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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 (Fee Required) For the fiscal year ended December 31, 1999
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (No Fee Required) For the transition period
from ___________ to ___________
Commission file number: 0-30318
VENTIV HEALTH, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 52-2181734
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1114 Avenue of the Americas
New York, New York 10036
(212) 768-8000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class Name of Each Exchange on Which Registered
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Common Stock, par value $0.001 per share Nasdaq National Market System
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [x] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statement
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K [ ].
The aggregate market value of the voting stock of the registrant held by non-
affiliates as of March 21, 2000 was approximately $152,253,276.
As of March 21, 2000, there were 22,830,724 outstanding shares of the
registrant's common stock.
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the registrant's definitive proxy statement to be filed with
the Commission for use in connection with the 2000 annual meeting of
stockholders are incorporated by reference into Part III of this Form 10-K.
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TABLE OF CONTENTS
ITEM DESCRIPTION PAGE
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PART I
1 Business 1
2 Properties 11
3 Legal Proceedings 11
4 Submission of Matters to a Vote of Securities Holders 11
PART II
5 Market for Registrant's Common Equity and Related
Stockholder Matters 12
6 Selected Financial Data 13
7 Management's Discussion and Analysis of Financial
Condition and Results of Operations 14
7A Quantitative and Qualitative Disclosures About
Market Risk 20
8 Financial Statements and Supplementary Data 22
9 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 44
PART III
10 Directors and Executive Officers of the Registrant 45
11 Executive Compensation 45
12 Security Ownership of Certain Beneficial Owners
and Management 45
13 Certain Relationships and Related Transactions 45
PART IV
14 Exhibits, Financial Statement Schedules, and
Reports on Form 8-K 46
Signatures 48
Index to Exhibits
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PART I
Item 1. Business.
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Overview
The business currently conducted by Ventiv Health, Inc. ("Ventiv") was created
in 1997 by Snyder Communications, Inc. ("Snyder") in a merger transaction with a
U.S. provider of pharmaceutical sales and marketing services. After forming the
pharmaceutical sales and marketing services business in 1997, Snyder completed a
series of acquisitions that expanded both the scope of services and geographic
presence of the pharmaceutical sales and marketing business to create the
business conducted by Ventiv today. On September 27, 1999, Snyder completed the
distribution of Ventiv's common stock to the shareholders of Snyder (the
"Distribution"). Ventiv now operates as an independent, publicly traded
company.
Ventiv provides global marketing and sales services for the pharmaceutical
and life sciences industries. Our clients include leading pharmaceutical, life
sciences, biotechnology, medical device, and diagnostics companies. We offer a
broad range of integrated services, including educational programs which target
leading physicians, specially-designed strategic marketing plans and product
sales programs which are executed through our extensive sales network.
Our organization and service offerings reflect the changing needs of our
clients as their new products move through the development and regulatory
approval process. As a potential drug or device advances in the clinical trial
process towards commercialization, our clients must first educate medical
decision makers through a variety of informational media. These pharmaceutical
and life sciences companies subsequently need to design a focused launch
campaign to maximize product profitability upon regulatory approval of their
product. Prescription products are typically sold through product detailing,
which involves one-on-one meetings between a sales representative and a targeted
prescriber. Pharmaceutical manufacturers, in particular rely on this sales
process as the most effective means of influencing prescription-writing
patterns, although these companies increasingly supplement their marketing
programs with direct-to-consumer advertising. In the past, product detailing was
handled by the pharmaceutical manufacturers themselves. However, the recent
focus among our clients on flexibility in cost management has led to an
increased frequency of this work being outsourced to contract providers.
Our service offerings are designed to facilitate the development and execution
of marketing strategies as new products advance from clinical trials to product
launch and throughout their useful life. We believe that we are not only one of
the leading providers of healthcare marketing services, but that we are also
uniquely positioned to provide global integrated services that address the full
spectrum of client demands. To date, our clients are comprised primarily of
pharmaceutical companies, which are estimated to have outsourced under 5% of the
amount they spend worldwide on such services.
We serve our clients through three operating groups: Health Products Research
("HPR"), the Healthcare Communications Group ("HCG") and the Contract Sales
Group ("CSG"). These groups reflect the three primary aspects of the marketing
process for pharmaceutical and other life sciences products. First, a product's
targeted marketing and sales effort must be carefully designed to maximize the
manufacturer's return on investment (HPR); second, product awareness and demand
within the medical community must be created and maintained throughout the pre-
and post-launch marketing effort (HCG); third, the product must be sold by a
team of highly trained sales representatives (CSG); and, finally, sales results
must be constantly monitored and sales strategies must be adjusted to respond to
a dynamic marketplace (HPR). Each group is integrated as part of the overall
program but performs very specific functions. Our clients may choose either to
work with us across our full spectrum of services or narrowly focus their
service needs within one of these groups. There is significant overlap among
product lines and extensive opportunities for cross-selling. Most of our largest
clients utilize the services of more than one group.
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Our three operating groups possess significant combined experience, as each
has developed and conducted successful marketing programs for hundreds of
individual pharmaceutical and life science products. Our expertise spans most
therapeutic categories, including the significant markets of cardiology, anti-
infectives, oncology, and neurology. Our core competencies and track record of
proven success enables us to establish strong relationships with our clients'
senior marketing and sales personnel, leading to a high rate of repeat business.
Our strategic goal is to provide the pharmaceutical and life sciences
industries with value-added support services that will enable our clients to
achieve superior product sales through higher market penetration.
Ventiv's Operating Groups
We offer the full spectrum of marketing and sales services through our three
operating groups: Health Products Research, the Healthcare Communications Group
and the Contract Sales Group.
Health Products Research
HPR is responsible for the design of a product launch program and monitoring
that program's development to maximize the potential for a product's success.
This is achieved by using proprietary software to analyze data compiled from
internal sources (such as the contract pharmaceutical salesforce) and third
parties (such as IMS Health Inc., a provider of market research data for the
healthcare industry) to determine specifically how a targeted strategy can
maximize asset utilization and return on investment for our clients.
HPR offers the following core services which it customizes for particular
clients:
. Market Segmentation Analyses
HPR conducts segmentation analyses of the physician universe using
pharmacy-level data in combination with numerous variables such as product
potential, market share, the medical professionals' specialties and
reputations as innovators, and many other individually weighted qualitative
and quantitative data points. Segmenting this physician-level data supports
analyses and modeling that are designed to address issues such as promotion
response, targeting, message development, and forecasting. HPR also links
segment data to primary market research to identify differences in
attitudes and estimate future prescribing patterns.
. Promotion Planning and Evaluation (PROM(sm))
HPR's proprietary PROM(sm) family of analytical models measures historical
promotion response by physicians from various personal and non-personal
promotional events (including market trials). This provides a comprehensive
understanding of the sales responsiveness to an individual product or
marketing effort. PROM(sm) is unique in that it can measure a separate
response for individual physicians by promotional channel. PROM(sm) is also
designed to quantify the interactive effect of promotional media. This data
is used to determine the optimal promotional mix. Ultimately, PROM(sm) is
used to provide market intelligence to enhance market share, identify
optimal sampling levels, evaluate the cost of a detail over time,
understand the impact of marketing programs and measure field force
effectiveness.
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. Resource Allocation (Single and Multi-Product)
Utilizing segmentation and promotional response data, HPR's resource
allocation models determine the resource needs for single-product or
multiple brand promotions.
The UniBrand(sm) model uses the output of a PROM(sm) analysis and market
research as inputs into a causal forecasting model that develops, by brand,
future promotion response curves and optimal, unconstrained details by
physician segment while considering future market events and the knowledge
of product management. Based on the response by promotion type and an
understanding of the interaction among promotion types, a promotion mix
analysis can determine the optimal promotion by brand. The UniBrand(sm)
approach focuses on increasing return on investment through the evaluation
of content and capital employed for each promotion type. Additionally, it
also identifies how one type of promotion can substitute for and/or enhance
other promotion types.
Once the future response curves have been calibrated by UniBrand(sm), this
leading-edge technology can be incorporated in a multi-product resource
allocation model, or RAM(sm). RAM(sm) is designed to maximize sales and
profits by determining optimal salesforce size and structure, as well as
constrained details across brands. The RAM(sm) approach also can be used to
examine "what if" scenarios for different strategic and tactical
alternatives.
. Call Planning System (CAPS(sm))
Through its proprietary technologies, HPR's CAPS(sm) provides an easily
implemented targeting plan for the sales representative while ensuring the
optimum allocation of field force effort across brands and physicians. The
CAPS(sm) system determines the best call frequency and brand detailing
priorities for each physician. CAPS(sm) also supports changes in the
portfolio focus on short notice, thereby enabling organizations to respond
quickly to internal and external developments.
. Salesforce Deployment and Analysis Group
HPR provides strategic salesforce alignment and deployment strategies for
home office and field teams. Alignment services are conducted by analysts
with technical expertise as well as healthcare industry experience who are
committed to the design and realignment of salesforces.
. Data Services
HPR provides healthcare-specific data management services by integrating
data from multiple sources, including internal legacy systems and purchased
third-party data, to identify opportunities that drive business
performance. Data service consultants design customized data collection and
manipulation software programs which analyze data, maintain report
generation functions and manage operational activities such as production
control, data clean-up, matching and ad hoc projects.
. Strategic Consulting
HPR's consultants in the strategic planning group work with clients,
designing solutions for issues such as resource allocation, forecasting,
pricing, and compensation. Their focus on incorporating best practices
within the culture of organizations yields pragmatic and easily implemented
business solutions that can be integrated throughout the organization.
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HPR's distinctive process for developing strategic and tactical resource
allocation is predicated upon the linking of services and data through
solutions based on doctor-level intelligence.
The direct link that exists between the strategy and the data ensures
pragmatic and effective solutions and yields tangible results for our
clients.
Healthcare Communications Group
HCG is responsible for the education of physicians and other decision makers
in the medical community regarding the profile of a product. According to the
requirements of the client's marketing department, HCG will specifically target
the appropriate decision makers for maximum impact. The goal is to provide
sufficient information to generate interest and stimulate demand both prior to
and after a product launch. Therefore, the educational process begins in early-
stage clinical trials and is accomplished through a variety of media customized
to a client's needs.
HCG maintains accreditation status with both the Accreditation Counsel for
Continuing Medical Education ("ACCME") and American College of Physician
Executives ("ACPE"). This distinction provides our programs essential
credibility in the medical community and mitigates the skepticism of many
physicians regarding information provided directly by life sciences companies.
In fact, our ACCME and ACPE accreditations have resulted in significant
attendance at HCG events because physicians are required by law to participate
in accredited education activities in order to maintain their licenses.
The following describes several of our more frequently used product formats
for the delivery of information:
Monographs. HCG publishes highly focused educational reports which typically
carry ACCME or ACPE accreditation. Usually 12 to 24 pages in length, these
reports present topical, state-of-the-art materials on a specific clinical issue
by leading the practitioner through the treatment analysis for appropriate
patients.
Interactive. Pharmaceutical companies have been allocating more promotional
spending into "alternative media," and HCG is well positioned to serve their
needs with its successful track record of developing CD-ROM, Internet and other
interactive products. These interactive programs can be designed as a training
tool for a pharmaceutical company's own salesforce, a board review study guide
for physicians, or a self-paced instructional package on a wide variety of
topics for doctors, nurses, patients, and other target groups.
Full-Color Books. The group also publishes full-color books which range from
100 to 250 pages in length that can be designed to offer in-depth educational
discussion pieces or simply provide an attractive photographic journal narrated
by a well respected physician or medical archivist. As tabletop volumes or
softcover reference books, they provide ongoing reminders of the sponsoring
pharmaceutical company and/or product.
Audio Cassettes. Audio cassettes typically deliver topical information to
doctors such as lectures by leading physicians, roundtable discussions,
summaries of conferences, interviews with prominent specialists, and similar
information. Generally 30 to 60 minutes in length, they can be accredited or
non-accredited, but are always educational in nature or content.
Symposia. HCG products and services include the development and management of
all types of meetings, including symposia, satellite training teleconferences,
and advisory panels. Medical symposia typically involve physicians hearing
presentations regarding a drug or treatment protocol presented by a faculty of
experts in the field for the purpose of being trained to serve as consultants
and spokespeople for the sponsoring pharmaceutical company. Attendees and
faculty from numerous remote locations can also interact in satellite-
transmitted symposia organized by HCG.
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Telemarketing. By providing a complete staff of trained telemarketers, our
telemarketing services significantly enhance a life sciences company's ability
to communicate effectively with physicians. These services give us the ability
to conduct physician awareness programs, focus group recruitment, physician
profiling, physician detailing, sampling follow-ups, qualification of sales
leads, phone surveys, consumer surveys, customer service, compliance building
and patient care management.
Direct Mail. HCG's direct mail capabilities are often combined with its
integrated marketing programs to deliver materials efficiently to its target
audience. We offer a full complement of packaging and mailing services, as well
as state-of-the-art warehousing that provides quick and efficient assembly of
promotional programs and inventory tracking.
Sample Fulfillment. Registered with the FDA as a secondary re-packager, HCG
can assemble promotional materials, insert pharmaceutical samples under
controlled conditions and ship samples to potential prescribers from its
warehouse. The group's combination of pharmaceutical warehousing and direct mail
capabilities allow it to coordinate sample delivery with sales calls on
physicians as well as administer drug recalls and rebate programs, all part of a
seamless automated product offering for the client.
Other Products. In addition, HCG offers a number of auxiliary products and
services and maintains an ability to deliver content in substantially all forms
of media that life sciences companies use to communicate promotional educational
messages. Other media can involve drug utilization reviews, color atlases,
posters, videotapes, convention kiosks and screen savers. HCG also assists its
clients through higher value-added services such as product marketing strategy
consulting, database management focused towards sales targeting, and field sales
support services.
HCG's ability to deliver its marketing and educational messages through a wide
range of media has enhanced our reputation as a "one-stop shop" offering an
integrated range of services to life sciences companies. However, each marketing
solution is customized to deliver a specific message to a highly targeted
audience. HCG also searches constantly for ways to expand its products to meet
the needs of our clients and combine its services with those of our other
operating groups. For example, offering avenues of support through the direct
mail and sample fulfillment programs enables CSG's salesforces to operate more
efficiently and effectively by automating a significant portion of the post-
physician consultation follow-up work (such as literature and sample mailings).
Contract Sales Group
CSG is responsible for the implementation and execution of outsourced sales
programs for prescription pharmaceutical and other life sciences products. This
service is otherwise known as "product detailing." CSG maintains and operates
the requisite systems, facilities, and support services to recruit and deploy a
customized, full-service and highly targeted salesforce within 8-12 weeks.
Currently, CSG operates one of the largest sales organizations in the United
States (larger, in fact, than many pharmaceutical companies), with approximately
2,250 sales representatives in the U.S. and approximately 3,600 worldwide as of
December 31, 1999. It also has significant global coverage through its
operations in the United Kingdom, France, Germany, and Hungary.
Life sciences companies, particularly pharmaceutical manufacturers, have
traditionally relied upon product detailing as the primary means of influencing
prescription writing patterns and promoting their products. Product detailing
consists of a one-on-one meeting in a physician's office where a sales
representative reviews the medical profile of a product's FDA-approved
indications. Information provided by the sales representative includes the
product's role in treatment, efficacy, potential side-effects, dosage, danger of
contra-interactions with other drugs, cost, and any other appropriate
information. The dialogue is two-way with the salesperson collecting the views
of each individual physician. Discussions will often include topics such as the
type of patient most likely to benefit from a particular therapy as well as the
relative benefits of alternative products. This requires the salesperson to be
well-educated and highly trained, both of which are core competencies of CSG. In
addition to engaging in an educational dialogue with the medical professional,
the sales representative will provide free product samples as a supplement to
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the sales effort. This affords the prescription writer and his or her patients
first-hand exposure to the medical product and creates a sense of familiarity
and comfort with the product.
Providing clients with the highest quality sales people requires effective
recruiting and training. To accomplish a coordinated recruiting effort, we
maintain a national recruitment office that locates and hires potential sales
representatives. Our in-house human resources team adheres to selective hiring
criteria and conducts detailed evaluations to ensure the highest-quality of
representation for our clients. CSG's recruiters maintain a fully automated
database of qualified candidates for immediate hiring opportunities, and its
Internet home page offers an online application for employment. CSG hires a mix
of full-time and flex-time representatives in order to accommodate the detailing
level required by clients and maximize cost efficiency.
We also emphasize the training of our personnel, and believe we are the only
contract sales organization with a fully dedicated stand-alone training
department. CSG's professional development group has the largest dedicated
training facility of its type in the United States. Our goal is to ensure that
sales representatives are knowledgeable and operate professionally, effectively,
and efficiently. Topics such as sample accountability, negotiation tactics,
personal writing skills, integrity selling, time and territory management, team
productivity, and pharma-manager leadership are covered extensively in order to
prepare the representatives for their eventual contact with medical
professionals. CSG's trainers are top professionals in their field and rely upon
proprietary information regarding physician prescribing behavior and industry
best practices. As the students are from both CSG's salesforce and our clients'
salesforces, the training and recruiting services are essential to maintaining
and building our relationships with the pharmaceutical companies. These
strengths are widely recognized as differentiating factors which benefit the
overall contract sales effort.
Once recruited and trained, CSG operates two types of salesforces: dedicated
and syndicated. A dedicated salesforce is responsible for the sales of only one
product or of multiple products of a single manufacturer. Dedicated salesforces
facilitate focus and one-on-one conversations with prescribing physicians. A
syndicated salesforce represents products of multiple manufacturers, and, as
such, the client purchases a share of the time the salesperson spends with the
physician, thereby decreasing overall cost for the service. The applicability of
each salesforce depends on the specific circumstance and the client's portfolio
of products. Syndicated salesforces are seldom used in the U.S., but have been
common in the U.K. and parts of continental Europe.
We are committed to providing our clients with customized cost-effective sales
support. This is reflected in the variety of options clients have to choose
from, including the type of salesforce (dedicated vs. syndicated), the
specialties of the salesforce (oncology, cardiology, etc.), the methodology
employed to target decision makers in the medical community and the type of
analysis to be conducted based on the information the salesforce collects. We
work closely with our clients in all aspects of our service offering to ensure
maximum impact of the product's promotional effort.
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The combination of our contract sales capabilities with HPR and HCG has
resulted in our proven ability to:
Maximize product launch tactics
Our salesforce has launched products where it had both partial and complete
promotional responsibility. The emphasis is on speed-to-market and impact, and
there are examples where CSG's efforts have helped our client's product to
become the most prescribed drug in its category within the first three months.
Provide globally targeted pharmacy promotions
International and domestic coverage of independent and chain pharmacies for
product launch, pipeline fill, and other related programs enable us to provide a
simultaneous geographic launch. As regulatory filings by pharmaceutical
customers are now coordinated globally, this capability is an increasingly
important competitive advantage.
Mobilize specialized salesforces
CSG's ability to execute and implement tailored programs and sales teams for
managed care initiatives; hospital coverage for surgery, cardiac device, and
advanced wound care treatment products; and clinical laboratory programs
collectively demonstrate to our clients the utility of Ventiv's high level of
salesforce training, mobilization and integration.
Support mature lines
Our services include the promotion of existing products in addition to
products emerging from our client's research pipeline. For example, we helped a
client elevate a ten-year-old product to a number one market share position in
13 months.
Collect and analyze sales information
We believe that CSG leads the industry in the collection and analysis of data
necessary to make marketing resource allocation decisions. Sales representatives
are equipped with palm-top computers in order to collect sales call and
physician profiling information, which is uploaded into a central data storage
server after each day of sales calls. Our state-of-the-art information
processing system allows sales management teams to analyze real-time data
constantly, compare the results with targeted initiatives and historical data,
and make necessary adjustments to the sales strategy.
Our ability to increase the incremental sales of older life sciences products
and enhance the sale of newer products is critical to the financial success of
our clients. Our integrated approach to contract sales, an experienced
management team, recruiting, professional training and development, and use of
technology provide the company with a competitive advantage in marketing
products for our clients. With the ability to leverage off of the capabilities
of HPR and HCG, CSG is well-positioned to provide value-added services across an
array of product types in the life sciences industry.
Competitive Advantages
Leading Global Healthcare Marketing and Sales Services Company. We are one of
the largest competitors in the global market for outsourced pharmaceutical
marketing solutions, with significant operations throughout Western Europe
(United Kingdom, Germany, France and Hungary) and the United States. We are a
large-scale provider of contract sales with a salesforce ranked in the top
three, based on size, among outside providers in the United States, Germany,
France and the United Kingdom, constituting four of the top six worldwide
pharmaceutical markets. We are also a significant provider of medical
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communications and strategic sales and marketing planning. We service a large
number of physicians, nurses, pharmacists and formularies. We reached over
500,000 individual healthcare professionals during 1999. These people are
regularly contacted by our representatives--approximately 3.5 million calls on
physicians in 1999 alone--enabling the collection of valuable profiling data.
Our large-scale presence in each key market provides significant advantages in
terms of experience, speed, capabilities, and technology.
A Broad and Integrated Service Offering. We offer a broad and integrated
range of services, from the education of physicians on a drug's development,
through the strategic analysis and design of a targeted product launch, to the
availability of approximately 3,600 sales representatives to implement a
targeted sales plan. The comprehensive education programs include conventions,
symposia and Continuing Medical Education ("CME") credit classes necessary for
physicians to retain their licenses. When a drug is ready to be launched, Health
Products Research utilizes proprietary call planning, territory alignment and
workload analysis to ascertain the ideal staff levels and coverage required to
reach forecasts, subsequently monitoring progress on a real-time basis to
maximize return on investment for pharmaceutical clients. The deployment of our
highly trained salesforce is managed by a national recruitment team that ensures
that calls begin on a coordinated basis within 8-12 weeks.
Proprietary Technologies and Data. We maintain and operate a number of
proprietary software programs and systems for marketing development and data
gathering. HCG develops interactive CD-ROMs for our clients which can be
designed to educate and train a pharmaceutical salesforce about a new drug,
provide a board review study guide for a physician, or function as a self-paced
instructional package on a wide variety of topics for medical target groups.
Pharmaceutical companies are allocating more marketing dollars to instructional
software due to the success of these tools, and our established expertise
positions us to serve this segment. To conduct strategic studies, HPR employs a
series of programs which were designed in-house and utilizes data which is
gathered and processed by our Contract Sales Group. Simultaneous access to the
aforementioned resources enables HPR to produce unique and intricate value-added
studies for the benefit of our clients. These value-added offerings are a
significant advantage for us because they directly translate into an increase in
our clients' return on investment through better salesforce sizing and targeting
and higher salesforce productivity. Moreover, we have made a considerable
investment in technology and are focused on using cutting-edge salesforce
automation tools to increase our efficiency. Approximately 60% of our salesforce
is currently equipped with palm-top computers, and our deployment of this
technology will increase throughout 2000. Such real-time data is important for
pharmaceutical clients during the launch of a drug, allowing rapid profiling of
the impact on targeted physicians and facilitating the refinement of calling
frequency and marketing tactics.
Existing Broad "Blue Chip" Client Base. In addition to serving many of the
largest pharmaceutical companies, we also serve a large number of mid-size and
smaller life sciences companies. As each of these companies uses our services,
our relationship is expanded and the opportunity to cross-sell products
increases. Due to the nature of the business, contracts tend to be longer in
duration and rarely are terminated prior to their expiration. Our business is
not overly concentrated on a small number of clients. As a result, the existing
client base, while not captive, is likely to become more intertwined with us as
the relationships grows in tandem with the clients' needs for additional
services.
Experienced and Visionary Management Team. Our management team includes
entrepreneurs who founded their respective businesses and continue to manage
them after their integration into Ventiv's business, as well as executives with
substantial expertise managing pharmaceutical salesforces and establishing sales
and marketing strategies. We believe our mix of senior management with
pharmaceutical salesforce management, entrepreneurial talent and strategic
perspective is unique in the industry.
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Our senior management team has outlined an exciting vision which includes
expanding the services offered by our communications unit, expanding HPR and HCG
in Europe, and developing Internet applications which allow physicians to access
our training and communications materials online. Additionally, we intend to
capitalize on our real-time data access through our 3,600-person salesforce.
Because of our high level of quality service, our pharmaceutical clients have
rewarded us with contract extensions and high rates of repeat business.
Physicians routinely give us the highest marks in surveys of medical education
programs. Our CME program was recently awarded a four-year accreditation period
by ACCME. We are one of only a few ACCME-accredited commercial enterprises.
Additionally, we provide the most advanced strategic analysis in the industry
through Health Products Research.
Clients
We provide our services to leading pharmaceutical, biotechnology, medical
device and diagnostics companies on a global basis. During 1999, approximately
59% of our revenues were derived from our ten largest clients. One client,
Bristol Myers Squibb, Inc., accounted for approximately 14% of our revenue
during 1999. No other single client accounted for more than approximately 8% of
our revenues during 1999. Our top ten clients based on 1999 revenue, listed
alphabetically, are Abbot Laboratories, AstraZeneca, Bristol-Myers Squibb, Eli
Lilly, Endo Pharmaceuticals, Forest Laboratories, Johnson & Johnson, Merck,
Monsanto Company and Novartis. We consider our close relationships with leading
pharmaceutical manufacturers to be an important competitive advantage, providing
us with a source for recurring revenues as well as sales growth opportunities as
new products are developed and launched. The services are sold to the same
target groups for each client, namely their marketing and sales departments.
This provides the basis for continuous interaction and feedback, allowing us to
continuously improve our services and identify new business opportunities, a
process augmented by the long-term nature of our contracts.
We have developed sustained relationships with blue chip clients that provide
us with recurring revenue streams and service cross-selling opportunities. Our
ability to add value at every part of the product life cycle enhances our
ability to form long-lasting relationships with clients.
Our relationships with a client's marketing and sales organizations also
benefit from high switching costs, as retaining another salesforce and
redesigning a market program would create substantial additional expense and
cause losses in time and productivity for our clients. In addition, the
successful medical marketing outsourcers have established their reputations due
to sophisticated performance evaluation capabilities, and clients are unlikely
to use vendors without widely recognized expertise.
Competition
We believe that no other organization offers the same scope of integrated
healthcare marketing services as we offer our clients. Our competitors include
contract sales organizations as well as contract research organizations that
offer healthcare marketing services. Additionally, drug distribution companies
have indicated a desire to enter this lucrative market by leveraging their
knowledge base and effecting strategic acquisitions. Each of our operating
groups faces distinct competitors in the individual markets in which the group
operates. However, none of our competitors provides the full scope of services
we currently offer through our three operating groups.
Contract Sales. A small number of providers comprise the market for contract
sales, which we believe represents more than 75% of outsourcing revenues in the
healthcare marketing services market as a whole. We believe that Ventiv, Innovex
(Quintiles), Professional Detailing Inc., and Pharmaceutical Detailing Network
combined account for most of the United States contract sales market share, with
Ventiv and Innovex being the only participants to have an international
presence. These organizations historically have not been significant competitors
with regard to healthcare marketing services other than contract sales. However,
because the rest of the industry is fragmented, with a large number of small
providers attempting to develop niche services one or more of our large
competitors in the contract sales market could become significant competitors
with regard to the other services which we offer by either developing additional
capabilities or acquiring smaller companies.
9
<PAGE>
Contract Marketing Services. The contract marketing services sector contains
many more competitors and is also highly fragmented. This is due in part to the
wide variety of marketing activities required by medical product companies,
including promotional meetings, symposia, video satellite conferencing, peer-to-
peer meetings, medical educational material and conferences, teleservices, field
force logistics and product management. As a result, accurate relative market
share is more difficult to define as we encounter different competitors for each
of these services. The only competitors of significant scale in the broad
marketing sector are narrowly focused: Boron LePore & Associates, which provides
peer-to-peer physician education meetings, and privately owned ZS Associates,
which provides strategic assessments similar to the services of HPR. Neither
company is a significant competitor with us in the contract sales market.
Seasonality
Various aspects of Ventiv's business are subject to seasonal variation,
most notably our European contract sales organization where activity decreases
during the third quarter of the year due to European summer holiday season.
However, we believe that the seasonality of the various aspects of our business
is not coincident, such that on an aggregate basis Ventiv's business is not
subject to significant seasonal variation.
Employees
At December 31, 1999, we employed approximately 4,400 people worldwide. We
believe that our relations with our employees are satisfactory.
Government Regulation
Several of the industries in which our clients operate are subject to varying
degrees of governmental regulation, particularly the pharmaceutical and
healthcare industries. Generally, compliance with these regulations is the
responsibility of our clients. However, we could be subject to a variety of
enforcement or private actions for our failure or the failure of our clients to
comply with such regulations.
In connection with the handling and distribution of pharmaceutical products
samples, we are subject to regulation by the Prescription Drug Marketing Act of
1987 and other applicable federal, state and local laws and regulations in the
United States, and certain regulations of the United Kingdom, France, Hungary,
Germany and the European Union. These laws regulate the distribution of drug
samples by mandating storage, handling and record-keeping requirements for drug
samples and by banning the purchase or sale of drug samples. In certain
jurisdictions, including the United Kingdom and France, pharmaceutical sales
representatives are subject to examination and licensing requirements under
local law and industry guidelines. Ventiv believes it is in compliance in all
material respects with these regulations.
Our physician education services are also subject to a variety of federal and
state regulations relating to both the education of medical professionals and
the marketing and sale of pharmaceuticals. In addition, certain ethical
guidelines promulgated by the American Medical Association ("AMA") govern the
receipt by physicians of gifts in connection with the marketing of healthcare
products. These guidelines govern the honoraria and other items of value which
AMA physicians may receive, directly or indirectly, from pharmaceutical
companies. Ventiv follows similar guidelines in effect in other countries where
it provides services. Any changes in such regulations or their application could
have a material adverse effect on Ventiv. Failure to comply with these
requirements could result in the imposition of fines, loss of licenses and other
penalties and could have a material adverse effect on Ventiv.
10
<PAGE>
From time to time, state and federal legislation is proposed with regard to
the use of proprietary databases of consumer and health groups. The uncertainty
of the regulatory environment is increased by the fact that we generate and
receive data from many sources. As a result, there are many ways both domestic
and foreign governments might attempt to regulate our use of its data. Any such
restriction could have a material adverse effect on Ventiv.
Item 2. Properties.
----------
Our headquarters is located in New York, New York at a site we lease. Ventiv
and its operating subsidiaries own facilities in Boulder, Colorado and
Lenggries, Germany. We lease a total of 19 facilities in the U.S., U.K.,
France, Germany, Austria and Hungary. We believe that our properties are well
maintained and are in good operating condition.
Item 3. Legal Proceedings.
-----------------
From time to time we are involved in litigation incidental to our business.
In our opinion, no pending or threatened litigation of which we are aware has
had or is expected to have a material adverse effect on our results of
operations, financial condition or liquidity.
Item 4. Submission of Matters to a Vote of Securities Holders.
-----------------------------------------------------
No matters were submitted to a vote of security holders during the quarter ended
December 31, 1999.
11
<PAGE>
PART II
Item 5. Market for the Registrant's Common Stock and Related Stockholder
----------------------------------------------------------------
Matters.
-------
The following table contains the high and low sales prices of our existing
common stock traded on the Nasdaq National Market during the periods indicated:
High Low
-------- ------
Year ended December 31, 1999
First Quarter n/a n/a
Second Quarter n/a n/a
Third Quarter (1) 10 7 3/4
Fourth Quarter 10 7/8 5 1/4
(1) Information regarding Ventiv's common stock is only available beginning on
September 23, 1999 when Ventiv's common stock began trading on a "when
issued" basis on the Nasdaq National Market. Ventiv's common stock began
its first day of "regular way" trading on September 28, 1999
On March 21, 2000, the closing price for Ventiv's common stock was $9.50 per
share, and there were approximately 7,278 beneficial owners of Ventiv's common
stock as of that date.
Ventiv did not declare cash dividends on its common stock in 1999. Ventiv
currently intends to retain future earnings to finance its growth and
development and therefore, does not anticipate paying any cash dividends in the
foreseeable future. Payment of any future dividends will depend upon the future
earnings and capital requirements of Ventiv and other factors which our Board of
Directors considers appropriate.
The transfer agent for Ventiv's common stock is American Stock Transfer and
Trust Company, 40 Wall Street, 46th Floor, New York, New York, 10005.
12
<PAGE>
Item 6. Selected Financial Data.
-----------------------
SELECTED FINANCIAL DATA
The following table summarizes certain historical financial data with respect
to Ventiv and is qualified in its entirety by reference to, and should be read
in conjunction with, the Ventiv historical consolidated financial statements and
related notes included elsewhere in this Form 10-K. The historical financial
data for the years ended December 31, 1999, 1998 and 1997 have been derived from
the audited financial statements of Ventiv. Historical financial information
may not be indicative of Ventiv's future performance. Prior to their respective
acquisitions, certain U.S.-based acquirees were not subject to federal or state
income taxes. Pro forma net income (loss) represents net income (loss)
adjusted to reflect a provision for income taxes as if Ventiv had been taxed
similarly to a C corporation for all periods presented. See also "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
<TABLE>
<CAPTION>
For the Years Ended December 31,
-------------------------------------------------------------------
1999 1998 1997 1996 1995
-------------------------------------------------------------------
(unaudited) (unaudited)
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of income data:
Revenues.................................. $344,655 $321,500 $208,967 $144,704 $120,354
========= ======== ========= ========= =========
Net income (loss)......................... $ (6,793) $ 1,446 $ (8,718) $ 83 $ 8,430
========= ======== ========= ========= =========
Basic and diluted net income (loss)
per share (1)............................ $ (0.28) $ 0.06 $ (0.37) $ -- $ (0.36)
========= ======== ========= ========= =========
Unaudited:
Pro forma net income (loss)............... $ (6,793) $ 1,446 $(10,700) $ (2,729) $ 5,131
========= ======== ========= ========= =========
Pro forma basic and diluted net income
(loss) per share (1)..................... $ (0.28) $ 0.06 $ (0.45) $ (0.12) $ 0.22
========= ======== ========= ========= =========
Shares used in computing basic and
diluted net income (loss) per share (1).. 23,907 23,715 23,715 23,715 23,715
========= ======== ========= ========= =========
Balance sheet data:
Total assets.............................. $233,264 $193,644 $100,947 $ 51,180 $ 58,623
========= ======== ========= ========= =========
Long-term debt............................ $ 1,155 $ 1,473 $ 4,154 $ 2,634 $ 1,420
========= ======== ========= ========= =========
Total investments and advances from
Snyder Communications, Inc. (2).......... $ -- $119,727 $ 10,371 $ 4,697 $ 13,591
========= ======== ========= ========= =========
Total equity.............................. $ 145,753
=========
</TABLE>
(1) For all dates prior to the Distribution, the number of shares used to
calculate net income per share is equal to the shares of Ventiv common stock
that were issued upon the Distribution based on the number of outstanding
shares of Snyder common stock on September 27, 1999. From the date of the
Distribution through December 31, 1999, the number of shares used to
calculate net income per share are the actual number of shares of Ventiv
common stock outstanding.
(2) Investments and advances from Snyder represents the net cash transferred to
Ventiv from Snyder and businesses acquired by Snyder and contributed to
Ventiv.
13
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
-----------------------------------------------------------------------
of Operations
-------------
On September 27, 1999, Ventiv Health, Inc. ("Ventiv") was spun off from
Snyder Communications, Inc. ("Snyder") in the form of a tax-free dividend to
Snyder stockholders (the "Distribution"). Ventiv is now an independent
publicly-traded company. This Management's Discussion and Analysis of Financial
Condition and Results of Operations covers periods prior to the Distribution,
during which the operations of Ventiv were part of Snyder. The following
information should be read in conjunction with Ventiv's Consolidated Financial
Statements and notes thereto included elsewhere in this Annual Report on Form
10-K. See "Index to Financial Statements."
Private Securities Litigation Reform Act of 1995 -- A Caution Concerning
Forward-Looking Statements
Any statement made in this Form 10-K that deals with information that
is not historical, such as statements concerning our anticipated financial
results, are forward-looking statements. We wish to caution readers not to
place undo reliance on any of these forward-looking statements, which speak only
as of the date made. Forward-looking statements are subject to the occurrence
of many events outside our control and to various risk factors that could cause
results to differ materially from those expressed in our periodic reports and
registration statements filed with the Securities and Exchange Commission, our
press releases or other public communications.
Overview
Ventiv's services are designed to develop, execute and monitor strategic
marketing plans for pharmaceutical and other life sciences products and to
conduct educational research and communication services for the medical
community. Snyder created the business currently conducted by Ventiv in January
1997 in a merger transaction with a U.S. provider of pharmaceutical sales and
marketing services. After forming the pharmaceutical sales and marketing service
business in 1997, Snyder completed a series of acquisitions which expanded both
the scope of services and geographic presence of the pharmaceutical sales and
marketing business to create the business conducted by Ventiv today. We plan to
focus on internal growth for the foreseeable future as the primary means of our
expansion, although we will consider attractive acquisition opportunities as
they arise.
We expect that the complementary services, which Ventiv is able to offer to
its customers as a result of the acquisitions described above, will increase our
opportunities and strengthen our client relationships. We strive to integrate
our service capabilities to provide a spectrum of healthcare marketing and sales
services. Ventiv's Health Products Research Group designs and monitors product
launches and sales strategies with its proprietary programs to maximize asset
utilization and return on investment for pharmaceutical and other life sciences
companies. Ventiv's Healthcare Communications Group provides educational
programs to physicians and other healthcare professionals. The Contract Sales
Group implements and executes outsourced sales programs for pharmaceutical and
other life sciences products. Most of Ventiv's largest clients utilize the
services of more than one of our operating groups.
Results of Operations
Revenues and associated costs under pharmaceutical detailing contracts are
generally based on the number of physician calls made or the number of sales
representatives utilized. For consulting and educational services, Ventiv's
revenues are generally based on a fixed project amount.
Cost of services consists of all costs specifically associated with client
programs, such as salary, commissions and benefits paid to personnel, including
senior management associated with specific service offerings, payments
to third-party vendors and systems and other support facilities specifically
associated with client programs.
Selling, general and administrative expenses consist primarily of costs
associated with administrative functions, such as finance, accounting, human
resources, and information technology, as well as personnel costs of senior
management not specifically associated with client services.
14
<PAGE>
Non-recurring costs include compensation to stockholders, recapitalization
costs, and acquisition and related costs. Compensation to stockholders consists
of excess compensation paid to certain stockholders of acquired companies prior
to their respective mergers with Ventiv. The amount by which the historical
compensation of these stockholders exceeds that provided in their employment
contracts with Ventiv has been classified as compensation to stockholders. 1999
recapitalization costs consist of restricted stock granted to certain key
employees of the Company, which vested immediately following the Distribution.
1997 recapitalization costs were recorded at the time of the recapitalization by
one of the companies acquired by Ventiv during 1998 in a pooling of interests
transition. Acquisition and related costs consist primarily of investment
banking fees, other professional service fees, certain tax payments and other
contractual payments resulting from the consummation of the pooling of interests
transactions, as well as the costs of consolidating certain of our acquired
operations.
The following sets forth, for the periods indicated, certain components of
Ventiv's income statement data, including such data as a percentage of revenues.
Compensation to stockholders, recapitalization costs and acquisition and related
costs are considered to be non-recurring by Ventiv because Ventiv's current
operations will not result in any compensation to stockholders, recapitalization
costs or acquisition and related costs in future periods.
<TABLE>
<CAPTION>
For the Years Ended
December 31,
---------------------------------------------------------------------------
1999 1998 1997
------------------- -------------------- ------------------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Revenues............................ $344,655 100.0% $321,500 100.0% $208,967 100.0%
Operating expenses:
Cost of services................... 295,296 85.7 236,047 73.4 156,346 74.8
Selling, general & administrative
expenses.......................... 47,426 13.8 43,029 13.4 32,787 15.7
Non-recurring costs................ 10,054 2.9 27,664 8.6 25,569 12.2
-------- ----- -------- ----- --------- -----
Income (loss) from operations....... (8,121) (2.4) 14,760 4.6 (5,735) (2.7)
-------- ----- -------- ----- --------- -----
Interest expense.................... (405) (0.1) (2,315) (0.7) (1,617) (0.8)
Investment income................... 1,080 0.3 1,850 0.5 568 0.3
-------- ----- -------- ----- --------- -----
Income (loss) before income taxes... (7,446) (2.2) 14,295 4.4 (6,784) (3.2)
-------- ----- -------- ----- --------- -----
Income taxes provision (benefit) (653) (0.2) 12,849 4.0 1,934 1.0
-------- ----- -------- ----- --------- -----
Net income (loss)................... $ (6,793) (2.0)% $ 1,446 0.4% $ (8,718) (4.2)%
======== ===== ======== ===== ========= =====
Pro forma net income (loss)......... $ (6,793) (2.0)% $ 1,446 0.4% $(10,700) (5.1)%
======== ===== ======== ===== ========== =====
</TABLE>
Year Ended December 31, 1999 Compared to Year Ended December 31, 1998
Revenues. Revenues increased $23.2 million, or 7.2%, to $344.7 million in
1999 from $321.5 million in 1998. Revenues increased $36.1 million , or 34.8%,
within our U.S. Contract Sales Group primarily as a result of new contracts
which were secured in 1999, an incentive compensation payment received from a
client and the purchase of HCP in 1998 which has been integrated into our U.S.
Contract Sales Group. Revenues increased $5.2 million, or 33.2%, within our
Healthcare Products Research Group, reflecting new business contracts secured in
1999. The increases in revenues are offset by a $7.0 million, or 11.4%, decrease
in revenues from our Healthcare Communications Group and $11.1 million, or 7.9%,
decrease in revenue from our European Contract Sales Group attributed to the
business challenges associated with the integration of acquired businesses
during 1999, market and competitive conditions in Europe, and a change in the
business mix toward live events in our Healthcare Communications Group.
15
<PAGE>
Cost of services. Cost of services increased $59.3 million, or 25.1%, to
$295.3 million in 1999 from $236.0 million in 1998. The year-over-year increases
in cost of sales of $46.5 million and $3.8 million at our U.S. Contract Sales
Group and our Healthcare Products Research Group, respectively, is driven by the
increases in revenue within those groups. In addition, recruiting and other
start-up related costs for several new contract sales forces in the U.S.,
including a 725 person sales force to provide services under a new contract with
Bristol-Myers Squibb, were incurred during 1999 with no offsetting revenue,
increasing 1999 expenses approximately $14 million over 1998 levels. Cost of
services were favorably impacted in 1999 by a one-time $2.0 million reduction in
the estimated amount of employee-related social costs to be paid as a result of
the integration of our French salesforce. In the Healthcare Communications
Group, a shift in the mix of business toward live events such as
teleconferences, symposia, and speaker bureau meetings, lowered gross margins.
The closure of a syndicated sales team in the U.K. resulted in one-time
expenditures of approximately $0.2 million. Revenue reductions in the Healthcare
Communications Group and the European Contract Sales Group yielded only marginal
cost reduction opportunities, primarily because the predominant component of
cost of services is personnel driven. We believe that actions taken late in
1999, including the closure of a syndicated sales team, will result in a lower
cost of services as a percentage of revenues in future periods. As a result of
the above factors, cost of services as a percentage of revenues increased to
85.7% in 1999 from 73.4% in 1998.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $4.4 million, or 10.2%, to $47.4 million in
1999 from $43.0 million in 1998. Selling, general, and administrative expenses
as a percentage of revenues increased to 13.8% in 1999 from 13.4% in 1998, due
in part to additional ongoing overhead costs incurred during the second half of
1999 which are related to changes in Ventiv's management and administrative
infrastructure necessary to become an independent, publicly traded company.
Non-recurring Costs. Our non-recurring costs include compensation to
stockholders, recapitalization costs and acquisition and related costs. Total
non-recurring costs were $10.1 million in 1999 compared to $27.7 million in
1998. Ventiv recorded no compensation to stockholders in 1999 as compared to
$0.8 million recorded by an acquired company in 1998. Ventiv recorded $2.1
million in recapitalization costs during 1999. The cost consists of restricted
stock granted to certain key employees of Ventiv which vested immediately
following the Distribution. No recapitalization costs were recorded for 1998.
Ventiv recorded $8.0 million in acquisition and related costs during 1999.
Included in this amount is $5.7 million related to a payment made by Ventiv, in
the form of 695,304 shares of Ventiv common stock, to the prior owners of
PromoTech in exchange for the release of any and all claims against Snyder or
Ventiv related to the purchase of PromoTech. The payment was not provided for in
the purchase agreement and is not part of the purchase price for accounting
purposes. $3.1 million of the $8.0 million is due to additional costs related
to the consolidation and integration of certain Ventiv's acquired operations in
the U.S., U.K. and France under the Company's plan initiated in 1998. The charge
consists of $1.8 million in severance and related payments associated with the
termination of 23 employees, and $1.3 million in consulting services and other
costs related to these integration activities. In addition, we recorded a
reduction of $0.8 million for previously recorded acquisition and related costs
due to changes in estimates. Ventiv recorded $26.9 million in acquisition and
related costs during 1998. $16.2 million of these costs were related to the
consummation of pooling of interests transactions during 1998. Ventiv completed
four pooling of interests transactions valued at approximately $259 million
during 1998. The remaining $10.7 million of the $26.9 million was due to the
consolidation and integration of certain of Ventiv's acquired operations within
the Contract Sales Group and the Healthcare Communications Group. See
discussion below in the section "Year Ended December 31, 1998 Compared to Year
Ended December 31, 1997."
Interest expense. Ventiv recorded $0.4 million of interest expense during
1999 compared with $ 2.3 million of interest expense during 1998. Ventiv did not
have any significant debt obligations outstanding during 1999. The interest
expense recorded during 1998 consists primarily of interest on debt at acquired
companies prior to their acquisition by Ventiv. Ventiv generally repaid the debt
of its acquired companies. If Ventiv borrows money for acquisitions, shares
repurchases, or for other purposes, interest expense will increase in future
periods.
16
<PAGE>
Investment Income. Ventiv recorded $1.1 million of investment income during
1999 and $1.9 million of investment income during 1998. Variations in investment
income result from differences in average amounts of cash and equivalents
available for investment and the prevailing short-term interest rates during
these periods.
Income Tax Provision (Benefit). Ventiv recorded a tax benefit of $0.7
million in 1999. Ventiv's effective tax rate on its recurring operations is
approximately 85.9% for 1999. The actual tax provision recorded differs from the
effective rate primarily due to the non-deductibility of certain of the non-
recurring costs recorded during the period.
Net Income (Loss). Ventiv's net loss was $6.8 million in 1999 compared to
net income of $1.4 million in 1998 due to the increases in operating costs which
exceeded increases in revenue, offset by the decrease in non-recurring costs.
Pro Forma Net Income (Loss). Pro forma net income (loss) shows the effect on
net income (loss) assuming Ventiv and its subsidiaries were taxed as C
corporations for all periods. There is no difference between pro forma net
income (loss) and net income (loss) for 1999 and 1998.
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
Revenues. Revenues increased $112.5 million, or 53.8%, to $321.5 million in
1998 from $209.0 million in 1997. We experienced revenue growth at each of our
operating companies during 1998 and it consists of an $82.7 million, or 51.0%,
increase at our Contract Sales Group, a $26.7 million, or 77.9%, increase at our
Healthcare Communications Group, and a $3.1 million, or 24.8%, increase at our
Health Products Research group. The increased revenue in our Contract Sales
Group resulted in the growth of services provided to both new and existing
customers during 1998, the purchase of HCP and CLI Pharma in the first quarter
of 1998, and the purchase of Halliday Jones in the third quarter of 1997. The
increased revenue in both the Healthcare Communications Group and the Health
Products Research group is attributable to the growth services provided to new
and existing customers during 1998.
Cost of Services. Cost of Services increased $79.7 million, or 51.0%, to
$236.0 million in 1998 from $156.3 million in 1997 as a result of the increased
revenues discussed above. Cost of services as a percentage of revenues decreased
to 73.4% in 1998 from 74.8% in 1997. This is due to Ventiv's overall growth and
the ability of the client support personnel to handle increased client services.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $10.2 million, or 31.1%, to $43.0 million in
1998 from $32.8 million in 1997 as a result of the growth in revenues discussed
above. Selling, general and administrative expenses as a percentage of revenues
decreased to 13.4% in 1998 from 15.7% in 1997 due primarily to the revenue
growth from the significant increase in services provided throughout 1998 and
the lower proportional increase in selling, general and administrative expenses
necessary to support the revenue growth.
Non-recurring Costs. Non-recurring costs include compensation to
stockholders, acquisition and related costs and recapitalization costs.
Compensation to stockholders was $0.8 million in 1998 and $15.6 million in 1997.
Compensation to stockholders reflects compensation paid to certain stockholders
of acquired companies prior to their respective mergers with Ventiv that is in
excess of the compensation provided for in their employment contracts with
Ventiv. The amount by which the historical compensation paid to these
stockholders exceeds the amount provided for in their respective employment
contracts with Ventiv has been classified as compensation to stockholders. No
compensation to stockholders is recorded subsequent to an acquisition by Ventiv.
The $0.8 million recorded in 1998 relates to certain companies acquired in the
third and fourth quarters of 1998, and therefore, was incurred during 1998 by
the acquired companies prior to their acquisition.
Ventiv recorded $26.9 million in nonrecurring acquisition and related costs
during 1998. These costs were primarily related to the consummation of
acquisitions and consisted of investment banking fees, expenses associated with
the accelerated vesting of options held by employees of certain acquired
companies, other professional service fees, transfer taxes and other contractual
payments. In addition, this amount included a charge of approximately $10.7
million for costs necessary to consolidate and integrate certain of Ventiv's
acquired operations in the U.S., the U.K. and France. Ventiv has integrated
acquired subsidiaries that provided similar services within the same geographic
regions. Approximately nine locations have been consolidated into four, and the
efforts have not had a significant impact on Ventiv's workforce. These
integration activities were substantially completed as of December 31, 1999. The
charge consists of $4.1 million to consolidate and terminate lease obligations,
$5.3 million of severance and other costs associated with the termination of 142
employees, and $1.3 million of fees incurred for consulting services and other
costs related to these integration activities. The employees who were terminated
were primarily redundant operations and administrative personnel, as well as one
under-utilized sales team in the U.K. Ventiv recorded $8.0 million in non-
recurring acquisition and related costs during 1997 related to the consummation
of acquisitions, primarily consisting of investment banking fees, other
professional service fees and certain U.K. excise and transfer taxes.
Recapitalization Costs were $1.9 million in 1997. One of our acquired entities
completed a recapitalization in 1997 prior to its 1998 merger with Ventiv. No
recapitalization costs were incurred in 1998.
17
<PAGE>
Interest Expense. Ventiv recorded $2.3 million of interest expense in 1998
and $1.6 million of interest expense in 1997. The interest expense recorded in
both 1998 and 1997 consists primarily of interest on debt at acquired companies
prior to their acquisition by Ventiv. Ventiv generally repaid the debt of
acquired companies.
Investment Income. Ventiv recorded $1.9 million of investment income in
1998 and $0.6 million of investment income in 1997. The increase in investment
income corresponds to the increase in funds available for investment.
Income Tax Provision (Benefit). Ventiv recorded a tax provision of $12.8
million during 1998. Ventiv's effective tax rate on its recurring operations was
approximately 41.0% in 1998. The actual tax provision recorded differs from the
effective rate due to the non-deductibility of certain of the non-recurring
costs recorded during the period. Pro forma net income (loss) discussed below
includes a provision for income taxes as if all our operations had been taxed as
a C corporation for the year ended 1998.
Net Income (Loss). Net income increased $10.1 million to income of $1.4
million in 1998 from a loss of $8.7 million in 1997 due primarily to Ventiv's
overall growth and containment of costs.
Pro Forma Net Income (Loss). Pro forma net income (loss) shows the effect on
net income (loss) assuming Ventiv and its subsidiaries were taxed as C
corporations for all of 1998 and 1997. Pro forma net income (loss) is less than
net income (loss) for 1997. Pro forma net income (loss) increased $12.1 million
to pro forma net income of $1.4 million in 1998 from a pro forma net loss of
$10.7 million in 1997, due primarily to the overall growth in revenues and
containment of costs. Revenue growth exceeded the growth in cost of services and
selling, general and administrative expenses.
Liquidity and Capital Resources
At December 31, 1999, Ventiv had $37.6 million in cash and equivalents.
Cash and equivalents increased $12.0 million during 1999, due to the $13.4
million provided by operating activities and the $11.5 million provided by
financing activities, offset by the $11.9 million used in investing activities
and the $1.0 million effect of changes in the exchange rate. The $11.4 million
in cash provided by financing activities consists primarily of $18.1 million of
investments and advances from Snyder Communications prior to the Distribution,
offset by $4.3 million used to purchase treasury stock and $1.7 million net
repayments of debt. The $9.9 million used in investing activities consists
primarily of capital expenditures including the purchase of intangibles, the
purchase of marketable securities, net of cash acquired in the purchase of
PromoTech.
On December 1, 1999, we entered into a $50 million unsecured revolving
credit facility with a term of four years for acquisitions and general corporate
purposes, as well as the repurchase of up to $37.5 million of Ventiv Health,
Inc. common stock. Interest on amounts borrowed under the credit facility is
based on the London Interbank Offered Rate or the lending bank's base rate of
interest. Availability under this credit facility is subject to our compliance
with various financial ratios, operating covenants and other customary
conditions. The financial covenants are summarized as follows:
18
<PAGE>
. the ratio of our consolidated debt to trailing four quarter earnings
before interest, taxes, depreciation and amortization (EBITDA), as
defined in the agreement, may not be more than a specified ratio (3.0
until September 30, 2000, 2.5 on September 30, 2000 and thereafter)
. our consolidated trailing four quarter EBITDA may not be less than 3.5
times our consolidated interest expense;
. our consolidated net worth must exceed $133 million, adjusted
prospectively to include 50% of our net income and 100% of the proceeds
of any future equity issuance; and
. our consolidated trailing four quarter EBITDA must meet specified levels
($4 million at March 31, 2000, $12 million at June 30, 2000, $18 million
at September 30, 2000 and $30 million thereafter).
At December 31, 1999, there were no outstanding borrowings under the credit
facility.
We believe our cash and equivalents, as well as cash provided by operations,
will be sufficient to fund our current operations and planned capital
expenditures over the next 12 months and also for a longer-term basis.
We plan to focus on internal growth for the foreseeable future as the primary
means of our expansion, although we will consider attractive acquisition
opportunities as they arise. Cash provided from operations may not be sufficient
to fund internal growth initiatives which we may pursue. If we pursue
significant internal growth initiatives or if we acquire additional businesses
in transactions that include any cash payment as part of the purchase price,
both in the short-term and the long-term, we will first use excess cash
available from operations and then pursue additional debt or equity financing as
sources of cash necessary to complete any acquisitions. In addition to
borrowing under our line of credit, we could pursue additional debt or equity
transactions to finance acquisitions, depending on market conditions. We can not
assure you that we will be successful in raising the cash required to complete
all acquisition opportunities which we may pursue in the future.
We are subject to the impact of foreign currency fluctuations, specifically
that of the British pound, German mark and French franc. To date, changes in the
exchange rates of the British pound, German mark and French franc have not had a
material impact on our liquidity or results of operations. We continually
evaluate our exposure to exchange rate risk but do not currently hedge such
risk. We do not expect the introduction of the Euro to have a material impact on
our operations or cash flows in the near term. We will continue to evaluate the
impact of the introduction of the Euro as we continue to expand our services in
Europe.
Effect of Inflation
Because of the relatively low level of inflation experienced in the United
States and Europe, inflation did not have a material impact on our consolidated
results of operations for 1999, 1998, or 1997.
19
<PAGE>
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
-----------------------------------------------------------
We are exposed to market risk from changes in market interest rates and
foreign currency exchange rates. We are subject to interest rate risk on our
debt for changes in the fair value of our debt caused by changes in the interest
rates. We are subject to foreign currency exchange rate risk related to our
international operations. We do not currently engage in hedging or other market
risk management tools.
Long-Term Debt Exposure
For purposes of quantifying our potential loss in fair value of our long-
term fixed rate debt due to changes in interest rates, we used a sensitivity
analysis model. While there is exposure related to the fair market value of our
fixed rate debt, we believe that changes in market interest rates over the next
year would not materially impact our earnings or cash flows. The weighted
average maturity of all outstanding long-term fixed rate debt as of December 31,
1999 is two years. To determine potential changes in the fair value of our fixed
rate long-term debt, we assumed a hypothetical 150 basis point increase/decrease
to all interest rates on our outstanding long-term debt at December 31, 1999. If
interest rates change as hypothetically assumed, the fair value of our debt will
change as follows (in thousands):
<TABLE>
<CAPTION>
Fair Value with Fair Value with
Carrying Amount Fair Value 150 Basis Point 150 Basis Point
December 31, 1999 (1) Increase (2) Decrease (2)
------------------ ----------- ----------------- ----------------
<S> <C> <C> <C> <C>
Long-term debt (fixed rate)...... $1,155 $1,108 $1,039 $1,183
</TABLE>
(1) Fair Value is calculated using the discounted cash flows method.
(2) Basis point change is assumed on all interest rates of outstanding debt.
Foreign Currency Exchange Rate Exposure
Fluctuations in foreign currency exchange rates affect the reported amounts
of our assets, liabilities and operations. For purposes of quantifying the risk
associated with fluctuations in the foreign exchange rate, we used a sensitivity
analysis model. We assumed a hypothetical detrimental change of 10% in the
exchange rates on our assets, liabilities and revenues denominated in a foreign
currency. A 10% fluctuation was assumed for all exchange rates at December 31,
1999. Our material exposures to foreign exchange rate fluctuations on continuing
operations are the French franc, British pound and German mark. Approximately
52%, 31% and 17% of our 1999 international operations were conducted in France,
the United Kingdom and Germany, respectively. The amounts below represent the
impact of all exchange rates on our total assets, liabilities and revenues.
<TABLE>
<CAPTION>
10% Decrease in
value
Balance at of Local
December 31, Currencies to
1999 U.S. Dollar
------------ -------------------
<S> <C> <C>
Assets.......... $233,264 $224,404
Liabilities..... $ 87,511 $ 79,072
Revenue......... $344,655 $331,605
</TABLE>
20
<PAGE>
The following chart illustrates the impact on the fair value of all of our
long-term fixed rate debt assuming 10% fluctuations in all of our foreign
exchange rates (in thousands):
<TABLE>
<CAPTION>
Fair Value with Fair Value with
10% increase in 10% decrease in
Fair Value strength of U.S. strength of U.S.
December 31, 1999 dollar to foreign dollar to foreign
----------------------- -------------------------- --------------------------
<S> <C> <C> <C>
Long-term debt (fixed rate) $1,108 $1,007 $1,231
</TABLE>
21
<PAGE>
Item 8. Financial Statements and Supplementary Data.
-------------------------------------------
INDEX TO FINANCIAL STATEMENTS
Ventiv Health, Inc.
Consolidated Financial Statements Page
Report of Independent Public Accountants................................ 23
Consolidated Balance Sheet as of December 31, 1999 and 1998............. 24
Consolidated Statement of Income for the years ended December
31, 1999, 1998 and 1997............................................... 25
Consolidated Statement of Stockholders' Equity and Comprehensive Loss
for the period from September 27, 1999 to December 31, 1999........... 26
Consolidated Statement of Cash Flows for the years ended December
31, 1999, 1998 and 1997............................................... 27
Notes to Consolidated Financial Statements.............................. 28
22
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of Ventiv Health, Inc.:
We have audited the accompanying consolidated balance sheets of Ventiv Health,
Inc. (the "Company"), as defined in Note 1 to the consolidated financial
statements, as of December 31, 1999 and 1998, the related consolidated
statements of income and cash flows for each of the years in the three year
period ended December 31, 1999, and the related consolidated statement of
stockholders' equity and comprehensive loss for the year ended December 31,
1999. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Ventiv
Health, Inc. as of December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the years in the three year period
ended December 31, 1999, in conformity with accounting principles generally
accepted in the United States.
ARTHUR ANDERSEN LLP
Vienna, Virginia
February 18, 2000
23
<PAGE>
VENTIV HEALTH, INC.
(See Note 1)
CONSOLIDATED BALANCE SHEET
(in thousands)
<TABLE>
<CAPTION>
December 31,
---------------------------
1999 1998
-------------- -----------
ASSETS
<S> <C> <C>
Current assets:
Cash and equivalents....................................................... $ 37,627 $ 25,664
Marketable securities...................................................... 1,898 --
Accounts receivable, net of allowance for doubtful accounts of
$2,517 and $2,971 at December 31, 1999 and 1998,
respectively............................................................. 51,158 43,521
Unbilled services.......................................................... 13,430 15,212
Current portion of deferred tax asset...................................... -- 683
Other current assets....................................................... 7,568 10,369
-------- --------
Total current assets.................................................... 111,681 95,449
-------- --------
Property and equipment, net.................................................. 14,742 10,028
Goodwill and other intangible assets, net.................................... 95,816 80,728
Deferred tax asset........................................................... 9,732 3,414
Deposits and other assets.................................................... 1,293 4,025
-------- --------
Total assets............................................................ $233,264 $193,644
======== ========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Lines of credit............................................................ $ 36 $ 198
Current maturities of long-term debt....................................... 55 --
Accrued payroll............................................................ 18,082 13,989
Accounts payable........................................................... 8,801 5,791
Accrued expenses........................................................... 26,971 40,613
Client advances............................................................ 4,346 1,965
Unearned revenue........................................................... 28,060 8,446
-------- --------
Total current liabilities............................................... 86,351 71,002
-------- --------
Long-term debt............................................................... 1,155 1,473
Other liabilities............................................................ 5 1,442
Commitments and contingencies
Investments and advances from Snyder......................................... -- 119,727
Stockholders' Equity:
Preferred stock, $.001 par value, 10,000 shares authorized, none issued and
outstanding at December 31, 1999, respectively.............................. -- --
Common stock, $.001 par value, 50,000 shares authorized; 25,231 shares
issued and outstanding at December 31, 1999................................. 25 --
Additional paid-in-capital................................................... 176,495 --
Deferred compensation........................................................ (4,219) --
Treasury stock, at cost, 494 shares at December 31, 1999..................... (4,307) --
Accumulated other comprehensive loss......................................... (2,401) --
Retained deficit............................................................. (19,840) --
-------- --------
Total stockholders' equity.............................................. 145,753 --
-------- --------
Total liabilities and stockholders' equity.............................. $233,264 $193,644
======== ========
</TABLE>
The accompanying notes are an integral part of this consolidated balance sheet.
24
<PAGE>
VENTIV HEALTH, INC.
(See Note 1)
CONSOLIDATED STATEMENT OF INCOME
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
For the Years Ended December 31,
----------------------------------------
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Revenues............................................................ $344,655 $321,500 $208,967
Operating expenses:
Cost of services.................................................. 295,296 236,047 156,346
Selling, general and administrative expenses...................... 47,426 43,029 32,787
Non-recurring costs............................................... 10,054 27,664 25,569
-------- -------- --------
Income (loss) from operations....................................... (8,121) 14,760 (5,735)
Interest expense.................................................... (405) (2,315) (1,617)
Investment income................................................... 1,080 1,850 568
-------- -------- --------
Income (loss) from operations before income taxes................... (7,446) 14,295 (6,784)
Income tax (benefit) provision...................................... (653) 12,849 1,934
-------- -------- --------
Net income (loss)................................................... $ (6,793) $ 1,446 $ (8,718)
======== ======== ========
Net income (loss) per share data:
Basic and diluted net income (loss) per share..................... $(0.28) $0.06 $(0.37)
======== ======== ========
Shares used in computing net income (loss) per
Share........................................................... 23,907 23,715 23,715
======== ======== ========
</TABLE>
The accompanying notes are an integral part of this consolidated statement of
income.
25
<PAGE>
VENTIV HEALTH, INC.
(See Note 1)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE LOSS
(in thousands)
<TABLE>
<CAPTION>
Common Common Additional
Stock Stock Paid-in Retained Deferred Treasury
Shares Par Value Capital Deficit Compensation Stock
-------- --------- ----------- ---------- --------------- ----------
<S> <C> <C> <C> <C> <C> <C>
Balance at September 27, 1999............ -- $ -- $ -- $ -- $ -- $ --
Capital contribution..................... 23,704 24 164,660 (11,289) -- --
Net loss................................. -- -- -- (8,551) -- --
Restricted stock - deferred
compensation............................ 832 1 6,599 -- (4,219) --
Issuance of shares to former owners
of PromoTech............................ 695 -- 5,736 -- -- --
Loan to officer for purchase of stock.... -- -- (500) -- -- --
Purchase of treasury shares.............. -- -- -- -- -- (4,307)
Foreign currency translation
adjustment.............................. -- -- -- -- -- --
Unrealized loss on marketable
securities.............................. -- -- -- -- -- --
------- ------ -------- --------- -------- -------
Balance at December 31, 1999............. 25,231 $25 $176,495 $ (19,840) $ (4,219) $(4,307)
======= ====== ======== ========= ======== =======
</TABLE>
<TABLE>
<CAPTION>
Accumulated
Other
Comprehensive Comprehensive
Loss Total Loss
------------- --------- -------------
<S> <C> <C> <C>
Balance at September 27, 1999............ $ -- $ -- $ --
Capital contribution..................... (1,269) 152,126 1,758
Net loss................................. -- (8,551) (8,551)
Restricted stock - deferred
compensation............................ -- 2,381 --
Issuance of shares to former owners
of PromoTech............................ -- 5,736 --
Loan to officer for purchase of stock.... -- (500) --
Purchase of treasury shares.............. -- (4,307) --
Foreign currency translation
adjustment.............................. (1,020) (1,020) (1,020)
Unrealized loss on marketable
securities.............................. (112) (112) (112)
------- -------- --------
Balance at December 31, 1999............. $(2,401) $145,753 $ (7,925)
======= ======== ========
</TABLE>
The accompanying notes are an integral part of this consolidated statement of
equity and comprehensive loss.
26
<PAGE>
VENTIV HEALTH, INC.
(See Note 1)
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
For the Years Ended
-------------------------------
December 31,
-------------------------------
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)............................................................................... $ (6,793) $ 1,446 $ (8,718)
Adjustments to reconcile net income (loss) to net cash provided by (used in)
operating activities:
Depreciation and amortization................................................................. 8,170 5,359 2,169
Non-cash expense for stock issuances.......................................................... 5,736 -- --
Non-cash expense for restricted stock and option vesting...................................... 2,381 2,173 --
Deferred taxes................................................................................ (5,635) 1,324 (3,914)
Loss on disposal of assets.................................................................... 1,023 151 371
Other noncash amounts......................................................................... -- 126 (934)
Changes in assets and liabilities:
Accounts receivable, net...................................................................... (6,360) (1,040) (7,043)
Unbilled services............................................................................. 1,948 (8,443) (3,074)
Deposits and other assets..................................................................... 2,733 (3,533) (1,066)
Other current assets.......................................................................... 3,059 (813) 1,314
Accrued payroll, accounts payable and accrued expenses........................................ (12,837) 8,599 16,385
Client advances............................................................................... 413 1,965 --
Unearned revenue.............................................................................. 19,573 (8,535) 2,586
-------- -------- --------
Net cash provided by (used in) operating activities......................................... 13,411 (1,221) (1,924)
-------- -------- --------
Cash flows from investing activities:
Cash on hand at acquired businesses............................................................. 2,916 6,083 452
Purchase of subsidiaries........................................................................ (1,134) (10,386) --
Purchase of property and equipment.............................................................. (8,654) (4,916) (2,127)
Proceeds from sale of equipment................................................................. -- 780 184
Net (purchases) sales of marketable securities.................................................. (2,010) 1,262 2,274
Purchase of license agreements.................................................................. (3,012) (13) (4,359)
-------- -------- --------
Net cash used in investing activities....................................................... (11,894) (7,190) (3,576)
-------- -------- --------
Cash flows from financing activities:
Net repayment of long-term debt................................................................. (1,697) (4,210) (1,838)
Loan to officer for purchase of stock........................................................... (500) -- --
Purchase of treasury stock...................................................................... (4,307) -- --
Redemption of mandatorily redeemable preferred stock............................................ -- -- (2,147)
Net (repayments) borrowing on lines of credit................................................... (162) (22,707) 20,603
Loans provided by related parties............................................................... -- -- 10,000
Payment of related party loans.................................................................. -- -- (10,000)
Investments and advances from Snyder............................................................ 18,211 42,753 (167)
-------- -------- --------
Net cash provided by financing activities................................................... 11,545 15,836 16,451
-------- -------- --------
Effect of exchange rate changes................................................................... (1,099) 199 (177)
Net increase in cash and equivalents.............................................................. 11,963 7,624 10,774
Cash and equivalents, beginning of period......................................................... 25,664 18,040 7,266
-------- -------- --------
Cash and equivalents, end of period............................................................... $ 37,627 $ 25,664 $ 18,040
======== ======== ========
Disclosure of supplemental cash flow information:
Cash paid for interest.......................................................................... $ 384 $ 1,526 $ 899
Cash paid for income taxes...................................................................... 7,256 2,542 1,550
Disclosure of noncash activities:
Businesses acquired with Snyder stock........................................................... $ 16,336 $ 64,546 $ 13,320
</TABLE>
The accompanying notes are an integral part of this consolidated statement of
cash flows.
27
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Business:
Organization
Snyder Communications, Inc. ("Snyder"), a Delaware corporation, was
incorporated on June 25, 1996, to continue the business operations of Collegiate
Marketing and Communications, L.P. Snyder completed an initial public offering
of its common stock on September 24, 1996. The business currently conducted by
Ventiv Health, Inc. ("Ventiv") was created in 1997 by Snyder in a merger
transaction with a U.S. provider of pharmaceutical sales and marketing services.
After forming the pharmaceutical sales and marketing services business in 1997,
Snyder completed a series of acquisitions that expanded both the scope of
services and geographic presence of Ventiv.
On June 22, 1999, the Board of Directors of Snyder approved a plan to effect
the distribution (the "Distribution") of Snyder's healthcare marketing
services business to existing stockholders. Snyder contributed its healthcare
marketing services business in the third quarter of 1999 to a newly formed
subsidiary, Ventiv Health, Inc. Snyder consummated the Distribution on September
27, 1999 through a special dividend of one share of common stock of Ventiv
Health, Inc. for every three shares of Snyder common stock. As a result of the
Distribution, Ventiv became an independent, publicly traded corporation.
Basis of Presentation
The operations of Ventiv Health, Inc. consist principally of the healthcare
sales, healthcare market research and strategic planning, and healthcare
educational communications services formerly conducted by the healthcare
marketing services operating group of Snyder.
The consolidated financial statements present the financial position, results
of operations and cash flows of Snyder's healthcare marketing services business,
referred to herein as "Ventiv", "Ventiv Health" or the "Company", as if it
were formed as a separate entity of Snyder for all periods presented. Snyder's
historical basis in the assets and liabilities of the Company has been carried
over to the consolidated financial statements. All expenses reflected in the
consolidated financial statements are costs specifically identified to the
Company. It is not practicable to estimate costs that would have been incurred
by the Company if it had been operated on a stand-alone basis.
Throughout 1998 and 1997, acquisitions were completed by Ventiv that were
accounted for as poolings of interests for financial reporting purposes. During
1999, 1998 and 1997, several additional acquisitions were made that have been
accounted for as purchase business combinations. The companies with which Ventiv
has entered into mergers accounted for as poolings of interests for financial
reporting purposes will be collectively referred to as the "Pooled Entities,"
and their mergers will be referred to herein as the "Acquisitions." The
accompanying consolidated financial statements have been retroactively restated
to reflect the consolidated financial position and consolidated results of
operations and cash flows of the Company and the Pooled Entities, after
elimination of all significant intercompany transactions, for all periods
presented, giving effect to the Acquisitions as if they had occurred at the
beginning of the earliest period presented.
Changes in the investments and advances from Snyder represent the net income
(loss) of the Company, the comprehensive income (loss) of the Company, the net
change in cash transferred between the Company and Snyder (or previous owners
with respect to the Pooled Entities prior to their merger with Snyder) and the
effect of businesses acquired by Snyder in purchase transactions and contributed
to Ventiv Health.
28
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
An analysis of the investments and advances from Snyder for the years ended
December 31, 1997 and 1998, and the period January 1, 1999 to September 27, 1999
is as follows (in thousands):
Balance, December 31, 1996............................ $ 4,697
Net loss........................................... (8,718)
Comprehensive income............................... 152
Noncash transfers from Snyder...................... 13,320
Cash transfers from Snyder, net.................... 920
---------
Balance, December 31, 1997............................ 10,371
---------
Net income......................................... 1,446
Comprehensive income............................... 611
Noncash transfers from Snyder...................... 64,546
Cash transfers from Snyder, net.................... 42,753
---------
Balance, December 31, 1998............................ 119,727
---------
Net loss, excluding $2.1 million recapitalization
costs............................................. 1,758
Comprehensive loss................................. (2,232)
Noncash transfers from Snyder...................... 16,336
Cash transfers from Snyder, net.................... 16,537
Contribution of healthcare marketing services
group by Snyder to Ventiv....................... (152,126)
---------
Balance, September 27, 1999........................... $ --
---------
Subsequent to the Distribution, amounts owed to Snyder Communications by
Ventiv are recorded as due to Snyder Communications. All outstanding amounts are
required to be repaid monthly pursuant to an interim services agreement. As of
December 31, 1999, $662,000 due to Snyder Communications is included in accrued
expenses on the accompanying consolidated balance sheet.
Business
The Company provides integrated marketing services for its clients, primarily
pharmaceutical companies. The Company's operations are conducted throughout the
United States ("U.S."), the United Kingdom ("U.K."), France, Germany and
Hungary.
The Company's services are designed to establish and monitor strategic
marketing plans, to provide face-to-face interaction with physicians and to
conduct educational research and communication services. During 1998 and 1997,
Snyder issued 6,475,105 and 4,035,184 shares, respectively, in pooling of
interests transactions with companies in the healthcare marketing services
industry. Of the total shares issued in pooling of interests transactions,
1,318,798 were to Health Products Research, 6,008,210 were to companies which
became part of Ventiv's Contract Sales Group, and 3,183,281 were to companies
which became part of Ventiv's Healthcare Communications Group.
The Company further expanded the size and geographic presence of its Contract
Sales Group with the purchase of Halliday Jones Sales Ltd. which was valued at
$19.4 million including 425,478 Snyder shares issued in August 1997 and with the
purchases of Healthcare Promotions, LLC which was valued at $23.7 million
including 584,951 Snyder shares issued and CLI Pharma S.A. which was valued at
$30.7 million including 576,078 Snyder shares issued in the first quarter of
1998. We also increased the scope of services offered by the Healthcare
Communications Group with the purchase of PromoTech Research Associates, Inc.
which was valued at $16.3 million including 583,431 Snyder shares issued in
March 1999.
Health Products Research designs and monitors product launches and sales
strategies with our proprietary programs to maximize asset utilization and
return on investment for pharmaceutical and other life sciences companies. The
Healthcare Communications Group provides educational programs to physicians and
other healthcare professionals. The Contract Sales Group implements and executes
outsourced sales programs for pharmaceutical and other life sciences products.
Most of the Company's largest clients utilize the services of more than one of
our operating groups.
29
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The following details revenues and net income (loss) for each of the years
ended December 31, 1999, 1998 and 1997 of the Company and the Pooled Entities
through the dates of their respective Acquisitions:
<TABLE>
<CAPTION>
For the Years Ended December 31,
----------------------------------------
1999 1998 1997
------------ ------------ ------------
(in thousands)
<S> <C> <C> <C>
Revenues:
The Company..................... $344,655 $270,323 $ 60,124
Pooled Entities................. -- 51,177 148,843
-------- -------- --------
$344,655 $321,500 $208,967
======== ======== ========
Net income (loss):
The Company..................... $ (6,793) $ 5,933 $ 1,987
Pooled Entities................. -- (4,487) (10,705)
-------- -------- --------
$ (6,793) $ 1,446 $ (8,718)
======== ======== ========
</TABLE>
During 1999, the Company completed the acquisition of PromoTech Research
Associates, Inc. ("PromoTech") (March 25, 1999). The total consideration paid
was $16.3 million and consisted of 583,431 shares of Snyder common stock. This
purchase business combination has resulted in additional goodwill of $17.5
million. During 1998, the Company completed purchase business combinations,
including CLI Pharma S.A. ("CLI Pharma") (March 25, 1998) and Healthcare
Promotions, LLC ("HCP") (February 13, 1998), for total consideration paid of
approximately $64.0 million (1,211,029 shares of Snyder common stock and $4.3
million in net cash). Based upon an allocation of purchase consideration, these
purchase business combinations have resulted in additional goodwill of
approximately $55.7 million. The following table presents pro forma financial
information as if the 1999 purchase of PromoTech and the 1998 purchases of HCP
and CLI Pharma had been consummated at the beginning of each of the periods
presented and all of the Company's operations had been taxed as a C corporation.
<TABLE>
<CAPTION>
For the Years Ended
-------------------------
December 31,
-------------------------
1999 1998
------------ -----------
(unaudited)
(in thousands, except
per share data)
<S> <C> <C>
Pro forma revenues................................................ $346,582 $335,628
Pro forma net income (loss)....................................... (6,499) 2,113
Pro forma basic and diluted net income (loss) per
share........................................................... (0.27) 0.09
</TABLE>
The Company's other purchase business combinations are immaterial to the
consolidated financial statements.
Net Income (Loss) Per Share
The Company has applied Statement of Financial Accounting Standards No. 128,
"Earnings Per Share" ("SFAS No. 128") to all periods presented in these
financial statements. SFAS No. 128 requires disclosure of basic and diluted
earnings per share ("EPS"). Basic EPS is computed by dividing reported earnings
available to common stockholders by the weighted average number of shares
outstanding without consideration of common stock equivalents or other
potentially dilutive securities. Diluted EPS gives effect to common stock
equivalents and other potentially dilutive securities outstanding during the
period for periods prior to the Distribution, the number of shares used to
calculate net income (loss) per share is equal to the number of shares of Ventiv
common stock that were issued upon the Distribution. From the date of the
Distribution through December 31, 1999, the number of shares used to calculate
net income (loss) per share is based on the actual number of shares of Ventiv
common stock outstanding. Basic and diluted EPS are the same from the date of
the earliest period presented through the date of the Distribution as there were
no Ventiv options granted until the date of the Distribution.
30
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Business Considerations
There are important risks associated with the Company's business and financial
results. These risks include (i) the Company's reliance on significant clients;
(ii) the Company's ability to sustain and manage future growth; (iii) the
Company's ability to manage and successfully integrate the businesses it has
acquired and may acquire in the future; (iv) the Company's ability to
successfully manage its international operations; (v) the potential adverse
effects of fluctuations in foreign exchange rates; (vi) the Company's dependence
on industry trends toward outsourcing of marketing services in the
pharmaceutical industry; (vii) the risks associated with the Company's reliance
on technology and the risk of business interruption resulting from a temporary
or permanent loss of such technology; (viii) government regulation of the
pharmaceutical industry; (ix) the Company's ability to recruit and retain
qualified personnel; and (x) lack of operating history as an independent
company.
2. Significant Clients:
The Company had two clients that represented 8.2% and 14.2%, respectively,
of total revenue for the year ended December 31, 1999, 13.9% and 10.4% for the
year ended December 31, 1998, and 12.0% and 12.7% for the year ended
December 31, 1997.
3. Summary of Significant Accounting Policies:
Cash and Equivalents
Cash and equivalents are comprised principally of amounts in operating
accounts, money market investments and other short-term instruments, stated at
cost, which approximates market value, with original maturities of three months
or less.
Marketable Securities
The Company's securities classified as "available-for-sale" are reported
at market value. Unrealized gains and losses from securities "available-for-
sale" are reported as comprehensive loss and included as a component of
investments and advances from Snyder from the date of the earliest period
presented through the date of the Distribution and as a component of
stockholders' equity and comprehensive income (loss) at December 31, 1999.
Property and Equipment
Property and equipment is stated at cost. The Company depreciates furniture,
fixtures and office equipment on a straight-line basis over three to ten years;
computer equipment over two to four years and buildings over forty years.
Leasehold improvements are amortized on a straight-line basis over the shorter
of the term of the lease or the estimated useful lives of the improvements.
When assets are retired or sold, the cost and related accumulated
depreciation and amortization are removed from the accounts, and any gain or
loss is reflected in income.
31
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Revenue Recognition
On pharmaceutical detailing contracts, the Company recognizes revenue and
associated costs when services have been performed. For strategic consulting
services, the Company recognizes revenues and associated costs as services are
performed on behalf of clients. For educational programs and live events,
revenue is recognized at time of the event or upon completion of the program for
our client. Unbilled services represent revenues earned on contracts but billed
in a subsequent accounting period. Unearned revenue represents billings or
client payments made in advance of services performed. Client advances represent
amounts received to be disbursed to third parties for payment on behalf of
clients.
Goodwill and Other Intangible Assets
Goodwill equal to the fair value of consideration paid in excess of the fair
value of net assets purchased has been recorded in conjunction with several of
the Company's purchase business combinations and is being amortized on a
straight-line basis over periods of fifteen to thirty years.
The costs of licenses to market pharmaceutical products and contractual
covenants are amortized on a straight-line basis over the term of the related
agreements, which are ten to fifteen years and four years, respectively.
When conditions or events occur that management believes might indicate that
the goodwill or any other intangible asset is impaired, an analysis of estimated
future undiscounted cash flows is undertaken to determine if any write down in
the carrying value of the asset is required.
Income Taxes
Prior to their merger with Ventiv, certain of the U.S.-based Pooled Entities
were treated as S corporations or limited liability companies for income tax
purposes. Accordingly, no provision for federal or state income taxes, except in
certain states that do not recognize S corporations or limited liability
companies, has been made for these entities through the date of their mergers
with the Company in the accompanying consolidated financial statements.
The Company's subsidiaries with operations in the U.K., France and Germany
pay taxes in their respective countries, on a corporate level similar to a C
corporation in the U.S.
Pro Forma Net Income (Loss) Data (Unaudited)
The following unaudited pro forma net income (loss) amounts include a
provision for federal and state income taxes as if the Company had been a
taxable C corporation for all periods presented. The pro forma income tax rate
on the Company's recurring operations reflects the combined federal, state and
foreign income taxes of approximately 85.9%, 41.0% and 48.8%, for the years
ended December 31, 1999, 1998 and 1997, respectively. The pro forma income tax
rates in the table below differ from the pro forma income tax rates on the
Company's recurring operations due to the nondeductibility of certain of the
non-recurring costs.
32
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The table below presents this pro forma calculation of net income (loss)
(unaudited):
<TABLE>
<CAPTION>
For the Years Ended December 31,
---------------------------------------
1999 1998 1997
-------------- ---------- -----------
<S> <C> <C> <C>
(in thousands)
Pro forma net income (loss)
data (unaudited):
Income (loss) from operations before income taxes........... $(7,446) $14,295 $ (6,784)
Pro forma (benefit) provision for income taxes.............. (653) 12,849 3,916
------- ------- --------
Pro forma adjusted net income (loss)........................ $(6,793) $ 1,446 $(10,700)
======= ======= ========
</TABLE>
Foreign Currency Translations
Assets and liabilities of the Company's international operations are
translated using the exchange rate in effect at the balance sheet date. Revenue
and expense accounts for these subsidiaries are translated using the average
exchange rate during the period. Foreign currency translation adjustments are
reported as comprehensive income (loss) and included as a component of
investments and advances from Snyder from the date of the earliest period
presented through the date of the Distribution and as a component of equity and
comprehensive income at December 31, 1999.
Estimates and Assumptions
The preparation of consolidated financial statements in conformity with
accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
Fair Value of Financial Instruments
SFAS No. 107, "Disclosures about Fair Value of Financial Instruments,"
requires disclosure of the fair value of certain financial instruments. For
purposes of this disclosure, the fair value of a financial instrument is the
amount at which the instrument could be exchanged in a current transaction
between willing parties. Cash and equivalents, marketable securities, accounts
receivable, unbilled services and accounts payable approximate fair value
because of the relatively short maturity of these instruments. Long-term debt
approximates fair value as the majority of this debt has a variable interest
rate.
Concentration of Credit Risk
Concentration of credit risk is limited to cash and equivalents, marketable
securities, accounts receivable and unbilled services. The Company places its
investments in highly rated financial institutions, U.S. Treasury bills, money
market accounts, investment grade short-term debt instruments and state and
local municipalities, while limiting the amount of credit exposure to any one
entity. The Company's receivables are concentrated with customers in the
pharmaceutical industry. The Company does not require collateral or other
security to support clients' receivables.
New Accounting Pronouncements
During 1998, the Company adopted Statement of Financial Accounting Standards
No. 130, "Reporting Comprehensive Income" ("SFAS No. 130"). Included within
accumulated other comprehensive income are the cumulative amounts for foreign
currency translation adjustments and unrealized gains and losses on marketable
securities. The cumulative foreign currency translation adjustment was $2.3
million and $0.9 million as December 31, 1999 and 1998, respectively. There was
$0.1 million cumulative unrealized loss on marketable securities as of December
31, 1999.
During 1998, the Company adopted Statement of Financial Accounting Standards
No. 131, "Disclosures about Segments of an Enterprise and Related
Information." The Company's management
33
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
considers its business to be a single reportable segment--the providing of
integrated marketing and sales services to pharmaceutical and life sciences
companies. The Company's foreign operations are disclosed in Note 14.
During 1998, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities," ("SFAS No. 133"). This statement was
originally effective for all fiscal quarters of fiscal years beginning after
June 15, 1999; however, during the second quarter of 1999, the FASB deferred the
effective date. The Company believes that the adoption of SFAS No. 133 will not
have a significant impact on its consolidated financial statements.
Accounting for Stock Options
The Company accounts for its stock-based compensation plan using the
intrinsic value based method in accordance with the provisions of APB Opinion
No. 25, "Accounting for Stock Issued to Employees." Pro forma disclosure of
net income and earnings per share, calculated as if the Company accounted for
its stock-based compensation plan using the fair value based method in
accordance with the provisions of Statement of Financial Accounting Standards
No. 123, "Accounting for Stock-Based Compensation" ("SFAS No. 123") appears
in Note 10.
4. Marketable Securities:
The unrealized gains and losses and market values of the Company's
available-for-sale securities as of December 31, 1999, are summarized as follows
(in thousands).
<TABLE>
<CAPTION>
Amortized Unrealized Unrealized Market
---------- ---------- ----------- ----------
Cost Gains Losses Value
---------- ---------- ----------- ----------
Available for sale:
<S> <C> <C> <C> <C>
Mortgage backed securities............ $2,010 $ -- $(112) $1,898
====== ========== ===== ======
</TABLE>
The Company did not have any marketable securities outstanding as of December
31, 1998.
5. Property and Equipment:
Property and equipment consist of the following:
<TABLE>
<CAPTION>
As of December 31,
-----------------------
1999 1998
----------- ----------
<S> <C> <C>
(in thousands)
Buildings and leasehold improvements........ $ 9,197 $ 5,178
Computers and equipment..................... 8,847 8,465
Furniture and fixtures...................... 3,502 1,331
------- -------
21,546 14,974
Accumulated depreciation.................... (6,804) (4,946)
------- -------
$14,742 $10,028
======= =======
</TABLE>
Depreciation expense totaled $3.6 million, $2.2 million, and $1.0 million in
1999, 1998 and 1997, respectively.
34
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. Goodwill and Other Intangible Assets:
Goodwill and other intangible assets consist of the following:
<TABLE>
<CAPTION>
As of December 31,
------------------------
1999 1998
----------- -----------
<S> <C> <C>
(in thousands)
Goodwill........................................ $ 98,198 $80,436
License agreements.............................. 7,708 6,159
Contractual covenant and marketing rights....... 1,101 1,112
-------- -------
107,007 87,707
Accumulated amortization........................ (11,191) (6,979)
-------- -------
$ 95,816 $80,728
======== =======
</TABLE>
Amortization expense of goodwill and other intangible assets totaled $4.6
million, $3.2 million and $1.2 million in 1999, 1998 and 1997, respectively.
7. Debt:
Long-term borrowings
Long-term borrowings consist of the following:
<TABLE>
<CAPTION>
As of December 31,
----------------------
1999 1998
----------- ---------
<S> <C> <C>
(in thousands)
German bank debt, 6.0% weighted average interest rate, due April 2004,
partially secured by building in Germany................................ $1,170 $1,388
French bank debt, 10.85% weighted average rate, due August 2002............. 40 85
------ ------
1,210 1,473
Current maturities of long-term borrowings.................................. (55) --
------ ------
$1,155 $1,473
====== ======
</TABLE>
The foreign term debt requires certain subsidiaries to meet restrictive
covenants concerning net worth and debt service coverage and are secured by the
assets of those subsidiaries.
In addition to the debt listed above, approximately $0.6 million in debt with
a weighted average interest rate of 8.6%, primarily classified as current as of
December 31, 1996, was paid in full during 1997.
Future minimum payments as of December 31, 1999, on long-term borrowings, are
as follows (in thousands):
<TABLE>
<S> <C>
2000............ $ 55
2001............ 75
2002............ 75
2003............ 55
2004............ 55
Thereafter...... 895
------
Total........ $1,210
======
</TABLE>
35
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Related Party Borrowings
Related party borrowings as of December 31, 1997, consisted of a $457,000
promissory note payable to a founder of one of the acquired subsidiaries.
Interest on the note accrued at 6.0%. The note was repaid in full on September
30, 1998, together with accrued interest of $14,000.
In accordance with the provisions of its formation agreement and prior to its
merger with Ventiv, a subsidiary issued promissory notes to its founder and an
investor in the principal amounts of $6.7 million and $10.0 million,
respectively. The notes were unsecured, with interest at the prime rate plus
2.0%, and were payable no later than August 1, 1998. The notes were repaid in
full on November 25, 1997, together with accrued interest of $0.5 million.
Lines of Credit
Lines of credit consist of the following:
<TABLE>
<CAPTION>
As of December 31,
-------------------
1999 1998
--------- --------
<S> <C> <C>
(in thousands)
French bank line of credit, 8.02% weighted average stated interest rate,
$4.1 million aggregate borrowing limit, renewable on a monthly basis.......... $ 36 $ 198
</TABLE>
On December 1, 1999, the Company obtained a revolving line of credit from a
syndicated group of U.S. banks. The facility matures on December 1, 2003 and
has a $50 million maximum borrowing limit. Interest is payable at the Company's
option of a base rate (defined as the higher of the federal funds rate plus .5%
or the prime rate) plus a margin of up to .25% or LIBOR plus a margin ranging
from 1.25% to 2%. There were no borrowings outstanding under this line of credit
at December 31, 1999.
The Company maintains various unsecured lines of credit with banking and
financial institutions, requiring the consolidated group to meet restrictive
covenants concerning net worth and debt service coverage. In aggregate, the
Company had lines of credit available for approximately $54 million with
interest rates ranging from 7.0% to 9.0% at December 31, 1999.
8. Income Taxes:
The Company's income tax provision (benefit) includes the following
components:
<TABLE>
<CAPTION>
For the Years
-------------------------------------
Ended December 31,
-------------------------------------
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
(in thousands)
Current:
U.S.--Federal........................ $(1,779) $ 5,826 $ 2,228
U.S.--State and city................. (498) 1,672 1,207
Foreign.............................. 504 4,622 3,078
------- ------- -------
$(1,773) $12,120 $ 6,513
------- ------- -------
Deferred:
U.S.--Federal........................ $ 578 $ 807 $(3,984)
U.S.--State and city................. 161 260 (766)
Foreign.............................. 381 (338) 171
------- ------- -------
1,120 729 (4,579)
------- ------- -------
Income tax (benefit) provision....... $ (653) $12,849 $ 1,934
======= ======= =======
</TABLE>
36
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The provision for taxes on income differs from the amount computed by applying
the U.S. federal income tax rate as a result of the following:
<TABLE>
<CAPTION>
For the Years Ended
---------------------------------
December 31,
---------------------------------
1999 1998 1997
---------- ---------- ---------
<S> <C> <C> <C>
Taxes at statutory U.S. federal income tax rate............ 35.0% 35.0% 35.0%
Losses passed through to owners............................ 0.0 0.0 40.9
State and city income taxes, net of federal tax benefit.... 5.3 9.4 (9.4)
Tax effect of acquired subsidiary reorganization........... 0.0 0.0 (4.4)
Foreign tax rate differential.............................. 4.1 2.1 (5.5)
Goodwill amortization...................................... (14.6) 3.7 (2.0)
Non-recurring costs and other permanent differences........ (21.1) 39.7 (83.1)
----- ---- ------
Effective tax rate......................................... 8.7% 89.9% (28.5)%
===== ==== ======
</TABLE>
Deferred income taxes are recorded based upon differences between the
financial statement and tax bases of assets and liabilities. As of December 31,
1999 and 1998, temporary differences that give rise to the deferred tax assets
and liabilities consist of the following (in thousands):
<TABLE>
<CAPTION>
As of December 31,
-----------------------
1999 1998
----------- ----------
<S> <C> <C>
Reserve for doubtful accounts....... $ 163 $ 724
Accrued expenses.................... 3,685 2,498
Deferred compensation............... 135 128
Intangible assets................... 22,063 --
Tax losses of subsidiaries.......... 8,070 3,955
Other............................... 905 337
-------- -------
Gross deferred tax assets........... 35,021 7,642
-------- -------
Property and equipment.............. (274) (180)
Deferred revenues................... (2,023) (2,868)
Other............................... (2,274) (497)
-------- -------
Gross deferred tax liabilities...... (4,571) (3,545)
-------- -------
Valuation allowance................. (20,785) --
-------- -------
Net deferred tax asset.............. $ 9,665 $ 4,097
======== =======
</TABLE>
Several of the Company's subsidiaries have operating loss tax carryforwards
that can be realized only if these subsidiaries generate taxable operating
income. The amounts and respective expiration dates of operating loss tax
carryforwards are as follows: net operating losses generated between 1997 and
1999 of approximately $20.3 million, of which approximately $9.5 million expires
in 2012, approximately $8.8 million expires in 2019 and approximately $2.0 which
is not subject to expiration. Management continually assesses whether the
Company's deferred tax asset associated with these operating tax loss
carryforwards is realizable and believes that the deferred tax asset is
realizable at December 31, 1999.
One of the Company's subsidiaries has certain intangibles and other assets
which are depreciable and amortizable for tax purposes and can be realized only
if that subsidiary generates sufficient taxable income. At December 31, 1999,
management determined that a valuation allowance against the deferred tax asset
associated with these intangibles and other assets was required. Management
continually assesses whether the Company's deferred tax asset is realizable and
believes that the deferred tax asset, net of the valuation allowance, is
realizable at December 31, 1999.
At December 31, 1999, cumulative undistributed earnings of the Company's
foreign subsidiaries was approximately $1.9 million. However, undistributed
earnings exist at several of the Company's foreign subsidiaries. No provision
for U.S. income taxes or foreign withholding taxes has been made since the
Company considers the undistributed earnings to be permanently invested in the
foreign countries. Determination of the amount of unrecognized deferred tax
liability, if any, for the cumulative undistributed earnings of the foreign
subsidiaries is not practicable since it would depend upon a number of factors
which cannot be known until such time as a decision to repatriate the earnings
is made.
37
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
9. Non-Recurring Costs:
The Company recorded $10.1 million of non-recurring costs during 1999. These
costs include: (a) a $5.7 million non-cash charge related to a payment made to
the former owner of PromoTech in the form of 695,304 shares of Ventiv common
stock in exchange for the release of any and all claims against Snyder or Ventiv
relating to the merger transaction. This consideration was not provided for in
the purchase agreement and is not part of the purchase price for accounting
purposes; (b) a reduction of $0.8 million in previously recorded acquisition and
related costs due to a revision of estimates; (c) a $3.1 million charge for
costs necessary to consolidate and integrate certain of Ventiv's acquired
operations under the plan initiated during 1998 as discussed below; and (d) $2.1
million of expenses related to restricted stock which was granted to certain key
employees of Ventiv. The $2.1 million represents the portion of restricted
stock which vested in conjunction with the Distribution.
The Company recorded $27.7 million in non-recurring costs during 1998. $16.2
million of these costs are related to the consummation of 1998 acquisitions and
consist of investment banking fees, expenses associated with the accelerated
vesting of options held by employees of certain of the Company's acquirees,
other professional service fees, transfer taxes and other contractual payments.
Also included in the 1998 non-recurring costs is a charge of approximately $10.7
million for costs necessary to consolidate and integrate certain of the
Company's acquired operations in the U.S., the U.K. and France. The Company
integrated acquired subsidiaries that provide similar services within the same
geographic regions. Approximately nine locations have been combined into four,
and the efforts did not have a significant impact on the Company's workforce.
The $10.7 million charge consists of approximately $4.1 million to consolidate
and terminate lease obligations, $5.3 million of severance and other costs
associated with the termination of 142 employees, and $1.3 million of fees
incurred for consulting services and other costs related to these integration
activities. The employees who were terminated are primarily redundant operations
and administrative personnel, as well as one underutilized sales team in the
United Kingdom. The $3.1 million charge recorded in 1999 consists of $1.8
million in severance and related costs associated with the termination of 23
employees and $1.3 million in consulting services and other costs related to
these integration activities. 1998 non-recurring costs also include compensation
to stockholders of $0.8 million. Prior to their merger with the Company,
certain stockholders of the acquired companies received annual compensation in
their roles as managers in excess of amounts that they will receive pursuant to
employment agreements they have entered into with Ventiv. The excess amount is
recorded as non-recurring costs in the periods prior to the acquisitions and the
Company records no compensation to stockholders following an acquisition.
The Company recorded $25.6 million in non-recurring costs during 1997. $8.0
million of these costs relate to the consummation of the 1997 acquisitions and
consist primarily of investment banking fees, professional service fees, travel
expenses and other contractual payments. Non-recurring costs also include $1.9
million of recapitalization costs associated with one of Ventiv's acquired
subsidiaries. These costs consist of investment banking, legal and accounting
fees. The recapitalization occurred prior to acquisition of the subsidiary by
Ventiv. 1997 non-recurring costs also include $15.7 million in compensation to
stockholders.
The integration activities recorded in 1999 and 1998 were recorded in
accordance with Emerging Issues Task Force 94-3, "Liability Recognition for
Costs to Exit an Activity (including certain costs incurred in a
restructuring)" ("EITF 94-3"). Additional expenses for the Company's
integration activities recorded in 1999 represent additional costs incurred that
did not qualify for accrual at December 31, 1998 in accordance with EITF 94-3.
38
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The following table summarizes the activity in the integration activities
liability account:
<TABLE>
<CAPTION>
Beginning Deductions for Balance at End
--------- -------------- ---------------
Balance Additions Amounts Paid of Period
--------- --------- -------------- ---------------
<S> <C> <C> <C> <C>
Year Ended December 31, 1999........ $ 7,971 $ 3,064 $ 10,036 $ 999
Year Ended December 31, 1998........ $ -- $10,654 $ 2,683 $7,971
</TABLE>
10. Stock Incentive Plans:
In September 1999, concurrent with the Distribution, Ventiv Health, Inc.'s
1999 Stock Incentive Plan ("Stock Plan") became effective. The Stock Plan
authorizes the Company to grant incentive stock options, nonqualified stock
options, restricted stock awards and stock appreciation rights. Ventiv granted
options under its Stock Plan to Ventiv employees whose existing Snyder stock
options were terminated as a consequence of the Distribution. The Ventiv
options granted on the Distribution date had exercise prices equal to the
closing price of Ventiv common stock on that date. The aggregate number of
shares of Ventiv common stock that may be issued under the Stock Plan upon
exercise of options, SARs or in the form of restricted stock is 4.8 million,
increased by 17.5% of the number of shares of Ventiv common stock authorized for
issuance by Ventiv's Board of Directors following the Distribution.
The exercise price of Ventiv options granted under the Stock Plan may not be
less than 100% of the fair market value per share of Ventiv common stock on the
date of the option grant. The vesting and other provisions of the options are
determined by Ventiv Health, Inc.'s Board of Directors.
A summary of the option activity within the Stock Plan, for the year ended
December 31, 1999, is as follows:
<TABLE>
<CAPTION>
Options Outstanding
1999
---------------------
(in thousands)
Beginning of year --
<S> <C>
Granted.......................................... 3,495
Exercised........................................ --
Forfeited or expired............................. (55)
-----
End of year........................................ 3,440
=====
Exercisable at end of year......................... 396
=====
</TABLE>
<TABLE>
<CAPTION>
Weighted Average
Exercise Price
1999
--------------------
Beginning of year --
<S> <C>
Granted.......................................... $7.95
Exercised........................................ --
Forfeited or expired............................. $7.94
-----
End of year........................................ $7.95
=====
Exercisable at end of year......................... $7.94
=====
</TABLE>
The Ventiv options outstanding at December 31, 1999 have exercise prices that
range from $5.38 to $8.06. The weighted average remaining contractual life on
the options outstanding at December 31, 1999 is 9.32 years.
39
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The fair value of each option grant is estimated on the date of grant using a
Black-Scholes option pricing model with the following weighted average
assumptions used for grants in 1999: risk-free interest rate of 6.36%, expected
dividend yield of zero, expected life of 4 years and expected volatility of 50%.
The weighted average option fair value on the grant date was $3.68 for options
issued from the date of the Distribution through December 31, 1999.
If Ventiv had recorded compensation expense from the date of the Distribution
through December 31, 1999, using the fair value based method prescribed by SFAS
No. 123, Ventiv's 1999 pro forma net income, which reflects a pro forma
adjustment for income taxes, would have been reduced to the following as
adjusted amounts:
<TABLE>
<CAPTION>
As of December 31, 1999
--------------------------
(in thousands except per
share data, unaudited)
Pro forma net income (loss):
<S> <C>
As reported............................................. $(6,793)
As adjusted............................................. (7,308)
Pro forma basic net income (loss) per share:
As reported............................................. (0.28)
As adjusted............................................. (0.31)
Pro forma diluted net income (loss) per share:
As reported............................................. (0.28)
As adjusted............................................. (0.31)
</TABLE>
During 1999, the Company granted 831,502 Restricted Shares of Ventiv common
stock at a purchase price of $0.001, to certain employees. 269,608 of the shares
vested immediately following the Distribution with the remaining Restricted
Shares vesting ratably over the four years following the grant date. During
1999, the Company recognized $2.4 million in expense related to these Restricted
Shares, $2.1 million of which is due to the vesting of Restricted Shares which
occurred immediately following the Distribution.
11. Pension and Profit-Sharing Plans:
Snyder and certain of its subsidiaries maintain defined contribution benefit
plans. Pension and profit sharing costs incurred by the Company related to these
plans amounted to approximately $1.0 million, $0.8 million and $0.2 million for
1999, 1998 and 1997, respectively.
12. Leases:
The Company leases certain facilities, office equipment and other assets. The
following is a schedule of future minimum lease payments for these operating
leases at December 31, 1999 (in thousands):
<TABLE>
<CAPTION>
Years Ending December 31,
<S> <C>
2000................................. $ 7,111
2001................................. 4,463
2002................................. 3,244
2003................................. 2,968
2004................................. 2,742
Thereafter........................... 12,406
-------
Total minimum lease payments......... $32,934
=======
</TABLE>
Rental expense for all operating leases was approximately $9.3 million, $8.2
million and $8.0 million for the years ended December 31, 1999, 1998 and 1997,
respectively.
40
<PAGE>
VENTIV HEALTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
13. Commitments and Contingencies:
The Company has entered into employment agreements with certain key executives
and consulting agreements with certain former executives that call for
guaranteed minimum salaries and bonuses for varying terms.
The Company is subject to lawsuits, investigations and claims arising out of
the conduct of its business, including those related to commercial transactions,
contracts, government regulation and employment matters. Certain claims, suits
and complaints have been filed or are pending against the Company. In the
opinion of management and based on the advice of legal counsel, all matters are
without merit or are of such kind, or involve such amounts, as would not have a
material effect on the financial position or results of operations of the
Company if disposed of unfavorably.
14. Related Parties:
The Company receives certain administrative services, under an interim
services agreement with Snyder Communications, Inc. Certain directors of the
company are also directors of Snyder Communications, Inc. The balance owed to
Snyder Communications, Inc. at December 31, 1999 is approximately $0.6 million.
No interest is being paid on outstanding amounts.
15. Geographical Data:
The Company has operations in the United States, as well as the more mature
markets of Western Europe, which include the United Kingdom, France and Germany.
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Revenues:
United States........... $214,395 $175,840 $118,293
Western Europe.......... 130,260 145,660 90,674
-------- -------- --------
Total................ $344,655 $321,500 $208,967
======== ======== ========
</TABLE>
16. Selected Quarterly Financial Data (unaudited, in thousands):
The following table summarizes financial data by quarter for the Company for
1999 and 1998.
<TABLE>
<CAPTION>
1999 Quarter Ended
-------------------------------------------------------------------
March 31 June 30 September 30 December 31 Total
----------- --------- -------------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Revenues....................................... $86,939 $94,320 $ 72,900 $90,496 $344,655
Gross profit................................... 19,659 23,456 1,005 5,239 49,359
Net income (loss).............................. 5,090 7,549 (12,981) (6,451) (6,793)
Net income (loss) per share (diluted).......... 0.21 0.32 (0.55) (0.26) (0.28)
1998 Quarter Ended
----------
March 31 June 30 September 30 December 31 Total
---------- --------- ------------- ------------ -----------
Revenues....................................... $67,356 $83,957 $ 80,232 $89,955 $321,500
Gross profit................................... 18,193 23,443 20,091 23,726 85,453
Net income (loss).............................. (4,052) 6,670 (3,771) 2,599 1,446
Net income (loss) per share (diluted).......... (0.17) 0.28 (0.16) 0.11 0.06
</TABLE>
Pro forma amounts which include a provision for federal, foreign and state
income taxes as if the Company had been a taxable C corporation for all periods
presented are not presented in this table as no difference exists between the
pro forma net income (loss) and net income (loss) for the years ended December
31, 1999 and 1998.
41
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of Ventiv Health, Inc.:
We have audited in accordance with auditing standards generally accepted in
the United States, the consolidated financial statements of Ventiv Health, Inc.
(the "Company"), as defined in Note 1 to the consolidated financial statements,
included in this Form 10-K and have issued our report thereon dated February 18,
2000. Our audits were made for the purpose of forming an opinion on the basic
consolidated financial statements taken as a whole. Schedule II Valuation and
Qualifying Accounts included in the Form 10-K is the responsibility of the
Company's management and is presented for purposes of complying with the
Securities and Exchange Commission's rules and is not part of the basic
consolidated financial statements. This schedule has been subjected to the
auditing procedures applied in the audits of the basic consolidated financial
statements and, in our opinion, fairly states in all material respects the
financial data required to be set forth therein in relation to the basic
consolidated financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Vienna, Virginia
February 18, 2000
42
<PAGE>
VENTIV HEALTH, INC.
SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
(in thousands)
<TABLE>
<CAPTION>
Deductions from
Additions Reserve for
Balance at Charged to Purpose for
Beginning of Cost and Which Reserve Translation Balance at End
Year Expense was Created Adjustment of Year
------------ ------------ --------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
1999 allowance for doubtful
accounts.................... $2,971 $ 1,198 $ 1,554 $ (98) $ 2,517
1998 allowance for doubtful
accounts.................... 3,924 1,162 2,118 3 2,971
1997 allowance for doubtful
accounts.................... 510 3,717 296 (7) 3,924
</TABLE>
<TABLE>
<CAPTION>
Deductions from
Additions Reserve for
Balance at Charged to Purpose for
Beginning of Cost and Which Reserve Translation Balance at End
Year Expense was Created Adjustment of Year
------------ ------------ --------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
1999 accrual for
integration activities....... $ 7,971 $ 3,064 $10,036 $ -- $ 999
1998 accrual for
integration activities....... -- 10,654 2,683 -- 7,971
1997 accrual for
integration activities....... -- -- -- -- --
</TABLE>
43
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
---------------------------------------------------------------
Financial Disclosure.
- ---------------------
None.
44
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant.
--------------------------------------------------
The information contained in Ventiv's Proxy Statement under the sections
entitled "Election of Directors" and "Section 16(a) Beneficial Ownership
Reporting Compliance" is incorporated herein by reference in response to this
item.
Item 11. Executive Compensation.
----------------------
The information contained in Ventiv's Proxy Statement under the section
entitled "Executive Compensation" is incorporated herein by reference in
response to this item, except that the information contained in the Proxy
Statement under the sub-headings of "Report of the Board of Directors of Ventiv
Health, Inc. on Executive Compensation" and "Stockholder Return Performance
Graph" is not incorporated herein by reference and is not deemed "filed" as part
of this filing.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
--------------------------------------------------------------
The information contained in Ventiv's proxy statement under the section
entitled "Security Ownership of Directors, Executive Officers and Certain
Beneficial Owners" is incorporated herein by reference in response to this item.
Item 13. Certain Relationships and Related Transactions.
----------------------------------------------
The information contained in Ventiv's Proxy Statement under the section
entitled "Compensation Committee Interlocks and Insider Participation" is
incorporated herein by reference in response to this item.
45
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
----------------------------------------------------------------
(a) 1. The following Consolidated Financial Statements of Ventiv Health, Inc.
are filed under "Item 8. Financial Statements and Supplementary Data."
Consolidated Balance Sheet as of December 31, 1999 and 1998
Consolidated Statement of Income for the years ended December 31, 1999,
1998 and 1997
Consolidated Statement of Equity and Comprehensive Income for the
period from September 27, 1999 to December 31, 1999
Consolidated Statement of Cash Flows for the years ended December 31,
1999, 1998 and 1997
Notes to Consolidated Financial Statements
2. The following financial statement schedule is filed under "Item 8.
Financial Statements and Supplementary Data."
Schedule II - Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable or are
not required under Regulation S-X.
3. The following exhibits are filed herewith or are incorporated herein by
reference, as indicated.
<TABLE>
<CAPTION>
Exhibit Description Page
------- ----------- -----
<S> <C> <C>
3.1 Amended and Restated certificate of Incorporation of Ventiv Health, Inc. (filed as
Exhibit 3.1 to the Registrant's Form 10 (File No. 001-15125) filed with the
Securities and Exchange Commission under the Securities Act of 1934, as amended).*
3.2 By-Laws of Ventiv Health, Inc. (filed as Exhibit 3.2 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
4.1 Specimen form of certificate representing Ventiv Health, Inc. common stock (filed as
Exhibit 4.1 to the Registrant's Form 10 (File No. 001-15125) filed with the
Securities and Exchange Commission under the Securities Act of 1934, as amended).*
10.1 Form of Distribution Agreement between Snyder Communications, Inc. and Ventiv Health,
Inc. (filed as Exhibit 10.1 to the Registrant's Form 10 (File No. 001-15125) filed
with the Securities and Exchange Commission under the Securities Act of 1934, as
amended).*
10.2 Form of Tax Sharing Agreement between Snyder Communications, Inc. and Ventiv Health,
Inc. (filed as Exhibit 10.2 to the Registrant's Form 10 (File No. 001-15125) filed
with the Securities and Exchange Commission under the Securities Act of 1934, as
amended).*
10.3 Form of Interim Services Agreement between Snyder Communications, Inc. and Ventiv
Health, Inc. (filed as Exhibit 10.3 to the Registrant's Form 10 (File No. 001-15125)
filed with the Securities and Exchange Commission under the Securities Act of 1934,
as amended).*
10.4 Ventiv Health, Inc. 1999 Stock Incentive Plan (filed as Exhibit 10.4 to the
Registrant's Form 10 (File No. 001-15125) filed with the Securities and Exchange
Commission under the Securities Act of 1934, as amended).*
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Page
------- ----------- ----
<S> <C>
10.5 Employment Agreement, dated June 14, 1999 by and between Eran Broshy and Snyder
Communications, Inc. (filed as Exhibit 10.5 to the Registrant's Form 10 (File No.
001-15125) filed with the Securities and Exchange Commission under the Securities Act
of 1934, as amended).*
10.6 Employment Agreement, dated February 13, 1999 by and between Dr. Robert Brown and
Health Products Research, Inc. (filed as Exhibit 10.6 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
10.7 Employment Agreement, dated February 13, 1998 by and between William Pollock and
Healthcare Promotions, LLC (filed as Exhibit 10.9 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
10.8 Employment Agreement, dated August 18, 1999 by and between Gregory S. Patrick and
Ventiv Health, Inc. (filed as Exhibit 10.10 to the Registrant's Form 10 (File No.
001-15125) filed with the Securities and Exchange Commission under the Securities
Act of 1934, as amended).*
10.9 Credit Agreement, dated December 1, 1999, among Ventiv Health, certain subsidiaries
of Ventiv Health, Inc., the lenders named therein and Bank of America, N.A.
21.1 Subsidiaries of Ventiv Health, Inc. (filed as Exhibit 21.1 to the Registrant's Form
10 (File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
23 Consent of Arthur Andersen LLP.
27 Financial Date Schedule
* Incorporated by reference.
</TABLE>
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended December 31, 1999.
47
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
VENTIV HEALTH, INC.
Date: March 30, 2000 By: /s/ Gregory S. Patrick
---------------------------------------
Gregory S. Patrick
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: March 30, 2000 By: /s/ Daniel M. Snyder
----------------------------------------
Daniel M. Snyder
Co-Chairperson of the Board
Date: March 30, 2000 By: /s/ Michele D. Snyder
----------------------------------------
Michele D. Snyder
Co-Chairperson of the Board
Date: March 30, 2000 By: /s/ Eran Broshy
----------------------------------------
Eran Broshy
Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 30, 2000 By: /s/ Gregory S. Patrick
----------------------------------------
Gregory S. Patrick
Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: March 30, 2000 By: /s/ Mortimer B. Zuckerman
----------------------------------------
Mortimer B. Zuckerman
Director
Date: March 30, 2000 By: /s/ Fred Drasner
-----------------------------------------
Fred Drasner
Director
Date: March 30, 2000 By: /s/ A. Clayton Perfall
-----------------------------------------
A. Clayton Perfall
Director
Date: March 30, 2000 By: /s/ Donald Conklin
-----------------------------------------
Donald Conklin
Director
48
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Page
------- ----------- -----
<S> <C> <C>
3.1 Amended and Restated certificate of Incorporation of Ventiv Health, Inc. (filed as
Exhibit 3.1 to the Registrant's Form 10 (File No. 001-15125) filed with the
Securities and Exchange Commission under the Securities Act of 1934, as amended).*
3.2 By-Laws of Ventiv Health, Inc. (filed as Exhibit 3.2 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
4.1 Specimen form of certificate representing Ventiv Health, Inc. common stock (filed as
Exhibit 4.1 to the Registrant's Form 10 (File No. 001-15125) filed with the
Securities and Exchange Commission under the Securities Act of 1934, as amended).*
10.1 Form of Distribution Agreement between Snyder Communications, Inc. and Ventiv Health,
Inc. (filed as Exhibit 10.1 to the Registrant's Form 10 (File No. 001-15125) filed
with the Securities and Exchange Commission under the Securities Act of 1934, as
amended).*
10.2 Form of Tax Sharing Agreement between Snyder Communications, Inc. and Ventiv Health,
Inc. (filed as Exhibit 10.2 to the Registrant's Form 10 (File No. 001-15125) filed
with the Securities and Exchange Commission under the Securities Act of 1934, as
amended).*
10.3 Form of Interim Services Agreement between Snyder Communications, Inc. and Ventiv
Health, Inc. (filed as Exhibit 10.3 to the Registrant's Form 10 (File No. 001-15125)
filed with the Securities and Exchange Commission under the Securities Act of 1934,
as amended).*
10.4 Ventiv Health, Inc. 1999 Stock Incentive Plan (filed as Exhibit 10.4 to the
Registrant's Form 10 (File No. 001-15125) filed with the Securities and Exchange
Commission under the Securities Act of 1934, as amended).*
10.5 Employment Agreement, dated June 14, 1999 by and between Eran Broshy and Snyder
Communications, Inc. (filed as Exhibit 10.5 to the Registrant's Form 10 (File No.
001-15125) filed with the Securities and Exchange Commission under the Securities Act
of 1934, as amended).*
10.6 Employment Agreement, dated February 13, 1999 by and between Dr. Robert Brown and
Health Products Research, Inc. (filed as Exhibit 10.6 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
10.7 Employment Agreement, dated February 13, 1998 by and between William Pollock and
Healthcare Promotions, LLC (filed as Exhibit 10.9 to the Registrant's Form 10
(File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
10.8 Employment Agreement, dated August 18, 1999 by and between Gregory S. Patrick and
Ventiv Health, Inc. (filed as Exhibit 10.10 to the Registrant's Form 10 (File No.
001-15125) filed with the Securities and Exchange Commission under the Securities
Act of 1934, as amended).*
10.9 Credit Agreement, dated December 1, 1999, among Ventiv Health, certain subsidiaries
of Ventiv Health, Inc., the lenders named therein and Bank of America, N.A.
21.1 Subsidiaries of Ventiv Health, Inc. (filed as Exhibit 21.1 to the Registrant's Form
10 (File No. 001-15125) filed with the Securities and Exchange Commission under the
Securities Act of 1934, as amended).*
23 Consent of Arthur Andersen LLP.
27 Financial Date Schedule
* Incorporated by reference.
</TABLE>
<PAGE>
CREDIT AGREEMENT
Dated as of December 1, 1999
among
VENTIV HEALTH, INC.,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS NAMED HEREIN
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
Arranged by:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
<C> <S> <C>
SECTION 1 DEFINITIONS.................................................... 1
1.1 Definitions.................................................. 1
1.2 Computation of Time Periods.................................. 24
1.3 Accounting Terms............................................. 24
SECTION 2 CREDIT FACILITIES.............................................. 25
2.1 Commitments.................................................. 25
2.2 Method of Borrowing.......................................... 26
2.3 Interest..................................................... 27
2.4 Repayment.................................................... 28
2.5 Notes........................................................ 28
2.6 Additional Provisions relating to Letters of Credit.......... 28
2.7 Additional Provisions relating to Swingline Loans............ 32
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES................. 33
3.1 Default Rate................................................. 33
3.2 Extension and Conversion..................................... 33
3.3 Prepayments.................................................. 34
3.4 Reduction and Termination of Commitments..................... 35
3.5 Fees......................................................... 35
3.6 Capital Adequacy............................................. 36
3.7 Limitation on Eurodollar Loans............................... 36
3.8 Illegality................................................... 37
3.9 Requirements of Law.......................................... 37
3.10 Treatment of Affected Loans.................................. 38
3.11 Taxes........................................................ 38
3.12 Compensation................................................. 40
3.13 Pro Rata Treatment........................................... 41
3.14 Sharing of Payments.......................................... 42
3.15 Payments, Computations, Etc.................................. 43
3.16 Evidence of Debt............................................. 45
3.17 Certain Limitations.......................................... 45
SECTION 4 GUARANTY....................................................... 46
4.1 The Guaranty................................................. 46
4.2 Obligations Unconditional.................................... 46
4.3 Reinstatement................................................ 47
4.4 Certain Additional Waivers................................... 48
4.5 Remedies..................................................... 48
4.6 Rights of Contribution....................................... 48
4.7 Guarantee of Payment; Continuing Guarantee................... 49
SECTION 5 CONDITIONS..................................................... 49
5.1 Closing Conditions........................................... 49
5.2 Conditions to all Extensions of Credit....................... 51
SECTION 6 REPRESENTATIONS AND WARRANTIES................................. 52
6.1 Financial Condition.......................................... 52
6.2 No Changes or Restricted Payments............................ 53
6.3 Organization; Existence; Compliance with Law................. 53
6.4 Power; Authorization; Enforceable Obligations................ 54
6.5 No Legal Bar................................................. 54
6.6 No Material Litigation and Disputes.......................... 54
</TABLE>
i
<PAGE>
<TABLE>
Page
<C> <S> <C>
6.7 No Defaults.................................................. 55
6.8 Ownership and Operation of Property.......................... 55
6.9 Intellectual Property........................................ 55
6.10 No Burdensome Restrictions................................... 55
6.11 Taxes........................................................ 55
6.12 ERISA........................................................ 56
6.13 Governmental Regulations, Etc................................ 57
6.14 Subsidiaries................................................. 57
6.15 Purpose of Extensions of Credit.............................. 58
6.16 Environmental Matters........................................ 58
6.17 Year 2000 Compliance......................................... 59
6.18 No Material Misstatements.................................... 59
6.19 Labor Matters................................................ 59
6.20 Solvency..................................................... 60
6.21 No Other Broker's Fees....................................... 60
SECTION 7 AFFIRMATIVE COVENANTS.......................................... 60
7.1 Information Covenants........................................ 60
7.2 Preservation of Existence and Franchises..................... 64
7.3 Books and Records............................................ 64
7.4 Compliance with Law.......................................... 64
7.5 Payment of Taxes and Other Indebtedness...................... 64
7.6 Insurance.................................................... 64
7.7 Maintenance of Property...................................... 64
7.8 Performance of Obligations................................... 65
7.9 Use of Proceeds.............................................. 65
7.10 Audits/Inspections........................................... 65
7.11 Financial Covenants.......................................... 65
7.12 Additional Guarantors........................................ 66
7.13 Year 2000 Compliance......................................... 66
SECTION 8 NEGATIVE COVENANTS............................................. 67
8.1 Indebtedness................................................. 67
8.2 Liens........................................................ 68
8.3 Nature of Business........................................... 68
8.4 Merger and Consolidation, Dissolution and Acquisitions....... 68
8.5 Asset Dispositions........................................... 69
8.6 Investments.................................................. 70
8.7 Restricted Payments.......................................... 70
8.8 Modifications and Payments in respect of Other Funded Debt... 70
8.9 Transactions with Affiliates................................. 71
8.10 Fiscal Year; Organizational Documents........................ 71
8.11 Sale Leasebacks.............................................. 71
SECTION 9 EVENTS OF DEFAULT.............................................. 71
9.1 Events of Default............................................ 71
9.2 Acceleration; Remedies....................................... 74
SECTION 10 AGENCY PROVISIONS............................................. 75
10.1 Appointment, Powers and Immunities........................... 75
10.2 Reliance by Administrative Agent............................. 75
10.3 Defaults..................................................... 76
10.4 Rights as a Lender........................................... 76
10.5 Indemnification.............................................. 76
10.6 Non-Reliance on Administrative Agent and Other Lenders....... 77
10.7 Successor Administrative Agent............................... 77
</TABLE>
ii
<PAGE>
<TABLE>
Page
<C> <S> <C>
SECTION 11 MISCELLANEOUS................................................. 78
11.1 Notices...................................................... 78
11.2 Right of Set-Off; Adjustments................................ 79
11.3 Benefit of Agreement......................................... 79
11.4 No Waiver; Remedies Cumulative............................... 82
11.5 Expenses; Indemnification.................................... 82
11.6 Amendments, Waivers and Consents............................. 83
11.7 Counterparts................................................. 84
11.8 Headings..................................................... 84
11.9 Survival..................................................... 85
11.10 Governing Law; Submission to Jurisdiction; Venue............. 85
11.11 Severability................................................. 85
11.12 Entirety..................................................... 86
11.13 Binding Effect; Termination.................................. 86
11.14 Confidentiality.............................................. 86
11.15 Source of Funds.............................................. 87
11.16 Conflict..................................................... 87
</TABLE>
iii
<PAGE>
SCHEDULES
---------
Schedule 2.1 Lenders and Commitments
Schedule 2.2(a)(i) Form of Notice of Borrowing
Schedule 2.2(a)(ii) Form of Notice of Request of Letter of Credit
Schedule 2.5 Form of Revolving Note
Schedule 2.6(b) Existing Letters of Credit
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(e)(v) Form of Officer's Certificate
Schedule 6.6 Litigation
Schedule 6.8 Liens
Schedule 6.14 Subsidiaries
Schedule 6.17 Year 2000 Compliance
Schedule 6.19 Labor Matters
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 7.12 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.6-1 Investments
Schedule 8.6-2 Agora Investment
Schedule 11.1 Lenders' Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
iv
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 1, 1999 (the "Credit
------
Agreement"), is by and among VENTIV HEALTH, INC., a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower identified as Guarantors on the
- ---------
signature pages hereto and such other Subsidiaries of the Borrower as may from
time to time become Guarantors hereunder in accordance with the provisions
hereof (the "Guarantors"), the lenders named herein and such other lenders as
----------
may become a party hereto (the "Lenders") and BANK OF AMERICA, N.A., as
-------
Administrative Agent for the Lenders (in such capacity, the "Administrative
--------------
Agent").
- -----
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide $50 million in
credit facilities for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested credit facilities
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
-----------
1.1 Definitions.
-----------
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acquisition", by any Person, means the purchase or acquisition by such
-----------
Person of any Capital Stock of another Person other than a member of the
Consolidated Group or all or any substantial portion of the Property (other
than Capital Stock) of another Person other than a member of the
Consolidated Group, whether or not involving a merger or consolidation with
such other Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable Percentage.
------------------ ----
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the Applicable
------------------------ ----
Percentage.
"Administrative Agent" shall have the meaning assigned to such term in the
--------------------
heading hereof, together with any successors or assigns.
"Administrative Agent's Fee Letter" means that certain letter agreement,
---------------------------------
dated as of October 19, 1999, between the Administrative Agent and the
Borrower, as amended, modified, restated or supplemented from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to such term
---------------------------
in Section 3.5(c).
"Affiliate" means, with respect to any Person, any other Person (i)
---------
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding ten percent (10%) or more of the Capital Stock in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
<PAGE>
"Agency Services Address" means the notice address for the Administrative
-----------------------
Agent set forth in Section 11.1 or such other address as may be identified
by written notice from the Administrative Agent to the Borrower.
"Aggregate Revolving Committed Amount" shall have the meaning assigned to
------------------------------------
such term in Section 2.1(a).
"Agora Investments" means Investments in Agora Healthcare Services Limited
-----------------
("Agora") including, but not limited to, the purchase of preferred ordinary
-----
shares and convertible debt issued by Agora, the provision of multi-level
detailing services to Agora, and the license of exclusive rights to use
Agora's clinical health and disease management data, as further described
on Schedule 8.6-2.
--------------
"Applicable Lending Office" means, for each Lender, the office of such
-------------------------
Lender (or of an affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower by written notice
as the office by which its Eurodollar Loans are made and maintained.
"Applicable Percentage" means for any day, the rate per annum set forth
---------------------
below opposite the applicable Consolidated Total Leverage Ratio then in
effect, it being understood that the Applicable Percentage for (i) Base
Rate Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set forth under the
column "Eurodollar Margin and Standby Letter of Credit Fee", (iii) the
Standby Letter of Credit Fee shall be the percentage set forth under the
column "Eurodollar Margin and Standby Letter of Credit Fee" and (iv) the
Commitment Fee shall be the percentage set forth under the column
"Commitment Fee":
<TABLE>
<CAPTION>
Consolidated Total Eurodollar Margin
Pricing Leverage Base Rate and Commitment
Level Ratio Margin Standby Letter of Credit Fee Fee
- -------------------- -------------------- ----------------- ------------------------------- ----------------------
<S> <C> <C> <C> <C>
I greater than
or equal to 2.0 0.250% 2.00% 0.500%
II less than 2.0 but
greater than 1.5 0.125% 1.75% 0.500%
III less than 1.5 but
greater than 1.0 0.000% 1.50% 0.375%
IV less than 1.0 0.000% 1.25% 0.375%
</TABLE>
The Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Rate Determination Date") five (5) Business Days after the
-----------------------
date by which the annual and quarterly compliance certificates and related
financial statements and information are required in accordance with the
provisions of Sections 7.1(a), (b) and (c), as appropriate; provided that:
--------
(i) the initial Applicable Percentages shall be based on the
financial statements and related financial information for the most
recent fiscal quarter ending prior to the Closing Date, and
(ii) notwithstanding the foregoing, in the event an annual or
quarterly compliance certificate and related financial statements and
information are not delivered timely to the Agency Services Address by
the date required by Sections 7.1(a), (b) or (c), as appropriate, the
Applicable Percentages shall be based on pricing level I until such
time as an appropriate compliance certificate and related financial
statements and information are delivered, whereupon the applicable
pricing level shall be adjusted based on the information contained in
such compliance certificate and related financial statements and
information.
Subject to the qualifications set forth above, each Applicable Percentage
shall be effective from a Rate Determination Date until the next such Rate
Determination Date. The Administrative Agent shall determine the
appropriate Applicable Percentages in the pricing matrix promptly upon
receipt of the quarterly or annual compliance certificate and related
financial information and shall promptly notify the Borrower and the
Lenders of any change thereof. Such determinations by the Administrative
Agent shall
2
<PAGE>
be conclusive absent manifest error. Adjustments in the Applicable
Percentages shall be effective as to existing Extensions of Credit as well
as new Extensions of Credit made thereafter.
"Asset Disposition" shall mean and include the sale, lease or other
-----------------
disposition of any Property by any member of the Consolidated Group
(including the Capital Stock of a Subsidiary) other than (A) the sale of
inventory in the ordinary course of business, (B) the sale, lease or other
disposition of machinery and equipment no longer used or useful in the
conduct of such member's business and (C) a sale, lease, transfer or
disposition of Property to a Domestic Credit Party.
"Bank of America" means Bank of America, N.A., and its successors.
---------------
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
---------------
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of any
----------------
of the following with respect to such Person: (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order
for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or ordering the winding up or liquidation of its
affairs; or (ii) there shall be commenced against such Person an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period of
sixty (60) consecutive days; or (iii) such Person shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or make any general assignment for
the benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they become
due.
"Base Rate" means, for any day, the rate per annum equal to the higher of
---------
(a) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on
the effective date of such change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate determined by
--------------
reference to the Base Rate.
"Borrower" means Ventiv Health, Inc., a Delaware corporation, as referenced
--------
in the opening paragraph, its successors and permitted assigns.
"Bridge Note" means that certain Revolving Credit Demand Promissory Note
-----------
dated as of November 19, 1999 issued by the Borrower to Bank of America.
"Bristol Myers Squibb Contract" means that certain co-promotion agreement,
-----------------------------
dated as of August 27, 1999, between Snyder Healthcare Sales, Inc., a New
Jersey corporation, and Bristol-Myers Squibb U.S. Pharmaceutical Group, as
amended.
"Business Day" means a day other than a Saturday, Sunday or other day on
------------
which commercial banks in Charlotte, North Carolina or New York, New York
are authorized or required by law to close, except that, when used in
------ ----
connection with a Eurodollar Loan, such day shall also be a day on which
dealings between banks are carried on in Dollar deposits in London,
England.
3
<PAGE>
"Capital Lease" means, as applied to any Person, any lease of any Property
-------------
by that Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
-------------
in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
----------------
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, (ii) any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Moody's is at
least P-1 or the equivalent thereof (any such bank being an "Approved
--------
Bank"), in each case with maturities of not more than 270 days from the
date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six months of
the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the following events:
-----------------
(i) any Person or two or more Persons acting in concert shall have acquired
beneficial ownership, directly or indirectly, of, or shall have acquired by
contract or otherwise, or shall have entered into a contract or other
agreement that, upon consummation, will result in its or their acquisition
of or control over (other than any such contract or other agreement which
requires the consent of the Lenders hereunder as a condition precedent to
the consummation of such acquisition of or control over), Voting Stock of
the Borrower (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting Stock
of the Borrower or (ii) during any period of up to 24 consecutive months,
commencing after the Closing Date, individuals who at the beginning of such
24 month period were directors of the Borrower (together with any new
director whose election by the Borrower's board of directors or whose
nomination for election by the Borrower's shareholders was approved by a
vote of at least a majority of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors of the Borrower then in office. As
used herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act.
"Closing Date" means the date hereof.
------------
"Commitment Fee" shall have the meaning assigned to such term in Section
--------------
3.5(a).
"Commitments" means any of the Revolving Commitments, the LOC Commitments
-----------
and/or the Swingline Commitments.
4
<PAGE>
"Commitment Period" means the period from and including the Closing Date to
-----------------
but not including the earlier of (i) the Termination Date or (ii) the date
on which the Commitments terminate in accordance with the provisions of
this Credit Agreement.
"Committed Amount" means any of the Revolving Committed Amount, the LOC
----------------
Committed Amount and/or the Swingline Committed Amount.
"Consolidated Capital Expenditures" means, for any period for the
---------------------------------
Consolidated Group, without duplication, all expenditures (whether paid in
cash or other consideration) during such period that, in accordance with
GAAP, are or should be included in additions to property, plant and
equipment or similar items reflected in the consolidated statement of cash
flows for such period; provided, that Consolidated Capital Expenditures
--------
shall not include, for purposes hereof, expenditures of proceeds of
insurance settlements, condemnation awards and other settlements in respect
of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property
or otherwise to acquire assets or properties useful in the business of the
members of the Consolidated Group.
"Consolidated EBITDA" means, for any period for the Consolidated Group, the
-------------------
sum of (i) Consolidated Net Income for such period plus (ii) to the extent
----
deducted in determining net income for such period, (A) Consolidated
Interest Expense, (B) taxes, (C) depreciation and amortization and (D) for
any period which includes the fiscal quarter ending on December 31, 1999,
unrecognized revenues associated with the Bristol Myers Squibb Contract in
the amount of $12 million, minus (iii) for any period which includes the
-----
fiscal quarter ending on December 31, 2000, unrecognized revenues
associated with the Bristol Myers Squibb Contract in the amount of $12
million, in each case on a consolidated basis determined in accordance with
GAAP. Except as expressly provided otherwise, the applicable period shall
be for the four consecutive fiscal quarters ending as of the date of
determination.
"Consolidated Group" means the Borrower and its consolidated subsidiaries,
------------------
as determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the last day of each
------------------------------------
fiscal quarter, the ratio of Consolidated EBITDA for the period of four
consecutive fiscal quarters ending as of such day to Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending as of
such day.
"Consolidated Interest Expense" means, for any period for the Consolidated
-----------------------------
Group, all interest expense, including the amortization of debt discount
and premium, the interest component under Capital Leases and the implied
interest component under Securitization Transactions, in each case on a
consolidated basis determined in accordance with GAAP applied on a
consolidated basis. Except as expressly provided otherwise, the applicable
period shall be for the four consecutive fiscal quarters ending as of the
date of determination.
"Consolidated Net Income" means, for any period for the Consolidated Group,
-----------------------
net income (or loss) determined on a consolidated basis in accordance with
GAAP. Except as otherwise expressly provided, the applicable period shall
be for the four consecutive fiscal quarters ending as of the date of
determination.
"Consolidated Net Worth" means, as of any date for the Consolidated Group,
----------------------
consolidated shareholder's equity or net worth as determined in accordance
with GAAP.
"Consolidated Total Funded Debt" means Funded Debt of the Consolidated
------------------------------
Group determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio" means, as of the last day of each
---------------------------------
fiscal quarter, the ratio of Consolidated Total Funded Debt on such day to
Consolidated EBITDA for the period of four consecutive fiscal quarters
ending as of such day.
5
<PAGE>
"Continue", "Continuation", and "Continued" shall refer to the continuation
-------- ------------ ---------
pursuant to Section 3.2 hereof of a Eurodollar Loan from one Interest
Period to the next Interest Period.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
security issued by such Person or of any material agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convert", "Conversion", and "Converted" shall refer to a conversion
------- ---------- ---------
pursuant to Section 3.2 or Sections 3.7 through 3.12, inclusive, of a Base
Rate Loan into a Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit Agreement,
----------------
the Notes, the LOC Documents, each Joinder Agreement, the Administrative
Agent's Fee Letter and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto (in each
case as the same may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time), and "Credit Document"
---------------
means any one of them.
"Credit Parties" means a collective reference to the Borrower and the
--------------
Guarantors, and "Credit Party" means any one of them.
------------
"Default" means any event, act or condition which with notice or lapse of
-------
time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a) has failed to
-----------------
make a Loan or purchase a Participation Interest required pursuant to the
terms of this Credit Agreement within one Business Day of when due, (b)
other than as set forth in (a) above, has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant
to the terms of this Credit Agreement within one Business Day of when due,
unless such amount is subject to a good faith dispute or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any of the assets
of which) a receiver, trustee or similar official has been appointed.
"Dollars" and "$" means dollars in lawful currency of the United States of
------- -
America.
"Domestic Credit Party" means any Credit Party which is incorporated or
---------------------
organized under the laws of any State of the United States or the District
of Columbia.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
-------------------
organized under the laws of any State of the United States or the District
of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender; and
-----------------
(iii) any other Person approved by the Administrative Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment
is effected in accordance with Section 11.3, the Borrower (such approval by
the Administrative Agent or the Borrower not to be unreasonably withheld or
delayed and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Administrative Agent
from the Borrower within two Business Days after notice of such proposed
assignment has been provided by the assigning Lender to the Borrower);
provided, however, that neither the Borrower nor an Affiliate of the
-------- -------
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable federal,
------------------
state, local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
licenses and other governmental restrictions relating to the environment or
to emissions, discharges, releases or threatened releases of Materials of
Environmental Concern into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Materials of Environmental Concern.
6
<PAGE>
"Equity Transaction" means, with respect to any member of the Consolidated
------------------
Group, any issuance or sale of shares of its capital stock or other equity
interest, other than an issuance (i) in connection with a conversion of
debt securities to equity, (ii) in connection with exercise by a present or
former employee, officer or director under a stock incentive plan, stock
option plan or other equity-based compensation plan or arrangement and
(iii) of the capital stock of the Borrower in connection with a Permitted
Acquisition.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with the
---------------
Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member
of a group which includes the Borrower and which is treated as a single
employer under Sections 414(b) or (c) of the Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
-----------
Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower
or any ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (iii)
the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual termination
of a Plan by the PBGC under Section 4042 of ERISA; (v) any event or
condition which could reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (vi) the complete or partial withdrawal of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA against
the Borrower or any ERISA Affiliate exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at a rate based upon
---------------
the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest Period
---------------
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) the Interbank Offered Rate for such
Eurodollar Loan for such Interest Period by (b) 1 minus the Eurodollar
Reserve Requirement for such Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at
------------------------------
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the
Eurodollar Reserve Requirement shall reflect any other reserves required to
be maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the Eurodollar
Rate is to be determined, or (ii) any category of extensions of credit or
other assets which include Eurodollar Loans. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such term in Section
----------------
9.1.
"Executive Officer" of any Person means any of the chief executive officer,
-----------------
chief operating officer, president, chief accounting officer, chief
financial officer or treasurer of such Person.
"Existing Letters of Credit" means those Letters of Credit outstanding on
--------------------------
the Closing Date and identified on Schedule 2.6(b).
---------------
7
<PAGE>
"Extension of Credit" means, as to any Lender, the making of, or
-------------------
participation in, a Loan by such Lender (including Continuations and
Conversions thereof) or the issuance or extension of, or participation in,
a Letter of Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
--------
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Administrative Agent (in its
individual capacity) on such day on such transactions as determined by the
Administrative Agent.
"Fees" means all fees payable pursuant to Section 3.5.
----
"Foreign Credit Party" means a Credit Party which is not a Domestic Credit
--------------------
Party.
"Foreign Subsidiary" means a Subsidiary which is not a Domestic Subsidiary.
------------------
"Funded Debt" means, with respect to any Person, without duplication, (i)
-----------
the principal amount of all obligations of such Person for borrowed money,
(ii) the principal amount of all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made, (iii) the principal amount of all purchase
money Indebtedness (including for purposes hereof, indebtedness and
obligations in respect of conditional sale or title retention arrangements
described in clause (c) of the definition of "Indebtedness" and obligations
in respect of the deferred purchase price of property or services described
in clause (d) of the definition of "Indebtedness") of such Person,
including without limitation the principal portion of all obligations of
such Person under Capital Leases, (iv) the principal amount of all Support
Obligations of such Person with respect to Funded Debt of another Person,
(v) the maximum available amount of all standby letters of credit or
acceptances issued or created for the account of such Person, (vi) the
principal amount of all Funded Debt of another Person secured by a Lien on
any Property of such Person, whether or not such Funded Debt has been
assumed, provided that for purposes hereof the amount of such Funded Debt
--------
shall be limited to the amount of such Funded Debt as to which there is
recourse to such Person or the fair market value of the property which is
subject to the Lien, if less, (vii) the outstanding attributed principal
amount under any Securitization Transaction, (viii) the principal balance
outstanding under Synthetic Leases and (ix) the maximum amount of all
contingent obligations (including, without limitation, obligations to make
earn-out payments) of such Person incurred in connection with Permitted
Acquisitions and in connection with Acquisitions consummated prior to the
Closing Date. The Funded Debt of any Person shall include the Funded Debt
of any partnership or joint venture in which such Person is a general
partner or joint venturer, but only to the extent to which there is
recourse to such Person for the payment of such Funded Debt.
"GAAP" means generally accepted accounting principles in the United States
----
applied on a consistent basis and subject to the terms of Section 1.3.
"Governmental Authority" means any Federal, state, local or foreign court
----------------------
or governmental agency, authority, instrumentality or regulatory body.
"Guaranteed Obligations" means, without duplication, (i) all of the
----------------------
obligations of the Borrower to the Lenders (including the Issuing Lender)
and the Administrative Agent, whenever arising, under this Credit
Agreement, the Notes or any of the other Credit Documents (including, but
not limited to, any interest accruing after the occurrence of a Bankruptcy
Event with respect to any Credit Party, regardless of whether such interest
is an allowed claim under the Bankruptcy Code) and (ii) all liabilities and
obligations, whenever arising, owing from the Borrower to any Lender, or
any affiliate of a Lender, arising under any Hedging Agreement.
8
<PAGE>
"Guarantors" means each Person identified as a "Guarantor" on the signature
----------
pages hereto and each other Person which may hereafter become a Guarantor
by execution of a Joinder Agreement, together with their successors and
permitted assigns, and "Guarantor " means any one of them.
---------
"Hedging Agreements" means any interest rate protection agreement or
------------------
foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person, 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,
or upon which interest payments are customarily made, (c) all obligations
of such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of Property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such
Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (g) all Support Obligations of such Person with respect to
Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases, (i) all obligations of
such Person under Hedging Agreements, (j) the maximum amount of all standby
letters of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (k) all preferred Capital Stock
issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration (other than as a result of
a Change of Control or an Asset Disposition that does not in fact result in
a redemption of such preferred Capital Stock) at any time during the term
of the Credit Agreement, (l) the principal portion of all obligations of
such Person under Synthetic Leases, (m) the Indebtedness of any partnership
or unincorporated joint venture in which such Person is a general partner
or a joint venturer, (n) with respect to any member of the Consolidated
Group, the outstanding attributed principal amount under any Securitization
Transaction and (o) the maximum amount of all contingent obligations
(including, without limitation, obligations to make earn-out payments) of
such Person incurred in connection with Permitted Acquisitions and in
connection with Acquisitions consummated prior to the Closing Date.
"Interbank Offered Rate" means, for any Eurodollar Loan for any Interest
----------------------
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow Jones Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
"Interbank Offered Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
-------- -------
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Payment Date" means (i) as to any Base Rate Loan and any
---------------------
Swingline Loan, the last Business Day of each March, June, September and
December, and the Termination Date, and (ii) as to any Eurodollar Loan, the
last day of each Interest Period for such Loan, the date of repayment of
principal of such Loan and the Termination Date, and in addition where the
applicable Interest Period is more than three months, then also on the date
three months from the beginning of the Interest Period, and each three
months thereafter. If an Interest Payment Date falls on a date which is
not a Business Day, such Interest Payment Date shall be deemed to be the
next succeeding Business Day.
9
<PAGE>
"Interest Period" means, as to any Eurodollar Loan, a period of one, two,
---------------
three or six months' duration, as the Borrower may elect, commencing in
each case on the date of the borrowing (including Conversions,
Continuations and renewals); provided, however, (A) if any Interest Period
-------- -------
would end on a day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day (except where the next
succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (B) no Interest Period shall extend
beyond the Termination Date, and (C) where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar
month in which the Interest Period is to end, such Interest Period shall
end on the last day of such calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code shall be construed also
to refer to any successor sections.
"Investment" in any Person means (a) the acquisition (whether for cash,
----------
property, services, assumption of Indebtedness, securities or otherwise) of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or
other ownership interests or other securities of such other Person, (b) any
deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or
other assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without
limitation, any Support Obligations (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such
Person, but excluding any Restricted Payment to such Person.
"Issuing Lender" means Bank of America.
--------------
"Joinder Agreement" means a Joinder Agreement substantially in the form of
-----------------
Schedule 7.12 hereto, executed and delivered by a Domestic Subsidiary in
-------------
accordance with the provisions of Section 7.12.
"Lenders" means each of the Persons identified as a "lender" on the
-------
signature pages hereto, and their successors and assigns.
"Letter of Credit" means any Existing Letter of Credit and any standby
----------------
letter of credit issued by the Issuing Lender for the account of the
Borrower in accordance with the terms of Section 2.1(b).
"Licenses" means all licenses, permits and other grants of authority
--------
obtained or required to be obtained from any Governmental Authorities in
connection with the management or operation of the business of the members
of the Consolidated Group or the ownership, lease, license or use of any
Property of the members of the Consolidated Group.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the
Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and any lease in
the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or the Swingline Loans, and
---- -----
the Base Rate Loans, Eurodollar Loans and Prime Rate Swingline Loans
comprising such Loans.
"LOC Commitment" means the commitment of the Issuing Lender to issue
--------------
Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to
the LOC Committed Amount and the commitment of the Lenders to purchase
participation interests in the LOC Obligations up to their respective
Revolving Commitment Percentage as provided in Section 2.6(b).
"LOC Committed Amount" shall have the meaning assigned to such term in
--------------------
Section 2.1(b).
10
<PAGE>
"LOC Documents" means, with respect to any Letter of Credit, such Letter of
-------------
Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (i) the rights
and obligations of the parties concerned or at risk or (ii) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
---------------
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii)
----
the aggregate amount of all drawings under Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
condition (financial or otherwise), operations, business, assets or
liabilities of the Consolidated Group taken as a whole, (ii) the ability of
any Credit Party to perform any material obligation under the Credit
Documents to which it is a party or (iii) the material rights and remedies
of the Administrative Agent and the Lenders under the Credit Documents.
"Material Subsidiary" means any Wholly-Owned Subsidiary which constitutes
-------------------
more than five percent (5%) of the consolidated assets of the Consolidated
Group as of the end of the immediately preceding fiscal quarter or
generates more than five percent (5%) of the consolidated revenues of the
Consolidated Group for the period of four consecutive fiscal quarters
ending as of the end of the immediately preceding fiscal quarter.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" means Moody's Investors Service, Inc., or any successor or
-------
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as
------------------
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer Plan)
----------------------
which the Borrower or any ERISA Affiliate and at least one employer other
than the Borrower or any ERISA Affiliate are contributing sponsors.
"Non-Guarantor Subsidiary" shall have the meaning assigned to such term in
------------------------
Section 7.12.
"Note" or "Notes" means any of the Revolving Notes.
---- -----
"Notice of Borrowing" means a written notice of borrowing in substantially
-------------------
the form of Schedule 2.2(a)(i), as required by Section 2.2(a)(i) and
------------------
Section 2.2(a)(iii).
"Notice of Continuation/Conversion" means the written notice of
---------------------------------
Continuation or Conversion in substantially the form of Schedule 3.2, as
------------
required by Section 3.2.
"Obligations" means, collectively, the Revolving Loans, the Swingline Loans
-----------
and the LOC Obligations.
"Operating Lease" means, as applied to any Person, any lease (including,
---------------
without limitation, leases which may be terminated by the lessee at any
time) of any Property which is not a Capital Lease other than any such
lease in which that Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in Section 3.11.
-----------
11
<PAGE>
"Participation Interest" means the purchase by a Lender of a participation
----------------------
in LOC Obligations as provided in Section 2.6(b), in Swingline Loans as
provided in Section 2.7 and in Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means any Acquisition by a member of the
---------------------
Consolidated Group, provided that (i) consideration paid is not greater
than the fair market value thereof, (ii) the Person or Property which is
the subject of such Acquisition shall be in the same or similar line of
business as the members of the Consolidated Group, (iii) in the case of a
merger or consolidation, and in other cases where appropriate, the board of
directors or other governing body of the other Person which is the subject
of the transaction of merger or consolidation shall have approved such
Acquisition, (iv) no Default or Event of Default shall exist immediately
after giving effect to such Acquisition, (v) the Borrower shall have
delivered to the Administrative Agent (A) a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such Acquisition on a
Pro Forma Basis, the Credit Parties shall be in compliance with all of the
covenants set forth in Section 7.11, (B) historical financial information
for the previous three years for the Person or Property that is the subject
of such Acquisition and (C) a schedule of all pro forma adjustments that
the Borrower intends to include in financial covenant calculations pursuant
to Section 1.3, (vi) if the Acquisition involves an interest in a
partnership and a requirement that a member of the Consolidated Group be a
general partner, the general partner shall be a newly formed special
purpose Subsidiary of the Borrower, (vii) the Credit Parties shall, and
shall cause the party which is the subject of the Acquisition to, take such
actions as may be necessary for compliance with the provisions of Sections
7.12, and (viii) the consideration (including cash and non-cash
consideration, any assumption of Indebtedness and the maximum amount of any
contingent payment (including, without limitation, earn-out payments), but
excluding consideration consisting of any Capital Stock of the Borrower
issued to the seller of the Capital Stock or Property acquired in such
Acquisition) paid in connection with any Acquisition (or series of related
Acquisitions) shall not exceed $40 million.
"Permitted Investments" means Investments which are (i) cash and Cash
---------------------
Equivalents; (ii) accounts receivable of a member of the Consolidated Group
created, acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) Investments
consisting of Capital Stock, obligations, securities or other Property
received in settlement of accounts receivable (created in the ordinary
course of business) from bankrupt obligors; (iv) Investments existing as of
the Closing Date and set forth in Schedule 8.6-1; (v) advances or loans to
--------------
directors, officers and employees that do not exceed $1,000,000 in the
aggregate at any one time outstanding for all members of the Consolidated
Group; (vi) advances or loans to customers and suppliers in the ordinary
course of business that do not exceed $500,000 in the aggregate at any one
time outstanding for all members of the Consolidated Group; (vii)
Investments by members of the Consolidated Group in their Subsidiaries and
Affiliates existing on the Closing Date, (viii) Investments by members of
the Consolidated Group in and to Domestic Credit Parties, (ix) Investments
which constitute Permitted Acquisitions, (x) Investments by a Non-Guarantor
Subsidiary in and to another Non-Guarantor Subsidiary, (xi) Investments of
a nature not contemplated in the foregoing subsections (i) through (x) in
an amount not to exceed $5,000,000 in the aggregate at any time
outstanding, and (xii) Agora Investments in an amount not to exceed
$7,000,000 in the aggregate at any time outstanding provided that as
--------
consideration for the Agora Investment the Borrower enters into an
exclusive trade partner relationship with Agora pursuant to which (a) the
Borrower will be Agora's sole provider of outsourced marketing and sales
services for the Archipelago system rollout for a minimum of an 18 month
period which services will be provided at a fair market rate, and (b) Agora
will collaborate exclusively with the Borrower to commercialize the
proprietary data created by the Archipelago system.
"Permitted Liens" means:
---------------
(i) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for
taxes being contested in good faith by appropriate
12
<PAGE>
proceedings for which adequate reserves determined in accordance with GAAP
have been established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account thereof);
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts
--------
not yet due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iii) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by any member of the Consolidated Group in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(iv) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall, within
--------
30 days after the entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall have been discharged within 30 days after
the expiration of any such stay;
(v) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of
the encumbered Property for its intended purposes;
(vi) Liens on Property of any Person securing Indebtedness (including
Capital Leases and Synthetic Leases) of such Person to the extent permitted
under Section 8.1(c), provided that any such Lien attaches only to the
--------
Property financed or leased and such Lien attaches concurrently with or
within 90 days after the acquisition thereof;
(vii) leases or subleases granted to others not interfering in any
material respect with the business of any member of the Consolidated Group;
(viii) any interest or title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Credit Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens deemed to exist in connection with Investments in repurchase
agreements which constitute Permitted Investments;
(xi) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(xii) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(xiii) Liens on Property of any Person securing Indebtedness of such
Person to the extent permitted under Section 8.1(h) provided that no
--------
such Lien shall at any time be extended to or cover any Property other than
the Property subject thereto immediately prior to the Acquisition; and
(xiv) Liens existing as of the Closing Date and set forth on Schedule
--------
6.8; provided that (a) no such Lien shall at any time be extended to or
--- --------
cover any Property other than the Property subject thereto on the
13
<PAGE>
Closing Date and (b) the principal amount of the Indebtedness secured by
such Liens shall not be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing.
"Person" means any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
----
ERISA) which is subject to Title IV of ERISA and with respect to which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
----------
time to time by Bank of America as its prime rate in effect at its
principal office in Charlotte, North Carolina, with each change in the
Prime Rate being effective on the date such change is publicly announced as
effective (it being understood and agreed that the Prime Rate is a
reference rate used by Bank of America in determining interest rates on
certain loans and is not intended to be the lowest rate of interest charged
on any extension of credit by Bank of America to any debtor).
"Prime Rate Swingline Loans" means any Swingline Loan that bears interest
--------------------------
at a rate based upon the Prime Rate.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
---------------
principles set forth in the second paragraph of Section 1.3) the applicable
pricing level under the definition of "Applicable Percentage" and
determining compliance with each of the financial covenants set forth in
Section 7.11, that any transaction shall be deemed to have occurred as of
the first day of the four fiscal-quarter period ending as of the most
recent fiscal quarter end preceding the date of such transaction with
respect to which the Administrative Agent has received the Required
Financial Information. As used herein, "transaction" shall mean (i) any
-----------
merger or consolidation as referred to in Section 8.4, (ii) any Asset
Disposition as referred to in Section 8.5, (iii) any Acquisition as
referred to in the definition of "Permitted Acquisition" or (iv) any
---------------------
Restricted Payment as referred to in Section 8.8. In connection with any
calculation of the financial covenants set forth in Section 7.11 upon
giving effect to a transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any Asset
Disposition referred to in Section 8.5, (1) income statement items
(whether positive or negative) attributable to the Property disposed
of in such Asset Disposition shall be excluded and (2) any
Indebtedness which is retired in connection with such Asset
Disposition shall be excluded and deemed to have been retired as of
the first day of the applicable period; and
(B) for purposes of any such calculation in respect of any
merger or consolidation referred to in Section 8.4 or any Acquisition
referred to in the definition of "Permitted Acquisition", (1) any
---------------------
Indebtedness incurred by any member of the Consolidated Group in
connection with such transaction (x) shall be deemed to have been
incurred as of the first day of the applicable period and (y) if such
Indebtedness has a floating or formula rate, shall have an implied
rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of
determination, and (2) income statement items (whether positive or
negative) attributable to the Property acquired in such transaction or
to the Acquisition comprising such transaction, as applicable, shall
be included beginning as of the first day of the applicable period.
"Pro Forma Compliance Certificate" means a certificate of an Executive
--------------------------------
Officer of the Borrower delivered to the Administrative Agent in connection
with (i) any merger or consolidation referred to in Section 8.4, (ii) any
Asset Disposition referred to in Section 8.5, (iii) any Acquisition
referred to in the definition of "Permitted Acquisition" or (iv) any
---------------------
Restricted Payment as referred to in Section 8.8, as applicable, and
containing reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, of the Consolidated Interest
Coverage Ratio and the Consolidated Total Leverage
14
<PAGE>
Ratio as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall
have received the Required Financial Information.
"Property" means any interest in any kind of property or asset, whether
--------
real, personal or mixed, or tangible or intangible.
"Rate Determination Date" shall have the meaning assigned to such term in
-----------------------
the definition of "Applicable Percentage".
"Register" shall have the meaning assigned to such term in Section 11.3(c).
--------
"Registration Statement" means the Registration Statement of the Borrower
----------------------
on Form 10, initially filed with the Securities and Exchange Commission on
June 28, 1999, as amended on or prior to the Closing Date.
"Regulation D, O, T, U, or X" means Regulation D, O, T, U or X,
---------------------------
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"Reportable Event" means any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"Required Financial Information" means the annual and quarterly compliance
------------------------------
certificates and related financial statements and information required by
the provisions of Sections 7.1(a), (b) and (c), as referenced in the
definition of "Applicable Percentage".
"Required Lenders" means, at any time, Lenders having more than fifty
----------------
percent (50%) of the aggregate Commitments, or if the Commitments have been
terminated, Lenders having more than fifty percent (50%) of the aggregate
principal amount of the Obligations outstanding (taking into account in
each case Participation Interests or obligation to participate therein);
provided that the Commitments of, and outstanding principal amount of
--------
Obligations (taking into account Participation Interests therein) owing to,
a Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule, regulation or ordinance (including,
without limitation, Environmental Laws) or determination of an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material Property is
subject.
"Restricted Payment" means (i) any dividend or other payment or
------------------
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any member of the Consolidated Group, now or hereafter
outstanding (including without limitation any payment in connection with
any dissolution, merger, consolidation or disposition involving any member
of the Consolidated Group), or to the holders, in their capacity as such,
of any shares of any class of Capital Stock of any member of the
Consolidated Group, now or hereafter outstanding (other than dividends or
distributions payable in the same class of Capital Stock of the applicable
Person or dividends or distributions payable to any Credit Party (directly
or indirectly through Subsidiaries)), (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of Capital Stock of any
member of the Consolidated Group, now or hereafter outstanding, and (iii)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of any member of the Consolidated Group, now or hereafter
outstanding.
"Revolving Commitment" means, with respect to each Lender, the commitment
--------------------
of such Lender to make Revolving Loans in an aggregate principal amount at
any time outstanding of up to such Lender's Revolving Commitment Percentage
of the Aggregate Revolving Committed Amount.
15
<PAGE>
"Revolving Commitment Percentage" means, for each Lender, a fraction
-------------------------------
(expressed as a percentage) the numerator of which is the Revolving
Committed Amount of such Lender at such time and the denominator of which
is the Aggregate Revolving Committed Amount at such time. The initial
Revolving Commitment Percentage of each Lender is set out on Schedule 2.1.
------------
"Revolving Committed Amount" means, with respect to each Lender, the amount
--------------------------
of such Lender's Revolving Commitment as specified in Schedule 2.1, as such
------------
amount may be reduced from time to time in accordance with the provisions
hereof. The initial Revolving Committed Amount of each Lender is set out
on Schedule 2.1.
------------
"Revolving Loans" shall have the meaning assigned to such term in Section
---------------
2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of the
-------------- ---------------
Borrower in favor of each of the Lenders evidencing the Revolving Loans and
Swingline Loans in substantially the form attached as Schedule 2.5,
------------
individually or collectively, as appropriate, as such promissory notes may
be amended, modified, supplemented, extended, renewed or replaced from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
---
Companies, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
------------------------------
any member of the Consolidated Group, directly or indirectly, becomes
liable as lessee, guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any Property (a) which
such member of the Consolidated Group has sold or transferred (or is to
sell or transfer) to a Person which is not a member of the Consolidated
Group or (b) which such member of the Consolidated Group intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such member of the
Consolidated Group to another Person which is not a member of the
Consolidated Group in connection with such lease.
"Securities Exchange Act" means the Securities Exchange Act of 1934.
-----------------------
"Securitization Transaction" means any financing transaction or series of
--------------------------
financing transactions that have been or may be entered into by a member of
the Consolidated Group pursuant to which such member of the Consolidated
Group may sell, convey or otherwise transfer to (i) a Subsidiary or
affiliate (a "Securitization Subsidiary"), or (ii) any other Person, or may
-------------------------
grant a security interest in, any accounts receivable, notes receivable,
rights to future lease payments or residuals or other similar rights to
payment (the "Securitization Receivables") (whether such Securitization
--------------------------
Receivables are then existing or arising in the future) of such member of
the Consolidated Group, and any assets related thereto, including without
limitation, all security interests in merchandise or services financed
thereby, the proceeds of such Securitization Receivables, and other assets
which are customarily sold or in respect of which security interests are
customarily granted in connection with securitization transactions
involving such assets.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Standby Letter of Credit Fee" shall have the meaning assigned to such term
----------------------------
in Section 3.5(b)(i).
"Subordinated Debt" means any Indebtedness of a member of the Consolidated
-----------------
Group which by its terms is expressly subordinated in right of payment to
the prior payment of the loans and obligations under the Credit Agreement
and the other Credit Documents on the terms and conditions and evidenced by
documentation satisfactory to the Administrative Agent and the Required
Lenders.
"Subsidiary" means, as to any Person at any time, (a) any corporation more
----------
than 50% of whose Capital Stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at such time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at such
16
<PAGE>
time owned by such Person directly or indirectly through Subsidiaries, and
(b) any partnership, association, joint venture or other entity of which
such Person directly or indirectly through Subsidiaries owns at such time
more than 50% of the Capital Stock.
"Support Obligations" means, with respect to any Person, without
-------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security
therefor, (ii) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness against loss in respect thereof, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against
loss in respect thereof. The amount of any Support Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an
amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such Support
Obligation is made.
"Swingline Commitment" means the commitment of the Swingline Lender to make
--------------------
Swingline Loans in an aggregate principal amount at any time outstanding up
to the Swingline Committed Amount and the commitment of the Lenders to
purchase participation interests in the Swingline Loans up to their
respective Revolving Commitment Percentage as provided in Section 2.1(c),
as such amounts may be reduced from time to time in accordance with the
provisions hereof.
"Swingline Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.1(c).
"Swingline Lender" means Bank of America.
----------------
"Swingline Loan" means a swingline revolving loan made by the Swingline
--------------
Lender pursuant to the provisions of Section 2.1(c).
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
---------------
off-balance sheet loan or similar off-balance sheet financing product where
such transaction is considered borrowed money indebtedness for tax purposes
but is classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in Section 3.11.
-----
"Termination Date" means the earlier of (i) December 1, 2003 or such later
----------------
date as to which all of the Lenders may in their sole discretion by written
consent agree or (ii) the date on which the Commitments terminate in
accordance with the provisions of this Credit Agreement.
"Voting Stock" means, with respect to any Person, Capital Stock issued by
------------
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" of any Person means any Subsidiary 100% of whose
-----------------------
Voting Stock is at the time owned by such Person directly or indirectly
through other Wholly Owned Subsidiaries.
"Year 2000 Compliant" shall have the meaning assigned to such term in
-------------------
Section 6.17.
1.2 Computation of Time Periods.
---------------------------
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
17
<PAGE>
1.3 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the annual audited financial statements referenced in Section
6.1(i)); provided, however, if (a) the Borrower shall object to determining such
-------- -------
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Administrative Agent or the Required Lenders shall so object in writing
within 60 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Credit Parties to the Lenders as to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made under the financial covenants set forth in
Section 7.11 (including without limitation for purposes of the definitions of
"Applicable Percentage" and "Pro Forma Basis"), (a) in connection with any Asset
Disposition referred to in Section 8.5, (i) income statement items (whether
positive or negative) attributable to the Property disposed of shall be excluded
to the extent relating to any period occurring prior to the date of such
transaction and (ii) Indebtedness which is retired shall be excluded and deemed
to have been retired as of the first day of the applicable period and (b) in
connection with any merger or consolidation referred to in Section 8.4 or any
Acquisition referred to in the definition of "Permitted Acquisition", (i) income
---------------------
statement items attributable to the Person or Property acquired shall, to the
extent not otherwise included in such income statement items for the members of
the Consolidated Group in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.1, be included to the extent relating to any period
applicable in such calculations, (ii) Indebtedness of the Person or Property
acquired shall be deemed to have been incurred as of the first day of the
applicable period and (iii) pro forma adjustments may be included to the extent
that such adjustments would be permitted under GAAP and give effect to items
that are (x) directly attributable to such transaction, (y) expected to have a
continuing impact on the Consolidated Group and (z) factually supportable, and
(iv) any adjustments to pro forma consolidated income statement items
attributable to an Acquisition shall be performed in accordance with Rule 11.02
of Regulation S-X promulgated by the SEC or otherwise consented to by the
Administrative Agent and the Required Lenders.
SECTION 2
CREDIT FACILITIES
2.1 Commitments.
-----------
(a) Revolving Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, each Lender severally agrees to make revolving
loans (the "Revolving Loans") in Dollars to the Borrower in the amount of such
---------------
Lender's Revolving Commitment Percentage of such Revolving Loans for the
purposes hereinafter set forth; provided that (i) with regard to the Lenders
--------
collectively, the aggregate principal amount of Obligations at any time shall
not exceed FIFTY MILLION DOLLARS ($50,000,000) (as such amount may be reduced
from time to time in accordance with the provisions hereof, the "Aggregate
---------
Revolving Committed Amount") and (ii) with regard to each Lender individually,
- --------------------------
such Lender's Revolving Commitment Percentage of Obligations at any time shall
not exceed such Lender's Revolving Committed Amount. Revolving Loans may
consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request, and may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Letter of Credit Commitment. During the Commitment Period, subject to
---------------------------
the terms and conditions hereof and of the LOC Documents, if any, and such other
terms and conditions which the Issuing Lender may reasonably require, the
Issuing Lender shall issue, and the Lenders shall participate severally in, such
Letters of Credit in Dollars on a sight basis as the Borrower may request, in
form acceptable to the Issuing Lender, for the
18
<PAGE>
purposes hereinafter set forth; provided that (i) the aggregate amount of LOC
--------
Obligations shall not exceed FIVE MILLION DOLLARS ($5,000,000) at any time (as
such amount may be reduced from time to time in accordance with the provisions
hereof, the "LOC Committed Amount"), (ii) with regard to the Lenders
--------------------
collectively, the aggregate principal amount of Obligations at any time shall
not exceed the Aggregate Revolving Committed Amount and (iii) with regard to
each Lender individually, such Lender's Revolving Commitment Percentage of
Obligations at any time shall not exceed such Lender's Revolving Committed
Amount. Letters of Credit shall have an expiry date not more than one year from
the date of issuance or extension, provided that any Letter of Credit with a
--------
one-year term may provide for the renewal thereof for additional one-year
periods. No Letter of Credit, whether as originally issued or as extended, may
have an expiry date beyond the date five (5) Business Days prior to the
Termination Date.
(c) Swingline Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, the Swingline Lender agrees to make certain
revolving loans (the "Swingline Loans") in Dollars to the Borrower; provided
--------------- --------
that (i) the aggregate principal amount of Swingline Loans shall not exceed FIVE
MILLION DOLLARS ($5,000,000) (as such amount may be reduced from time to time in
accordance with the provisions hereof, the "Swingline Committed Amount"), (ii)
--------------------------
with regard to the Lenders collectively, the aggregate principal amount of
Obligations at any time shall not exceed the Aggregate Revolving Committed
Amount and (iii) with regard to each Lender individually, such Lender's
Revolving Commitment Percentage of Obligations at any time shall not exceed such
Lender's Revolving Committed Amount. Swingline Loans shall be made as Prime
Rate Swingline Loans and may be repaid and reborrowed in accordance with the
provisions hereof.
2.2 Method of Borrowing.
-------------------
(a) Notice of Request for Extensions of Credit. The Borrower shall request
------------------------------------------
an Extension of Credit hereunder by written notice (or telephone notice promptly
confirmed in writing) as follows:
(i) Revolving Loans. In the case of Revolving Loans, to the
---------------
Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of the requested borrowing in
the case of Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of Eurodollar Loans. Each such
request for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans
are requested, the Interest Period(s) therefor. A form of Notice of
Borrowing is attached as Schedule 2.2(a)(i). The Administrative Agent shall
------------------
give notice to each Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.2(a)(i), the contents thereof and each
such Lender's share of any borrowing to be made pursuant thereto.
(ii) Letters of Credit. In the case of Letters of Credit, to the
-----------------
Issuing Lender with a copy to the Administrative Agent not later than 11:00
A.M. (Charlotte, North Carolina time) on the third Business Day prior to
the date of the requested issuance or extension (or such shorter period as
may be agreed by the Issuing Lender). Each such request for issuance or
extension of a Letter of Credit shall be irrevocable and shall specify,
among other things, (A) that a Letter of Credit is requested, (B) the date
of the requested issuance or extension, (C) the type, amount, expiry date
and terms on which the Letter of Credit is to be issued or extended, and
(D) the beneficiary. A form of Notice of Request for Letter of Credit is
attached as Schedule 2.2(a)(ii).
-------------------
(iii) Swingline Loans. In the case of Swingline Loans, to the Swingline
---------------
Lender not later than 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Swingline Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and (D)
the maturity requested therefor. A form of Notice of Borrowing is attached
as Schedule 2.2(a)(i). Each Swingline Loan shall have a maturity date as
-----------------
the Borrower may request and the Swingline Lender may agree.
19
<PAGE>
(b) Minimum Amounts. Each Revolving Loan advance shall be in a minimum
---------------
principal amount of $5,000,000, in the case of Eurodollar Loans, or $1,000,000
(or the remaining Committed Amount, if less), in the case of Base Rate Loans,
and integral multiples of $250,000 in excess thereof. Each Swingline Loan
advance shall be in a minimum principal amount of $100,000 and integral
multiples of $50,000 in excess thereof.
(c) Information Not Provided. If in connection with any such request for a
------------------------
Revolving Loan, the Borrower shall fail to specify (i) an applicable Interest
Period in the case of a Eurodollar Loan, the Borrower shall be deemed to have
requested an Interest Period of one month, or (ii) the type of loan requested,
the Borrower shall be deemed to have requested a Base Rate Loan.
(d) Maximum Number of Eurodollar Loans. In connection with any request for
----------------------------------
a Revolving Loan, the Revolving Loans may be comprised of no more than five (5)
Eurodollar Loans outstanding at any time. For purposes hereof, Eurodollar Loans
with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
2.3 Interest.
--------
Subject to Section 3.1, the Loans hereunder shall bear interest at a per
annum rate, payable in arrears on each applicable Interest Payment Date (or at
such other times as may be specified herein), as follows:
(a) Base Rate Loans. During such periods as the Revolving Loans shall be
---------------
comprised of Base Rate Loans, the Loans shall bear interest at the Adjusted
Base Rate;
(b) Eurodollar Loans. During such periods as the Revolving Loans shall be
----------------
comprised of Eurodollar Loans, the Loans shall bear interest at the
Adjusted Eurodollar Rate; and
(c) Prime Rate Swingline Loans. Swingline Loans shall bear interest at the
--------------------------
Prime Rate plus the Applicable Percentage for Base Rate Loans.
----
2.4 Repayment.
---------
(a) Revolving Loans. The principal amount of all Revolving Loans shall be
---------------
due and payable in full on the Termination Date.
(b) Swingline Loans. The principal amount of all Swingline Loans shall be
---------------
due and payable on the earlier of (A) the maturity date agreed to by the
Swingline Lender and the Borrower with respect to such Loan, and (B) the
Termination Date.
2.5 Notes.
-----
The Revolving Loans and Swingline Loans shall be evidenced by the Revolving
Notes.
2.6 Additional Provisions relating to Letters of Credit.
---------------------------------------------------
(a) Reports. The Issuing Lender will provide to the Administrative Agent
-------
at least monthly, and more frequently upon request, a detailed summary report on
all Letters of Credit and the activity thereon, in form and substance acceptable
to the Administrative Agent. In addition, the Issuing Lender will provide to
the Administrative Agent for dissemination to the Lenders (i) upon the issuance
or amendment of a Letter of Credit, a detailed summary report on such Letter of
Credit, including, among other things, the Credit Party for whose account the
Letter of Credit is issued, the beneficiary, the face amount, and the expiry
date, and (ii) at least quarterly, and more frequently upon request, a detailed
summary report on all Letters of Credit and the activity thereon, including,
among other things, the Credit Party for whose account the Letter of Credit is
issued, the beneficiary, the face amount, and the expiry date. The Issuing
Lender will provide copies of the Letters of Credit to the Administrative Agent
and the Lenders promptly upon request.
20
<PAGE>
(b) Participation. Each Lender, with respect to the Existing Letters of
-------------
Credit, hereby purchases a participation interest in such Existing Letters of
Credit, and with respect to Letters of Credit issued on or after the Closing
Date, upon issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder, in each case in an amount equal
to its pro rata share of the obligations under such Letter of Credit (based on
the respective Revolving Commitment Percentages of the Lenders) and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Lender therefor and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Lender's participation in
any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit, each Lender
shall pay to the Issuing Lender its pro rata share of such unreimbursed drawing
in same day funds on the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
(c) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Lender will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to otherwise
reimburse the Issuing Lender for such drawing, the Borrower shall be deemed to
have requested that the Lenders make a Revolving Loan in the amount of the
drawing as provided in subsection (d) hereof on the related Letter of Credit,
the proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the Issuing Lender on the day
of drawing under any Letter of Credit (either with the proceeds of a Revolving
Loan obtained hereunder or otherwise) in same day funds. If the Borrower shall
fail to reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to the
Adjusted Base Rate plus two percent (2%). The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any defense based on any
failure of the Borrower or any other Credit Party to receive consideration or
the legality, validity, regularity or unenforceability of the Letter of Credit.
The Issuing Lender will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Administrative
Agent for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's Revolving Commitment Percentage of
such unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Lender from the Issuing Lender if such notice is received at or
before 2:00 P.M. (Charlotte, North Carolina time) otherwise such payment shall
be made at or before 12:00 Noon (Charlotte, North Carolina time) on the Business
Day next succeeding the day such notice is received. If such Lender does not
pay such amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of such
drawing until such Lender pays such amount to the Issuing Lender in full at a
rate per annum equal to, if paid within two (2) Business Days of the date that
such Lender is required to make payments of such amount pursuant to the
preceding sentence, the Federal Funds Rate and thereafter at a rate equal to the
Base Rate. Each Lender's obligation to make such payment to the Issuing Lender,
and the right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the Commitments hereunder,
the existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents, and
shall have a claim against the Borrower with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the Lenders that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan advance comprised of Base Rate Loans
(or Eurodollar Loans to the extent the Borrower has complied with the procedures
of Section 2.2(a)(i) with respect thereto) shall be immediately made to the
Borrower by all Lenders (notwithstanding any
21
<PAGE>
termination of the Commitments pursuant to Section 9.2) pro rata based on the
respective Revolving Commitment Percentages of the Lenders (determined before
giving effect to any termination of the Commitments pursuant to Section 9.2) and
the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving Loan
immediately upon any such request or deemed request in the amount, in the manner
and on the date specified in the preceding sentence notwithstanding (i) the
---------------
amount of such borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 5.2 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) failure for any such request or deemed request for
Revolving Loan to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (vi) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such borrowing.
In the event that any Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any Credit Party), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Issuing Lender such participation in the
outstanding LOC Obligations as shall be necessary to cause each such Lender to
share in such LOC Obligations ratably (based upon the respective Commitment
Percentages of the Lenders (determined before giving effect to any termination
of the Commitments pursuant to Section 9.2)), provided that in the event such
--------
payment is not made on the day of drawing, such Lender shall pay in addition to
the Issuing Lender interest on the amount of its unfunded Participation Interest
at a rate equal to, if paid within two (2) Business Days of the date of drawing,
the Federal Funds Rate, and thereafter at the Base Rate.
(e) Designation of other Credit Parties as Account Parties.
------------------------------------------------------
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a)(ii) hereof, a Letter of Credit
issued hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Credit Party other than the Borrower,
provided that notwithstanding such statement, the Borrower shall be the actual
account party for all purposes of this Credit Agreement for such Letter of
Credit and such statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(f) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender may have the Letters
-----------------------------
of Credit be subject to The Uniform Customs and Practice for Documentary Credits
(the "UCP") or the International Standby Practices 1998 (the "ISP98"), in either
case as published as of the date of issue by the International Chamber of
Commerce, in which case the UCP or the ISP98, as applicable, may be incorporated
therein and deemed in all respects to be a part thereof.
(h) Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
(i) In addition to its other obligations under this Section 2.6, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
---------------
(ii) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Lender shall not be responsible:
(A) for the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (D) for
22
<PAGE>
any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under a Letter of Credit or of the proceeds
thereof; and (E) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the
Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that this Credit Agreement
shall be construed and applied to protect and indemnify the Issuing Lender
against any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower (on behalf of
itself and each of the other Credit Parties), including, without
limitation, any and all Government Acts. The Issuing Lender shall not, in
any way, be liable for any failure by the Issuing Lender or anyone else to
pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (h) shall
survive the termination of this Credit Agreement. No act or omissions of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
(A) arising solely out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction, or (B)
caused by the Issuing Lender's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation,
court order or decree.
(i) Responsibility of Issuing Lender. It is expressly understood and agreed
--------------------------------
that the obligations of the Issuing Lender hereunder to the Lenders are only
those expressly set forth in this Credit Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section
5.2 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
-------- -------
set forth in this Section 2.6 shall be deemed to prejudice the right of any
Lender to recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.6 in the event that it
is determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict between this
---------------------------
Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.7 Additional Provisions relating to Swingline Loans.
-------------------------------------------------
The Swingline Lender may, at any time, in its sole discretion, by written
notice to the Borrower and the Lenders, demand repayment of its Swingline Loans
by way of a Revolving Loan advance, in which case the Borrower shall be deemed
to have requested a Revolving Loan advance comprised solely of Base Rate Loans
in the amount of such Swingline Loans; provided, however, that any such demand
-------- -------
shall be deemed to have been given one Business Day prior to the Termination
Date and on the date of the occurrence of any Event of Default described in
Section 9.1 and upon acceleration of the indebtedness hereunder and the exercise
of remedies in accordance with the provisions of Section 9.2. Each Lender
hereby irrevocably agrees to make its Revolving Commitment Percentage of each
such Revolving Loan in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (I) the amount of such borrowing may not
---------------
comply with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in Section 5.2 are
then satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving Loan to be made by
the time otherwise required hereunder, (V) whether the date of such borrowing is
a date on which Revolving Loans are
23
<PAGE>
otherwise permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each Lender hereby agrees that it
shall forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender such
Participation Interests in the outstanding Swingline Loans as shall be necessary
to cause each such Lender to share in such Swingline Loans ratably based upon
its Revolving Commitment Percentage of the Aggregate Revolving Committed Amount
(determined before giving effect to any termination of the Commitments pursuant
to Section 3.4), provided that (A) all interest payable on the Swingline Loans
--------
shall be for the account of the Swingline Lender until the date as of which the
respective Participation Interest is funded and (B) at the time any purchase of
Participation Interests pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay to the Swingline Lender, to the
extent not paid to the Swingline Lender by the Borrower in accordance with the
terms of Section 2.4(b), interest on the principal amount of Participation
Interests purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such Participation Interests, at the rate equal to the Federal Funds Rate.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
----------------------------------------------
3.1 Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
(i) the principal of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other Credit Documents shall
bear interest, payable on demand, at a per annum rate 2% greater than the rate
which would otherwise be applicable (or if no rate is applicable, whether in
respect of interest, fees or other amounts, then the Adjusted Base Rate plus 2%)
----
and (ii) the Standby Letter of Credit Fee shall accrue at a per annum rate 2%
greater than the rate which would otherwise be applicable.
3.2 Extension and Conversion.
------------------------
The Borrower shall have the option, on any Business Day, to extend existing
Loans into a subsequent permissible Interest Period or to convert Loans into
Loans of another interest rate type; provided, however, that (i) except as
-------- -------
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto, (ii) without the consent of the Required
Lenders, Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if the conditions precedent set forth in Section 5.2
are satisfied on the date of Continuation or Conversion, (iii) Loans extended
as, or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" and shall be in such minimum amounts as provided
---------------
in Section 2.2(b), (iv) no more than five (5) Eurodollar Loans which comprise
Revolving Loans shall be outstanding hereunder at any time (it being understood
that, for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, Continuations and Conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period) and (v) any
request for Continuation or Conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such Continuation or Conversion shall be effected by
the Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Administrative Agent
specified in Section 11.1, or at such other office as the Administrative Agent
may designate in writing, prior to 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day of, in the case of the Conversion of a Eurodollar Loan into
a Base Rate Loan, and on the third Business Day prior to, in the case of the
Continuation of a Eurodollar Loan as, or Conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the proposed Continuation or Conversion, specifying
the date of the proposed Continuation or Conversion, the Loans to be so extended
or converted, the types of Loans into which such Loans are to be converted and,
if appropriate, the applicable Interest Periods with respect thereto. Each
request for Continuation or Conversion shall be irrevocable and shall constitute
a representation and warranty by the Borrower of the matters specified in
subsections (a), (b), (c), (d) and
24
<PAGE>
(e) of Section 5.2. In the event the Borrower fails to request Continuation or
Conversion of any Eurodollar Loan in accordance with this Section, or any such
Conversion or Continuation is not permitted or required by this Section, then
such Eurodollar Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto. The Administrative Agent
shall give each Lender notice as promptly as practicable of any such proposed
Continuation or Conversion affecting any Loan.
3.3 Prepayments.
-----------
(a) Voluntary Prepayments. The Loans may be repaid in whole or in part
---------------------
without premium or penalty; provided that (i) Eurodollar Loans may be prepaid
--------
only upon three (3) Business Days' prior written notice to the Administrative
Agent and must be accompanied by payment of any amounts owing under Section
3.12, and (ii) partial prepayments shall be (A) in the case of Eurodollar Loans,
in minimum principal amounts of $5,000,000 and in integral multiples of $250,000
in excess thereof, (B) in the case of Base Rate Loans (other than Swingline
Loans), in minimum principal amounts of $1,000,000 and in integral multiples of
$250,000 in excess thereof, and (C) in the case of Swingline Loans, in minimum
principal amounts of $100,000 and in integral multiples of $50,000 in excess
thereof.
(b) Mandatory Prepayments. If at any time, (i) the aggregate principal
---------------------
amount of Obligations shall exceed the Aggregate Revolving Committed Amount,
(ii) the aggregate amount of LOC Obligations shall exceed the LOC Committed
Amount or (iii) the aggregate principal amount of Swingline Loans shall exceed
the Swingline Committed Amount, the Borrower shall immediately make payment on
the Revolving Loans, on the Swingline Loans and/or to a cash collateral account
in respect of the LOC Obligations, in an amount sufficient to eliminate the
excess.
(c) Application. Unless otherwise specified by the Borrower, prepayments
-----------
on the Obligations shall be applied first to Prime Rate Swingline Loans, then to
Base Rate Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
3.4 Reduction and Termination of Commitments.
----------------------------------------
(a) Voluntary Reduction of Commitments. The Commitments may be terminated
----------------------------------
or permanently reduced in whole or in part upon three (3) Business Days' prior
written notice to the Administrative Agent, provided that (i) after giving
--------
effect to any voluntary reduction the aggregate amount of Obligations shall not
exceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
reductions shall be in a minimum principal amount of $5,000,000, and in integral
multiples of $1,000,000 in excess thereof.
(b) Termination of Commitments. The Commitments hereunder shall terminate
--------------------------
on the Termination Date.
3.5 Fees.
----
(a) Commitment Fee. In consideration of the Revolving Commitments
--------------
hereunder, the Borrower agrees to pay to the Administrative Agent for the
ratable benefit of the Lenders a commitment fee (the "Commitment Fee") for the
--------------
period from the Closing Date to the Termination Date equal to the Applicable
Percentage per annum on the average daily unused amount of the Aggregate
Revolving Committed Amount for the applicable period, provided during any period
--------
that (a) the Applicable Percentage is based on pricing level III or pricing
level IV and (b) the unused amount of the Aggregate Revolving Committed Amount
is less than fifty percent (50%) of the Aggregate Revolving Committed Amount,
the Commitment Fee shall be equal to the product of the Applicable Percentage
multiplied by two (2) per annum on the average daily unused amount of the
Aggregate Revolving Committed Amount for the applicable period. The Commitment
Fee shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December for the immediately preceding quarter (or a
portion thereof) beginning with the first such date to occur after the Closing
Date and on the Termination Date. For purposes of computation of the Commitment
Fee, Swingline Loans shall not be counted toward or considered usage under the
Aggregate Revolving Committed Amount.
(b) Letter of Credit Fees.
---------------------
25
<PAGE>
(i) Standby Letter of Credit Issuance Fee. In consideration of the
-------------------------------------
issuance of standby Letters of Credit hereunder, the Borrower promises to
pay to the Administrative Agent for the account of each Lender a fee (the
"Standby Letter of Credit Fee") on such Lender's Revolving Commitment
-----------------------------
Percentage of the average daily maximum amount available to be drawn under
each such standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to and including the date of expiration equal
to the Applicable Percentage. The Standby Letter of Credit Fee shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion
thereof) beginning with the first such date to occur after the Closing Date
and on the Termination Date.
(ii) Issuing Lender Fees. In addition to the Standby Letter of Credit
-------------------
Fee, the Borrower promises to pay to the Administrative Agent for the
account of the Issuing Lender without sharing by the other Lenders (i) a
letter of credit fronting fee of one-eighth of one percent (0.125%) on the
average daily maximum amount available to be drawn under each Letter of
Credit computed at a per annum rate for each day from the date of issuance
to the date of expiration and (ii) the customary charges from time to time
of the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit. The fronting fee shall be payable upon the issuance of
each Letter of Credit and the customary charges shall be payable upon
demand by the Issuing Lender.
(c) Administrative Fees. The Borrower agrees to pay to the
-------------------
Administrative Agent, for its own account, the fees referred to in the
Administrative Agent's Fee Letter (the "Administrative Agent's Fees").
---------------------------
3.6 Capital Adequacy.
----------------
If any Lender has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (including, for purposes hereof, the parent company of such Lender)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy), then, upon notice from such
Lender to the Borrower, the Borrower shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction. Such notice shall be accompanied by a statement as to the amount of
such compensation and include a reasonably detailed summary of the basis for
such demand with reasonably detailed calculations. Each determination by any
such Lender of amounts owing under this Section shall, absent manifest error, be
conclusive and binding on the parties hereto.
3.7 Limitation on Eurodollar Loans.
------------------------------
If on or prior to the first day of any Interest Period for any Eurodollar
Loan:
(a) the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, Continue Eurodollar Loans, or to
Convert Base Rate Loans into Eurodollar Loans.
26
<PAGE>
3.8 Illegality.
----------
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Lender (or its Applicable Lending Office) to
make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be
applicable).
3.9 Requirements of Law.
-------------------
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Eurodollar
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including the Commitment of such Lender
hereunder; or
(ii) shall impose on such Lender (or its Applicable Lending Office) or
the London interbank market any other condition affecting this Credit
Agreement or its Notes or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into
Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); provided that such suspension shall not affect the right of such
--------
Lender to receive the compensation so requested. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under this
Section 3.9 shall furnish to the Borrower and the Administrative Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder (including a reasonably detailed summary of the basis for such amounts
with reasonably detailed calculations) which shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans.
---------------------------
If the obligation of any Lender to make any Eurodollar Loan or to Continue, or
to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to
Section 3.8 or 3.9 hereof, such Lender's Eurodollar Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for such Eurodollar Loans (or, in the case of a Conversion required by
Section 3.8 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 3.8 or 3.9 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
27
<PAGE>
(b) all Loans that would otherwise be made or Continued by such Lender
as Eurodollar Loans shall be made or Continued instead as Base Rate Loans,
and all Base Rate Loans of such Lender that would otherwise be Converted
into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.10 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
3.11 Taxes.
-----
(a) Any and all payments by any Credit Party to or for the account of
any Lender (whether or not a signatory hereof) or the Administrative Agent
hereunder or under any other Credit Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent,
---------
taxes imposed on its income or gross receipts, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender (or its Applicable
Lending Office) or the Administrative Agent (as the case may be) is organized or
conducts business, or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter referred to as "Taxes"). If any Credit Party shall
-----
be required by law to deduct or withhold any Taxes from or in respect of any sum
payable under this Credit Agreement or any other Credit Document to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under this
Section 3.11) such Lender or the Administrative Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Credit Party shall make such deductions and withholdings, (iii) such Credit
Party shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) such
Credit Party shall furnish to the Administrative Agent, at its address referred
to in Section 11.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Credit
Agreement or any other Credit Document or from the execution or delivery of, or
otherwise with respect to, this Credit Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto,
except with respect to any Lender or the Administrative Agent, as the case may
be, for such liability arising from such Lender's or the Administrative Agent's,
as the case may be, gross negligence or willful misconduct.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Internal Revenue Code, on or prior to the date of its
execution and delivery of this Credit Agreement in the case of each Lender
listed on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces to zero
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, (iii) any other form or certificate
required by any taxing authority
28
<PAGE>
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from tax on payments pursuant to this Credit Agreement or any of the other
Credit Documents and/or (iv) any other forms or documents relating to the status
of such Lender reasonably requested by the Borrower.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Administrative Agent with the appropriate form pursuant to
Section 3.11(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), then, notwithstanding any other provision of this
Section 3.11, such Lender shall not be entitled to additional payment or
indemnification under Section 3.11(a), 3.11(b) or 3.11(c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which is
-------- -------
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 3.11, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
applicable Credit Party shall furnish to the Administrative Agent the original
or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 3.11 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
3.12 Compensation.
------------
Upon the request of any Lender, the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for any
reason (including, without limitation, (i) in connection with any
assignment by Bank of America pursuant to Section 11.3(b) as part of the
primary syndication of the Loans during the 90-day period immediately
following the Closing Date and (ii) the acceleration of the Loans pursuant
to Section 9.2) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan
on the date for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
29
<PAGE>
3.13 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans and Letters of Credit. Each Revolving Loan advance, each
---------------------------
payment or prepayment of principal of any Revolving Loan (other than
Swingline Loans) or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Revolving Loans or
reimbursement obligations arising from drawings under Letters of Credit,
each payment of Commitment Fees, each payment of the Standby Letter of
Credit Fee, each reduction of the Aggregate Revolving Committed Amount and
each conversion or extension of any Revolving Loan (other than Swingline
Loans), shall be allocated pro rata among the Lenders in accordance with
the respective Revolving Commitment Percentages.
(b) Advances. No Lender shall be responsible for the failure or delay
--------
by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
-------- -------
fulfill its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any requested borrowing that
such Lender does not intend to make available to the Administrative Agent
its ratable share of such borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of such borrowing, and
the Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount
is recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender, if paid within
two (2) Business Days of the date such amount was made available by the
Administrative Agent to the Borrower, the Federal Funds Rate and thereafter
at a rate equal to the Base Rate.
3.14 Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a Participation Interest in such Loans, LOC Obligations and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a Participation Interest theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a Participation Interest may, to the fullest extent permitted by
law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such Participation Interest as fully as if such
Lender were a holder of such Loan, LOC Obligations or other obligation in the
amount of such Participation Interest. Except as otherwise expressly provided
in this Credit Agreement, if any Lender or the Administrative Agent shall fail
to remit to the Administrative Agent or any other Lender an amount payable by
such Lender or the Administrative Agent to the Administrative Agent or such
other Lender pursuant to this Credit Agreement on the date when such amount is
due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the
30
<PAGE>
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.14 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders under this Section 3.14 to share in the benefits of
any recovery on such secured claim.
3.15 Payments, Computations, Etc.
---------------------------
(a) Generally. Except as otherwise specifically provided herein, all
---------
payments hereunder shall be made to the Administrative Agent in Dollars in
immediately available funds, without setoff, deduction, counterclaim or
withholding of any kind, at the Administrative Agent's office specified in
Section 11.1 not later than 2:00 P.M. (Charlotte, North Carolina time) on the
date when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent may (but
shall not be obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrower or any other
Credit Party maintained with the Administrative Agent (with notice to the
Borrower or such other Credit Party). The Borrower shall, at the time it makes
any payment under this Credit Agreement, specify to the Administrative Agent the
Loans, LOC Obligations, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
so to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall distribute such payment to the Lenders in
such manner as the Administrative Agent may determine to be appropriate in
respect of obligations owing by the Borrower hereunder, subject to the terms of
Section 3.13(a)). The Administrative Agent will distribute such payments to such
Lenders, if any such payment is received prior to 2:00 P.M. (Charlotte, North
Carolina time) on a Business Day in like funds as received prior to the end of
such Business Day and otherwise the Administrative Agent will distribute such
payment to such Lenders on the next succeeding Business Day. Notwithstanding
anything herein to the contrary, unless the Administrative Agent shall have been
notified by the Borrower prior to the date any payment is due that the Borrower
does not intend to make such payment to the Administrative Agent on such date,
the Administrative Agent may assume that the Borrower has made such payment
available to the Administrative Agent on the date such payment is due, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) distribute to the Lenders a
corresponding amount. If such payment is not in fact made available to the
Administrative Agent on such date, the Administrative Agent shall be able to
recover such payment from the Borrower. The Administrative Agent shall also be
entitled to recover such payment on demand from the Lenders with interest on
such corresponding amount in respect of each day from the date such
corresponding amount was distributed to the Lenders to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (a) for the period from the date such amount was distributed to
the Lenders to the date two (2) Business Days after the date the Administrative
Agent notifies the Lenders that the payment was not in fact made, the Federal
Funds Rate, and (b) thereafter, the Base Rate. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of Eurodollar Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days. Interest shall accrue
from and include the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding
---------------------------------------------
any other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received on or in respect of the Obligations (or other amounts
owing under the Credit Documents in connection therewith) shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Administrative Agent in connection with enforcing the rights and
remedies of the Lenders under the Credit Documents made with respect
thereto;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Lenders hereunder in connection with
31
<PAGE>
enforcing its rights under the Credit Documents or otherwise with
respect to the Obligations owing to such Lender;
FOURTH, to the payment of all accrued interest and fees on or in
respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of the
Obligations hereunder (including the payment or cash collateralization
of the outstanding LOC Obligations);
SIXTH, to all other Obligations hereunder and other obligations
which shall have become due and payable under the Credit Documents
otherwise and not repaid pursuant to clauses "FIRST" through "SIXTH"
above; and
SEVENTH, to the payment of the surplus, if any, to the Borrower.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) except as otherwise provided, the Lenders
shall receive amounts ratably in accordance with their respective pro rata
share (based on the proportion that the then outstanding Obligations held
by such Lenders bears to the aggregate amount of Obligations then
outstanding) of amounts available to be applied pursuant to clauses
"THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that
any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (A) first, to reimburse the Issuing Lender
for any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FOURTH" and "FIFTH" above in the manner provided in
this Section 3.15(b).
3.16 Evidence of Debt.
----------------
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of any Credit Party and each Lender's share thereof. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Credit
Parties therein recorded; provided, however, that the failure of any Lender or
-------- -------
the Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Credit Parties to repay the Obligations and other amounts
owing to such Lender.
3.17 Certain Limitations.
-------------------
The provisions of Sections 3.6, 3.9 and 3.11 shall be subject to the
following:
(a) If any Lender requests compensation or indemnification from the
Borrower under Section 3.6, 3.9 or 3.11, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its applicable lending office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
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<PAGE>
(b) If any Lender requests compensation or indemnification from the
Borrower under Section 3.6, 3.9 or 3.11, the Borrower may, at its option, so
long as no Event of Default shall have occurred and be continuing, obtain, at
the Borrower's expense, a replacement Lender for the affected Lender. If the
Borrower elects to obtain a replacement Lender for the affected Lender, the
Borrower shall within thirty (30) after the date of such request notify the
Administrative Agent and such affected Lender of its intention to replace the
affected Lender. If the Borrower obtains a replacement Lender within sixty (60)
days following notice of its intention to do so, the affected Lender must sell
and assign its Loans and Commitments to such replacement Lender pursuant to
Section 11.3 (without giving effect to any requirement therein that the
Administrative Agent consent thereto), for an amount equal to the principal
balance of all Loans held by the affected Lender and all accrued interest and
Fees with respect thereto through the date of such sale, provided that the
--------
Borrower shall have paid to such affected Lender the compensation or
indemnification that it is entitled to receive under Section 3.6, 3.9 or 3.11
through the date of such sale and assignment. Notwithstanding the foregoing, if
the Borrower (a) fails to give notice to the Administrative Agent and the
affected Lender of its intention to replace the affected Lender within thirty
(30) days after the Lender requests compensation or indemnification, or (b)
timely gives notice to the Administrative Agent and the affected Lender of its
intention to replace such affected Lender but does not so replace such affected
Lender within sixty (60) days following such notice, then in each case the
Borrower's rights under this Section 3.17 to replace such Lender for the
particular circumstances shall terminate.
SECTION 4
GUARANTY
--------
4.1 The Guaranty.
------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each affiliate of a Lender that enters into a Hedging Agreement relating
to the Obligations, and the Administrative Agent, as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
4.2 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.1 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor
shall have no right of subrogation, indemnity, reimbursement or contribution
against the Borrower or any other Guarantor for amounts paid under this Section
4 until such time as the Lenders (and any affiliates of Lenders entering into
Hedging Agreements) have been paid in full in respect of all Guaranteed
Obligations, all Commitments under this Credit Agreement have been terminated
and no Person or Governmental Authority shall have any right to
33
<PAGE>
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents or Hedging Agreements between any
member of the Consolidated Group and any Lender, or any affiliate of a Lender.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;
(d) any of the Guaranteed Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor of
any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents or such Hedging
Agreements, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
4.3 Reinstatement.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
--------------------------
Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Guaranteed Obligations, except through the exercise of
rights of subrogation pursuant to Section 4.2 and through the exercise of rights
of contribution pursuant to Section 4.6.
4.5 Remedies.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Guaranteed Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay,
34
<PAGE>
injunction or other prohibition preventing such declaration (or preventing the
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Guaranteed
Obligations being deemed to have become automatically due and payable), the
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1.
4.6 Rights of Contribution.
----------------------
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the Lenders of the Guaranteed Obligations, and none of
the Guarantors shall exercise any right or remedy under this Section 4.6 against
any other Guarantor until payment and satisfaction in full of all of such
Guaranteed Obligations. For purposes of this Section 4.6, (a) "Guaranteed
----------
Obligations" shall mean any obligations arising under the other provisions of
- -----------
this Section 4; (b) "Excess Payment" shall mean the amount paid by any Guarantor
--------------
in excess of its Pro Rata Share of any Guaranteed Obligations; (c) "Pro Rata
--------
Share" shall mean, for any Guarantor in respect of any payment of Guaranteed
- -----
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Pro Rata
-------- -------
Shares of the Guarantors in respect of any payment of Guaranteed Obligations,
any Guarantor that became a Guarantor subsequent to the date of any such payment
shall be deemed to have been a Guarantor on the date of such payment and the
financial information for such Guarantor as of the date such Guarantor became a
Guarantor shall be utilized for such Guarantor in connection with such payment;
and (d) "Contribution Share" shall mean, for any Guarantor in respect of any
------------------
Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the
aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Credit Parties other than the maker of such Excess Payment exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such Excess Payment;
provided, however, that, for purposes of calculating the Contribution Shares of
- -------- -------
the Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under
applicable law against the Borrower in respect of any payment of Guaranteed
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor shall be relieved of its obligations pursuant to Section 8.4.
4.7 Guarantee of Payment; Continuing Guarantee.
------------------------------------------
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
35
<PAGE>
SECTION 5
CONDITIONS
----------
5.1 Closing Conditions.
------------------
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial Extensions of Credit shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the Administrative Agent
-------------------------
of: (i) multiple counterparts of this Credit Agreement and (ii) a
Revolving Note for each Lender, in each case executed by a duly authorized
officer of each party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt by the Administrative Agent of multiple
--------------
counterparts of opinions of counsel for the Credit Parties relating to the
Credit Documents and the transactions contemplated therein, in form and
substance satisfactory to the Administrative Agent and the Lenders, and
including, among other things, opinions regarding enforceability of the
Credit Documents and the perfection of the security interests created
thereby.
(c) Financial Information. Receipt by the Lenders of such financial
---------------------
information regarding the members of the Consolidated Group as may be
requested by, and in each case in form and substance satisfactory to, the
Administrative Agent and the Lenders.
(d) Absence of Legal Proceedings. There shall not exist any action,
----------------------------
suit, investigation or proceeding pending in any court or before any
arbitrator or Governmental Authority which could reasonably be expected to
have a Material Adverse Effect.
(e) Corporate Documents. Receipt by the Administrative Agent of the
-------------------
following (or their equivalent) for each of the Credit Parties:
(i) Charter Documents. Copies of the articles or certificates of
-----------------
incorporation or other charter documents of such Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation and certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the
Closing Date.
(ii) Bylaws. A copy of the bylaws, operating agreement or
------
equivalent of such Credit Party certified by a secretary or assistant
secretary of such Credit Party to be true and correct and in force and
effect as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the board of
-----------
directors of such Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by
a secretary or assistant secretary of such Credit Party to be true and
correct and in force and effect as of the Closing Date.
(iv) Good Standing. (A) certificates of good standing, existence
-------------
or its equivalent certified as of a recent date by the appropriate
governmental authorities of the state of incorporation and each other
state in which the failure to so qualify and be in good standing would
be reasonably likely to have a material adverse effect on the business
or operations in such state and (B) certificates indicating payment of
all corporate franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities of the state of
incorporation and each other state in which the failure to pay
corporate franchise taxes would be reasonably likely to have a
material adverse effect on the business and operations in such state.
36
<PAGE>
(v) Officer's Certificate. An officer's certificate for each of
---------------------
the Credit Parties dated as of the Closing Date substantially in the
form of Schedule 5.1(e)(v) with appropriate insertions and
------------------
attachments.
(f) Officer's Certificates. The Administrative Agent shall have
----------------------
received a certificate or certificates executed by an Executive Officer of
the Borrower as of the Closing Date, in form and substance satisfactory to
the Administrative Agent, stating that (A) each Credit Party is in
compliance with all existing financial obligations, (B) all governmental,
shareholder and third party consents and approvals, if any, with respect to
the Credit Documents and the transactions contemplated thereby have been
obtained, (C) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Credit Party or any transaction
contemplated by the Credit Documents, if such action, suit, investigation
or proceeding could reasonably be expected to have a Material Adverse
Effect, and (D) immediately after giving effect to the initial Loans made
and Letters of Credit issued on the Closing Date, (1) no Default or Event
of Default exists, (2) all representations and warranties contained herein
and in the other Credit Documents are true and correct in all material
respects and (3) the Credit Parties are in pro forma compliance with each
of the financial covenants set forth in Section 7.11 (assuming for purposes
hereof that such financial covenants were measured as of, and for the 12-
month period ending on, such date).
(g) Corporate Structure. Receipt by the Administrative Agent of the
-------------------
corporate capital and ownership structure of the members of the
Consolidated Group.
(h) Repayment of Bridge Note. The Borrower shall repay on or prior to
------------------------
the Closing Date all amounts outstanding under the Bridge Note.
(i) Fees and Expenses. Payment by the Credit Parties of all fees and
-----------------
expenses then due and payable to the Lenders and the Administrative Agent,
including, without limitation, payment to the Administrative Agent of the
fees set forth in the Administrative Agent's Fee Letter.
5.2 Conditions to all Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and Warranties. The representations and warranties
------------------------------
made by the Credit Parties herein and in the other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default shall
------------------------------
have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If a Revolving Loan is
----------------------------------------
requested pursuant to Sections 2.1 and 2.2, all conditions set forth in Section
2 shall have been satisfied.
(d) Additional Conditions to Letters of Credit. If the issuance of a
------------------------------------------
Letter of Credit is requested pursuant to Sections 2.1 and 2.2, all conditions
set forth in Section 2 shall have been satisfied.
(e) Additional Conditions to Swingline Loans. If a Swingline Loan is
----------------------------------------
requested pursuant to Sections 2.1 and 2.2, all conditions set forth in Section
2 shall have been satisfied.
Each request for an Extension of Credit (including Continuations and
Conversions) and each acceptance by the Borrower of an Extension of Credit
(including Continuations and Conversions) shall be deemed to constitute a
37
<PAGE>
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a) and (b), and in (c), (d)
or (e) of this subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Lenders to enter into this Credit Agreement and to make the
Extensions of Credit hereunder, each of the Credit Parties hereby represents and
warrants to the Administrative Agent and to each Lender that:
6.1 Financial Condition.
-------------------
Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition (including disclosure of all
material liabilities, contingent or otherwise) and results from operations of
the entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments and the absence of
footnotes:
(i) the audited consolidated balance sheet of the Consolidated Group for
the fiscal year ending December 31, 1998, together with related audited
consolidated statements of income and cash flows for the fiscal year then
ending, as set forth in the Registration Statement;
(ii) the unaudited, company-prepared consolidated balance sheet of the
Consolidated Group for the fiscal quarter ending September 30, 1999,
together with related consolidated statements of income and cash flows for
the fiscal quarter then ending, as set forth in the Registration Statement;
and
(iii) after the Closing Date, the annual and quarterly financial
statements provided in accordance with Sections 7.1(a) and (b).
6.2 No Changes or Restricted Payments.
---------------------------------
Since the date of the most-recent annual audited financial statements
referenced in Section 6.1(i),
(i) for the period to the Closing Date, except as previously disclosed
in writing to the Administrative Agent and the Lenders, (A) there have been
no material sales, transfers or other dispositions of any material part of
the business or property of the members of the Consolidated Group, nor have
there been any material purchases or other acquisitions of any business or
property (including the Capital Stock of any other person) by the members
of the Consolidated Group, which are not reflected in the annual audited or
company-prepared quarterly financial statements referenced in Section
6.1(i) and (ii) hereof, and (B) no Restricted Payments have been declared
or paid by members of the Consolidated Group; and
(ii) there have been no circumstances, developments or events relating
to or affecting the members of the Consolidated Group which, individually
or in the aggregate, has had or could reasonably be expected to have a
Material Adverse Effect.
6.3 Organization; Existence; Compliance with Law.
--------------------------------------------
Each of the members of the Consolidated Group (a) is duly organized,
validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has the corporate or other necessary power
and authority, and the legal right to own and operate its Property, to lease the
Property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (d) is in compliance with all
Requirements of
38
<PAGE>
Law, except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
---------------------------------------------
Each of the Credit Parties has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate or other
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with acceptance of Extensions of Credit
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Credit Parties (other than those
which have been obtained, such filings as are required by the Securities and
Exchange Commission and to fulfill other reporting requirements with
Governmental Authorities) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens, if any, created by such Credit
Documents). Each Credit Document to which it is a party constitutes a legal,
valid and binding obligation of such Credit Party enforceable against such
Credit Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 No Legal Bar.
------------
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any Contractual Obligation of any member of the
Consolidated Group (except those as to which waivers or consents have been
obtained and those that would not reasonably be expected to have a Material
Adverse Effect), and will not result in, or require, the creation or imposition
of any Lien on any of its respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens, if any,
arising under or contemplated in connection with the Credit Documents. No
member of the Consolidated Group is in default under or with respect to any of
its Contractual Obligations in any respect which would reasonably be expected to
have a Material Adverse Effect.
6.6 No Material Litigation and Disputes.
-----------------------------------
(a) No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against, any members of the Consolidated Group
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby
or (b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect. Set forth on Schedule 6.6 is a summary of all claims,
------------
litigation, investigations and proceedings pending or, to the best knowledge of
the Credit Parties, threatened by or against the members of the Consolidated
Group or against any of their respective properties or revenues, and none of
such actions, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) No default exists and, to the best knowledge of the Credit Parties, no
default has been asserted, under any Contractual Obligations to which any
members of the Consolidated Group are party which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.7 No Defaults.
-----------
No Default or Event of Default has occurred and is continuing.
6.8 Ownership and Operation of Property.
-----------------------------------
Each of the members of the Consolidated Group (i) has good record and
marketable title to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien, except for
Permitted Liens, and (ii) has obtained all material licenses,
39
<PAGE>
permits, franchises or other certifications, consents, approvals and
authorizations, governmental or private, necessary to the ownership of its
Property and to the conduct of its business.
6.9 Intellectual Property.
---------------------
Each of the members of the Consolidated Group owns, or has the legal right
to use, all United States trademarks, tradenames, copyrights, patents,
technology, know-how and processes, if any, necessary for each of them to
conduct its business as currently conducted (the "Intellectual Property") except
---------------------
for those the failure to own or have such legal right to use would not
reasonably be expected to have a Material Adverse Effect. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Credit Party know of any such claim, and the
use of such Intellectual Property by the members of the Consolidated Group does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
6.10 No Burdensome Restrictions.
--------------------------
No Requirement of Law or Contractual Obligation of the members of the
Consolidated Group would reasonably be expected to have a Material Adverse
Effect.
6.11 Taxes.
-----
Each of the members of the Consolidated Group has filed or caused to be
filed all federal income tax returns and all other material tax returns which
are required to be filed and has paid (i) all amounts shown therein to be due
(including interest and penalties) and (ii) all other taxes, fees, assessments
and other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) owing, except for such taxes which are not
yet delinquent or as are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established unless the failure to make any such payment could give rise to
an immediate right to foreclose on a Lien securing such amounts. No tax claim
or assessment has been asserted against members of the Consolidated Group which
if adversely determined would reasonably be expected to have a Material Adverse
Effect.
6.12 ERISA
-----
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Internal
Revenue Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance with its
own terms and in material compliance with the provisions of ERISA, the Internal
Revenue Code, and any other applicable federal or state laws; and (iv) no lien
in favor of the PBGC or a Plan has arisen or is reasonably likely to arise on
account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single Employer
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither the Borrower nor any ERISA Affiliate has incurred, or, to the
best knowledge of the Credit Parties, could reasonably be expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither the Borrower nor any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if any member of the Consolidated Group or any
ERISA Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding the date
on
40
<PAGE>
which this representation is made or deemed made. Neither the Borrower nor any
ERISA Affiliate has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No member of the Consolidated Group nor any ERISA Affiliates has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all material respects
of such sections.
(e) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is subject to the prohibitions of Sections 404, 406 or 407
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Internal Revenue Code. The representation by the Credit Parties in
the preceding sentence is made in reliance upon and subject to the accuracy of
the Lenders' representation in Section 11.15 with respect to their source of
funds and is subject, in the event that the source of the funds used by the
Lenders in connection with this transaction is an insurance company's general
asset account, to the application of Prohibited Transaction Class Exemption 95-
60, 60 Fed. Reg. 35,925 (1995), compliance with the regulations issued under
Section 401(c)(1)(A) of ERISA, or the issuance of any other prohibited
transaction exemption or similar relief, to the effect that assets in an
insurance company's general asset account do not constitute assets of an
"employee benefit plan" within the meaning of Section 3(3) of ERISA of a "plan"
within the meaning of Section 4975(e)(1) of the Internal Revenue Code.
6.13 Governmental Regulations, Etc.
-----------------------------
(a) None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the regulations issued pursuant thereto, or the Securities
Exchange Act of 1934, as amended, or regulations issued pursuant thereto, or
Regulation T, U or X. "Margin stock" within the meanings of Regulation U does
not constitute more than 25% of the value of the consolidated assets of the
Borrower and its Subsidiaries.
(b) None of the members of the Consolidated Group is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, none of the
members of the Consolidated Group is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any member
of the Consolidated Group is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O.
6.14 Subsidiaries.
------------
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower, including
-------------
the jurisdiction of organization, ownership and ownership percentages thereof.
The outstanding shares of Capital Stock shown have been validly issued, fully
paid and are non-assessable and owned free of Liens other than Permitted Liens.
The outstanding shares of Capital Stock shown are not the subject of buy-sell,
voting trust or other shareholder agreement except as identified on Schedule
--------
6.14.
- ----
41
<PAGE>
6.15 Purpose of Extensions of Credit.
-------------------------------
The Loans will be used by the Borrower solely to finance working capital and
other general corporate purposes of the Borrower and its Subsidiaries
(including, but not limited to, Capital Expenditures, the repurchase of Capital
Stock of the Borrower and Permitted Acquisitions).
6.16 Environmental Matters.
---------------------
Except as would not reasonably be expected to have a Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by the
members of the Consolidated Group (the "Subject Properties") and all operations
------------------
at the Subject Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect to the
Subject Properties or the businesses operated by the members of the Consolidated
Group (the "Businesses"), and, to the knowledge of the Borrower, there are no
----------
conditions relating to the Businesses or Subject Properties that could give rise
to liability under any applicable Environmental Laws.
(b) None of the Subject Properties contains, or, to the knowledge of the
Borrower, has previously contained, any Materials of Environmental Concern at,
on or under the Subject Properties in amounts or concentrations that constitute
or constituted a violation of, or could give rise to liability under,
Environmental Laws.
(c) None of the members of the Consolidated Group has received any written
notice of, or inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Subject Properties or the Businesses, nor does any member of the
Consolidated Group have knowledge or reason to believe that any such notice will
be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or disposed
of from the Subject Properties, or generated, treated, stored or disposed of at,
on or under any of the Subject Properties or any other location, in each case by
or on behalf any members of the Consolidated Group in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is pending
or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any member of the Consolidated Group is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any member of the Consolidated Group, the Subject Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Subject Properties, or arising from or
related to the operations (including, without limitation, disposal) of any
member of the Consolidated Group in connection with the Subject Properties or
otherwise in connection with the Businesses, in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.
6.17 Year 2000 Compliance.
--------------------
Except as set forth on Schedule 6.17, the Borrower has (i) initiated a review
-------------
and assessment of all areas within its and each of its Subsidiaries' business
and operations (including those affected by suppliers, vendors and customers)
that could be adversely affected by the "Year 2000 Problem" (that is, the risk
-----------------
that computer applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. The Borrower believes that all computer
applications (including those of its suppliers, vendors and customers) that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly date-
sensitive functions for all dates before and after January 1, 2000 (that is, be
"Year 2000 Compliant"), except to the extent that a failure to do so could not
-------------------
reasonably be expected to have a Material Adverse Effect.
42
<PAGE>
6.18 No Material Misstatements.
-------------------------
None of the information, reports, financial statements, exhibits or schedules,
taken as a whole, furnished by or on behalf of any member of the Consolidated
Group to the Administrative Agent or any Lender in connection with the
negotiation of the Credit Documents or included therein or delivered pursuant
thereto contained any material misstatement of fact or omitted to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading, provided
--------
that to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each of the
Credit Parties represents only that it acted in good faith and utilized
reasonable assumptions and due care in the preparation of such information,
report, financial statement, exhibit or schedule.
6.19 Labor Matters.
-------------
Except as set forth in Schedule 6.19 and as would not reasonably be
-------------
expected to have a Material Adverse Effect,
(i) There are no strikes or lockouts against any members of the
Consolidated Group pending or, to the best knowledge of the Credit Parties,
threatened;
(ii) the hours worked by and payments made to employees of the
Consolidated Group have not been in violation of the Fair Labor Standards
Act or any other applicable federal, state, local or foreign law dealing
with such matters;
(iii) all payments due from members of the Consolidated Group, or for
which any claim may be made against a member of the Consolidated Group, on
account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the
respective members of the Consolidated Group; and
(iv) none of the members of the Consolidated Group is party to a
collective bargaining agreement.
6.20 Solvency.
--------
Immediately after giving effect to the initial Extensions of Credit made on
the Closing Date, (i) the fair value of the assets of each Credit Party will
exceed its debts and liabilities, subordinated, contingent or otherwise; (ii)
the present fair saleable value of the property of each Credit Party 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 mature; and (iii) each Credit
Party 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 Closing Date.
6.21 No Other Broker's Fees.
----------------------
None of the members of the Consolidated Group owes to any Person other than
the Lenders and their affiliates, or otherwise has any obligation in respect of
any finder's, broker's, investment banker's or other similar fee in connection
with the transactions contemplated in the Credit Agreement and the other Credit
Documents.
43
<PAGE>
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding or any Letter of Credit is outstanding,
and until all of the Commitments hereunder shall have terminated:
7.1 Information Covenants.
---------------------
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within 90 days after the close of each fiscal year of the members of
the Consolidated Group, a consolidated balance sheet and income statement
of the members of the Consolidated Group as of the end of such fiscal year,
together with related consolidated statements changes in shareholders'
equity and of cash flows for such fiscal year, in each case setting forth
in comparative form consolidated figures for the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative
Agent and whose opinion shall be to the effect that such financial
statements have been prepared in accordance with GAAP (except for changes
with which such accountants concur) and shall not be limited as to the
scope of the audit or qualified as to the status of any member of the
Consolidated Group as a going concern or any other material qualifications
or exceptions.
(b) Quarterly Financial Statements. As soon as available, and in any
------------------------------
event within 45 days after the close of each fiscal quarter of the members
of the Consolidated Group (other than the fourth fiscal quarter, in which
case 90 days after the end thereof) a consolidated balance sheet and income
statement of the members of the Consolidated Group as of the end of such
fiscal quarter, together with related consolidated statements of changes in
shareholders' equity and of cash flows for such fiscal quarter, in each
case setting forth in comparative form consolidated figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of an Executive Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of the members of the Consolidated Group and have been
prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
---------------------
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of an Executive Officer of the Borrower substantially in the form of
Schedule 7.1(c), (i) demonstrating compliance with the financial covenants
---------------
contained in Section 7.11 by calculation thereof as of the end of each such
fiscal period, (ii) stating that no Default or Event of Default exists, or
if any Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Credit Parties propose to take with
respect thereto and (iii) containing a schedule of all pro forma
adjustments that the Borrower included in financial covenant calculations
pursuant to Section 1.3.
(d) Annual Business Plan and Budgets. Prior to January 15 of each
--------------------------------
fiscal year of the Borrower, beginning with the fiscal year ending December
31, 2000, an annual business plan and budget of the members of the
Consolidated Group containing, among other things, pro forma financial
statements for the then current fiscal year.
(e) Accountant's Certificate. Within the period for delivery of the
------------------------
annual financial statements provided in Section 7.1(a), a certificate of
the accountants conducting the annual audit stating that they have reviewed
this Credit Agreement and stating further whether, in the course of their
audit, they have become aware of any Default or Event of Default arising
from the Borrower's failure to comply with the financial covenants
contained in Section 7.11 and, if any such Default or Event of Default
exists, specifying the nature and extent thereof.
44
<PAGE>
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
-----------------
other report or "management letter" submitted by independent accountants to
any member of the Consolidated Group in connection with any annual, interim
or special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt thereof, (i)
-------
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
member of the Consolidated Group shall send to its shareholders or to a
holder of any Indebtedness owed by any member of the Consolidated Group in
its capacity as such a holder and (ii) upon the request of the
Administrative Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational
Health and Safety Administration, or any state or local agency responsible
for health and safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters.
(h) Notices. Upon any Executive Officer of a Credit Party obtaining
-------
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose to
take with respect thereto, and (ii) the occurrence of any of the following
with respect to any member of the Consolidated Group (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding against
such Person which is reasonably is likely to have a Material Adverse Effect
or (B) the institution of any proceedings against such Person with respect
to, or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal, state or
local law, rule or regulation, including but not limited to, Environmental
Laws, the violation of which could reasonably be expected to have a
Material Adverse Effect.
(i) ERISA. Upon any Executive Officer of a Credit Party obtaining
-----
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent promptly (and in any event within ten Business Days)
of: (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, an ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice
as prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Credit Parties or any ERISA Affiliates, or of a determination
that any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA) which could result in a liability of at
least $5,000,000; (iii) the failure to make full payment on or before the
due date (including extensions) thereof of all amounts which any member of
the Consolidated Group or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Internal Revenue Code with respect
thereto which could result in a liability of at least $5,000,000; or (iv)
any change in the funding status of any Plan that could have a Material
Adverse Effect, together with a description of any such event or condition
or a copy of any such notice and a statement by an Executive Officer of the
Borrower briefly setting forth the details regarding such event, condition,
or notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto. Promptly
upon request, the Credit Parties shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Internal Revenue Code,
respectively, for each "plan year" (within the meaning of Section 3(39) of
ERISA).
(j) Environmental.
-------------
(i) Upon the reasonable written request of the Administrative
Agent following the occurrence of any event or the discovery of any
condition which the Administrative Agent or the Required Lenders
reasonably believe has caused (or could reasonably be expected to
cause) the representations and warranties set forth in Section 6.16 to
be untrue in any material respect, the Credit Parties will furnish or
cause to be furnished to the Administrative Agent, at the Credit
Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant reasonably
acceptable to the Administrative Agent as to the nature and extent of
the presence of any Materials of
45
<PAGE>
Environmental Concern on any Subject Properties (as defined in Section
6.16) and as to the compliance by any member of the Consolidated Group
with Environmental Laws at such Subject Properties. If the Credit
Parties fail to deliver such an environmental report within seventy-
five (75) days after receipt of such written request then the
Administrative Agent may arrange for same, and the members of the
Consolidated Group hereby grant to the Administrative Agent and their
representatives access to the Subject Properties to reasonably
undertake such an assessment (including, where appropriate, invasive
soil or groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this provision
will be payable by the Credit Parties on demand.
(ii) The members of the Consolidated Group will conduct and
complete all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all
Materials of Environmental Concern on, from or affecting any of the
Subject Properties to the extent necessary to be in compliance with
all Environmental Laws and with the validly issued orders and
directives of all Governmental Authorities with jurisdiction over such
Subject Properties to the extent any failure could have a Material
Adverse Effect.
(k) Other Information. With reasonable promptness upon any such
-----------------
request, such other information regarding the business, properties or
financial condition of any member of the Consolidated Group as the
Administrative Agent or the Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
----------------------------------------
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
7.3 Books and Records.
-----------------
Each Credit Party will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.4 Compliance with Law.
-------------------
Each Credit Party will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its Property if
noncompliance with any such law, rule, regulation, order or restriction could
have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
---------------------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, pay and
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that no member of the
-------- -------
Consolidated Group shall be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established, unless the failure to make any such payment
could have a Material Adverse Effect.
7.6 Insurance.
---------
Each Credit Party will maintain with financially sound and reputable
insurance companies casualty, liability and such other insurance with such
coverage and deductibles, and in such amounts as may be consistent
46
<PAGE>
with prudent business practice and in any event consistent with normal industry
practice; and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
7.7 Maintenance of Property.
-----------------------
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.8 Performance of Obligations.
--------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, perform
all of its obligations under the terms of all agreements, indentures, mortgages,
security agreements and other debt instruments to which it is a party or by
which it is bound except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
7.9 Use of Proceeds.
---------------
The Borrower will use the proceeds of Extensions of Credit solely for the
purposes set forth in Section 6.15.
7.10 Audits/Inspections.
------------------
Upon reasonable notice and during normal business hours, each Credit Party
will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.
7.11 Financial Covenants.
-------------------
(a) Consolidated Total Leverage Ratio. As of the end of each fiscal
---------------------------------
quarter ending on or about the dates set forth below, the Consolidated Total
Leverage Ratio shall be not greater than the ratio set forth opposite such
fiscal quarter:
<TABLE>
<CAPTION>
<S> <C> <C>
December 31, 1999 3.0:1.0
March 31, 2000 3.0:1.0
June 30, 2000 3.0:1.0
September 30, 2000 and thereafter 2.5:1.0.
</TABLE>
(b) Consolidated Interest Coverage Ratio. As of the end of each fiscal
------------------------------------
quarter, the Consolidated Interest Coverage Ratio shall be not less than
3.5:1.0.
(c) Consolidated Net Worth. As of the end of each fiscal quarter, the
----------------------
Consolidated Net Worth shall be not less than the sum of (i) $133,000,000, plus
----
(ii) as of the end of such fiscal quarter and each preceding fiscal quarter to
occur after the Closing Date, an amount equal to fifty percent (50%) of
Consolidated Net Income (but not less than zero) for such fiscal quarter, such
increases to be cumulative, plus (iii) an amount equal to one hundred percent
----
(100%) of net proceeds from Equity Transactions occurring after the Closing
Date, minus (iv) the amount of
-----
any payment described in clauses (ii) and (iii) of the definition of Restricted
Payment up to $37,500,000 made with the proceeds of the Loans or advances under
the Bridge Note.
(d) Consolidated EBITDA. As of the end of each fiscal quarter beginning
-------------------
with the fiscal quarter ending March 31, 2000, the Consolidated EBITDA for each
period set forth below shall not be less than the amount set forth opposite such
period:
47
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
January 1, 2000 through March 31, 2000 $ 4,000,000
January 1, 2000 through June 30, 2000 $12,000,000
January 1, 2000 through September 30, 2000 $18,000,000
Four consecutive fiscal quarters ending December 31, 2000 $30,000,000
Four consecutive fiscal quarters ending the last day of each $30,000,000
fiscal quarter ending after December 31, 2000
</TABLE>
7.12 Additional Guarantors.
---------------------
At any time that a Wholly Owned Subsidiary which is not a Guarantor (each a
"Non-Guarantor Subsidiary") shall either:
------------------------
(i) individually, constitute more than five percent (5%) of the
consolidated assets of the Consolidated Group as of the end of the
immediately preceding fiscal quarter or generate more than five percent
(5%) of the consolidated revenues of the Consolidated Group for the period
of four consecutive fiscal quarters ending as of the end of the immediately
preceding fiscal quarter, or
(ii) collectively with all Non-Guarantor Subsidiaries, constitute
more than ten percent (10%) of the consolidated assets of the Consolidated
Group as of the end of the immediately preceding fiscal quarter or generate
more than ten percent (10%) of the consolidated revenues of the
Consolidated Group for the period of four consecutive fiscal quarters
ending as of the end of the immediately preceding fiscal quarter,
then the Borrower shall (a) provide the Administrative Agent with written notice
thereof setting forth information in reasonable detail describing all of the
assets of such Non-Guarantor Subsidiary and (b) if such Person is a Domestic
Subsidiary, (i) cause such Non-Guarantor Subsidiary to execute a Joinder
Agreement in substantially the same form as Schedule 7.12 and (ii) cause such
-------------
Non-Guarantor Subsidiary to deliver such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and opinions
of counsel as the Administrative Agent may reasonably request.
7.13 Year 2000 Compliance.
--------------------
The Credit Parties will promptly notify the Administrative Agent in the
event any Credit Party discovers or determines that any computer application
(including those of its suppliers, vendors and customers) that is material to
its or any of its Subsidiaries' business and operations will not be Year 2000
Compliant, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect and except as set forth on Schedule
--------
6.17 on the Closing Date.
- ----
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding or any Letter of Credit is outstanding,
and until all of the Commitments hereunder shall have terminated:
8.1 Indebtedness.
------------
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing or arising under this Credit Agreement or the
other Credit Documents;
48
<PAGE>
(b) Indebtedness of the Borrower and its Subsidiaries set forth on
Schedule 8.1, and renewals, refinancings and extensions thereof on terms
------------
and conditions not materially less favorable to such Person than such
existing Indebtedness;
(c) Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by the Borrower or any of its
Subsidiaries to finance the purchase of fixed assets provided that (i) the
--------
total of all such Indebtedness for the Borrower and its Subsidiaries taken
together (other than the amount of such Indebtedness which is contractually
reimbursable by customers pursuant to written agreement) shall not exceed
an aggregate principal amount of $2,500,000 at any one time outstanding;
(ii) such Indebtedness when incurred shall not exceed the purchase price of
the asset(s) financed; and (iii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries owing under
interest rate, commodities and foreign currency exchange protection
agreements entered into in the ordinary course of business to manage
existing or anticipated risks and not for speculative purposes;
(e) unsecured intercompany Indebtedness owing by a member of the
Consolidated Group to another member of the Consolidated Group (subject,
however, to the limitations of Section 8.6 in the case of the member of the
Consolidated Group extending the loan, advance or credit);
(f) obligations to make contingent payments (including, without
limitation, earn-out payments) incurred in connection with Permitted
Acquisitions and in connection with Acquisitions consummated prior to the
Closing Date, in each case provided that (i) the maximum amount of cash
payments made in respect of such obligations shall not exceed in the
aggregate (A) at any time prior to September 30, 2000, $5,000,000 and (B)
at any time on or after September 30, 2000, $10,000,000 and (ii) such
obligations shall be expressly subordinated in right of payment to the
prior payment of the loans and obligations under the Credit Agreement and
the other Credit Documents on the terms and conditions and evidenced by
documentation satisfactory to the Administrative Agent and the Required
Lenders;
(g) Support Obligations of any member of the Consolidated Group with
respect to any Indebtedness of any member of the Consolidated Group
permitted under this Section 8.1; and
(h) other secured Funded Debt of the Borrower and its Subsidiaries
in an aggregate outstanding principal amount of up to $1,500,000 at any
time assumed in connection with Permitted Acquisitions; and
(i) other unsecured Funded Debt of the Borrower and its Subsidiaries
in an aggregate outstanding principal amount of up to $500,000 at any time.
8.2 Liens.
-----
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 Nature of Business.
------------------
The Credit Parties will not permit any member of the Consolidated Group to
substantively alter the character or conduct of the business conducted by such
Person as of the Closing Date or, in the case of any member of the Consolidated
Group acquired subsequent to the Closing Date, as of the date of Acquisition.
8.4 Merger and Consolidation, Dissolution and Acquisitions.
------------------------------------------------------
(a) No member of the Consolidated Group will enter into any transaction of
merger or consolidation, except that
49
<PAGE>
(i) a Domestic Credit Party may be party to a transaction of merger or
consolidation with another Domestic Credit Party, provided that if the
--------
Borrower is a party to such transaction, it shall be the surviving entity;
(ii) a Foreign Subsidiary may be party to a transaction of merger or
consolidation with a Subsidiary of the Borrower, provided that (A) if a
--------
Domestic Subsidiary is a party thereto, such Domestic Subsidiary shall be
the surviving entity and if such Domestic Subsidiary is not already a
Credit Party, shall take such actions as may be necessary for compliance
with the provisions of Section 7.12, and (B) if a Foreign Subsidiary is the
other party thereto, the surviving entity shall be a Foreign Subsidiary;
(iii) a Domestic Subsidiary of the Borrower may be a party to a
transaction of merger or consolidation with a Person other than a member of
the Consolidated Group, provided that (A) the surviving entity shall be a
--------
Domestic Subsidiary of the Borrower and shall take such actions as may be
necessary for compliance with the provisions of Section 7.12, (B) no
Default or Event of Default shall exist immediately after giving effect
thereto, and (C) the transaction shall otherwise constitute a Permitted
Acquisition;
(iv) a Subsidiary of the Borrower may enter into a transaction of
merger or consolidation in connection with an Asset Disposition permitted
under Section 8.5.
(b) No member of the Consolidated Group shall make any Acquisition, unless:
(i) in the case of an acquisition of Capital Stock of another Person,
after giving effect to such acquisition,
(A) if the acquisition is not of a controlling interest in the
subject Person such that after giving effect thereto the subject
Person will not be a Subsidiary, then the acquisition constitutes a
Permitted Investment; and
(B) if the acquisition is of a controlling interest in the
subject Person such that after giving effect thereto the subject
Person will be a Subsidiary, then the Acquisition constitutes a
Permitted Acquisition;
(ii) in the case of an acquisition of all or any substantial portion
of the Property (other than Capital Stock) of another Person, then such
Acquisition constitutes a Permitted Acquisition.
8.5 Asset Dispositions.
------------------
The Credit Parties will not permit any member of the Consolidated Group to
make any Asset Disposition (including, without limitation, any Sale and
Leaseback Transaction), unless
(i) the sale, lease or other disposition is to a Domestic Credit Party;
or
(ii) in all other cases, (A) at least seventy-five percent (75%) of the
consideration paid therefor shall consist of cash, Cash Equivalents or
seller financing notes (to the extent permitted by Section 8.6), (B) if the
subject transaction is a Sale and Leaseback Transaction, such transaction
shall be permitted by Section 8.11, (C) the aggregate net book value of all
assets sold, leased or otherwise disposed of shall not exceed $2,500,000 in
any fiscal year, (D) no Default or Event of Default shall exist immediately
after giving effect thereto, and (E) the Borrower shall have demonstrated
compliance with the financial covenants hereunder on a Pro Forma Basis
after giving effect to the disposition and shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate (including
reaffirmation of the representations and warranties hereunder as of such
date before and after giving effect to such transaction) in connection
therewith.
50
<PAGE>
8.6 Investments.
-----------
The Credit Parties will not permit any member of the Consolidated Group
to make or permit to exist Investments in or to any Person, except for Permitted
Investments.
8.7 Restricted Payments.
-------------------
The Credit Parties will not make, or permit any member of the Consolidated
Group to make, any Restricted Payment, unless (a) (i) no Default or Event of
Default shall exist immediately after giving effect thereto and (ii) the
Borrower shall have demonstrated compliance with the financial covenants
hereunder on a Pro Forma Basis after giving effect to the Restricted Payment and
shall have delivered to the Administrative Agent a Pro Forma Compliance
Certificate (including reaffirmation of the representations and warranties
hereunder as of such date before and after giving effect to such transaction) in
connection therewith, and (b) with respect to any payment described in clauses
(ii) and (iii) of the definition of Restricted Payment, (A) the amount of all
such payments shall not exceed in the aggregate the sum of $37,500,000 minus the
-----
amount of all loan advances made to the Borrower under the Bridge Note and (B)
no such payment shall be made to acquire any shares of Capital Stock (or
warrants, options or other rights to acquire Capital Stock) of Daniel M. Snyder,
Michele D. Snyder and their Affiliates.
8.8 Modifications and Payments in respect of Other Funded Debt.
----------------------------------------------------------
None of the members of the Consolidated Group will
(a) After the issuance thereof, amend or modify (or permit the amendment or
modification of) the terms of any Indebtedness in a manner materially adverse to
the interests of the Lenders (including specifically shortening any maturity or
average life to maturity or requiring any payment sooner than previously
scheduled or increasing the interest rate or fees applicable thereto);
(b) Amend or modify, or permit or acquiesce to the amendment or
modification (including waivers) of, any material provisions of any Subordinated
Debt, including any notes or instruments evidencing any Subordinated Debt and
any indenture or other governing instrument relating thereto, in a manner
materially adverse to the interests of the Lenders;
(c) Make any payment in contravention of the terms of any Subordinated
Debt; or
(d) Except in connection with a refinancing or refunding permitted
hereunder, make any prepayment, redemption, defeasance or acquisition for value
of (including without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when due),
or refund, refinance or exchange of any Funded Debt (other than the Indebtedness
under the Credit Documents and intercompany Indebtedness permitted hereunder)
other than regularly scheduled payments of principal and interest on such Funded
Debt.
8.9 Transactions with Affiliates.
----------------------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into or permit to exist any transaction or series of transactions with any
officer, director, shareholder, Subsidiary or Affiliate of such Person other
than (a) transactions among the Credit Parties, (b) normal compensation and
reimbursement of expenses of officers and directors, (c) the Interim Services
Agreement dated as of September 27, 1999 between Snyder Communications, Inc. and
the Borrower and (d) except as otherwise specifically limited in this Credit
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than an officer, director, shareholder, Subsidiary or
Affiliate.
51
<PAGE>
8.10 Fiscal Year; Organizational Documents.
-------------------------------------
The Credit Parties will not permit any member of the Consolidated Group to
change its fiscal year or amend, modify or change its articles of incorporation
(or corporate charter or other similar organizational document) or bylaws (or
other similar document) without the prior written consent of the Required
Lenders.
8.11 Sale Leasebacks.
---------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into any Sale and Leaseback Transaction unless such Sale and Leaseback
Transaction constitutes purchase money Indebtedness permitted by Section 8.1(c).
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
----------------
(a) Payment. Any Credit Party shall
-------
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such default shall continue for three (3) or
more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection herewith or
therewith; or
(b) Representations. Any representation, warranty or statement made or
---------------
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made; or
(c) Covenants. Any Credit Party shall
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.9, 7.11, 7.12, 7.13
or 8.1 through 8.11, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(a), (b) (c) or (d) and
such default shall continue unremedied for a period of at least 5 days
after the earlier of an Executive Officer of a Credit Party becoming
aware of such default or notice thereof by the Administrative Agent;
or
(iii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in
subsections (a), (b), (c)(i) or (c)(ii) of this Section 9.1) contained
in this Credit Agreement or any other Credit Document and such default
shall continue unremedied for a period of at least 30 days after the
earlier of an Executive Officer of a Credit Party becoming aware of
such default or notice thereof by the Administrative Agent; or
(d) Other Credit Documents. Except as a result of or in connection
----------------------
with a dissolution, merger or disposition of a Subsidiary permitted under
Section 8.4 or Section 8.5, any Credit Document shall fail to be in full
force and effect or to give the Administrative Agent and/or the Lenders the
Liens, rights, powers and privileges purported to be created thereby, or
any Credit Party shall so state in writing; or
52
<PAGE>
(e) Guaranties. Except as the result of or in connection with a
----------
dissolution, merger or disposition of a Subsidiary permitted under Section
8.4 or Section 8.5, the guaranty given by any Guarantor (including any
Person which becomes a Guarantor after the Closing Date in accordance with
Section 7.12) or any provision thereof shall cease to be in full force and
effect, or any Guarantor (including any Person which becomes a Guarantor
after the Closing Date in accordance with Section 7.12) or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall default
in the due performance or observance of any term, covenant or agreement on
its part to be performed or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
---------------
to any member of the Consolidated Group; or
(g) Defaults under Other Agreements. With respect to any
-------------------------------
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $5,000,000 in the aggregate for the members of the
Consolidated Group taken as a whole, (i) any member of the Consolidated
Group shall (A) default in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any such Indebtedness, or (B)
the occurrence and continuance of a default in the observance or
performance relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit, the holder or holders
of such Indebtedness (or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated
maturity; or (ii) any such Indebtedness shall be declared due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
---------
against one or more of the members of the Consolidated Group involving a
liability of $5,000,000 or more in the aggregate (to the extent not paid or
fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) and any such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event or
-----
condition is reasonably likely to result in the imposition of taxes,
penalties, or other liabilities in an aggregate amount in excess of
$5,000,000: (i) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code, whether or not waived, shall exist with respect to any Plan, or any
lien shall arise on the assets of the Borrower or any ERISA Affiliate in
favor of the PBGC or a Plan; (ii) an ERISA Event shall occur with respect
to a Single Employer Plan, which results in the termination of such Plan
for purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which results in
(A) the termination of such Plan for purposes of Title IV of ERISA, or (B)
the Borrower or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the meaning of Section
4241 of ERISA), or insolvency (within the meaning of Section 4245 of ERISA)
of such Plan; or (iv) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Internal Revenue Code) or
breach of fiduciary responsibility shall occur which subjects the Borrower
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Internal Revenue Code, or under any
agreement or other instrument pursuant to which the Borrower or any ERISA
Affiliate has agreed or is required to indemnify any person against any
such liability; or
(j) Ownership. There shall occur a Change of Control.
---------
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Lenders (pursuant to the voting procedures in
Section 11.6), the Administrative Agent may
53
<PAGE>
or, upon the direction of the Required Lenders, shall by written notice to the
Credit Parties take any of the following actions:
(a) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
------------
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Credit Parties to the
Administrative Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the Credit
---------------
Parties agree that upon receipt of such notice, or upon the occurrence of
an Event of Default under Section 9.1(f), they will immediately pay) to the
Administrative Agent additional cash, to be held by the Administrative
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to
the maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
---------------------
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur with respect to the Borrower, then the Commitments shall
automatically terminate and all Loans, all reimbursement obligations arising
from drawings under Letters of Credit, all accrued interest in respect thereof,
all accrued and unpaid Fees and other indebtedness or obligations owing to the
Administrative Agent and/or any of the Lenders hereunder automatically shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders.
SECTION 10
AGENCY PROVISIONS
-----------------
10.1 Appointment, Powers and Immunities.
----------------------------------
Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent under this Credit Agreement and the other Credit
Documents with such powers and discretion as are specifically delegated to the
Administrative Agent by the terms of this Credit Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each Lender further authorizes and directs the Administrative Agent to execute
and deliver releases (or similar agreements) to give effect to the provisions of
this Credit Agreement and the other Credit Documents, including specifically,
without limitation, the provisions of Section 8.5 hereof. The Administrative
Agent (which term as used in this sentence and in Section 10.5 and the first
sentence of Section 10.6 shall include its affiliates and its own and its
affiliates' officers, directors, employees, and agents): (a) shall not have any
duties or responsibilities except those expressly set forth in this Credit
Agreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Credit
Document, or any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Credit Party
or any of its Subsidiaries or Affiliates; (d) shall not be required to initiate
or conduct any litigation or collection
54
<PAGE>
proceedings under any Credit Document; and (e) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any Credit
Document, except for its own gross negligence or willful misconduct. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-in-
fact selected by it with reasonable care.
10.2 Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely upon any certification,
notice, instrument, writing, or other communication (including, without
limitation, any thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel for any Credit Party), independent accountants, and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until the Administrative Agent receives and accepts an Assignment and
Acceptance executed in accordance with Section 11.3(b) hereof. As to any
matters not expressly provided for by this Credit Agreement, the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the Lenders; provided,
--------
however, that the Administrative Agent shall not be required to take any action
- -------
that exposes the Administrative Agent to personal liability or that is contrary
to any Credit Document or applicable law or unless it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking any such action.
10.3 Defaults.
--------
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Administrative Agent
has received written notice from a Lender or a Credit Party specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall
(subject to Section 10.2) take such action with respect to such Default or Event
of Default as shall reasonably be directed by the Required Lenders (or such
other Lenders as required by Section 11.6), provided that, unless and until the
-------- ----
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interest of the Lenders.
10.4 Rights as a Lender.
------------------
With respect to its Commitment and the Loans made by it, Bank of America
(and any successor acting as Administrative Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. Bank of
America (and any successor acting as Administrative Agent) and its affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in, provide services to, and generally engage in
any kind of lending, trust, or other business with any Credit Party or any of
its Subsidiaries or Affiliates as if it were not acting as Administrative Agent,
and Bank of America (and any successor acting as Administrative Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or Affiliates for services in connection with this Credit
Agreement or otherwise without having to account for the same to the Lenders.
10.5 Indemnification.
---------------
The Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed under Section 11.5 hereof, but without limiting the obligations of
the Credit Parties under Section 11.5) ratably (in accordance with their
respective Revolving Commitments (or, if the Revolving Commitments have been
terminated, the outstanding Revolving Loans, Swingline Loans and Participation
Interests in Letters of Credit and Swingline Loan (including the Participation
Interests of the Issuing Lender in Letters of Credit and the Participation
Interests of the Swingline Lender in
55
<PAGE>
Swingline Loans)) for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including by any
Lender) in any way relating to or arising out of any Credit Document or the
transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Credit Document; provided that no Lender shall be
--------
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs or expenses
payable by the Credit Parties under Section 11.5, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Credit Parties. The agreements in this Section 10.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Credit Parties and their Subsidiaries and decision to enter into this Credit
Agreement and 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 deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the Credit
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of any Credit Party or any of its Subsidiaries
or Affiliates that may come into the possession of the Administrative Agent or
any of its affiliates.
10.7 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign at any time by giving notice thereof to
the Lenders and the Credit Parties. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a commercial bank organized under the laws
of the United States having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor, such successor shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges, and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 10 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
SECTION 11
MISCELLANEOUS
-------------
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Credit Parties and the
Administrative Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 11.1, or at such other address as such party may specify by
-------------
written notice to the other parties hereto:
56
<PAGE>
if to any Credit Party:
Ventiv Health, Inc.
1114 Avenue of the Americas, 8th Floor
New York, New York 10036
Attn: Gregory S. Patrick
Telephone: 212-768-8000
Telecopy: 212-768-7386
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Norman D. Chirite, Esq.
Telephone: (212) 310-8940
Telecopy (212) 833-3037
if to the Administrative Agent:
Bank of America, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Elizabeth S. Garver
Agency Services
Telephone: (704) 386-8451
Telecopy: (704) 386-9923
with a copy to:
Bank of America, N.A.
6610 Rockledge Drive, 6th Floor
MD2-600-06-13
Bethesda, Maryland 20817-1876
Attn: Michael R. Heredia
Telephone: (301) 571-0724
Telecopy: (301) 571-0719
11.2 Right of Set-Off; Adjustments.
-----------------------------
Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its affiliates) 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 indebtedness at any time owing by such Lender (or any
of its affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand under
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party after any such set-
off and application made by such Lender; provided, however, that the failure to
-------- -------
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender under this Section 11.2 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender may have.
57
<PAGE>
11.3 Benefit of Agreement.
--------------------
(a) This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Credit Parties may assign or
--------
transfer any of its interests and obligations without prior written consent
of each of the Lenders; provided further that the rights of each Lender to
----------------
transfer, assign or grant participations in its rights and/or obligations
hereunder shall be limited as set forth in this Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its Loans, its Notes,
and its Commitment); provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender,
an affiliate of an existing Lender or any fund that invests in bank
loans and is advised or managed by an investment advisor to an
existing Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) or
an integral multiple of $1,000,000 in excess thereof;
(iii) any such assignment shall be of a constant, not varying,
percentage of all of the Obligations and Commitments hereunder; and
(iv) the parties to such assignment shall execute and deliver
to the Administrative Agent for its acceptance an Assignment and
Acceptance in the form of Schedule 11.3(b) hereto, together with any
----------------
Note subject to such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this
Credit Agreement. Upon the consummation of any assignment pursuant to this
Section 11.3(b), the assignor, the Administrative Agent and the Credit
Parties shall make appropriate arrangements so that, if required, new Notes
are issued to the assignor and the assignee. If the assignee is not a
United States person under Section 6701(a)(30) of the Internal Revenue
Code, it shall deliver to the Credit Parties and the Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 3.11.
(c) The Administrative Agent shall maintain at its address referred
to in Section 11.1 a copy of each Assignment and Acceptance delivered to
and accepted by 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 from time to time (the "Register"). The entries
--------
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Credit Parties, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Credit Parties or any Lender at
any reasonable time and from time to time upon reasonable prior notice. Any
assignment of any Loans, Commitments or other obligations shall be
effective only upon an entry with respect thereto being made in the
Register.
(d) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Schedule 11.3(b) hereto, (i) accept such Assignment and Acceptance,
----------------
(ii) record the information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under
this Credit Agreement (including all or a portion of its Commitment or its
Loans); provided, however, that (i) such Lender's obligations under this
-----------------
Credit
58
<PAGE>
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of the
yield protection provisions contained in Sections 3.7 through 3.12,
inclusive, and the right of set-off contained in Section 11.2 (provided
that such participant shall not be entitled to receive a greater amount
than the Lender from who it purchased such participation would otherwise be
entitled to receive), and (iv) the Credit Parties shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Credit Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Credit Parties
under the Credit Documents owing to such Lender and to approve any
amendment, modification, or waiver of any provision of this Credit
Agreement (other than amendments, modifications, or waivers which (A)
decrease the amount of principal of or the rate at which interest is
payable on any Loan or any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit, (B) extend the
final maturity of any Loan or of any reimbursement obligation, or any
portion thereof, arising from drawings under Letters of Credit, or extend
the Termination Date, (C) extend its Commitment, or (D) release the
Borrower or, except as the result of or in connection with a dissolution,
merger or disposition of a member of the Consolidated Group permitted under
Section 8.4, any Material Subsidiary or substantially all of the other
Credit Parties from its or their obligations under the Credit Documents.
(f) Notwithstanding any other provision set forth in this Credit
Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the members of
the Consolidated Group in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.14 hereof.
11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Administrative Agent or any Lender
and any of the Credit Parties shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle the
Credit Parties to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5 Expenses; Indemnification.
-------------------------
(a) The Credit Parties jointly and severally agree to pay within 30 days
upon presentation of an invoice all reasonable costs and expenses of the
Administrative Agent in connection with the syndication, preparation, execution,
delivery, administration, modification, and amendment of this Credit Agreement,
the other Credit Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent (including the reasonable cost of internal counsel)
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under the Credit Documents. The Credit Parties
further jointly and severally agree to pay within 30 days upon presentation of
an invoice all reasonable costs and expenses of the Administrative Agent and the
Lenders, if any (including, without limitation, reasonable attorneys' fees and
expenses and the reasonable cost of internal counsel), in connection with the
enforcement (whether through negotiations, legal proceedings, or otherwise) of
the Credit Documents and the other documents to be delivered thereunder.
(b) The Credit Parties jointly and severally agree to indemnify and hold
harmless the Administrative Agent and each Lender and each of their affiliates
and their respective officers, directors, employees, agents, and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
-----------------
liabilities, costs, and
59
<PAGE>
expenses (including, without limitation, reasonable attorneys' fees and the
reasonable cost of internal counsel)) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans, except to the
extent such claim, damage, loss, liability, cost, or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 11.5 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any of
the Credit Parties, their respective directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Credit Parties agree not to assert any claim against the
Administrative Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisors, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(c) Without prejudice to the survival of any other agreement of the Credit
Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
-------- -------
(a) without the consent of each Lender affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended to
(i) extend the final maturity of any Loan or of any reimbursement
obligation, or any portion thereof, arising from drawings under
Letters of Credit, or extend the Termination Date,
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-
default increase in interest rates) thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the amount thereof
in effect (it being understood and agreed that a waiver of any Default
or Event of Default or mandatory reduction in the Commitments shall
not constitute a change in the terms of any Commitment of any Lender),
(v) release the Borrower or, except as the result of or in
connection with a dissolution, merger or disposition of a member of
the Consolidated Group permitted under Section 8.4, any Material
Subsidiary or substantially all of the other Credit Parties from its
or their obligations under the Credit Documents,
(vi) amend, modify or waive any provision of this Section 11.6 or
Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15,
9.1(a), 11.2, 11.3, 11.5 or 11.9,
(vii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders, or
60
<PAGE>
(viii) consent to the assignment or transfer by the Borrower,
any Material Subsidiary or all or substantially all of the other
Credit Parties of any of its or their rights and obligations under (or
in respect of) the Credit Documents except as permitted thereby;
(b) without the consent of the Administrative Agent, no provision of
Section 10 may be amended; and
(c) without the consent of the Issuing Lender, no provision of Section
2.1(b), 2.2(a)(ii) or 2.6 may be amended.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to
vote as such Lender sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to
allow a Credit Party to use cash collateral in the context of a bankruptcy
or insolvency proceeding.
11.7 Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any
of the parties hereto of an executed counterpart of this Credit Agreement shall
be as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
11.8 Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
--------
All indemnities set forth herein, including, without limitation, in Section
2.6(h), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
------------------------------------------------
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY PROVIDED THEREIN,
THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or
proceeding with respect to this Credit Agreement or any other Credit Document
may be brought in the State or Federal courts located in Charlotte, North
Carolina, and, by execution and delivery of this Credit Agreement, each of the
Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
11.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit
61
<PAGE>
Agreement or any other Credit Document brought in the courts referred to
in subsection (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE
LENDERS AND EACH OF THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.11 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
--------
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 Binding Effect; Termination.
---------------------------
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by each Credit Party and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of each Credit Party, the Administrative Agent and each
Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding, no Letters of Credit shall be
outstanding, all of the Guaranteed Obligations have been irrevocably satisfied
in full and all of the Commitments hereunder shall have expired or been
terminated.
11.14 Confidentiality.
---------------
The Administrative Agent and each Lender (each, a "Lending Party") agrees
-------------
to keep confidential any information furnished or made available to it by the
Credit Parties pursuant to this Credit Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
- --------
such information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Credit Agreement, (g) in connection with
any litigation to which such Lending Party or any of its affiliates may be a
party, (h) to the extent necessary in connection with the exercise of any remedy
under this Credit Agreement or any other Credit Document, (i) to the National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's investment portfolio in connection with ratings issued with respect to
such Lender, (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty (i) has been approved in writing by the Borrower and (ii) agrees in
a writing enforceable by the Borrower to be bound by the provisions of this
Section 11.14) and (k) subject to provisions substantially similar to those
contained in this Section 11.14, to any actual or proposed participant or
assignee.
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<PAGE>
11.15 Source of Funds.
---------------
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Lender in which any employee benefit plan (or
its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender
has disclosed to the Borrower the name of each employee benefit plan whose
assets in such account exceed 10% of the total assets of such account as of
the date of such purchase (and, for purposes of this subsection (b), all
employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets of an
insurance company's general account, such insurance company has complied
with all of the requirements of the regulations issued under Section
401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit plans
which such Lender has identified in writing to the Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 Conflict.
--------
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
63
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: VENTIV HEALTH, INC.,
- -------- a Delaware corporation
By:_____________________
Name:
Title:
GUARANTORS: VENTIV HEALTH U.S. SALES, INC.,
- ---------- a New Jersey corporation
By:_____________________
Name:
Title:
VENTIV HEALTH COMMUNICATIONS, INC.,
a Delaware corporation
By:_____________________
Name:
Title:
MMD, INC.,
a New Jersey corporation
By:_____________________
Name:
Title:
CLINICAL COMMUNICATIONS GROUP, INC.
a Delaware corporation
By:_____________________
Name:
Title:
HEALTH PRODUCTS RESEARCH, INC.,
a New Jersey corporation
By:_____________________
Name:
Title:
64
<PAGE>
INTERNATIONAL MEDICAL EXPERIENCE EXCHANGE U.S.A., INC.,
a Georgia corporation
By:____________________________
Name:
Title:
PROMOTECH RESEARCH ASSOCIATES, INC.,
a Colorado corporation
By:____________________________
Name:
Title:
[Signature Pages Continue]
65
<PAGE>
LENDERS: BANK OF AMERICA, N.A.,
- ------- individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:_____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By:_____________________________
Name:
Title:
BANK ONE, NA
By:_____________________________
Name:
Title:
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<PAGE>
Schedule 2.1
------------
LENDER AND COMMITMENTS
Revolving Commitments
---------------------
<TABLE>
<CAPTION>
Revolving Revolving LOC
Commitment Committed Committed
Lender Percentage Amount Amount
- ----------------------- ---------------- ------------------ ----------------
<S> <C> <C> <C>
Bank of America, N.A. 40.00% $20,000,000.00 $2,000,000.00
Bank One, NA 30.00% $15,000,000.00 $1,500,000.00
The Chase Manhattan Bank 30.00% $15,000,000.00 $1,500,000.00
___________ _____________ ____________
Total 100.00% $50,000,000.00 $5,000,000.00
</TABLE>
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<PAGE>
Schedule 2.2(a)(i)
------------------
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: _____________
Agency Services
Re: Credit Agreement dated as of December 1, 1999 (as amended and
modified, the "Credit Agreement") among Ventiv Health, Inc., a
----------------
Delaware corporation (the "Borrower"), certain Subsidiaries and
--------
Affiliates of the Borrower, as guarantors, the Lenders identified
therein and Bank of America, N.A., as Administrative Agent. Terms
used but not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice pursuant to Section 2.2 of the Credit
Agreement that it requests a [Revolving Loan][Swingline Loan]advance under the
Credit Agreement, and in connection therewith sets forth below the terms on
which such [Revolving Loan][Swingline Loan] advance is requested to be made:
(A) Date of Borrowing (which is a Business Day) ____________________
(B) Principal Amount of Borrowing ____________________
(C) Interest rate basis ____________________
(D) Interest Period and the last day thereof ____________________
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (a) of such Section, and confirms that the matters
referenced in subsections (b) and [(c)][(e)] of such Section, are true and
correct.
VENTIV HEALTH, INC.
By:_____________________________
Name:
Title:
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<PAGE>
Schedule 2.2(a)(ii)
-------------------
FORM OF NOTICE OF REQUEST OF LETTER OF CREDIT
Bank of America, N.A.,
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: _____________
Agency Services
Re: Credit Agreement dated as of December 1, 1999 (as amended and
modified, the "Credit Agreement") among Ventiv Health, Inc., a
----------------
Delaware corporation (the "Borrower"), certain Subsidiaries and
--------
Affiliates of the Borrower, as guarantors, the Lenders identified
therein and Bank of America, N.A., as Administrative Agent. Terms
used but not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
Ladies and Gentlemen:
The undersigned, pursuant to Section 2.2(b) of the Credit Agreement, hereby
requests that the following Letter of Credit be issued on [Date] as follows:
(1) Account Party:
(2) For use by:
(3) Beneficiary:
(4) Face Amount of Letter of Credit:
(5) Date of Issuance:
Delivery of Letter of Credit should be made as follows:
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (a) of such Section, and confirms that the matters
referenced in subsections (b) and (d) of such Section, are true and correct.
Very truly yours,
VENTIV HEALTH, INC.
By:_________________________
Name:
Title:
69
<PAGE>
Schedule 2.5
------------
FORM OF REVOLVING NOTE
December 1, 1999
FOR VALUE RECEIVED, VENTIV HEALTH, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of ______________________, its
- ---------
successors and assigns (the "Lender"), on or before the Termination Date to the
------
office of the Administrative Agent in immediately available funds as provided in
the Credit Agreement,
(i) in the case of Revolving Loans, the Lender's Revolving Committed Amount
or, if less, the aggregate unpaid principal amount of all Revolving Loans owing
to the Lender; and
(ii) in the case of Swingline Loans, if the Lender is the Swingline Lender,
the Swingline Committed Amount or, if less, the aggregate unpaid principal
amount of all Swingline Loans owing to the Swingline Lender;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Revolving Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of the date hereof (as amended and modified, the "Credit
------
Agreement") among the Borrower, the Guarantors and Lenders identified therein,
- ---------
and Bank of America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Revolving Note and all payments and prepayments thereon;
provided that any failure to endorse such information shall not affect the
- --------
obligation of the Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by this
Revolving Note may, or shall, become immediately due and payable as provided in
the Credit Agreement without presentment, demand, protest or notice of any kind,
all of which are waived by the Borrower. In the event payment of amounts
evidenced by this Revolving Note is not made at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys' fees.
This Revolving Note and the Loans and amounts evidenced hereby may be
transferred only as provided in the Credit Agreement.
This Revolving Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of North Carolina.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.
VENTIV HEALTH, INC.
By:___________________________
Name:
Title:
70
<PAGE>
Schedule 2.6(b)
---------------
EXISTING LETTERS OF CREDIT
71
<PAGE>
Schedule 3.2
------------
FORM OF NOTICE OF CONTINUATION/CONVERSION
Bank of America, N.A.,
as Administrative Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: _____________
Agency Services
Re: Credit Agreement dated as of December 1, 1999 (as amended and modified, the
"Credit Agreement") among Ventiv Health, Inc., a Delaware corporation (the
----------------
"Borrower"), certain Subsidiaries and Affiliates of the Borrower, as
--------
guarantors, the Lenders identified therein and Bank of America, N.A., as
Administrative Agent. Terms used but not otherwise defined herein shall
have the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice pursuant to Section 3.2 of the Credit
Agreement that it requests an Continuation or Conversion of a Revolving Loan
outstanding under the Credit Agreement, and in connection therewith sets forth
below the terms on which such Continuation or Conversion is requested to be
made:
<TABLE>
<CAPTION>
<S> <C> <C>
(A) Loan Type _____________
(B) Date of Continuation or Conversion
(which is the last day of the applicable Interest Period) _____________
(C) Principal Amount of Continuation or Conversion _____________
(D) Interest rate basis _____________
(E) Interest Period and the last day thereof _____________
</TABLE>
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c) and (d) of such Section, are true and correct.
VENTIV HEALTH, INC.
By:_____________________________
Name:
Title:
72
<PAGE>
Schedule 5.1(e)(v)
------------------
Form of Officer's Certificate
Pursuant to Section 5.1(e)(v) of the Credit Agreement (the "Credit
------
Agreement"), dated as of December 1, 1999, by and among Ventiv Health, Inc., a
- ---------
Delaware corporation (the "Borrower"), certain Subsidiaries and Affiliates of
--------
the Borrower, as guarantors, the Lenders identified therein and Bank of America,
N.A., as Administrative Agent, the undersigned, ___________, Secretary of
_______________ (the "Corporation"), hereby certifies as follows:
-----------
1. Attached hereto as Annex I is a true and complete copy of resolutions
duly adopted by the board of directors of the Corporation on ________________
___, 199__. The attached resolutions have not been rescinded or modified and
remain in full force and effect. The attached resolutions are the only corporate
proceedings of the Corporation now in force relating to or affecting the matters
referenced therein.
2. Attached hereto as Annex II is a true and complete copy of the By-laws
of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto as in
effect on the date hereof.
4. Each of the following persons is now a duly elected and qualified
officer of the Corporation, holding the office(s) indicated, and the signature
appearing opposite his/her name below is his/her true and genuine signature, and
such officer is duly authorized to execute and deliver on behalf of the
Corporation, the Credit Agreement, the Notes and the other Credit Documents and
to act as an Executive Officer on behalf of the Corporation under the Credit
Agreement.
Name Office Signature
---- ------ ---------
________________________
________________________
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
_____________________________
Secretary
Date: December 1, 1999
(CORPORATE SEAL)
I, _____________________, Vice President of the Corporation, hereby certify
that _______________, whose genuine signature appears above, is, and has been
at all times since ______________, a duly elected, qualified and acting
Secretary of the Corporation.
__________________________________
Vice President
December 1, 1999
73
<PAGE>
Schedule 6.6
------------
LITIGATION
74
<PAGE>
Schedule 6.8
------------
LIENS
75
<PAGE>
Schedule 6.14
-------------
SUBSIDIARIES
76
<PAGE>
Schedule 6.17
-------------
YEAR 2000 COMPLIANCE
77
<PAGE>
Schedule 6.19
-------------
LABOR MATTERS
78
<PAGE>
Schedule 7.1(c)
---------------
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 19___.
I, ______________________, [Title] of Ventiv Health, Inc., a Delaware
corporation (the "Borrower"), hereby certify that, to the best of my knowledge
--------
and belief, with respect to that certain Credit Agreement dated as of December
1, 1999 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"; all of the defined terms in the Credit Agreement are
- -----------------
incorporated herein by reference) among the Borrower, the Guarantors and Lenders
party thereto, and Bank of America, N.A., as Administrative Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have
been prepared in accordance with GAAP applied on a consistent basis,
subject to changes resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or, if
none, the Closing Date) no Default or Event of Default has occurred
under the Credit Agreement.
Delivered herewith are detailed calculations demonstrating compliance by
the Credit Parties with the financial covenants contained in Section 7.11 of the
Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 19__.
VENTIV HEALTH, INC.
By:__________________________
Name:
Title:
79
<PAGE>
Attachment to Officer's Certificate
-----------------------------------
Computation of Financial Covenants
80
<PAGE>
Schedule 7.12
-------------
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________, 19__,
---------
is by and between _____________________, a ___________________ (the
"Subsidiary"), and Bank of America, N.A., in its capacity as Administrative
----------
Agent under that certain Credit Agreement (as it may be amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), dated as of
----------------
December 1, 1999 (as amended and modified, the "Credit Agreement"), among Ventiv
----------------
Health, Inc., a Delaware corporation (the "Borrower"), certain Subsidiaries and
--------
Affiliates of the Borrower, as guarantors, the Lenders identified therein and
Bank of America, N.A., as Administrative Agent. All of the defined terms in the
Credit Agreement are incorporated herein by reference.
The Credit Parties are required by Section 7.12 of the Credit Agreement to
cause the Subsidiary to become a "Guarantor".
---------
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Credit Agreement and a "Guarantor" for all purposes of the Credit Agreement, and
shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Agreement. The Subsidiary hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
applicable to the Guarantors contained in the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the
Subsidiary hereby (i) jointly and severally together with the other Guarantors,
guarantees to each Lender and the Administrative Agent, as provided in Section 4
of the Credit Agreement, the prompt payment and performance of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms
thereof.
2. The address of the Subsidiary for purposes of all notices and other
communications is ____________________, ____________________________, Attention
of ______________ (Facsimile No. ____________).
3. The Subsidiary hereby waives acceptance by the Administrative Agent
and the Lenders of the guaranty by the Subsidiary under Section 4 of the Credit
Agreement upon the execution of this Agreement by the Subsidiary.
4. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
5. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder Agreement to be
duly executed by its authorized officers, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[SUBSIDIARY]
By:_________________________
Name:
Title:
Acknowledged and accepted:
81
<PAGE>
BANK OF AMERICA, N.A.,
as Administrative Agent
By:__________________________
Name:
Title:
82
<PAGE>
Schedule 8.1
------------
INDEBTEDNESS
83
<PAGE>
Schedule 8.6-2
--------------
AGORA INVESTMENT
84
<PAGE>
Schedule 11.1
-------------
LENDERS' ADDRESSES
==============================================================================
Operations Contact Credit Contact
- ------------------------------------------------------------------------------
Bank of America, N.A. Bank of America, N.A.
101 N. Tryon Street 6610 Rockledge Drive, 6th Floor
Independence Center, 15th Floor MD2-600-06-13
NC1-001-15-04 Bethesda, Maryland 20817-1876
Charlotte, North Carolina 28255 Attn: Michael R. Heredia
Attn: Elizabeth S. Garver Telephone: (301) 571-0724
Telephone: (704) 386-8451 Telecopy: (301) 571-0719
Telecopy: (704) 386-9923
- ------------------------------------------------------------------------------
The Chase Manhattan Bank The Chase Manhattan Bank
600 Fifth Avenue, 5th Floor 600 Fifth Avenue, 5th Floor
New York, New York 10020 New York, New York 10020
Attn: Chris Bisram Attn: Anthony J. Wilkens
Telephone: (212) 332-4331 Telephone: (212) 332-4331
Telecopy: (212) 332-4370 Telecopy: (212) 332-4370
- ------------------------------------------------------------------------------
Bank One, NA Bank One, NA
1 Bank One Plaza 153 West 51st Street
Chicago, Illinois 60670 New York, New York 10019
Attn: Medy Hernandez Attn: Andrea S. Kantor
Telephone: (312) 732-8297 Telephone: (212) 373-1023
Telecopy: (312) 732-4840 Telecopy: (212) 373-1180
==============================================================================
85
<PAGE>
Schedule 11.3(b)
- ----------------
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE, dated as of ____________, 199__ (this
"Assignment"), is entered into between THE LENDER IDENTIFIED ON THE SIGNATURE
----------
PAGES AS THE "ASSIGNOR" (the "Assignor") and THE PARTY IDENTIFIED ON THE
--------
SIGNATURE PAGES AS "ASSIGNEE" ("Assignee").
--------
Reference is made to the Credit Agreement dated as of December 1, 1999 (as
amended and modified, the "Credit Agreement") among Ventiv Health, Inc., a
----------------
Delaware corporation (the "Borrower"), certain Subsidiaries and Affiliates of
--------
the Borrower, as guarantors, the Lenders identified therein and Bank of America,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings.
1. The Assignor hereby sells and assigns to the Assignee, without recourse
and without representation or warranty except as expressly set forth herein, and
the Assignee hereby purchases and assumes from the Assignor, effective as of the
Effective Date shown below, those rights and interests of the Assignor under the
Credit Agreement and the other Credit Documents identified on Schedule 1 hereto
----------
(the "Assigned Interests"), together with unpaid interest and fees relating to
------------------
the Assigned Interests accruing from the Effective Date. After giving effect to
such sale and assignment, the Commitment of, and the amount of the Loans owing
to, the Assignor and the Assignee will be as set forth on Schedule 1 hereto.
----------
Schedule 2.1(a) is deemed modified and amended to the extent necessary to give
- ---------------
effect to this Assignment.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Credit Documents or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Notes held by the Assignor and requests
that the Administrative Agent exchange such Notes for new Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal to the
Commitment retained by the Assignor, if any, as specified on Schedule 1 hereto.
----------
3. The Assignee (i) confirms that it has received a copy of the Credit
Documents, together with copies of the financial statements referred to in
Section 7.1 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and the other Credit Documents; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement and the other Credit Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender;
and (vi) attaches any U.S. Internal Revenue Service or other forms required
under Section 3.11.
4. Following the execution of this Assignment, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative Agent.
The effective date for this Assignment shall be the Effective Date shown below.
86
<PAGE>
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment, have the rights and obligations
of a Lender thereunder and (ii) the Assignor shall, to the extent provided in
this Assignment, relinquish its rights and be released from its obligations
under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in accordance with,
the laws of the State of North Carolina.
8. This Assignment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
Schedule 1 to this Assignment by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment.
9. Terms of Assignment
(a) Legal Name of Assignor: SEE SIGNATURE PAGE
(b) Legal Name of Assignee: SEE SIGNATURE PAGE
(c) Effective Date of Assignment: ______________, 199__
See Schedule I attached for a description of the Loans, Obligations and
----------
Commitments (and the percentage interests therein and relating thereto) which
are the subject of this Assignment.
2. The fee payable to the Administrative Agent in connection with this
Assignment is enclosed.
87
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment to be executed by their officers thereunto duly authorized as of the
date hereof.
____________________, as Assignor
By:______________________________
Name:
Title:
____________________, as Assignee
By:______________________________
Name:
Title:
Notice address of Assignee:
________________________________
________________________________
Attn: __________________________
Telephone: (___) _______________
Telecopy: (___) _______________
CONSENTED TO AND ACCEPTED:
BANK OF AMERICA, N.A., *
as Administrative Agent
By:______________________
Name:
Title:
VENTIV HEALTH, INC.
By:______________________
Name:
Title:
- -----------
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee."
88
<PAGE>
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
VENTIV HEALTH, INC.
REVOLVING LOANS AND LOC OBLIGATIONS PRIOR TO ASSIGNMENT
<TABLE>
<CAPTION>
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
-------------- --------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
ASSIGNOR
- -------------
ASSIGNEES
- -------------
---------------------------------------------------------------------------------
$ % $ $ $
</TABLE>
89
<PAGE>
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
VENTIV HEALTH, INC.
REVOLVING LOANS AND LOC OBLIGATIONS SUBJECT TO THIS ASSIGNMENT
<TABLE>
<CAPTION>
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
-------------- --------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
ASSIGNOR
- -------------
ASSIGNEES
- -------------
---------------------------------------------------------------------------------
$ % $ $ $
</TABLE>
90
<PAGE>
SCHEDULE I
----------
TO ASSIGNMENT AND ACCEPTANCE
VENTIV HEALTH, INC.
REVOLVING LOANS AND LOC OBLIGATIONS AFTER ASSIGNMENT
<TABLE>
<CAPTION>
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
-------------- --------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
ASSIGNOR
- -------------
ASSIGNEE
- -------------
---------------------------------------------------------------------------------
$ % $ $ $
</TABLE>
91
<PAGE>
Exhibit 23
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
of our reports included in this Form 10-K, into the Company's previously filed
Registration Statement File No. 333-90239
ARTHUR ANDERSEN LLP
Vienna, Virginia
March 30, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1999
<PERIOD-START> JAN-01-1998 JAN-01-1999
<PERIOD-END> DEC-31-1998 DEC-31-1999
<CASH> 25,664 37,627
<SECURITIES> 0 1,898
<RECEIVABLES> 46,492 53,675
<ALLOWANCES> 2,971 2,517
<INVENTORY> 0 0
<CURRENT-ASSETS> 95,449 111,681
<PP&E> 14,974 21,546
<DEPRECIATION> 4,946 6,804
<TOTAL-ASSETS> 193,644 233,264
<CURRENT-LIABILITIES> 71,002 86,351
<BONDS> 1,473 1,155
0 0
0 0
<COMMON> 0 25
<OTHER-SE> 0 145,728
<TOTAL-LIABILITY-AND-EQUITY> 193,644 233,264
<SALES> 0 0
<TOTAL-REVENUES> 321,500 344,655
<CGS> 236,047 295,296
<TOTAL-COSTS> 306,740 352,776
<OTHER-EXPENSES> (1,850) (1,080)
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 2,315 405
<INCOME-PRETAX> 14,295 (7,446)
<INCOME-TAX> 12,849 (653)
<INCOME-CONTINUING> 1,446 (6,793)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 1,446 (6,793)
<EPS-BASIC> 0.06 (.28)
<EPS-DILUTED> 0.06 (.28)
</TABLE>
