative Agent as to the matters described in clause
(i) above; provided that clauses (i) and (ii) above shall apply to any
transaction in which a Subsidiary is merged with the Borrower and is the
surviving corporation. Notwithstanding the foregoing, the Borrower may complete
acquisitions of other corporations permitted under Section 6.04 by causing such
corporations to be merged into the Borrower; provided that (i) immediately after
giving effect to any such acquisition, no Default or Event of Default shall have
occurred and be continuing and (ii) after giving effect to any such acquisition
and all related arrangements and agreements, the Board of Directors and
management of the Borrower shall be substantially the same as that of the
Borrower prior to such acquisition.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
59
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, purchase or
acquire (including pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) from any Person (other than the Borrower
or any of its Subsidiaries) any capital stock, other equity interests, evidences
of indebtedness or other securities (including the purchase or acquisition of
any option, warrant or other right to acquire any of the foregoing for
consideration) of, make any loans or advances to, Guarantee any Indebtedness of,
or make any capital contribution to, any other Person (other than the Borrower
or any of its Subsidiaries), or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit or purchase or acquire any capital stock of a
Subsidiary from a Person (other than the Borrower or any of its Subsidiaries)
(an "Investment") unless, after giving effect to such Investment (i) no Default
or Event of Default has occurred and is continuing or would result therefrom;
(ii) the Borrower and the Subsidiaries are in compliance on a pro-forma basis,
after giving effect to such Investment, with the covenants contained in Sections
6.09 and 6.10 recomputed as of the last day of the most recently ended fiscal
quarter of the Borrower, as if such Investment had occurred on the first day of
each relevant period for testing such compliance; (iii) the Investment is in the
same or in a similar line of business as that of the Borrower or the relevant
Subsidiary; and (iv) in the case of Investments in excess of $50,000,000, the
Borrower has delivered to the Administrative Agent notice of such Investment.
For purposes of this Section, (x) Permitted Investments, Investments described
in the Spin-Off Information and set forth in Schedule 6.04, and payments made in
respect of earn-out provisions shall not be deemed Investments and (y) the
exercise of any option, warrant or other similar right shall constitute an
Investment at the time such exercise occurs.
SECTION 6.05. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties (considering such transactions and all other
transactions as a whole), (b) transactions between or among the Borrower and its
Subsidiaries and (c) transactions described in the Spin-Off Information.
60
SECTION 6.06. Restrictive Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof and identified on Schedule 6.06 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof, (vi) the foregoing shall not apply to customary transfer
restrictions, rights of first refusal, restrictions on Liens, Indebtedness or
Guarantees of Indebtedness and restrictions on dividends, in each case in
shareholders', partnership and other similar agreements in existence on the date
hereof or entered into consistent with past practice, (vii) the foregoing shall
not apply to customary restrictions contained in agreements governing
Indebtedness of any Subsidiary that is prepayable at the option of such
Subsidiary so long as (A) such restrictions do not prohibit, restrict or impose
any condition upon the ability of the Borrower to create, incur or permit to
exist any Lien upon any of its property or assets to secure its obligations
hereunder, (B) such restrictions do not prohibit, restrict or impose any
condition (other than prior notice) upon the ability of such Subsidiary to make
or repay loans or advances to the Borrower and (C) no such agreement prohibits,
restricts or imposes conditions on the ability of a Subsidiary to pay dividends
or distributions with respect to any shares of its capital stock unless any
Indebtedness owed to such Subsidiary by the Borrower (x) is subordinated
61
to the Borrower's obligations hereunder, and (y) matures, and may not be repaid
in whole or in part until, after the Maturity Date, and (viii) clause (a) of the
foregoing shall not apply to customary restrictions in agreements governing
Indebtedness of the Borrower so long as such restrictions do not prohibit,
restrict or impose any condition on the ability of the Borrower to incur, create
or permit to exist any Lien securing obligations hereunder.
SECTION 6.07. Certain Agreements. The Borrower will not, and will not permit
any of its Subsidiaries to, amend, waive or modify the IJDA if such amendment,
waiver or modification (individually or in combination with other amendments,
waivers and modifications) could reasonably be expected to result in (a) a
material adverse effect on the rights of or remedies of the Lenders under this
Agreement or (b) a material increase in the Borrower's obligations or
acceleration of the maturity of such obligations under the IJDA.
SECTION 6.08. Spin-Off and Related Transactions. If the Borrower shall
complete the Spin-Off and the other transactions described in the Information
Statement, the Borrower will not make or permit to be made any changes in the
terms and conditions of the Spin-Off or such other transactions that would
result in such terms and conditions being materially inconsistent in a manner
adverse to the Borrower or the Lenders with (a) the pro forma financial
statements and projections furnished to the Lenders pursuant to Section 4.01(g)
and (b) the information set forth in the Information Statement.
SECTION 6.09. Leverage Ratio. The Leverage Ratio will not exceed 4.00 to
1.00 at any time. Following consummation of the Spin-Off, for purposes of
calculating EBITDA for any relevant period prior to the Spin-Off, EBITDA for
such period shall be determined on a pro forma basis adjusted to give effect to
the Spin-Off as if the Spin-Off had occurred at the beginning of such period.
SECTION 6.10. Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
for any period of four consecutive fiscal quarters of the Borrower will not be
less than 1.25 to 1.00. Following consummation of the Spin-Off, for purposes of
calculating EBITDA and Interest Expense for any relevant period prior to the
Spin-Off, EBITDA and Interest Expense for such period shall be determined on a
pro forma basis adjusted to give effect to the Spin-Off as if the Spin-Off had
occurred at the beginning of such period.
62
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of any Loan when and as
the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of five
Business Days;
(c) any representation or warranty made or deemed in accordance with the
terms hereof to be made by or on behalf of the Borrower or any Subsidiary in
or in connection with this Agreement or any amendment or modification hereof
or waiver hereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to
the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent (given at the request of any Lender) to the Borrower;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any grace period applicable thereto);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or
63
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to (x) secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness or (y) any Indebtedness that becomes due as a result of the
issuance of capital stock, the incurrence of Indebtedness or the sale of
assets so long as such event shall not have resulted in an event of default
with respect to such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall
be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Material Subsidiary or for a substan tial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
64
(k) one or more judgments for the payment of money in an aggregate
amount (to the extent not covered by insurance where the insurer has
acknowledged coverage in writing) in excess of $20,000,000 shall be rendered
against the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 45 consecutive days during which
execution shall not be effectively stayed, or any action (which shall not be
effectively stayed) shall be legally taken by a judgment creditor to attach
or levy upon any assets of the Borrower or any Subsidiary to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount that could reasonably
be expected to result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may (with the
consent of the Required Lenders), and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of the Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
65
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith,
66
(iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor (and, at any time when no Default shall have occurred and is
continuing, with the prior written consent of the Borrower). If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon
67
the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, indepen dently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Assistant Treasurer (Telecopy No. (000) 000-0000), with a copy
to the attention of the General Counsel (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Agent
Bank Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a
copy to The Chase Manhattan Bank,
68
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxx
(Telecopy No. (000) 000-0000);
(c) if to the Swingline Lender, to The Chase Manhattan Bank, Agent Bank
Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy
to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxxx Xxxxx (Telecopy No. (000) 000-0000); and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders or pursuant to an
amendment contemplated by Section 6.03; provided that no such agreement shall
(i) increase the Commitment of any Lender, including pursuant to Section 2.20,
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest
69
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including in connection with any workout,
restructuring or negotiations in respect of such Loans. The Administrative Agent
and the Lenders will endeavor in good faith to minimize the duplication of
effort by counsel for individual Lenders whose fees, charges and disbursements
are subject to reimbursement under this clause (iii) (it being recognized,
however, that individual Lenders may retain counsel in addition to the counsel
retained by the Administrative Agent to the extent they determine in good faith
that the protection of their interests requires such retention).
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the
70
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result (i) from the gross negligence or wilful
misconduct of such Indemnitee, (ii) relate to disputes arising out of
assignments or participations of Lenders' interests hereunder and do not relate
to Defaults by or other acts or omissions of the Borrower and the Subsidiaries
or (iii) arise out of the breach by such Indemnitee of its obligations under
this Agreement.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
71
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or an Affiliate of a Lender, each of the
Borrower and the Administrative Agent (and, in the case of an assignment of all
or a portion of a Commitment or any Lender's obligations in respect of its
Swingline Exposure, the Swingline Lender) must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not apply to rights in
respect of outstanding Competitive Loans, (iv) any assignment of all or a
portion of a Lender's Commitment under this Agreement will occur simultaneously
with an assignment of a ratable portion of such Lender's Commitment under the
three-year Credit Agreement, being entered into on the date hereof, (v) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (vi) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided further that any
consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing with respect to the Borrower. Subject to acceptance
and recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 with
respect to the period prior to the effective date of the assignment).
Notwithstanding any other provision of this Agreement, if any Lender shall
assign any of its rights or obligations hereunder to any assignee (including any
Affiliate of such Lender) that, but for this sentence, would be entitled,
immediately following such assignment, to claim a greater amount than such
assigning Lender under Section 2.15, 2.16 or 2.17, such assignee shall not have
the right
72
to claim such greater amount; provided, that nothing in this sentence shall
limit the right of any assignee to make claims (i) for amounts not in excess of
those that could have been claimed by the assigning Lender or (ii) to the extent
such claims arise from one or more Changes in Law after the date of such
assignment.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the Administrative
Agent or the Swingline Lender, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
73
agrees that each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreement, representations and
warranties made by the Borrower herein and the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of Sections
2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and
74
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebted ness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender
and at the time due and payable, irrespective of whether or not such Lender
shall have made any demand under this Agreement (it being understood that, as
long as an Event of Default is continuing, deposits or other amounts may be held
by a Lender for a period of not more than three Business Days in anticipation of
the maturity of any obligations of the Borrower hereunder). The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any
75
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against any Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory
76
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent or
any Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures in the relevant jurisdiction
the first currency could be purchased with such other currency on the Business
Day immediately preceding the day on which final judgment is given.
77
(b) The obligations of the Borrower in respect of any sum due to any party
hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
COGNIZANT CORPORATION,
by
/s/ XXXXXX X. XXXX
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President &
Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ XXXXXX XXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
78
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
by
/s/ W. XXXXXX X. XXXXX
------------------------------
Name: W. Xxxxxx X. Xxxxx
Title: Vice President
by
/s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK,
by
/s/ XXXXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
NORTHERN TRUST BANK,
by
/s/ XXXXXXX X. XXXXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Second Vice President
SUNTRUST BANK, ATLANTA,
by
/s/ W. XXXXX XXXXXX
------------------------------
Name: W. Xxxxx Xxxxxx
Title: Group Vice President
by
/s/ XXXXX X. XXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice
President