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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
PRIMARK CORPORATION
(Exact name of registrant as specified in its charter)
1-8260
(Commission File Number)
AMENDMENT NO. 1
The undersigned registrant hereby amends the exhibits in its 1996 Annual Report
on Form 10-K dated March 27, 1997, as set forth on the pages attached hereto.
Due to a transmission error, the original electronic submission excluded nine
pages of Exhibit 10.17.
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
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Exhibit Number Description
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10.17 Refinancing Agreements (Revolving Credit Agreement, Term Loan
Agreement, Pledge Agreement, Collateral Agency Agreement, and
Note Backup Agreement) dated as of February 7, 1997, by and
among Primark Corporation, Lenders Parties, Mellon Bank, N.A.
and other related documents; filed herewith.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
PRIMARK CORPORATION
(Registrant)
Date: December 11, 1997 By: /s/STEPHEN H. CURRAN
------------------------
Stephen H. Curran
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
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Exhibit 10.17
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REVOLVING CREDIT AGREEMENT
dated as of February 7, 1997
by and among
PRIMARK CORPORATION,
as Borrower,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
THE ISSUING BANKS REFERRED TO HEREIN,
and
MELLON BANK, N.A.,
as Agent
U.S. $75,000,000
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION TITLE PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS; CONSTRUCTION...........................................................
1.01 Definitions; Construction...........................................................
ARTICLE II THE FACILITY........................................................................
2.01 The Revolving Credit Facility ......................................................
2.02 Making of Loans ....................................................................
2.03 Interest Rates......................................................................
2.04 Conversion or Renewal of Interest Rate Options......................................
2.05 Prepayments Generally...............................................................
2.06 Optional Prepayments................................................................
2.07 Mandatory Prepayments and Mandatory Reductions of the Commitments
2.08 Interest Payment Dates..............................................................
2.09 Pro Rata Treatment; Payments Generally..............................................
2.10 Additional Compensation in Certain Circumstances ...................................
2.11 Taxes ..............................................................................
2.12 Funding by Branch, Subsidiary or Affiliate..........................................
ARTICLE III THE SUBFACILITIES ..................................................................
3.01 The Letter of Credit Subfacility....................................................
3.02 Procedure for Issuance and Amendment of Letters of Credit
3.03 Letter of Credit Participating Interests............................................
3.04 Letter of Credit Drawings and Reimbursements........................................
3.05 Obligations Absolute................................................................
3.06 Further Assurances..................................................................
3.07 Cash Collateral for Letters of Credit...............................................
3.08 Certain Provisions Relating to the Issuing Banks
3.09 The Swingline Subfacility...........................................................
3.10 Limitations on the Making of the Swingline Loans
3.11 Swingline Loan Participating Interests..............................................
3.12 Cash Management Documentation.......................................................
3.13 Certain Provisions Relating to the Swingline Lender
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................................
4.01 Corporate Status ...................................................................
4.02 Corporate Power and Authorization ..................................................
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
4.03 Execution and Binding Effect .......................................................
4.04 Governmental Approvals and Filings .................................................
4.05 Absence of Conflicts ...............................................................
4.06 Audited Financial Statements .......................................................
4.07 Interim Financial Statements .......................................................
4.08 Absence of Undisclosed Liabilities .................................................
4.09 Accurate and Complete Disclosure ...................................................
4.10 Projections ........................................................................
4.11 Solvency ...........................................................................
4.12 Margin Regulations .................................................................
4.13 Regulatory Restrictions.............................................................
4.14 Subsidiaries........................................................................
4.15 Partnerships, etc...................................................................
4.16 Litigation..........................................................................
4.17 Absence of Other Conflicts..........................................................
4.18 Insurance...........................................................................
4.19 Title to Property...................................................................
4.20 Intellectual Property...............................................................
4.21 Taxes...............................................................................
4.22 Employee Benefits...................................................................
4.23 Environmental Matters...............................................................
ARTICLE V CONDITIONS OF LENDING...............................................................
5.01 Conditions to Initial Loans.........................................................
5.02 Conditions to Subsequent Loans......................................................
ARTICLE VI AFFIRMATIVE COVENANTS...............................................................
6.01 Basic Reporting Requirements........................................................
6.02 Insurance...........................................................................
6.03 Payment of Taxes and Other Potential Charges and Priority Claims
6.04 Preservation of Corporate Status....................................................
6.05 Governmental Approvals and Filings..................................................
6.06 Maintenance of Properties, Franchises, etc..........................................
6.07 Avoidance of Other Conflicts........................................................
6.08 Financial Accounting Practices......................................................
6.09 Use of Proceeds.....................................................................
6.10 Continuation of or Change in Business...............................................
6.11 Plans and Multiemployer Plans.......................................................
6.12 Disaster Recovery Plan..............................................................
6.13 Annual Bank Meeting.................................................................
6.14 Separate Corporate Existence........................................................
6.15 Additional Security.................................................................
6.16 Interest Rate Protection............................................................
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
ARTICLE VII NEGATIVE COVENANTS .................................................................
7.01 Financial Covenants.................................................................
7.02 Liens...............................................................................
7.03 Indebtedness........................................................................
7.04 Guaranties, Indemnities, etc........................................................
7.05 Loans, Advances and Investments.....................................................
7.06 Dividends and Related Distributions.................................................
7.07 Sale-Leasebacks.....................................................................
7.08 Mergers, etc........................................................................
7.09 Dispositions of Properties..........................................................
7.10 Dealings with Affiliates............................................................
7.11 Limitations on Modification of Certain Agreements and Instruments
7.12 Limitation on Payments on Certain Obligations.......................................
7.13 Limitation on Other Restrictions on Liens, Dividend Restrictions
on Subsidiaries, etc.............................................................
7.14 Limitation on Other Restrictions on Amendment of the
Loan Documents, etc..............................................................
7.15 Limitation on Certain Benefit Liabilities...........................................
7.16 Fiscal Year.........................................................................
ARTICLE VIII DEFAULTS ...........................................................................
8.01 Events of Default...................................................................
8.02 Consequences of an Event of Default.................................................
8.03 Application of Proceeds.............................................................
ARTICLE IX THE AGENT...........................................................................
9.01 Appointment.........................................................................
9.02 General Nature of Agent's Duties....................................................
9.03 Exercise of Powers..................................................................
9.04 General Exculpatory Provisions......................................................
9.05 Administration by the Agent.........................................................
9.06 Lenders Not Relying on Agent or Other Lenders.......................................
9.07 Indemnification of Agent by Lenders.................................................
9.08 Agent in its Individual Capacity....................................................
9.09 Holders of Notes....................................................................
9.10 Successor Agent.....................................................................
9.11 Calculations........................................................................
9.12 Agent's Fee.........................................................................
9.13 Funding by Agent....................................................................
ARTICLE X MISCELLANEOUS.......................................................................
10.01 Holidays............................................................................
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
10.02 Records.............................................................................
10.03 Amendments and Waivers..............................................................
10.04 No Implied Waiver; Cumulative Remedies..............................................
10.05 Notices.............................................................................
10.06 Expenses; Taxes; Indemnity..........................................................
10.07 Severability........................................................................
10.08 Prior Understandings................................................................
10.09 Duration; Survival..................................................................
10.10 Counterparts........................................................................
10.11 Limitation on Payments..............................................................
10.12 Set-Off.............................................................................
10.13 Sharing of Collections..............................................................
10.14 Successors and Assigns; Participations; Assignments
10.15 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Limitation of Liability..........................................................
ANNEX A DEFINITIONS; CONSTRUCTION........................................................... A-1
</TABLE>
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swingline Note
Exhibit B Form of Transfer Supplement
Exhibit C Form of Annual and Quarterly Compliance Certificate
Schedule 4.04 Governmental Approvals and Filings
Schedule 4.05 Conflicts
Schedule 4.08 Liabilities
Schedule 4.13 Regulatory Restrictions
Schedule 4.14 Subsidiaries
Schedule 4.16 Litigation
Schedule 4.21 Taxes
Schedule 4.23 Environmental Matters
Schedule 7.02 Liens
Schedule 7.04 Guaranty Equivalents
Schedule 7.07 Sale-Leasebacks
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REVOLVING CREDIT AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997, by and among
PRIMARK CORPORATION, a Michigan Corporation (the "Borrower"), the Lenders
parties hereto from time to time, the Issuing Banks referred to herein, and
MELLON BANK, N.A., a national banking association, as agent for the Lender
Parties hereunder (in such capacity, together with its successors in such
capacity, the "Agent").
In consideration of the mutual covenants herein contained and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. DEFINITIONS; CONSTRUCTION. In addition to other words
and terms defined elsewhere in this Agreement, as used in this Agreement the
words and terms defined in Annex A hereto have the meanings given them in such
Annex A, and this Agreement shall be construed in accordance with the provisions
of Annex A.
ARTICLE II
THE FACILITY
2.01. THE REVOLVING CREDIT FACILITY.
(a) REVOLVING CREDIT COMMITMENTS. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender, severally and not jointly, agrees (such agreement being herein
called such Lender's "Revolving Credit Commitment") to make loans (the
"Revolving Credit Loans") to the Borrower at any time or from time to time on or
after the date hereof and to but not including the Revolving Credit Maturity
Date. A Lender shall have no obligation to make any Revolving Credit Loan to the
extent that such Lender's Revolving Credit Exposure at any time would exceed
such Lender's Revolving Credit Committed Amount at such time. Each Lender's
"Revolving Credit Committed Amount" at any time shall be equal to the amount set
forth as its "Initial Revolving Credit Committed Amount" below its name on the
signature pages hereof, as such amount may have been reduced under Section
2.01(f) hereof at such time, and subject to transfer to another Lender as
provided in Section 10.14 hereof. The sum of the Revolving Credit Committed
Amounts of the Lenders shall not exceed $75,000,000 at any time.
(b) NATURE OF CREDIT. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) REVOLVING CREDIT NOTES. The obligation of the Borrower to
repay the unpaid principal amount of the Revolving Credit Loans made to it by
each Lender and to pay interest thereon
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shall be evidenced in part by promissory notes of the Borrower, one to each
Lender, dated the Closing Date (the "Revolving Credit Notes") in substantially
the form attached hereto as Exhibit A-1, with the blanks appropriately filled,
payable to the order of such Lender in a face amount equal to such Lender's
Initial Revolving Credit Committed Amount.
(d) MATURITY. To the extent not due and payable earlier, the
Revolving Credit Loans shall be due and payable on the Revolving Credit Maturity
Date.
(e) REVOLVING CREDIT COMMITMENT FEE. The Borrower shall pay to
the Agent for the account of each Lender a commitment fee (the "Revolving Credit
Commitment Fee") for each day from and including the Closing Date to but not
including the Revolving Credit Maturity Date, which for each day shall be equal
to (i) the Revolving Credit Commitment Fee Percentage for such day, times (ii)
1/365 (or 1/366, as the case may be), times (iii) the amount (not less than
zero) equal to (A) such Lender's Revolving Credit Committed Amount on such day,
minus (B) the sum of the outstanding principal amount of such Lender's Revolving
Credit Loans on such day plus such Lender's Pro Rata Share of the aggregate
Letter of Credit Exposure on such day. The "Revolving Credit Commitment Fee
Percentage" for any day shall mean the applicable percentage set forth below:
<TABLE>
<CAPTION>
If the Applicable Margin for Then the Revolving Credit
such day is to be determined Commitment Fee Percentage for
in accordance with such day is
---------------------------- -----------------------------
<S> <C>
Level I Performance Margins 0.30%
Level II Performance Margins 0.25%
Level III Performance Margins 0.25%
Level IV Performance Margins 0.20%
</TABLE>
Such Revolving Credit Commitment Fee shall be due and payable for the preceding
period for which such fee has not been paid on each of the following dates: (x)
each Regular Quarterly Payment Date, (y) the date of each reduction of the
Revolving Credit Committed Amounts (whether optional or mandatory) on the amount
so reduced, and (z) the Revolving Credit Maturity Date.
(f) OPTIONAL AND MANDATORY REDUCTION OF THE REVOLVING CREDIT
COMMITTED AMOUNTS. The Borrower may from time to time reduce the Revolving
Credit Committed Amounts of the Lenders to an aggregate amount (which may be
zero) not less than the sum of the Revolving Credit Exposures of the Lenders
plus the amount of all Revolving Credit Exposures of the Lenders not yet
outstanding as to which notice has been given by the Borrower under Sections
2.02, 3.02 or 3.09 hereof. The Borrower shall reduce the Revolving Credit
Committed Amounts of the Lenders from time to time as required by Section
2.07(b) hereof. Each optional reduction of the Revolving Credit Committed
Amounts shall be applied Pro Rata to the Revolving Credit Committed Amounts of
the Lenders. Each optional reduction of the Revolving Credit Committed Amounts
shall be in an aggregate amount which is an integral multiple of $1,000,000 not
less than $5,000,000, and each mandatory reduction of the Revolving Credit
Committed Amounts of the Lenders pursuant to Section 2.07(b) hereof shall be in
an aggregate amount which is an integral multiple of $100,000. Reduction of the
Revolving Credit Committed Amounts shall be made by providing not less than
three Business Days' notice (which notice shall be irrevocable) to
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such effect to the Agent. After the date specified in such notice the Revolving
Credit Commitment Fee shall be calculated upon the Revolving Credit Committed
Amounts as so reduced.
2.02. MAKING OF LOANS. Subject to Section 3.09 hereof as to
Swingline Loans, whenever the Borrower desires that the Lenders make Loans, the
Borrower shall provide Standard Notice to the Agent setting forth the following
information (a separate notice being required for each such type of Loans):
(a) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(b) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts selected pursuant to
clause (c) of this Section 2.02, and which shall be an integral
multiple of $1,000,000;
(c) The interest rate Option or Options selected in accordance
with Section 2.03(a) hereof and the principal amounts selected in
accordance with Section 2.03(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion of such proposed Loans;
and
(d) With respect to each such Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.03(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article V hereof has not been
satisfied, on the date specified in such Standard Notice each Lender shall make
the proceeds of its Loan available to the Agent at the Agent's Office, no later
than 12:00 o'clock Noon, Pittsburgh time, in funds immediately available at such
Office. The Agent will make the funds so received available to the Borrower in
funds immediately available at the Agent's Office.
2.03. INTEREST RATES.
(a) OPTIONAL BASES OF BORROWING. The unpaid principal amount
of the Revolving Credit Loans shall bear interest for each day until due on one
or more bases selected by the Borrower from among the interest rate Options set
forth below. Subject to the provisions of this Agreement, the Borrower may
select different Options to apply simultaneously to different Portions of the
Revolving Credit Loans and may select different Funding Segments to apply
simultaneously to different parts of the Euro-Rate Portion of the Revolving
Credit Loans.
(i) BASE RATE OPTION: A rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed) for each day equal to the Base Rate for such day plus the
Applicable Margin for such day.
(ii) EURO-RATE OPTION: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day.
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(b) APPLICABLE MARGINS. The "Applicable Margin" for each
interest rate Option for each day shall mean the applicable percentage set forth
below under "Level II Performance Margins," "Level III Performance Margins," or
"Level IV Performance Margins," as the case may be, in the event that (x) no
Event of Default or Potential Default shall have occurred and be continuing or
exist on such day and (y) Financial Test II, Financial Test III or Financial
Test IV, respectively, set forth below is satisfied on such day. For purposes of
determining the Applicable Margin, Financial Test II, Financial Test III or
Financial Test IV, as the case may be, shall be deemed to be satisfied effective
on the first day of the calendar month following the calendar month in which the
Agent shall have received from the Borrower a certificate, duly completed and
signed by a Responsible Officer, accompanied by the Borrower's financial
statements for the fiscal quarter most recently ended (or, if such most recently
ended fiscal quarter is the last of a fiscal year, for the fiscal year then
ended), demonstrating compliance with the applicable financial test, and such
financial test shall be deemed to remain satisfied until the last day of the
calendar month in which the Borrower's next annual or quarterly financial
statements are required to be delivered under Section 6.01(a) or 6.01(b) hereof,
as the case may be (or, if earlier, the last day of the calendar month in which
the Borrower's next annual or quarterly financial statements are actually
delivered in compliance with such Section); provided, that for each day in the
period from and including the Closing Date to and including the last day of the
calendar month in which the Borrower's quarterly financial statements for the
quarter ending September 30, 1997 are required to be delivered under Section
6.01(b) hereof (or, if earlier, the last day of the calendar month in which such
quarterly financial statements are actually delivered in compliance with Section
6.01(b) hereof), the Borrower will be deemed to have satisfied Financial Test
II. If the conditions for application of the Level II Performance Margins, Level
III Performance Margins or Level IV Performance Margins do not apply on a
particular day, the "Applicable Margin" for such day shall mean the applicable
percentage set forth below under "Level I Performance Margins":
LEVEL I PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Interest Rate Option Applicable Margin
-------------------- -----------------
<S> <C> <C>
Base Rate Option Zero
Euro-Rate Option 1.00%
</TABLE>
Level I Performance Margins shall apply in the event that the conditions for
application of the Level II Performance Margins, Level III Performance Margins
or Level IV Performance Margins do not apply.
LEVEL II PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Interest Rate Option Applicable Margin
-------------------- -----------------
<S> <C> <C>
Base Rate Option Zero
Euro-Rate Option 0.75%
</TABLE>
Level II Performance Margins shall apply in the event that Financial Test II is
satisfied and the other conditions set forth above are met. "Financial Test II"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
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ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 4.00 and greater than or equal to 3.00.
LEVEL III PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Interest Rate Option Applicable Margin
-------------------- -----------------
<S> <C> <C>
Base Rate Option Zero
Euro-Rate Option 0.625%
</TABLE>
Level III Performance Margins shall apply in the event that Financial Test III
is satisfied and the other conditions set forth above are met. "Financial Test
III" means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 3.00 and greater than or equal to 2.50.
LEVEL IV PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Interest Rate Option Applicable Margin
-------------------- -----------------
<S> <C> <C>
Base Rate Option Zero
Euro-Rate Option 0.50%
</TABLE>
Level IV Performance Margins shall apply in the event that Financial Test IV is
satisfied and the other conditions set forth above are met. "Financial Test IV"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 2.50.
(c) FUNDING PERIODS. At any time when the Borrower shall
select, convert to or renew the Euro-Rate Option to apply to any part of the
Loans, the Borrower shall specify one or more periods (the "Funding Periods")
during which each such Option shall apply, such Funding Periods being as set
forth below:
<TABLE>
<CAPTION>
Interest Rate Option Available Funding Periods
- -------------------- -------------------------
<S> <C>
Euro-Rate Option One, two, three or six months
("Euro-Rate Funding Period");
</TABLE>
provided, that:
(i) Each Euro-Rate Funding Period shall begin on a London
Business Day, and the term "month," when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Agent (which determination shall be conclusive);
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(ii) The Borrower may not select a Funding Period that would
end after the Revolving Credit Maturity Date; and
(iii) The aggregate number of Funding Segments of the Euro-Rate
Portion of the Revolving Credit Loans at any time shall not exceed six.
(d) TRANSACTIONAL AMOUNTS. Subject to Section 3.09 hereof as
to Swingline Loans, each selection of, conversion from, conversion to or renewal
of an interest rate Option and each payment or prepayment of any Loans (other
than mandatory prepayments to the extent set forth in Section 2.05(c) hereof)
shall be in a principal amount such that after giving effect thereto the
aggregate principal amount of the Base Rate Portion of the Revolving Credit
Loans, and the aggregate principal amount of each Funding Segment of the
Euro-Rate Portion of the Revolving Credit Loans, shall be as set forth below:
<TABLE>
<CAPTION>
Portion or Funding Segment Allowable Aggregate Principal Amounts
- -------------------------- -------------------------------------
<S> <C>
Base Rate Portion Any
Each Funding Segment $500,000 or an integral
of the Euro-Rate Portion multiple thereof
</TABLE>
(e) EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a Euro-Rate would otherwise be set
the Agent (in the case of clauses (A) or (B) below) or any Lender (in
the case of clause (C) below) shall have determined in good faith
(which determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the Euro-Rate
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the Euro-Rate Portion has been
made impracticable or unlawful by compliance by such Lender or a
Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
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of each of the Lenders to allow the Borrower to select, convert to or renew the
Euro-Rate Option shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrower (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive) that the circumstance
giving rise to such previous determination no longer exist. If any Lender
notifies the Borrower of a determination under clause (ii) of this Section
2.03(e), the Euro-Rate Portion of the Loans of such Lender (the "Affected
Lender") shall automatically be converted to the Base Rate Option as of the date
specified in such notice (and accrued interest thereon shall be due and payable
on such date). If at the time the Agent or a Lender makes a determination under
clause (i) or (ii) of this Section 2.03(e) the Borrower previously has notified
the Agent that it wishes to select, convert to or renew the Euro-Rate Option
with respect to any proposed Loans but such Loans have not yet been made, such
notification shall be deemed to provide for selection of, conversion to or
renewal of the Base Rate Option instead of the Euro-Rate Option with respect to
such Loans or, in the case of a determination by a Lender, such Loans of such
Lender.
2.04. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS.
(a) CONVERSION OR RENEWAL. Subject to Section 3.09 hereof as
to Swingline Loans, and subject to the provisions of Section 2.10(b) hereof, the
Borrower may convert any part of its Loans from any interest rate Option or
Options to one or more different interest rate Options and may renew the
Euro-Rate Option as to any Funding Segment of the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.03(d) hereof of the Base Rate Portion and each Funding Segment of the
Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.03(a) hereof and the principal amounts selected in
accordance with Section 2.03(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.03(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the
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principal amount of any part of the Loans converted or renewed (automatically or
otherwise) shall be due and payable on the conversion or renewal date.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
2.04(a)(ii) hereof, any part of the Euro-Rate Portion for which such notice is
not received shall be converted automatically to the Base Rate Option on the
last day of the expiring Funding Period.
2.05. PREPAYMENTS GENERALLY. Subject to Section 3.09 hereof as
to Swingline Loans, whenever the Borrower desires or is required to prepay any
part of the Loans, it shall provide Standard Notice to the Agent setting forth
the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of
this Section 2.05, and which, if a partial prepayment, shall be an
integral multiple of $500,000 (or, in the case of a mandatory
prepayment pursuant to Section 2.07(b) hereof, an integral multiple of
$100,000); and
(c) The principal amounts selected in accordance with Section
2.03(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the Euro-Rate Portion to be prepaid; provided, that in the
case of a mandatory prepayment under Section 2.07(b) hereof, any excess
of the amount of such mandatory prepayment over the Base Rate Portion
of the Revolving Credit Loans may be applied to the Euro-Rate Portion
of the Revolving Credit Loans without regard to Section 2.03(d) hereof.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the
Euro-Rate Portion specified in such notice, together with interest on each such
principal amount to such date, shall be due and payable.
2.06. OPTIONAL PREPAYMENTS. The Borrower shall have the right
at its option from time to time to prepay its Loans in whole or part without
premium or penalty (subject, however, to Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Funding Period with respect to
prepayment of the Euro- Rate Portion with respect to any part of the
Funding Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.05 hereof.
2.07. MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF THE
COMMITMENTS.
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(a) REVOLVING CREDIT COMMITTED AMOUNTS. Subject to Section
2.07(b)(ii) hereof, if at any time the aggregate Revolving Credit Exposures of
the Lenders exceeds the aggregate Revolving Credit Committed Amounts, the
Borrower shall prepay (and, to the extent required by Section 3.07 hereof,
provide cash collateral with respect to) the Revolving Credit Exposures in an
aggregate principal amount not less than the amount of such excess. Such amount
shall be applied first to the principal amount of Swingline Loans, then to the
principal amount of Revolving Credit Loans, then to outstanding Letter of Credit
Unreimbursed Draws, and the balance shall be deposited into the Letter of Credit
Collateral Account. Any such prepayments of the Swingline Loans and the
Revolving Credit Loans shall be made in accordance with Section 2.05 hereof.
(b) RECAPTURE ASSET DISPOSITIONS.
(i) The Borrower shall be required from time to time to reduce
the aggregate Revolving Credit Committed Amounts by an amount not less than the
Recapture Asset Amount from each Recapture Asset Disposition. If a reduction in
the aggregate Revolving Credit Committed Amounts is required under this Section
2.07(b), the Borrower shall give notice of such reduction in accordance with
Section 2.01(f) hereof so that such reduction shall be effective not later than
(x) in the case of a Recapture Asset Disposition of Type A,
the date of receipt of the related Net Sale Proceeds by the Borrower or
any of its Subsidiaries, and
(y) in the case of a Recapture Asset Disposition of Type B
(which is not also of Type A), the date on which an amount arising out
of such Recapture Asset Disposition would (but for the requirement
hereunder to reduce the Revolving Credit Committed Amounts and prepay
the Revolving Credit Exposures, and any requirement under the Term Loan
Agreement to prepay the Indebtedness outstanding thereunder) constitute
"Excess Proceeds" under the Senior Note Indenture (taking into account
the periods specified in the Senior Note Indenture which must elapse
before amounts constitute "Excess Proceeds").
(ii) If, due to any reduction in the aggregate Revolving
Credit Committed Amounts required by this Section 2.07(b), the aggregate
Revolving Credit Exposures of the Lenders exceeds the aggregate Revolving Credit
Committed Amounts, the Borrower shall prepay (and, to the extent required by
Section 3.07 hereof, provide cash collateral with respect to) the Revolving
Credit Exposures in an amount not less than the excess in accordance with
Section 2.07(a) hereof, and the Borrower shall give notice of any such
prepayment so that such prepayment shall be made not later than the effective
date of such reduction; provided, that if and to the extent that a prepayment of
a Funding Segment of the Euro- Rate Portion of the Loans otherwise would be
required to be made on a day other than the last day of the corresponding
Euro-Rate Funding Period, the Borrower may defer such prepayment until the last
day of such Funding Segment.
(iii) As used in this Agreement, the term "Recapture Asset
Disposition" means
(A) any disposition of any Shares of Capital Stock of TIMCO or
of any of its assets outside the ordinary course of business (Recapture
Asset Dispositions described in this clause (A) being sometimes
referred to herein as being of "Type A"); and
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(B) any event or condition which would (but for the
requirement hereunder to reduce the Revolving Credit Committed Amounts
and prepay the Revolving Credit Exposures, and any requirement under
the Term Loan Agreement to prepay the Indebtedness outstanding
thereunder) give rise to any "Excess Proceeds" as defined in the Senior
Note Indenture (taking into account the periods specified in the Senior
Note Indenture which must elapse before amounts constitute "Excess
Proceeds") (Recapture Asset Dispositions described in this clause (B)
being sometimes referred to herein as being of "Type B").
The Borrower shall advise the Agent in writing promptly of each proposed, actual
or anticipated Recapture Asset Disposition and of the material terms thereof and
each scheduled date for the consummation or occurrence thereof promptly after
the Borrower becomes aware of the same (but in any event not later than the date
of such Recapture Asset Disposition).
(iv) As used in this Agreement, the term "Recapture Asset
Amount" has the following meaning:
(A) With respect to any Recapture Asset Disposition of Type A,
"Recapture Asset Amount" means the amount, if any, not less than zero,
equal to (i) 50% of the Net Sale Proceeds from such Recapture Asset
Disposition, minus (ii) the amount of Net Sale Proceeds from such
Recapture Asset Disposition applied to reduction of the principal
amount of outstanding Indebtedness under the Term Loan Agreement.
(B) With respect to any Recapture Asset Disposition of Type B,
"Recapture Asset Amount" means the amount with respect to such
Recapture Asset Disposition which (but for the requirement hereunder to
reduce the Revolving Credit Committed Amounts and prepay the Revolving
Credit Exposures, and any requirement under the Term Loan Agreement to
prepay the Indebtedness outstanding thereunder, it being understood
that amounts shall first be applied as so required under the Term Loan
Agreement before any application is required hereunder) would
constitute "Excess Proceeds" as defined in the Senior Note Indenture
(taking into account the periods specified in the Senior Note Indenture
which must elapse before amounts constitute "Excess Proceeds").
If an event constitutes a Recapture Asset Disposition of both Type A and Type B,
"Recapture Asset Amount" with respect to such event shall mean the greater of
the amounts described in the foregoing clauses (A) or (B).
(v) "Net Sale Proceeds" means, with respect to any Recapture
Asset Disposition of Type A, the gross proceeds thereof in the form of cash or
cash equivalents (including payments in respect of deferred payment obligations
upon the earliest of (x) receipt of such payments in the form of cash or cash
equivalents, (y) to the extent that such obligations are financed or sold
without recourse to the Borrower or any Subsidiary, the time of such financing
or sale, or (z) to the extent that such obligations are financed or sold with
recourse to the Borrower or such Subsidiary the time that either the original
obligation is discharged or such recourse is no longer in effect), net of the
sum of the following (without duplication): (A) brokerage commissions and other
fees and expenses (including, without limitation, fees and expenses of legal
counsel and investment bankers) related to such Recapture Asset Disposition, (B)
all taxes actually paid or estimated in good faith to be or become payable as a
result of
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<PAGE> 16
such Recapture Asset Disposition, (C) payments made to retire obligations (other
than to the Borrower and its Subsidiaries) that are secured by the properties
that are the subject of such Recapture Asset Disposition, (D) payments to
holders (other than the Borrower and its Subsidiaries) of Shares of Capital
Stock or other equity interests in Subsidiaries of the Borrower subject to such
Recapture Asset Disposition, so long as such payments are made on a pro rata
basis, consistent with the ownership of such interests, to the holders of such
interests, and (E) appropriate amounts to be provided by the Borrower or any
Subsidiary as a reserve required in accordance with generally accepted
accounting principles in the United States, consistently applied, against any
liabilities associated with such Recapture Asset Disposition and retained by the
Borrower or any Subsidiary thereof after such Recapture Asset Disposition,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Recapture Asset
Disposition; provided, however, that if all or any portion of such reserve is no
longer required, the amount in respect of such reserve shall immediately be
deemed to constitute, and shall be applied as, Net Sale Proceeds.
2.08. INTEREST PAYMENT DATES. Accrued and unpaid interest on
the Loans shall be due and payable on the following dates (and on such other
dates as may be specified elsewhere in this Agreement and the other Loan
Documents): (a) in the case of the Base Rate Portion, on each Regular Monthly
Payment Date, and (b) in the case of each Funding Segment of the Euro-Rate
Portion, on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also on the last day
of the third month during such Funding Period. After maturity of any part of the
Loans (by acceleration or otherwise), interest on such part of the Loans shall
be due and payable on demand.
2.09. PRO RATA TREATMENT; PAYMENTS GENERALLY.
(a) PRO RATA TREATMENT. Each borrowing and each conversion or
renewal of interest rate Options hereunder shall be made, and all payments made
in respect of principal of and interest on Loans, Revolving Credit Commitment
Fees and Letter of Credit Fees due from the Borrower hereunder or under the
Notes shall be applied, Pro Rata from and to each Lender, except for (x)
borrowings of, and payments in respect of principal and interest on, Swingline
Loans, (y) payments of interest involving an Affected Lender as provided in
Section 2.03(e) hereof, and (z) payments to a Lender subject to a withholding
deduction under Section 2.11(c) hereof. The failure of any Lender to make a Loan
shall not relieve any other Lender of its obligation to lend hereunder, but
neither the Agent nor any Lender shall be responsible for the failure of any
other Lender to make a Loan.
(b) PAYMENTS GENERALLY. All payments and prepayments to be
made by the Borrower in respect of principal, interest, fees, indemnities,
expenses or other amounts due from the Borrower hereunder or under any other
Loan Document shall be payable in Dollars at 1:00 p.m., Pittsburgh time, on the
day when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately
accrue, without setoff, counterclaim, withholding or other deduction of any kind
or nature (except for payments to a Lender subject to a withholding deduction
under Section 2.11(c) hereof). Except for payments under Sections 2.10 or 10.06
hereof, such payments shall be made to the Agent at its Office in funds
immediately available at such Office, and payments under Sections 2.10 or 10.06
hereof shall be made to the applicable Lender or Issuing Bank at such domestic
account as it shall specify to the Borrower from time to time in funds
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<PAGE> 17
immediately available at such account. Any payment received by the Agent or such
Lender or Issuing Bank after 1:00 p.m., Pittsburgh time, on any day shall be
deemed to have been received on the next succeeding Business Day. The Agent
shall distribute to the Lenders or the Issuing Bank, as the case may be, all
such payments received by the Agent for their respective accounts as promptly as
practicable after receipt by the Agent.
(c) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by
law, after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from the Borrower
hereunder or under any other Loan Document, such amounts shall bear interest for
each day until paid (before and after judgment), payable on demand, at a rate
per annum (in each case based on a year of 365 or 366 days, as the case may be,
and actual days elapsed) which for each day shall be equal to the following:
(i) In the case of any part of the Euro-Rate Portion of any
Loans, (A) until the end of the applicable then-current Funding Period
at a rate per annum 2.00% above the rate otherwise applicable to such
part, and (B) thereafter in accordance with the following clause (ii);
and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, 2.00% above the then-current Base
Rate Option.
To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
2.10. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender Party or any Notional Euro-Rate
Funding Office to any tax or changes the basis of taxation with respect
to this Agreement, the Notes, the Loans, the Letters of Credit, the
Letter of Credit Participating Interests or the Swingline Loan
Participating Interests, or payments by the Borrower of principal,
interest, fees or other amounts due from the Borrower hereunder or
under the Notes (except for taxes on the overall net income or overall
gross receipts of such Lender Party or such Notional Euro-Rate Funding
Office imposed by the jurisdictions (federal, state and local) in which
the Lender Party's principal office or Notional Euro-Rate Funding
Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit, insurance assessment or any other requirement against
credits or commitments to extend credit extended by, assets (funded or
contingent) of, deposits with or for the account of, other acquisitions
of funds by, such Lender Party or any Notional Euro-Rate Funding Office
(other than requirements expressly included herein in the determination
of the Euro-Rate hereunder),
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(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent)
of, or credits or commitments to extend credit extended by, any Lender
Party or any Notional Euro-Rate Funding Office, or applicable to the
obligations of any Lender Party or any Notional Euro-Rate Funding
Office under this Agreement, or
(iv) imposes upon any Lender Party or any Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement, the Notes or its making, maintenance or funding of any Loan,
Letter of Credit, Letter of Credit Participating Interest or Swingline
Loan Participating Interest,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender Party, any Notional Euro-Rate Funding Office or, in the case of clause
(iii) hereof, any Person controlling a Lender Party, with respect to this
Agreement, the Notes or the making, maintenance or funding of any Loan, Letter
of Credit, Letter of Credit Participating Interest or Swingline Loan
Participating Interest, (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on such Lender
Party's or controlling Person's capital, taking into consideration such Lender
Party's or controlling Person's policies with respect to capital adequacy) by an
amount which such Lender Party deems to be material (such Lender Party being
deemed for this purpose to have made, maintained or funded each Funding Segment
of the Euro-Rate Portion from a Corresponding Source of Funds), such Lender
Party may from time to time notify the Borrower of the amount determined in good
faith by such Lender Party (which determination shall be conclusive) to be
necessary to compensate such Lender Party or such Notional Euro-Rate Funding
Office for such increase, reduction or imposition. In making any such
determination such Lender Party may take into account any special, supplemental
or other nonrecurring items, may apply any averaging or attribution methods, and
may make such determination prospectively or retrospectively. Such amount shall
be due and payable by the Borrower to such Lender Party five Business Days after
such notice is given, together with an amount equal to interest on such amount
from the date two Business Days after the date demanded until such due date at
the Base Rate Option. The Borrower shall not be required to make any payment in
respect of clause (a)(i) above to a Lender to the extent that such payment is
attributable to a breach by such Lender of its obligations under Section 2.11(c)
below.
(b) FUNDING BREAKAGE. In the event that for any reason (i) the
Borrower fails to borrow, convert or renew any part of any Loan hereunder which
would, after such borrowing, conversion or renewal, have a Euro-Rate Portion,
after notice requesting such borrowing, conversion or renewal has been given by
the Borrower (whether such failure results from failure to satisfy applicable
conditions to such borrowing, conversion or renewal or otherwise), or (ii) any
part of any Funding Segment of any Euro-Rate Portion becomes due (by
acceleration or otherwise), or is paid, prepaid or converted to another interest
rate Option (whether or not such payment, prepayment or conversion is mandatory
or automatic and whether or not such payment or prepayment is then due), on a
day other than the last day of the corresponding Funding Period, the Borrower
shall indemnify each Lender on demand against any loss, liability, cost or
expense of any kind or nature which such Lender may sustain or incur in
connection with or as a result of such event. Such indemnification in any event
shall include an amount equal to the excess, if any, of (x) the aggregate amount
of interest which would have accrued
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on the amount of the Euro-Rate Portion not so borrowed, converted or renewed, or
which so becomes due, or which is so paid, prepaid or converted, as the case may
be, from and including the date on which such borrowing, conversion or renewal
would have been made pursuant to such notice, or on which such part of such
Funding Segment so becomes due, or on which such part of such Funding Segment is
so paid, prepaid or converted, as the case may be, to the last day of the
Funding Period applicable to such amount (or, in the case of a failure to
borrow, convert or renew, the Funding Period that would have been applicable to
such amount but for such failure), in each case at the applicable rate of
interest for such Euro-Rate Portion provided for herein (excluding, however, the
Applicable Margin included therein, if any), over (y) the aggregate amount of
interest (as determined in good faith by such Lender) which would have accrued
to such Lender on such amount for such period by placing such amount on deposit
for such period with leading banks in the interbank market. A certificate by the
Lender as to any amount that such Lender is entitled to receive pursuant to this
Section 2.10(b) shall be conclusive if made in good faith.
2.11. TAXES.
(a) PAYMENT NET OF TAXES. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of each Lender Party, income or franchise
taxes imposed on such Lender Party by the jurisdiction under the laws
of which such Lender Party is organized or any political subdivision or
taxing authority thereof or therein or as a result of a connection
between such Lender Party and any jurisdiction other than a connection
resulting solely from this Agreement and the transactions contemplated
hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to any Lender Party under this
Agreement or any other Loan Document, the Borrower shall pay the relevant amount
of such Taxes and the amounts so payable to such Lender Party shall be increased
to the extent necessary to yield to such Lender Party (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the other Loan Documents. Whenever
any Taxes are paid by the Borrower with respect to payments made in connection
with this Agreement or any other Loan Document, as promptly as possible
thereafter, the Borrower shall send to the Agent for its own account or for the
account of such Lender Party, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof.
(b) INDEMNITY. The Borrower hereby indemnifies each Lender
Party for the full amount of all Taxes attributable to payments by or on behalf
of the Borrower to such Lender Party hereunder or
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under any of the other Loan Documents, any Taxes paid by such Lender Party, and
any present or future claims, liabilities or losses with respect to or resulting
from any omission to pay or delay in paying any Taxes (including any incremental
Taxes, interest or penalties that may become payable by such Lender Party as a
result of any failure to pay such Taxes). Such indemnification shall be made
within five Business Days from the date such Lender Party makes written demand
therefor. The Borrower shall not be required to make any payment under this
Section 2.11(b) to a Lender to the extent that such payment is attributable to a
breach by such Lender of its obligations under Section 2.11(c) below.
(c) WITHHOLDING. Each Lender that is incorporated or organized
under the laws of any jurisdiction other than the United States or any state
thereof agrees that, on or prior to the date it becomes party to this Agreement,
it will furnish to the Borrower and the Agent two valid, duly completed copies
of United States Internal Revenue Service Form 4224 or United States Internal
Revenue Service Form 1001 or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or withholding of
any United States federal income taxes. Each Lender which so delivers to the
Borrower and the Agent a Form 1001 or 4224, or a successor applicable form,
agrees to deliver to the Borrower and the Agent two further copies of the said
Form 1001 or 4224 or a successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrower or the Agent, certifying in the case of a Form 1001 or
Form 4224 that such Lender is entitled to receive payments under this Agreement
or any other Loan Document without deduction or withholding of any United States
federal income taxes, unless in any such cases an event (including any changes
in law) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such letter or form
with respect to it and such Lender advises the Borrower and the Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax. In addition, if at any time the Borrower believes
that payments to any Lender (foreign or domestic) may be subject to U.S. backup
withholding tax, such Lender shall, at the Borrower's reasonable request from
time to time, if such Lender is legally able to do so, provide the Borrower with
evidence establishing an exemption from U.S. backup withholding tax.
(d) CREDITS. If any payment by the Borrower is made to or for
the account of the Lender Party after deduction for or on account of any Taxes,
and increased payments are made by the Borrower pursuant to Section 2.11(a),
then, if such Lender Party in its reasonable opinion determines that it has
received or been granted a credit against or remission for such Taxes, such
Lender Party shall, to the extent it can do so without prejudice to the
retention of the amount of such credit or remission, reimburse to the Borrower
such amount as such Lender Party shall, in its reasonable opinion acting in good
faith, have determined to be attributable to the relevant Taxes or deduction or
withholding. Any payment made by a Lender Party under this Section 2.11(d) shall
be prima facie evidence of the amount due to the Borrower hereunder. Nothing
herein contained shall interfere with the right of any Lender Party to arrange
its tax affairs in whatever manner it thinks fit and, in particular,
no Lender Party shall be under any obligation to claim relief from its
corporate profits or similar tax liability in respect of such tax in priority to
any other claims, reliefs, credits or deductions available to it nor oblige any
Lender Party to disclose any information relating to its tax affairs or any
computations in respect thereof.
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2.12. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
(a) NOTIONAL FUNDING. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding Office." Such Lender shall deem any part of the Euro-Rate Portion of the
Loans or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.03(e)(ii) hereof or would lessen compensation
payable by the Borrower under Section 2.10(a) hereof, and if such Lender
determines in its sole discretion that such transfer would be practicable and
would not have a material adverse effect on such part of the Loans, such Lender
or any Notional Euro-Rate Funding Office (it being assumed for purposes of such
determination that each part of the Euro-Rate Portion is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) ACTUAL FUNDING. Each Lender shall have the right from time
to time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
promissory notes in the principal amount of such Euro-Rate Portion, in
substantially the form attached hereto as Exhibit A-1, with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Loans to the Borrower. The Borrower agrees to comply promptly
with any request under clause (ii) of this Section 2.12(b). If any Lender causes
a branch, subsidiary or affiliate to make or maintain any part of the Euro-Rate
Portion hereunder, all terms and conditions of this Agreement shall, except
where the context clearly requires otherwise, be applicable to such part of the
Euro-Rate Portion and to any note payable to the order of such branch,
subsidiary or affiliate to the same extent as if such part of the Euro-Rate
Portion were made or maintained and such note were a Revolving Credit Note
payable to such Lender's order.
ARTICLE III
THE SUBFACILITIES
3.01. THE LETTER OF CREDIT SUBFACILITY.
(a) GENERAL. Subject to the terms and conditions of this
Agreement, and relying upon the representations and warranties herein set forth
and upon the agreements of the Lenders set forth in Sections 3.03 and 3.04
hereof, the Issuing Banks may issue for the account of the Borrower letters of
credit (each, as amended, modified or supplemented from time to time, a "Letter
of Credit", as such term is further defined in the Collateral Agency Agreement)
at any time or from time to time on or after the date hereof. The Borrower shall
not request any Letter of Credit to be issued except within the following
limitations: (i) no Letter of Credit shall be issued later than 90 days before
the Revolving
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Credit Maturity Date, (ii) no Letter of Credit shall be issued if the Agent
shall have received the notice from the Required Lenders referred to in Section
3.02(c)(iii) hereof, (iii) at the time any Letter of Credit is issued, the
aggregate Revolving Credit Exposures of the Lenders (after giving effect to
issuance of the requested Letter of Credit) shall not exceed the sum of the
Revolving Credit Committed Amounts of the Lenders at such time, and (iv) on the
date of issuance of any Letter of Credit (and after giving effect to such
issuance) the aggregate Letter of Credit Exposure shall not at any time exceed
$10,000,000.
(b) TERMS OF LETTERS OF CREDIT. The Borrower shall not request
any Letter of Credit to be issued, nor shall the Issuing Banks be obligated to
issue any Letter of Credit, except within the following limitations: each Letter
of Credit (i) shall have an expiration date no later than the earlier of (A) 12
months after the date of issuance thereof, or (B) ten days before the Revolving
Credit Maturity Date, (ii) shall not be an evergreen Letter of Credit, (iii)
shall be denominated in Dollars, (iv) shall be payable only against sight drafts
(and not time drafts), and (v) shall be in a minimum stated amount of $50,000.
(c) PURPOSES OF LETTERS OF CREDIT. Each Letter of Credit shall
be satisfactory in form, substance and beneficiary to the relevant Issuing Bank
in its discretion. Each Letter of Credit shall be used by the Borrower as a
standby letter of credit used solely (x) to provide credit enhancement for
workers' compensation obligations, contract performance guarantees, leasing
arrangements and like bonding requirements of the Borrower and its Wholly Owned
Subsidiaries, all in the ordinary course of business of the Borrower or such
Subsidiaries, and (y) for other purposes approved by the relevant Issuing Bank
in its discretion. Letters of Credit shall not be used to provide credit support
for any Indebtedness or other direct or indirect financing arrangements of the
Borrower or any other Person without the written consent of the Agent and the
relevant Issuing Bank. The Borrower shall not at any time permit any Letter of
Credit to be issued or to remain outstanding to support, directly or indirectly,
any obligations of any Person except the Borrower and its Wholly Owned
Subsidiaries. The provisions of this Section 3.01(c) represent only an
obligation of the Borrower to the Issuing Banks and the Lenders; no Issuing Bank
shall have any obligation to the Lenders to ascertain the purpose of any Letter
of Credit, and the rights and obligations of the Lenders and the Issuing Banks
among themselves shall not be impaired or affected by a breach of this Section
3.01(c).
(d) LETTER OF CREDIT FEE. The Borrower shall pay to the Agent
for the account of each Lender a fee (the "Letter of Credit Fee") for each
Letter of Credit for each day from and including the date of issuance thereof to
and including the date of expiration or termination thereof, equal to (x) the
Letter of Credit Undrawn Availability on such day, times (y) the Applicable
Margin applicable under the Euro-Rate Option on such day, times (z) 1/365 (or
1/366, as the case may be). Such Letter of Credit Fee shall be due and payable
for the preceding period for which such fee has not been paid on each of the
following dates: (i) each Regular Quarterly Payment Date, and (ii) the date of
expiration or termination of such Letter of Credit.
(e) FACING FEE; ADMINISTRATION FEES. The Borrower shall pay to
the Agent, for the sole account of the relevant Issuing Bank, a fee (the "Letter
of Credit Facing Fee") for each Letter of Credit for each day from and including
the date of issuance thereof to and including the date of expiration or
termination thereof, equal to (x) the Letter of Credit Undrawn Availability on
such day, times (y) 0.25%, times (z) 1/365 (or 1/366, as the case may be). Such
Letter of Credit Facing Fee shall be due and payable for the preceding period
for which such fee has not been paid on each of the following dates: (i)
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each Regular Quarterly Payment Date, and (ii) the date of expiration or
termination of such Letter of Credit. In addition, the Borrower shall pay to the
Agent, for the sole account of the Issuing Bank, such other administration,
maintenance, amendment, drawing and negotiation fees as may be customarily
charged by the relevant Issuing Bank from time to time in connection with
letters of credit.
(f) PRIOR LETTERS OF CREDIT. Any letters of credit ("Prior
Letters of Credit") issued by Mellon Bank, N.A. or any of its affiliates under
the prior "Revolving Credit Agreement" referred to in Section 5.01(f) (the
"Prior Revolving Credit Agreement") and outstanding on the Closing Date shall,
as of the Closing Date, automatically and without further action be deemed to be
Letters of Credit issued under this Agreement. The Borrower hereby represents
and warrants that such Prior Letters of Credit will comply with the limitations
set forth in Sections 3.01(a) and 3.01(b) hereof as of the Closing Date as if
issued hereunder on the Closing Date. Fees with respect to such Prior Letters of
Credit for each day to and including the Closing Date shall accrue at the rates
set forth under the Prior Revolving Credit Agreement and shall be payable on the
Closing Date, and fees with respect to such Prior Letters of Credit for each day
after the Closing Date shall accrue and be payable as provided for Letters of
Credit in this Agreement. The parties hereto acknowledge and agree that (i) the
TIMCO Bonds Letter of Credit was not, and will not be deemed to have been,
issued under the Prior Revolving Credit Agreement, and (ii) the letters of
credit subject to the Note Backup Agreement were not, and will not be deemed to
have been, issued under the Prior Revolving Credit Agreement.
3.02. PROCEDURE FOR ISSUANCE AND AMENDMENT OF LETTERS OF
CREDIT.
(a) REQUEST FOR ISSUANCE. The Borrower may from time to time
request, upon at least three Business Days' notice, Mellon Bank, N.A. to issue a
Letter of Credit by delivering to Mellon Bank, N.A. (or such other Issuing Bank
as Mellon Bank, N.A. may from time to time designate) and the Agent a written
request to such effect, specifying the date on which such Letter of Credit is to
be issued, the expiration date thereof, and the stated amount thereof, together
with such other certificates, documents and other papers and information as such
Issuing Bank may request. If the Issuing Bank desires to issue such Letter of
Credit, the Issuing Bank shall promptly notify the Agent (by telephone or
otherwise), and furnish the Agent with the proposed form of Letter of Credit to
be issued. The Agent shall determine, as of the close of business on the day
before such proposed issuance, whether such proposed Letter of Credit complies
with the limitations set forth in Sections 3.01(a) and 3.01(b) hereof.
Unless such limitations are not satisfied, or unless the Required Lenders have
given notice to the Agent to cease issuing Letters of Credit pursuant to Section
3.02(c)(iii) hereof, the Agent shall notify the relevant Issuing Bank (in
writing or by telephone promptly confirmed in writing) that such Issuing Bank is
authorized to issue such Letter of Credit. If the Issuing Bank issues a Letter
of Credit, it shall deliver the original of such Letter of Credit to the
beneficiary thereof or as the Borrower shall otherwise direct, and shall
promptly notify the Agent thereof and furnish a copy thereof to the Agent.
(b) EXTENSION OR INCREASE. The Borrower may from time to time
request an Issuing Bank to extend the expiration date of an outstanding Letter
of Credit issued by such Issuing Bank or to increase the Letter of Credit
Undrawn Availability of such Letter of Credit. Such extension or increase shall
for all purposes hereunder (including but not limited to Sections 3.02(a) and
5.02) be treated as though the Borrower had requested issuance of a replacement
Letter of Credit; provided, however, that the Issuing Bank may, if it elects,
issue an amendment to the particular Letter of Credit providing for
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<PAGE> 24
such an extension or increase in lieu of issuing a new Letter of Credit in
substitution for the outstanding Letter of Credit.
(c) LIMITATIONS ON ISSUANCE, EXTENSION AND AMENDMENT.
(i) As between the Borrower, on the one hand, and the Lender
Parties, on the other hand, the issuance or extension of any Letter of
Credit (including any deemed issuance arising from increase or
extension of a Letter of Credit as provided in Section 3.02(b) hereof)
is within the discretion of each Issuing Bank.
(ii) As between each Issuing Bank, on the one hand, and the
Agent and the Lenders, on the other hand, such Issuing Bank shall be
justified and fully protected in issuing any Letter of Credit
(including any deemed issuance arising from increase or extension of a
Letter of Credit as provided in Section 3.02(b) hereof) after receiving
authorization from the Agent as provided in Section 3.02(a) hereof,
notwithstanding any subsequent notices to the Issuing Bank, any
knowledge of an Event of Default or Potential Default, any knowledge of
failure of any condition specified in Section 5.02 hereof to be
satisfied, any other knowledge of the Issuing Bank, or any other event,
condition or circumstance whatever.
(iii) As between the Agent, on the one hand, and the Lenders,
on the other hand, the Agent shall not authorize issuance of any Letter
of Credit pursuant to Section 3.02(a) (including any deemed issuance
arising from increase or extension of a Letter of Credit as provided in
Section 3.02(b)) if the Agent shall have received, at least two
Business Days before authorizing such issuance, from the Required
Lenders an unrevoked written notice that any condition precedent set
forth in Section 5.02 will not be satisfied and expressly requesting
that the Agent direct the Issuing Banks to cease to issue Letters of
Credit. Unless the Agent has received such notice or has determined
that the applicable limitations set forth in Sections 3.01(a) and
3.01(b) hereof are not satisfied, the Agent shall be justified and
fully protected, as against the Lenders, in authorizing the Issuing
Bank to issue such Letter of Credit, notwithstanding any subsequent
notices to the Agent, any knowledge of an Event of Default or Potential
Default, any knowledge of failure of any condition specified in Section
5.02 hereof to be satisfied, any other knowledge of the Agent, or any
other event, condition or circumstance whatever.
(d) AMENDMENTS. At the request of the Borrower from time to
time, and subject to satisfaction of such conditions as the relevant Issuing
Bank may require, each Issuing Bank may amend, modify or supplement Letters of
Credit, or waive compliance with any condition of issuance or payment, without
the consent of, and without liability to, the Agent or any Lender, provided that
any such amendment, modification or supplement that extends the expiration date
or increases the Letter of Credit Undrawn Availability of an outstanding Letter
of Credit shall be subject to Section 3.02(b) hereof.
3.03. LETTER OF CREDIT PARTICIPATING INTERESTS.
(a) GENERALLY. Concurrently with the issuance of each Letter
of Credit, the relevant Issuing Bank automatically shall be deemed, irrevocably
and unconditionally, to have sold, assigned, transferred and conveyed to each
other Lender, and each other Lender automatically shall be deemed, irrevocably
and unconditionally, severally to have purchased, acquired, accepted and assumed
from the
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<PAGE> 25
Issuing Bank, without recourse to, or representation or warranty by, the Issuing
Bank, an undivided interest, in a proportion equal to such Lender's Pro Rata
share, in all of the Issuing Bank's rights and obligations in, to or under such
Letter of Credit, the Letter of Credit Reimbursement Obligations, and all
collateral, guarantees and other rights from time to time directly or indirectly
securing the foregoing (such interest of each Lender being referred to herein as
a "Letter of Credit Participating Interest"). Amounts other than Letter of
Credit Reimbursement Obligations and Letter of Credit Fees payable from time to
time under or in connection with a Letter of Credit shall be for the sole
account of the relevant Issuing Bank. On the date that any Purchasing Lender
becomes a party to this Agreement in accordance with Section 10.14 hereof,
Letter of Credit Participating Interests in any outstanding Letters of Credit
held by the Lender from which such Purchasing Lender acquired its interest
hereunder shall be proportionately reallotted between such Purchasing Lender and
such transferor Lender (and, to the extent such transferor Lender is an Issuing
Bank, the Purchasing Lender shall be deemed to have acquired a Letter of Credit
Participating Interest from such transferor Lender to such extent).
(b) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Lender hereby agrees that its obligation to participate in each
Letter of Credit issued in accordance herewith, and its obligation to make the
payments specified in Section 3.04 hereof, are each absolute, irrevocable and
unconditional and shall not be affected by any event, condition or circumstance
whatever. The failure of any Lender to make any such payment shall not relieve
any other Lender of its funding obligation hereunder on the date due, but no
Lender shall be responsible for the failure of any other Lender to meet its
funding obligations hereunder.
3.04. LETTER OF CREDIT DRAWINGS AND REIMBURSEMENTS.
(a) BORROWER'S REIMBURSEMENT OBLIGATION. The Borrower hereby
agrees to reimburse the relevant Issuing Bank, by making payment to the Agent
for the account of such Issuing Bank in accordance with Section 2.09(b) hereof,
on the date and in the amount of each payment made by the such Issuing Bank
under any Letter of Credit, without notice, protest or demand, all of which are
hereby waived, and an action therefor shall immediately accrue. To the extent
such payment is not timely made, the Borrower hereby agrees to pay to the Agent,
for the account of the relevant Issuing Bank, on demand, interest on any Letter
of Credit Unreimbursed Draws for each day from and including the date of such
payment by such Issuing Bank until reimbursed in full (before and after
judgment), in accordance with Section 2.09(c) hereof, at the rate per annum set
forth in Section 2.09(c)(ii) hereof.
(b) PAYMENT BY LENDERS ON ACCOUNT OF UNREIMBURSED DRAWS. If an
Issuing Bank makes a payment under any Letter of Credit and is not reimbursed in
full therefor on such payment date in accordance with Section 3.04(a) hereof,
such Issuing Bank will promptly notify the Agent thereof (which notice may be by
telephone), and the Agent shall forthwith notify each Lender (which notice may
be by telephone promptly confirmed in writing) thereof. No later than the
Agent's close of business on the date such notice is given, each such Lender
will pay to the Agent, for the account of such Issuing Bank, in immediately
available funds, an amount equal to such Lender's Pro Rata share of the
unreimbursed portion of such payment by such Issuing Bank. If and to the extent
that any Lender fails to make such payment to the Agent for the account of such
Issuing Bank on such date, such Lender shall pay such amount on demand, together
with interest, for such Issuing Bank's own account, for each day from and
including the date of such Issuing Bank's payment to and including the date of
payment to the Issuing Bank (before and after judgment) at the following rates
per annum: (x) for each day from and
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including the date of such payment by the Issuing Bank to and including the
second Business Day thereafter, at the Federal Funds Effective Rate for such
day, and (y) for each day thereafter, at the rate applicable to Letter of Credit
Unreimbursed Draws under Section 3.04(a) hereof for such day.
(c) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after an
Issuing Bank has made a Letter of Credit Unreimbursed Draw and has received from
any Lender such Lender's share of such Letter of Credit Unreimbursed Draw, such
Issuing Bank receives any payment or makes any application of funds on account
of the Letter of Credit Reimbursement Obligation arising from such Letter of
Credit Unreimbursed Draw, such Issuing Bank will pay to the Agent, for the
account of such Lender, such Lender's Pro Rata share of such payment or
application.
(d) RESCISSION. If any amount received by an Issuing Bank on
account of any Letter of Credit Reimbursement Obligation shall be avoided,
rescinded or otherwise returned or paid over by such Issuing Bank for any reason
at any time, whether before or after the termination of this Agreement (or such
Issuing Bank believes in good faith that such avoidance, rescission, return or
payment is required, whether or not such matter has been adjudicated), each such
Lender will, promptly upon notice from the Agent or such Issuing Bank, pay over
to the Agent for the account of such Issuing Bank its Pro Rata share of such
amount, together with its Pro Rata share of any interest or penalties payable
with respect thereto.
(e) EQUALIZATION. If any Lender receives any payment or makes
any application on account of its Letter of Credit Participating Interest, such
Lender shall forthwith pay over to the relevant Issuing Bank, in Dollars and in
like kind of funds received or applied by it the amount in excess of such
Lender's ratable share of the amount so received or applied.
3.05. OBLIGATIONS ABSOLUTE. The payment obligations of the
Borrower under Section 3.04 hereof shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of this Agreement,
any Letter of Credit, any other Loan Document or any documents,
instruments or agreements evidencing or otherwise relating to any
obligation of the Borrower or Subsidiary of the Borrower secured or
supported by any Letter of Credit;
(b) the existence of any claim, set-off, defense or other
right which the Borrower or any other Person may have at any time
against any beneficiary or transferee of any Letter of Credit (or any
Persons for whom any such beneficiary or transferee may be acting), the
relevant Issuing Bank, any Lender, or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or
any unrelated transaction;
(c) any draft, certificate, statement or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
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(d) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, or payment by the Issuing Bank
under the Letter of Credit in any other circumstances in which
conditions to payment are not met, except any such payment resulting
solely from the gross negligence or willful misconduct of the Issuing
Bank; or
(e) any other event, condition or circumstance whatever,
whether or not similar to any of the foregoing.
The Borrower bears the risk of, and neither the Issuing Bank, any of its
directors, officers, employees or agents, nor any Lender, shall be liable or
responsible for the use which may be made of any Letter of Credit, or acts or
omissions of the beneficiary or any transferee in connection therewith.
3.06. FURTHER ASSURANCES. The Borrower hereby agrees, from
time to time, to do and perform any and all acts and to execute any and all
further instruments reasonably requested by any Issuing Bank more fully to
effect the purposes of this Agreement and the issuance of the Letters of Credit
hereunder.
3.07. CASH COLLATERAL FOR LETTERS OF CREDIT. To the extent
that this Agreement or any other Loan Document requires a payment, prepayment or
other application of funds to be made with respect to the Revolving Credit
Loans, such provision shall be construed as follows: after payment in full of
the outstanding Revolving Credit Loans (whether or not such payment would
require the Borrower to pay any amount under Section 2.10(b) hereof), and the
payment in full of all outstanding Letter of Credit Unreimbursed Draws, then, to
the extent of the excess, if any, of the aggregate Letter of Credit Exposure at
such time over the balance in the Letter of Credit Collateral Account, an amount
equal to the remainder of the amount so required to be paid by the Borrower
shall immediately be paid by the Borrower to the Collateral Agent for deposit in
the Letter of Credit Collateral Account. In addition, the Borrower agrees that,
without limitation of the foregoing or of any other provisions of this Agreement
or the Loan Documents requiring collateral for the Letters of Credit or other
Obligations in whole or in part, and without limitation of other rights and
remedies under this Agreement or the Loan Documents or at law or in equity, if
all of the Revolving Credit Loans become due and payable pursuant to Section
8.02 hereof, the Borrower shall immediately pay to the Collateral Agent, for
deposit in the Letter of Credit Collateral Account, an amount equal to the
excess, if any, of the aggregate Letter of Credit Exposure at such time over the
balance in the Letter of Credit Collateral Account. The Agent shall direct the
Collateral Agent to release funds in the Letter of Credit Collateral Account to
the Issuing Bank for payment of Letter of Credit Reimbursement Obligations
constituting Letter of Credit Unreimbursed Draws, as and when the same become
due and payable if and to the extent the Borrower fails to pay the same.
3.08. CERTAIN PROVISIONS RELATING TO THE ISSUING BANKS.
(a) GENERAL. The Issuing Banks shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Issuing Banks shall be read into this Agreement or any Loan Document or
shall otherwise exist. The duties and responsibilities of the Issuing Banks to
the other Lender Parties under this Agreement and the other Loan Documents shall
be mechanical and administrative in nature,
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and no Issuing Bank shall have a fiduciary relationship in respect of any Lender
Party or any other Person. No Issuing Bank shall be liable for any action taken
or omitted to be taken by it under or in connection with this Agreement or any
other Loan Document, unless caused by its own gross negligence or willful
misconduct. No Issuing Bank shall be under any obligation to ascertain, inquire
or give any notice relating to (i) the performance or observance of any of the
terms or conditions of this Agreement or any other Loan Document on the part of
the Borrower, (ii) the business, operations, condition (financial or otherwise)
or prospects of the Borrower or any other Person, or (iii) the existence of any
Event of Default or Potential Default. No Issuing Bank shall be under any
obligation, either initially or on a continuing basis, to provide the Agent or
any Lender with any notices, reports or information of any nature, whether in
its possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement to be so furnished.
(b) ADMINISTRATION. Each Issuing Bank may rely upon any notice
or other communication of any nature (written or oral, including but not limited
to telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and no Issuing
Bank shall have any duty to verify the identity or authority of any Person
giving such notice or other communication. Each Issuing Bank may consult with
legal counsel (including, without limitation, in-house counsel for such Issuing
Bank or in-house or other counsel for the Borrower), independent public
accountants and any other experts selected by it from time to time, and no
Issuing Bank shall be liable for any action taken or omitted to be taken in good
faith in accordance with the advice of such counsel, accountants or experts.
Whenever any Issuing Bank shall deem it necessary or desirable that a matter be
proved or established with respect to the Borrower or any Lender Party, such
matter may be established by a certificate of the Borrower or such Lender Party,
as the case may be, and such Issuing Bank may conclusively rely upon such
certificate.
(c) INDEMNIFICATION OF ISSUING BANKS BY LENDERS. Each Lender
hereby agrees to reimburse and indemnify each Issuing Bank and each of their
respective directors, officers, employees and agents (to the extent not
reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), Pro Rata, from and against any and all amounts, losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel (other than in-house
counsel) for such Issuing Bank or such other Person in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Issuing Bank or such other Person shall be designated a
party thereto) that may at any time be imposed on, incurred by or asserted
against such Issuing Bank, in its capacity as such, or such other Person, as a
result of, or arising out of, or in any way related to or by reason of, this
Agreement, any other Loan Document, any transaction from time to time
contemplated hereby or thereby, or any transaction secured or financed in whole
or in part, directly or indirectly, with any Letter of Credit or the proceeds
thereof, provided, that no Lender shall be liable for any portion of such
amounts, losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements resulting from the gross
negligence or willful misconduct of such Issuing Bank or such other Person, as
finally determined by a court of competent jurisdiction.
3.09. THE SWINGLINE SUBFACILITY.
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(a) GENERAL. Subject to the terms and conditions of this
Agreement, and relying upon the representations and warranties herein set forth
and the upon the agreements of the Lenders set forth in Section 3.11 hereof, the
Swingline Lender may in its discretion make loans (the "Swingline Loans") to the
Borrower at any time or from time to time on or after the date hereof and to but
not including the Revolving Credit Maturity Date. The Swingline Lender shall not
make any Swingline Loan to the extent that the aggregate amount of Swingline
Loans outstanding would exceed $5,000,000 (the "Swingline Subfacility Amount").
The Swingline Lender shall not make any Swingline Loan to the extent that the
aggregate amount of Swingline Loans outstanding would exceed the Swingline
Current Availability most recently notified to it, as more fully provided in
Section 3.10(a) hereof.
(b) NATURE OF CREDIT. Within the limits of time and amount set
forth in this Section 3.09, and subject to the provisions of this Agreement, and
so long as the Swingline Lender is willing in its discretion to make Swingline
Loans, the Borrower may borrow, repay and reborrow Swingline Loans hereunder.
(c) SWINGLINE NOTE. The obligation of the Borrower to repay
the unpaid principal amount of the Swingline Loans made to it by the Swingline
Lender and to pay interest thereon shall be evidenced in part by a promissory
note of the Borrower to the Swingline Lender, dated the Closing Date (the
"Swingline Note") in substantially the form attached hereto as Exhibit A-2, with
the blanks appropriately filled, payable to the order of the Swingline Lender in
a face amount equal to the Swingline Subfacility Amount.
(d) MATURITY. To the extent not due and payable earlier, the
Swingline Loans shall be due and payable on the Revolving Credit Maturity Date.
(e) MAKING OF SWINGLINE LOANS, ETC. The Swingline Lender may
in its discretion elect to make Swingline Loans from time to time by paying
items presented for payment on, or otherwise crediting, zero-balance or other
accounts maintained with the Swingline Lender, from time to time without any
express request or notice from the Borrower, it being agreed that the Borrower
shall nevertheless be deemed for all purposes of this Agreement and the other
Loan Documents (including but not limited to Section 5.02 hereof) to have made a
request for such Loan as of the date such item is paid or such credit is made,
as the case may be. In addition, the Borrower may, in the alternative, request
Swingline Loans to be made in accordance with the provisions of Section 2.02
hereof, except that (x) the Borrower need give notice only to the Agent and the
Swingline Lender, such notice need be given no later than 1:00 p.m., Pittsburgh
time, on the date on which such proposed Swingline Loan is to be made, and the
Agent need not notify other Lenders of such request, and (y) Swingline Loans may
be requested and made in any amount (subject to the overall limits of time and
amount set forth in this Section 3.09). Until due, all Swingline Loans shall
bear interest at the Base Rate Option.
(f) REPAYMENT OF SWINGLINE LOANS, ETC. Without limitation of
any other provision hereof, the Swingline Lender may in its discretion elect to
apply to repayment of Swingline Loans any amounts on deposit from time to time
in accounts maintained with it (individually or as Agent or as Collateral Agent)
by or for the benefit of the Borrower. Any such application may be made without
regard to the limitations of Section 2.05 hereof. The Borrower may, in the
alternative, prepay Swingline Loans in accordance with the provisions of Section
2.05 hereof, except that (x) the Borrower need give notice only to the Agent and
the Swingline Lender, such notice need be given no later than 1:00 p.m.,
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Pittsburgh time, on the date on which such proposed prepayment of the Swingline
Loans is to be made, and the Agent need not notify other Lenders of such
request, and (y) Swingline Loans may be prepaid in any amount (subject to the
overall limits of time and amount set forth in this Section 3.09).
(g) PRIOR SWINGLINE LOANS. The outstanding principal amount of
all "Swingline Loans" ("Prior Swingline Loans") made by the Swingline Lender
under the prior "Revolving Credit Agreement" referred to in Section 5.01(f) (the
"Prior Revolving Credit Agreement") and outstanding on the Closing Date shall,
as of the Closing Date, automatically and without further action be deemed to be
Swingline Loans made under this Agreement. The Borrower hereby represents and
warrants that such Prior Swingline Loans will comply with the limitations set
forth in Section 3.09(a) hereof as of the Closing Date as if made hereunder on
the Closing Date. Accrued and unpaid interest with respect to such Prior
Swingline Loans for each day to and including the Closing Date shall accrue at
the rates set forth under the Prior Revolving Credit Agreement, and shall be
payable on the next Regular Monthly Payment Date after the Closing Date (or, if
the Swingline Lender so requests, on demand).
3.10. LIMITATIONS ON THE MAKING OF SWINGLINE LOANS.
(a) SWINGLINE CURRENT AVAILABILITY. The Agent shall calculate
the Swingline Current Availability each time there is a change in the aggregate
outstanding principal amount of the Revolving Credit Loans, the aggregate Letter
of Credit Exposure or the Revolving Credit Committed Amounts. The "Swingline
Current Availability" at any time shall be equal to the lesser of
(i) the Swingline Subfacility Amount, or
(ii) the amount equal to (A) the sum of the Revolving Credit
Committed Amounts of the Lenders at such time, minus (B) the aggregate
principal amount of Revolving Credit Loans plus the aggregate Letter of
Credit Exposure at such time.
Each time the Swingline Current Availability changes, the Agent shall promptly
notify the Swingline Lender (by telephone promptly confirmed in writing) of such
fact, stating the new Swingline Current Availability. From and after the second
Business Day after receiving such notice from the Agent, the Swingline Lender
shall not make any Swingline Loan to the extent that the aggregate principal
amount of Swingline Loans would exceed the Swingline Current Availability so
notified to the Swingline Lender.
(b) RIGHTS OF THE PARTIES. As between the Borrower on the one
hand, and the Swingline Lender, the Agent and the Lenders, on the other hand,
the making of any Swingline Loan is within the discretion of the Swingline
Lender. As between the Swingline Lender, on the one hand, and the Agent and the
Lenders, on the other hand, the Swingline Lender shall not make any Swingline
Loan outside the limitations of time and amount set forth in Section 3.09
hereof, and shall not make any Swingline Loan if the Swingline Lender shall have
received, at least two Business Days before making such Swingline Loan, from the
Required Lenders an unrevoked written notice that any condition precedent set
forth in Section 5.02 will not be satisfied and expressly requesting that the
Swingline Lender cease to make Swingline Loans. Absent such notice, the
Swingline Lender shall be justified and fully protected, as against the Agent
and the Lenders, in making Swingline Loans, notwithstanding any knowledge of an
Event of Default or Potential Default, any knowledge of failure of any condition
specified in
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Section 5.02 hereof to be satisfied, any other knowledge of the Swingline
Lender, or any other event, condition or circumstance whatever.
3.11. SWINGLINE LOAN PARTICIPATING INTERESTS.
(a) GENERALLY. At the discretion of the Swingline Lender at
any time, on one Business Day's notice to each Lender, the Swingline Lender may
require each other Lender to purchase, acquire, accept and assume from the
Swingline Lender, without recourse to, or representation or warranty by, the
Swingline Lender, an undivided interest, in a proportion equal to such Lender's
Pro Rata share, in all of the Swingline Lender's rights and obligations in, to
or under the outstanding Swingline Loans, together with accrued and unpaid
interest thereon, and all collateral, guarantees and other rights from time to
time directly or indirectly securing the foregoing (such interest of each Lender
being referred to herein as a "Swingline Loan Participating Interest"). Amounts
other than principal and interest on Swingline Loans payable under or in
connection with any zero-balance or other account maintained with the Swingline
Lender or otherwise payable to the Swingline Lender in connection with any
automatic borrowing system, automatic investment system or other cash management
operations for the Borrower shall be for the sole account of the Swingline
Lender. On the date that any Purchasing Lender becomes a party to this Agreement
in accordance with Section 10.14 hereof, Swingline Loan Participating Interests
in any outstanding Swingline Loans held by the Lender from which such Purchasing
Lender acquired its interest hereunder shall be proportionately reallotted
between such Purchasing Lender and such transferor Lender (and, to the extent
such transferor Lender is a Swingline Lender, the Purchasing Lender shall be
deemed to have acquired a Swingline Loan Participating Interest from such
transferor Lender to such extent).
(b) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Lender hereby agrees that its obligation to participate in each
Swingline Loan issued in accordance herewith, and its obligation to make the
payments specified in Section 3.04 hereof, are each absolute, irrevocable and
unconditional and shall not be affected by any event, condition or circumstance
whatever. The failure of any Lender to make any such payment shall not relieve
any other Lender of its funding obligation hereunder on the date due, but no
Lender shall be responsible for the failure of any other Lender to meet its
funding obligations hereunder.
(c) PAYMENT BY LENDERS ON ACCOUNT OF SWINGLINE LOANS. If the
Swingline Lender desires to sell Swingline Loan Participating Interests to the
Lenders, the Swingline Lender will promptly notify the Agent thereof (which
notice may be by telephone), and the Agent shall forthwith notify each Lender
(which notice may be by telephone promptly confirmed in writing) thereof. No
later than the Agent's close of business on the date such notice is given by the
Agent (if such notice is given by the Agent before 12:00 p.m., Pittsburgh time
on such date), each such Lender will pay to the Agent, for the account of the
Swingline Lender, in immediately available funds, an amount equal to such
Lender's Pro Rata share of the outstanding principal amount of the Swingline
Loans and accrued and unpaid interest thereon. If and to the extent that any
Lender fails to make such payment to the Swingline Lender on such date, such
Lender shall pay such amount on demand, together with interest, for the
Swingline Lender's own account, for each day from and including the date of the
Swingline Lender's payment to and including the date of repayment to the
Swingline Lender (before and after judgment) following rates per annum: (x) for
each day from and including the date of such payment by the Swingline Lender to
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and including the second Business Day thereafter, at the Federal Funds Effective
Rate for such day, and (y) for each day thereafter, at the rate applicable to
the Swingline Loans for such day.
(d) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after the
Swingline Lender has made a Swingline Loan and has received from any Lender such
Lender's share of such Swingline Loan, and the Swingline Lender receives any
payment or makes any application of funds on account of such Swingline Loan, the
Swingline Lender will pay to the Agent, for the account of such Lender, such
Lender's Pro Rata share of such payment.
(e) RESCISSION. If any amount received by the Swingline Lender
on account of any Swingline Loan or interest thereon shall be avoided, rescinded
or otherwise returned or paid over by the Swingline Lender for any reason at any
time, whether before or after the termination of this Agreement (or the
Swingline Lender believes in good faith that such avoidance, rescission, return
or payment is required, whether or not such matter has been adjudicated), each
such Lender will, promptly upon notice from the Agent or the Swingline Lender,
pay over to the Agent for the account of the Swingline Lender its Pro Rata share
of such amount, together with its Pro Rata share of any interest or penalties
payable with respect thereto.
(f) EQUALIZATION. If any Lender receives any payment or makes
any application on account of its Swingline Loan Participating Interest, such
Lender shall forthwith pay over to the Swingline Lender, in Dollars and in like
kind of funds received or applied by it the amount in excess of such Lender's
ratable share of the amount so received or applied.
3.12. CASH MANAGEMENT DOCUMENTATION. The representations,
warranties and covenants by the Borrower under, and rights and remedies of the
Swingline Lender under, any agreements or instruments relating to any
zero-balance or other accounts maintained by the Borrower with the Swingline
Lender from time to time, or relating to any automatic borrowing system,
automatic investment system or other cash management operations in connection
therewith, are in addition to, and not in limitation or derogation of,
representations, warranties and covenants by the Borrower under, and rights and
remedies of the Swingline Lender and the Lenders under, this Agreement, the Loan
Documents, any other applicable documents, instruments and agreements, and
applicable law. Subject to the foregoing, in the event of any inconsistency
between the terms of this Agreement and any such agreements or instruments, this
Agreement shall prevail. The terms of this Agreement shall be deemed to be
incorporated by reference into each such agreement or instrument (whether or not
such agreement or instrument so states).
3.13. CERTAIN PROVISIONS RELATING TO THE SWINGLINE LENDER.
(a) GENERAL. The Swingline Lender shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Swingline Lender shall be read into this Agreement or any Loan Document or
shall otherwise exist. The duties and responsibilities of the Swingline Lender
to the other Lender Parties under this Agreement and the other Loan Documents
shall be mechanical and administrative in nature, and no Swingline Lender shall
have a fiduciary relationship in respect of any Lender Party or any other
Person. The Swingline Lender shall not be liable for any action taken or omitted
to be taken by it under or in connection with this Agreement or any other Loan
Document,
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unless caused by its own gross negligence or willful misconduct. The Swingline
Lender shall not be under any obligation to ascertain, inquire or give any
notice relating to (i) the performance or observance of any of the terms or
conditions of this Agreement or any other Loan Document on the part of the
Borrower, (ii) the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any other Person, or (iii) the existence of any
Event of Default or Potential Default. The Swingline Lender shall not be under
any obligation, either initially or on a continuing basis, to provide the Agent
or any Lender with any notices, reports or information of any nature, whether in
its possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement to be so furnished.
(b) ADMINISTRATION. The Swingline Lender may rely upon any
notice or other communication of any nature (written or oral, including but not
limited to telephone conversations, whether or not such notice or other
communication is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the proper party or parties,
and the Swingline Lender shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication. The Swingline
Lender may consult with legal counsel (including, without limitation, in-house
counsel for the Swingline Lender or in-house or other counsel for the Borrower),
independent public accountants and any other experts selected by it from time to
time, and the Swingline Lender shall not be liable for any action taken or
omitted to be taken in good faith in accordance with the advice of such counsel,
accountants or experts. Whenever the Swingline Lender shall deem it necessary or
desirable that a matter be proved or established with respect to the Borrower or
any Lender Party, such matter may be established by a certificate of the
Borrower or such Lender Party, as the case may be, and the Swingline Lender may
conclusively rely upon such certificate.
(c) INDEMNIFICATION OF SWINGLINE LENDER BY LENDERS. Each
Lender hereby agrees to reimburse and indemnify the Swingline Lender and its
directors, officers, employees and agents (to the extent not reimbursed by the
Borrower and without limitation of the obligations of the Borrower to do so),
Pro Rata, from and against any and all amounts, losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature (including, without limitation, the fees and
disbursements of counsel (other than in-house counsel) for the Swingline Lender
or such other Person in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not the Swingline Lender
or such other Person shall be designated a party thereto) that may at any time
be imposed on, incurred by or asserted against the Swingline Lender, in its
capacity as such, or such other Person, as a result of, or arising out of, or in
any way related to or by reason of, this Agreement, any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part, or directly or indirectly, with the proceeds of
any Swingline Loan, provided, that no Lender shall be liable for any portion of
such amounts, losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting from the
gross negligence or willful misconduct of the Swingline Lender or such other
Person, as finally determined by a court of competent jurisdiction.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender
Party as follows:
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4.01. CORPORATE STATUS. The Borrower and each Subsidiary of
the Borrower is a Corporation duly organized and validly existing under the laws
of its jurisdiction of organization. The Borrower and each Subsidiary of the
Borrower has corporate power and authority to own its property and to transact
the business in which it is engaged or presently proposes to engage. The
Borrower and each Subsidiary of the Borrower is duly qualified to do business as
a foreign Corporation and, to the extent applicable, is in good standing in all
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary or advisable, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect.
4.02. CORPORATE POWER AND AUTHORIZATION. The Borrower has
corporate power and authority to execute, deliver, perform, and take all actions
contemplated by, each Loan Document to which it is a party, and all such action
has been duly and validly authorized by all necessary corporate proceedings on
its part. Without limitation of the foregoing, the Borrower has the corporate
power and authority to borrow and request Letters of Credit to be issued
pursuant to the Loan Documents to the fullest extent permitted hereby and
thereby from time to time, and has taken all necessary corporate action to
authorize such borrowings and requests for issuance of Letters of Credit.
4.03. EXECUTION AND BINDING EFFECT. This Agreement, each other
Loan Document to which the Borrower is a party and which is executed and
delivered or required to be executed and delivered on or before the date as of
which this representation and warranty is made, has been duly and validly
executed and delivered by the Borrower. This Agreement and each such Loan
Document constitutes, and each other Loan Document when executed and delivered
by the Borrower will constitute, the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
4.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary or advisable in connection with execution and delivery of
any Loan Document, consummation of the transactions herein or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof or thereof, except for the following: (a)
filings and recordings in respect of the Liens in favor of the Collateral Agent
and the Agent contemplated hereby and thereby, and (b) other matters set forth
in Schedule 4.04 hereof. Each Governmental Action referred to in the foregoing
clauses (a) and (b) has been duly obtained or made, as the case may be, and is
in full force and effect (except, in the case of clause (a), for the filing of
continuation statements and like renewal filings and recordings which are not
yet required to be made). There is no action, suit, proceeding or investigation
pending or (to the Borrower's knowledge after due inquiry) threatened which
seeks or may result in the reversal, rescission, termination, modification or
suspension of any such Governmental Action.
4.05. ABSENCE OF CONFLICTS. Neither the execution and delivery
of any Loan Document nor consummation of the transactions herein or therein
contemplated, nor performance of or compliance with the terms and conditions
hereof or thereof, does or will
(a) violate or conflict with any Law, or
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(b) violate or conflict with, or constitute a default under,
or result in (or give rise to any right, contingent or other, of any
Person to cause) any termination, cancellation, prepayment or
acceleration of performance of, or result in the creation or imposition
of (or give rise to any obligation, contingent or other, to create or
impose) any Lien upon any property of the Borrower or any Subsidiary of
the Borrower (except for any Lien in favor of the Collateral Agent
securing the Obligations) pursuant to, or otherwise result in (or give
rise to any right, contingent or other, of any Person to cause) any
change in any right, power, privilege, duty or obligation of the
Borrower or any Subsidiary of the Borrower under or in connection with,
(i) the articles of incorporation or by-laws (or other constituent
documents) of the Borrower or any Subsidiary of the Borrower, or (ii)
any agreement or instrument to which the Borrower or any Subsidiary of
the Borrower is a party or by which any of them or any of their
respective properties may be subject or bound,
except, in the case of the foregoing clause (b)(ii), for matters set forth on
Schedule 4.05 hereof.
4.06. AUDITED FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender consolidated balance sheets of
the Borrower and its consolidated Subsidiaries as of December 31, 1994 and
December 31, 1995 and the related consolidated statements of income, cash flows
and changes in stockholders' equity for the fiscal years then ended, as audited
and reported on by Deloitte & Touche, independent certified public accountants
for the Borrower, who delivered an unqualified opinion in respect thereof. Such
financial statements (including the notes thereto) present fairly the financial
position of the Borrower and its consolidated Subsidiaries as of the end of each
such fiscal year and the results of their operations and their cash flows for
the fiscal years then ended, all in conformity with GAAP.
4.07. INTERIM FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender interim consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as of September 30,
1996, together with the related consolidated statements of income, cash flows
and changes in stockholders' equity for the period from January 1, 1996 to such
date. Such financial statements (including the notes thereto) present fairly the
financial condition of the Borrower and its consolidated Subsidiaries as of
September 30, 1996, and their respective results of operations and cash flows
for the fiscal period then ended, all in conformity with GAAP (except that such
financial statements do not contain all of the footnote disclosures required by
GAAP), subject to normal and recurring year-end audit adjustments.
4.08. ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Borrower
nor any Subsidiary of the Borrower has any liability or obligation of any nature
(whether absolute, accrued, contingent or other, whether or not due, including
but not limited to forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments) that would be required by GAAP to be
reflected on a consolidated balance sheet of the Borrower and its Subsidiaries
(including the notes thereto) or that has, or would be likely to have, a
Material Adverse Effect, except (a) matters set forth on Schedule 4.08 hereto,
(b) liabilities and obligations disclosed in the financial statements referred
to in Sections 4.05 and 4.06 hereof, (c) liabilities and obligations incurred
after December 31, 1995 in the ordinary course of business and consistent with
past practices, and (d) obligations under the Credit Facilities.
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4.09. ACCURATE AND COMPLETE DISCLOSURE. All written
information heretofore, contemporaneously or hereafter provided by or on behalf
of the Borrower or any Subsidiary of the Borrower to any Secured Party pursuant
to or in connection with any Loan Document or any transaction contemplated
hereby or thereby is or will be (as the case may be) true and accurate in all
material respects on the date as of which such information is dated (or, if not
dated, when received by such Secured Party) and does not or will not (as the
case may be) omit to state any material fact necessary to make such information
not misleading at such time in light of the circumstances in which it was
provided. Except as disclosed to the Agent and each Lender in writing, the
Borrower is not aware of any event, change or effect (other than political,
social or economic events, changes or effects of general national or global
scope) having or likely to have individually or in the aggregate, a Material
Adverse Effect.
4.10. PROJECTIONS. The Borrower has delivered to the Agent
projections prepared by the Borrower, dated February 5, 1997, for the years 1997
through 2001, demonstrating the projected consolidated financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries, which
projections are accompanied by a written statement of the assumptions and
estimates underlying such projections. Such projections, assumptions and
estimates, as of the Closing Date, are reasonable, consistent with the Loan
Documents, and represent the best judgment of the Borrower on such matters. Such
projections, assumptions and estimates are based upon political, social and
economic assumptions that are believed to be reasonable. Nothing has come to the
attention of the Borrower as of the Closing Date which would lead it to believe
that such projections will not be attained or exceeded. Such projections are not
a guarantee of future performance.
4.11. SOLVENCY. On and as of the date hereof, and on each date
on which a Loan is made, Letter of Credit is issued or credit is otherwise
extended hereunder, the Borrower and each Significant Subsidiary of the Borrower
is and will be Solvent (and for this purpose, each Subsidiary of the Borrower
which is not Solvent shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single entity, they
would constitute a Significant Subsidiary).
4.12. MARGIN REGULATIONS. No part of the proceeds of any
extension of credit hereunder will be used for the purpose of buying or carrying
any "margin stock," as such term is used in Regulations G and U of the Board of
Governors of the Federal Reserve System, as amended from time to time, to extend
credit to others for the purpose of buying or carrying any "margin stock," or to
extend credit to any Subsidiary of the Borrower that is a Broker-Dealer. Neither
the Borrower nor any Subsidiary of the Borrower is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock."
Neither the Borrower nor any Subsidiary of the Borrower owns "margin stock"
sufficient to cause any Loan Obligations to be deemed "indirectly secured" by
"margin stock" within the meaning of such Regulations. Neither any extension of
credit pursuant to this Agreement nor any use of proceeds of any such extension
of credit will violate or conflict with the provisions of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time.
4.13. REGULATORY RESTRICTIONS. Except as set forth in Schedule
4.13 hereof, neither the Borrower nor any Subsidiary of the Borrower is (a) an
"investment company" or a company "controlled" by an investment company within
the meaning of the Investment Company Act of 1940, as amended, (b) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a
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"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, (c) subject to regulation under
the Federal Power Act, the Interstate Commerce Act, or the Investment Company
Act of 1940, as amended, or (d) subject to any other Law which purports to
restrict or regulate its ability to borrow money or obtain credit as a
consequence of the nature of the business conducted by such Person.
4.14. SUBSIDIARIES. Schedule 4.14 hereof states the authorized
capitalization of each Subsidiary of the Borrower, the number of Shares of
Capital Stock of each class issued and outstanding of each such Subsidiary, and
the number and percentage of outstanding Shares of Capital Stock of each such
class owned by the Borrower and by each Subsidiary of the Borrower. The
outstanding Shares of Capital Stock of each Subsidiary of the Borrower have been
duly authorized and validly issued and are fully paid and nonassessable. The
Borrower and each Subsidiary of the Borrower owns beneficially and of record and
has good title to all of the Shares of Capital Stock it is listed as owning in
such Schedule 4.14, free and clear of any Lien, except for Liens in favor of the
Collateral Agent securing the Obligations. Except as set forth on Schedule 4.14
hereof, there are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or other) which may in any circumstances now or hereafter obligate
any Subsidiary of the Borrower to issue any Shares of its Capital Stock or any
other securities.
4.15. PARTNERSHIPS, ETC. Neither the Borrower nor any
Subsidiary of the Borrower is a partner (general or limited) of any partnership,
is a party to any joint venture, or owns (beneficially or of record) any equity
or similar interest in any Person (including but not limited to any interest
pursuant to which the Borrower or such Subsidiary has or may in any circumstance
have an obligation to make capital contributions to, or be generally liable for
or on account of the liabilities, acts or omissions of such other Person),
except (a) distributorship or similar arrangements that do not involve liability
on the part of the Borrower or any of its Subsidiaries in the nature of the
liability of a general partner, and (b) partnership interests permitted under
Sections 7.05(g) and 7.05(j) hereof.
4.16. LITIGATION. There is no pending or (to the knowledge of
the Borrower after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Borrower or any Subsidiary of the Borrower, except for (x) matters set forth on
Schedule 4.16 hereto, and (y) matters that if adversely decided, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
4.17. ABSENCE OF OTHER CONFLICTS. Neither the Borrower nor any
Subsidiary of the Borrower is in violation of or conflict with, or is subject to
any contingent liability on account of any violation of or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constituent documents), or
(c) any agreement or instrument to which it is party or by
which it or any of its properties may be subject or bound,
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except for matters that, individually or in the aggregate, do not, and would not
be likely to, have a Material Adverse Effect.
4.18. INSURANCE. The Borrower and each Subsidiary of the
Borrower maintains, or causes there to be maintained, with financially sound and
reputable insurers not related to or affiliated with the Borrower insurance with
respect to its properties and business and against at least such liabilities,
casualties and contingencies and in at least such types and amounts as is
customary in the case of Persons engaged in the same or a similar business or
having similar properties similarly situated.
4.19. TITLE TO PROPERTY. The Borrower and each Subsidiary of
the Borrower has good and marketable title in fee simple to all real property
owned or purported to be owned by it and good title to all other property of
whatever nature owned or purported to be owned by it, including but not limited
to all property reflected in the most recent audited balance sheet referred to
in Section 4.06 hereof or submitted pursuant to Section 6.01(a) hereof, as the
case may be (except as sold or otherwise disposed of in the ordinary course of
business, or in a transaction permitted by the Loan Documents, after the date of
such balance sheet), in each case free and clear of all Liens, other than
Permitted Liens.
4.20. INTELLECTUAL PROPERTY. The Borrower and each Subsidiary
of the Borrower owns, or is licensed or otherwise has the right to use, all the
patents, trademarks, service marks, names (trade, service, fictitious or other),
copyrights, technology (including but not limited to computer programs and
software), know-how, processes, data bases and other rights, free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others, except for matters that,
individually or in the aggregate, do not, and would not be likely to, have a
Material Adverse Effect.
4.21. TAXES. All federal income tax returns required to be
filed by or on behalf of the Borrower or any Subsidiary of the Borrower have
been properly prepared, executed and filed. All other tax and information
returns required to be filed by or on behalf of the Borrower or any Subsidiary
of the Borrower have been properly prepared, executed and filed, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect. All taxes, assessments, fees and other
governmental charges upon the Borrower or any Subsidiary of the Borrower or upon
any of their respective properties, incomes, sales or franchises which are due
and payable have been paid, other than those not yet delinquent and payable
without premium or penalty, and except for those being diligently contested in
good faith by appropriate proceedings, and in each case such reserves and
provisions for taxes as may be required by GAAP shall have been made on the
books of the Borrower and each Subsidiary of the Borrower. The reserves and
provisions for taxes on the books of the Borrower and each Subsidiary of the
Borrower for all open years and for its current fiscal period are adequate in
accordance with GAAP. As of the Closing Date, neither the Borrower nor any
Subsidiary of the Borrower knows of any proposed additional assessment or basis
for any material assessment for additional taxes (whether or not reserved
against), other than as set forth on Schedule 4.21 hereto.
4.22. EMPLOYEE BENEFITS. Except for matters disclosed to the
Agent before the date as of which this representation and warranty is made or
reaffirmed, neither the Borrower, any Subsidiary of the Borrower or Controlled
Group Member has incurred any liability that has not been fully discharged (or
any contingent or other potential liability that represents a material risk of
becoming an actual
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liability) exceeding $150,000 in the aggregate for all such Persons for or in
connection with any of the following: (a) any Pension-Related Event (whether or
not any such Pension-Related Event has occurred) or (b) any complete or partial
withdrawal from any Multiemployer Plan (whether or not such withdrawal has
occurred). All employee benefit arrangements covering employees of the Borrower
or any of its Subsidiaries have been administered in substantial compliance
with, and funded in accordance with, applicable Law.
4.23. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule
4.23 hereof, the Borrower and each Subsidiary of the Borrower and each of their
respective Environmental Affiliates is and has been in full compliance with all
applicable Environmental Laws, except for matters which, individually or in the
aggregate, do not, and would not be likely to, have a Material Adverse Effect.
Except as disclosed in Schedule 4.23 hereof, there is no Environmental Claim
pending or to the knowledge of the Borrower threatened, and there are no past or
present acts, omissions, events or circumstances (including but not limited to
any dumping, leaching, deposition, removal, abandonment, escape, emission,
discharge or release of any Environmental Concern Material at, on or under any
facility or property now or previously owned, operated or leased by the Borrower
or any Subsidiary of the Borrower or any of their respective Environmental
Affiliates) that could form the basis of any Environmental Claim, against the
Borrower or any Subsidiary of the Borrower or any of their respective
Environmental Affiliates, except for matters which do not, and, if adversely
decided, individually or in the aggregate, would not, have a Material Adverse
Effect. Except as disclosed in Schedule 4.23 hereof, no facility or property now
or previously owned, operated or leased by the Borrower or any Subsidiary of the
Borrower or any of their respective Environmental Affiliates is an Environmental
Cleanup Site. No Lien exists, and no condition exists which would be likely to
result in the filing of a Lien, against any property of the Borrower or any
Subsidiary of the Borrower under any Environmental Law.
ARTICLE V
CONDITIONS OF LENDING
5.01. CONDITIONS TO INITIAL LOANS. The obligation of each
Lender to make Revolving Credit Loans on the Closing Date and the willingness of
the Issuing Banks to issue any Letter of Credit on the Closing Date and of the
Swingline Lender to make any Swingline Loans on the Closing Date is subject to
the satisfaction, immediately prior to or concurrently with the making of such
Loan or the issuance of such Letter of Credit, as the case may be, of the
following further conditions precedent:
(a) AGREEMENT; NOTES. The Agent shall have received, with a
copy for each Lender, this Agreement, duly executed on behalf of the
Borrower, and Revolving Credit Notes and a Swingline Note conforming to
the requirements hereof, duly executed on behalf of the Borrower.
(b) SHARED SECURITY DOCUMENTS. The Collateral Agent shall have
received the following, each of which shall be in form and substance
satisfactory to the Agent, with a copy for each Lender (except that the
Lenders shall not be entitled to receive duplicate originals of the
stock certificates and other instruments pledged pursuant to the
following Shared Security Documents and the stock powers delivered in
connection therewith):
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(i) The Collateral Agency Agreement, duly executed on behalf
of Borrower and the other parties thereto.
(ii) The Borrower Pledge Agreement, duly executed on behalf of
the Borrower.
(iii) Certificates and instruments representing the stock
certificates and other instruments pledged pursuant to the Borrower
Pledge Agreement, accompanied by undated duly executed instruments of
transfer or assignment in blank, in form and substance satisfactory to
the Agent.
(iv) Financing statements executed by the Borrower and in
proper form for filing under the Uniform Commercial Code in such
jurisdictions as may be necessary or, in the opinion of the Agent,
desirable to create, perfect or protect the Liens created or purported
to be created by the Borrower Pledge Agreement (which financing
statements shall cover all personal property of the Borrower, whether
or not constituting collateral security under the Borrower Pledge
Agreement).
(v) Evidence that all other actions necessary or, in the
opinion of the Agent, desirable to create, perfect or protect the Liens
created or purported to be created by the Borrower Pledge Agreement
have been taken.
(vi) Evidence of contemporaneous searches of UCC, tax and
other appropriate registers, dockets and records, which shall have
revealed no filings or recordings with respect to property of the
Borrower (other than those relating to Permitted Liens).
(c) WEFA ACQUISITION. The Borrower or a Wholly Owned
Subsidiary of the Borrower shall have entered into a contract to
acquire good title, free of all Liens, to all of the outstanding Shares
of Capital Stock of WEFA Holdings, Inc. ("WEFA").
(d) ACQUISITION DOCUMENTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on behalf of the Borrower) of the following, each of
which shall be satisfactory in form and substance to the Agent: all
agreements relating to the acquisition of the Shares of Capital Stock
of WEFA (including in each case all exhibits, schedules and disclosure
letters delivered pursuant thereto), all amendments, waivers and
consents relating thereto, and all other side letters or agreements
affecting the terms thereof or other transactions contemplated thereby.
(e) OTHER CREDIT FACILITIES. The Agent shall have received
evidence satisfactory to it that all conditions precedent to funding
under the Term Loan Agreement and the Note Backup Agreement shall have
been satisfied, and that, concurrently with the Closing Date, the
Borrower shall have received $225,000,000 gross cash proceeds under the
Term Loan Agreement.
(f) DISCHARGE OF PRIOR CREDIT FACILITIES. With respect to (a)
the Revolving Credit Agreement dated as of June 29, 1995 among the
Borrower, the Issuing Banks referred to therein, the Lenders parties
thereto from time to time, Mellon Bank, N.A., The First National Bank
of Boston, and NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon
Bank, N.A., as Agent, as amended, (b) the Term Loan Agreement dated as
of June 29, 1995 among the Borrower, the Lenders parties thereto from
time to time, Mellon Bank, N.A., The First National Bank of
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Boston and NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon
Bank, N.A., as Agent, as amended, and (c) the Credit Agreement dated as
of October 23, 1996 among the Borrower, the Issuing Bank referred to
therein, and Mellon Bank, N.A., as Agent, as amended, all principal,
interest, letter of credit draws, fees and other amounts outstanding or
otherwise due and payable shall have been paid in full, all commitments
thereunder shall have terminated, all outstanding letters of credit
thereunder shall have been terminated or assumed under one of the
Credit Facilities, and all collateral security therefor shall have been
released.
(g) GOVERNMENTAL APPROVALS AND FILINGS. The Agent shall have
received, with copies for each Lender, true and correct copies (in each
case certified as to authenticity on such date on behalf of the
Borrower) of all items referred to in clause (b) of Section 4.04 hereof
and such items shall be satisfactory in form and substance to the Agent
and shall be in full force and effect.
(h) OTHER CONFLICTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on such date on behalf of the Borrower) of each
consent, waiver, amendment or agreement which has been obtained by or
on behalf of the Borrower or any Subsidiary of the Borrower in respect
of any matter which would, absent such consent, waiver, amendment or
agreement, be within the scope of clause (b)(ii) of Section 4.05
hereof, and such items shall be satisfactory in form and substance to
the Agent and shall be in full force and effect.
(i) CORPORATE PROCEEDINGS. The Agent shall have received, with
a counterpart for each Lender, certificates by the Secretary or
Assistant Secretary of the Borrower dated as of the Closing Date as to
(i) true copies of the articles of incorporation and by-laws (or other
constituent documents) of the Borrower in effect on such date, (ii)
true copies of all corporate action taken by the Borrower relative to
this Agreement and the other Loan Documents and (iii) the incumbency
and signature of the respective officers of the Borrower executing this
Agreement and the other Loan Documents to which the Borrower is a
party, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Agent shall have received, with a
copy for each Lender, certificates from the appropriate Secretary of
State or other applicable Governmental Authorities dated not more than
30 days before the Closing Date showing the good standing of the
Borrower in its state of incorporation.
(j) 1996 FINANCIAL STATEMENTS. The Borrower shall have
furnished to the Agent an unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of December 31, 1996, and
unaudited consolidated statements of income and stockholders' equity of
the Borrower and its consolidated Subsidiaries for the fiscal year
ended December 31, 1996. Such financial statements shall have been
certified by a Responsible Officer of the Borrower as presenting fairly
the consolidated financial position of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year and the
consolidated results of their operations and stockholders' equity for
such fiscal year, in conformity with GAAP, subject to normal and
recurring audit adjustments.
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(k) FORM U-1. The Agent shall have received, with a
counterpart for each Lender, a Federal Reserve Board Form U-1, duly
executed by the Borrower, satisfactory in form and substance to the
Agent.
(l) LITIGATION. There shall not be pending or (to the
knowledge of the Borrower after due inquiry) threatened action, suit,
proceeding or investigation by or before any Governmental Authority
seeking to challenge, prevent or declare illegal any of the
transactions contemplated by the Loan Documents.
(m) LEGAL OPINION OF COUNSEL TO THE BORROWER. The Agent shall
have received, with an executed counterpart for each Lender, an opinion
addressed to the Agent and each Lender, dated the Closing Date, of
counsel to the Borrower (who shall be satisfactory to the Agent), as to
such matters as may be requested by the Agent and in form and substance
satisfactory to the Agent.
(n) OFFICERS' CERTIFICATES. The Agent shall have received,
with an executed counterpart for each Lender, certificates from such
officers of the Borrower as to such matters as the Agent may request.
(o) REPRESENTATIONS AND WARRANTIES, ETC. All representations
and warranties set forth in Article IV hereof shall be true and correct
on and as of the Closing Date as if made on and as of the Closing Date,
after giving effect to the transactions contemplated by the Loan
Documents to occur on or before the Closing Date.
(p) GENERAL CONDITIONS. The conditions set forth in
subsections (a), (c), (d) and (e) of Section 5.02 hereof shall have
been satisfied.
(q) FEES, EXPENSES, ETC. The Borrower shall have executed and
delivered an origination fee letter (the "Origination Fee Letter") of
even date herewith satisfactory in form and substance to the Agent. All
fees and other compensation required to be paid to the Agent or
the Lenders pursuant hereto or pursuant to such Origination Fee Letter
on or prior to the Closing Date shall have been paid or received.
(r) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other matters in connection with the
transactions contemplated by this Agreement and the other Loan
Documents, shall be satisfactory in form and substance to the Agent.
The Agent shall have received such other documents, instruments and
other items as the Agent may reasonably request.
5.02. CONDITIONS TO SUBSEQUENT LOANS. The obligation of each
Lender to make Revolving Credit Loans after the Closing Date and the willingness
of the Issuing Banks to issue any Letters of Credit after the Closing Date and
of the Swingline Lender to make any Swingline Loans on or after the Closing Date
is subject to performance by the Borrower of its respective obligations to be
performed hereunder or under the other Loan Documents on or before the date such
Loan is made or such Letter of Credit is issued, satisfaction of the conditions
precedent set forth herein and in the other Loan Documents and to satisfaction
of the following further conditions precedent:
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(a) NOTICE. Notice with respect to such Loan or Letter of
Credit shall have been given by the Borrower in accordance with Article
II hereof or Article III hereof, as the case may be (subject to Section
3.09 hereof in the case of Swingline Loans).
(b) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower herein and in each
other Loan Document shall be true and correct in all material respects
on and as of such date as if made on and as of such date, both before
and after giving effect to the Loans requested to be made (including
any deemed request) and Letters of Credit requested to be issued on
such date (except only that (i) the following representations and
warranties need be true only on and as of the date hereof and the
Closing Date: Sections 4.06, 4.07, 4.08 and 4.10 hereof and each of the
representations and warranties set forth in the Borrower Pledge
Agreement, and (ii) after the Closing Date, each reference to Schedule
4.14 in Section 4.14 shall be deemed a reference to such Schedule as
the same may have been most recently amended in accordance with Section
6.01(m) hereof (and subject to changes since the date of such most
recent amendment).
(c) NO DEFAULTS. No Event of Default or Potential Default
shall have occurred and be continuing or exist on such date or after
giving effect to the Loans requested to be made (including any deemed
request) or the Letters of Credit requested to be issued on such date.
(d) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of
the Loans or the Letters of Credit shall cause any Lender Party to
violate any Law.
(e) NO MATERIAL ADVERSE CHANGE. There shall not have occurred,
or be threatened, a material adverse change in the business,
operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole since September 30,
1996.
Each request (including any deemed request) by the Borrower for any Loan or
Letter of Credit shall constitute a representation and warranty by the Borrower
that the conditions set forth in this Section 5.02 have been satisfied as of the
date of such request. Failure of the Agent to receive notice from the Borrower
to the contrary before such Loan is made or Letter of Credit is issued shall
constitute a further representation and warranty by the Borrower that the
conditions referred to in this Section 5.02 have been satisfied as of the date
such Loan is made or such Letter of Credit is issued. Without limitation of any
other provision of this Agreement relating to deemed requests, the Borrower may
be deemed to have requested a Loan for purposes of this Section 5.02, whether or
not the Borrower had made an express request for a Loan, in the circumstances
set forth in Section 3.09(e) hereof.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
6.01. BASIC REPORTING REQUIREMENTS.
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(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any
event within 105 days after the close of each fiscal year of the Borrower, the
Borrower shall furnish to the Agent, with a copy for each Lender, audited
consolidated statements of income, cash flows and stockholders' equity of the
Borrower and its consolidated Subsidiaries for such fiscal year, an unaudited
consolidating statement of income of the Borrower and its consolidated
Subsidiaries for such fiscal year, and an audited consolidated balance sheet and
unaudited consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal year, and notes to each, all in
reasonable detail, prepared on a comparative basis in accordance with GAAP. Such
audited financial statements shall be accompanied by an opinion of Deloitte &
Touche or other independent certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Agent. Such
opinion shall be free of any exception, qualification or explanation not
acceptable to the Agent (and in any event shall be free of any exception,
qualification or explanation relating to ability to continue as a going concern,
a limited scope of examination or independence). Such opinion in any event shall
contain a written statement of such accountants substantially to the effect that
(i) such accountants audited such consolidated financial statements in
accordance with generally accepted auditing standards and (ii) in the opinion of
such accountants such audited financial statements present fairly the financial
position of the Borrower and its consolidated Subsidiaries as of the end of such
fiscal year and the results of their operations and their cash flows and
stockholders' equity for such fiscal year, in conformity with GAAP. Such
unaudited financial statements shall be certified by a Responsible Officer of
the Borrower as presenting fairly the consolidated and consolidating financial
position of the Borrower and its consolidated Subsidiaries as of the end of such
fiscal year, and the respective consolidated and consolidating results of their
operations and their cash flows and stockholders' equity for such fiscal year,
in conformity with GAAP.
(b) QUARTERLY REPORTS. As soon as practicable, and in any
event within 60 days after the close of each of the first three fiscal quarters
of each fiscal year of the Borrower, the Borrower shall furnish to the Agent,
with a copy for each Lender, unaudited consolidated statements of income, cash
flows and stockholders' equity of the Borrower and its consolidated Subsidiaries
for such fiscal quarter and for the period from the beginning of such fiscal
year to the end of such fiscal quarter, an unaudited consolidating statement of
income for such fiscal quarter and for the period from the beginning of such
fiscal year to the end of such fiscal quarter, and unaudited consolidated and
consolidating balance sheets of the Borrower and its consolidated Subsidiaries
as of the close of such fiscal quarter, and notes to each, all in reasonable
detail, setting forth in comparative form the corresponding figures for the same
periods or as of the same date during the preceding fiscal year (except for the
consolidated balance sheet, which shall set forth in comparative form the
corresponding balance sheet as of the prior fiscal year end, and cash flow
statements, which shall report only year to date periods). Such financial
statements shall be certified by a Responsible Officer of the Borrower as
presenting fairly the consolidated and consolidating financial position of the
Borrower and its consolidated Subsidiaries as of the end of such fiscal quarter
and the respective consolidated and consolidating results of their operations
and their cash flows and stockholders' equity for such fiscal quarter, in
conformity with GAAP, subject to normal and recurring year-end audit
adjustments.
(c) COMPLIANCE CERTIFICATES. Concurrently with the delivery of
the financial statements referred to in Sections 6.01(a) and 6.01(b), the
Borrower shall deliver, or cause to be delivered, to the
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Agent, with a copy for each Lender, a certificate in substantially the form set
forth as Exhibit C, duly completed and signed by a Responsible Officer of the
Borrower.
(d) ACCOUNTANTS' CERTIFICATES. Concurrently with the Agent's
receipt from the Borrower of each set of audited financial statements delivered
pursuant to Section 6.01(a), the Borrower shall deliver, or cause to be
delivered, to the Agent, with sufficient copies for each Lender, a report signed
by the independent certified public accountants who opined on such financial
statements and dated the date of such financial statements, stating in substance
that they have reviewed this Agreement and the other Loan Documents and that in
making the examination necessary for their opinion on such financial statements
they did not become aware of any Event of Default or Potential Default pursuant
to Sections 7.01, 7.02(e)(iv), 7.03(e) and 7.03(f) as of the end of such fiscal
year, or, if they did become so aware, such certificate or report shall state
the nature and period of existence thereof.
(e) ANNUAL BUSINESS PLAN. Not later than January 31 of each
year, the Borrower shall furnish to the Agent, with a copy for each Lender, a
business plan for the Borrower and its Subsidiaries for the next five years,
certified as such by a Responsible Officer of the Borrower. Such business plan
shall be not less detailed than the 1997-2001 corporate plan heretofore
delivered to the Agent and each Lender, and shall include or be accompanied by,
among other matters reasonably requested from time to time, projected income,
cash flows and summary balance sheet for the Borrower and its Subsidiaries, on
both a consolidated and a separate unconsolidated basis for each year in such
five year period.
(f) QUARTERLY PLAN UPDATES. Concurrently with the delivery of
the financial statements referred to in Section 6.01(b), the Borrower shall
furnish to the Agent, with a copy for each Lender, a quarterly update to the
most recent annual business plan, certified as such by a Responsible Officer of
the Borrower. Such business plan shall be not less detailed than the third
quarter update for 1996 heretofore delivered to the Agent and each Lender.
(g) QUARTERLY FINANCIAL INFORMATION. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall provide the Agent, with a copy for each Lender,
summary financial information as to the Borrower and its consolidated
Subsidiaries on a consolidated basis (and separate financial information for
such Subsidiaries as the Agent may reasonably request) as of the end of the
preceding month, all in reasonable detail and in any case including, among other
matters reasonably requested by the Agent from time to time, financial
information on a monthly and year-to-date basis, and separate line-items showing
EBIT, depreciation and amortization, all certified by a Responsible Officer of
the Borrower.
(h) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their
becoming available to the Borrower, the Borrower shall deliver, or cause to be
delivered, to the Agent, with a copy for each Lender, a copy of (i) all regular
or special reports, registration statements and amendments to the foregoing
which the Borrower or any Subsidiary of the Borrower shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) all reports, proxy statements, financial statements and other
information distributed by the Borrower to its security holders or the financial
community generally, and (iii) upon request by any Lender Party, all reports
submitted by outside accountants in connection with any audit of the Borrower or
any Subsidiary of the Borrower, including but not limited to all management
letters commenting on the internal controls of the Borrower or any Subsidiary of
the Borrower submitted in connection with any such audit.
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(i) FURTHER INFORMATION. The Borrower will promptly furnish,
or cause to be furnished, to the Agent, with a copy for each Lender, such other
information and in such form as the Agent or any Lender may reasonably request
from time to time.
(j) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of
any of the following, the Borrower shall give the Agent notice thereof, together
with a written statement of a Responsible Officer of the Borrower setting forth
the details thereof and any action with respect thereto taken or proposed to be
taken by the Borrower, and the Agent shall promptly notify each Lender thereof:
(i) Any Event of Default or Potential Default.
(ii) Any material adverse change in the business, operations,
condition (financial or otherwise) or prospects (exclusive, in the case
of prospects, of political, social or economic events, changes or
effects of general national or global scope) of the Borrower and its
Subsidiaries taken as a whole.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting the Borrower or any Subsidiary of the Borrower which, if
adversely decided, individually or in the aggregate, would, or would be
likely to, have a Material Adverse Effect.
(iv) Any termination for default by the Borrower of any
contract which would reasonably be likely to result in a direct loss of
aggregate revenues in excess of $20,000,000 to which the Borrower or
any Subsidiary of the Borrower is a party.
(v) Any Pension-Related Event, other than (w) any Reportable
Event described in subsection (i) of the definition of such term herein
as to which the 30 day notice requirement to the PBGC is waived under
applicable regulations, and (x) any Pension-Related Event described in
subsection (d) or (f) of the definition thereof which involves a
liability of the Borrower, any Subsidiary of the Borrower or any
Controlled Group Member that has not been fully discharged (or a
contingent or other potential liability that represents a material risk
of becoming an actual liability) of less than $1,000,000 in the
aggregate for all such Persons. Such notice shall be accompanied by the
following: (y) a copy of any notice, request, return, petition or other
document received by the Borrower, any Subsidiary of the Borrower or
any Controlled Group Member from any Person, or which has been or is to
be filed with or provided to any Person (including, without limitation,
the Internal Revenue Service, the Department of Labor, the PBGC or any
Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (z)
in the case of any Pension-Related Event with respect to a Plan, the
most recent Annual Report (5500 Series), with attachments thereto, and
if such Plan is required by applicable Law to have an actuarial
valuation report, the most recent actuarial valuation report, for such
Plan.
(k) VISITATION AND VERIFICATION GENERALLY. The Borrower shall
permit such Persons as the Agent or any Lender may designate from time to time
to visit and inspect any of the properties of the Borrower and any Subsidiary of
the Borrower, to examine their respective books and records and take
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copies and extracts therefrom and to discuss their respective affairs with their
respective directors, officers, employees and independent accountants at such
times and as often as the Agent or any Lender may reasonably request, subject to
mandatory national security regulations. The Borrower hereby authorizes such
officers, employees and independent accountants to discuss with the Agent or any
Lender the affairs of the Borrower and its Subsidiaries, subject to mandatory
national security regulations. The Agent and the Lenders shall have the right to
examine and verify accounts, inventory and other properties and liabilities of
the Borrower and its Subsidiaries from time to time, and the Borrower shall
cooperate, and shall cause each of its Subsidiaries to cooperate, with the Agent
and the Lenders in such verification, subject to mandatory national security
regulations.
(l) DUTY TO MAINTAIN INDEPENDENT ACCOUNTANTS WITH SECURITY
CLEARANCES; VERIFICATION OF CLASSIFIED CONTRACTS. The Borrower shall, and shall
cause each such Subsidiary to, retain at all times an independent certified
public accountant of national standing having personnel who at all times have
security clearances sufficient to permit them to examine and verify all such
classified contracts, accounts and other assets which, individually or in the
aggregate, are material to the business, operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
The Borrower shall, from time to time at the reasonable request of the Agent,
cause such independent accountants to examine, verify and report to the Agent on
such classified contracts, accounts and assets as the Agent may request, to the
fullest extent permitted by mandatory national security regulations.
(m) CHANGES IN CORPORATE STRUCTURE. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall deliver to the Agent notice of any change in the
matters set forth in Section 4.14 hereof, together with an amended and restated
Schedule 4.14 which reflects such change.
6.02. INSURANCE. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types as are reasonably
satisfactory to the Agent from time to time, and in any case as is customary in
the case of Persons engaged in the same or a similar business or having similar
properties similarly situated. The Borrower shall, if so requested by the Agent,
deliver to the Agent original or duplicate policies or certificates of such
insurance and, as often as the Agent may reasonably request, a report of a
reputable insurance broker, or an insurance company representative if an
insurance broker is not involved, with respect to such insurance.
6.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Borrower shall promptly notify the Agent in writing if it
or any of its Subsidiaries learns of any proposed additional assessment or basis
for any assessment for additional taxes (whether or not reserved against) which,
if paid or incurred, would have a Material Adverse Effect. The Borrower shall,
and shall cause each of its Subsidiaries to, pay and discharge, or cause to be
paid and discharged,
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges imposed upon it,
or any of them, or any of its, or any of their, properties;
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(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in
any bankruptcy, insolvency, receivership or similar proceeding;
provided, that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, the Borrower or such Subsidiary need not
pay or discharge, or cause the payment or discharge, of any such tax,
assessment, charge or claim above so long as (x) the validity thereof is
contested in good faith and by appropriate proceedings diligently conducted, and
(y) such reserves or other appropriate provisions as may be required by GAAP
shall have been made therefor.
6.04. PRESERVATION OF CORPORATE STATUS. The Borrower shall,
and shall cause each of its Subsidiaries to, maintain its status as a
Corporation duly organized, validly existing and, to the extent applicable, in
good standing under the laws of its jurisdiction of organization, except for
Permitted Mergers. The Borrower shall, and shall cause each of its Subsidiaries
to, at all times be duly qualified to do business as a foreign Corporation and,
to the extent applicable, in good standing in all jurisdictions in which the
ownership of its properties or the nature of its business or both make such
qualification necessary or advisable, except for matters that, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
6.05. GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall,
and shall cause each of its Subsidiaries to, keep and maintain in full force and
effect all Governmental Actions necessary or advisable in connection with
execution and delivery of any Loan Document, consummation of the transactions
herein or therein contemplated, performance of or compliance with the terms and
conditions hereof or thereof, or to ensure the legality, validity, binding
effect, enforceability or admissibility in evidence hereof or thereof.
6.06. MAINTENANCE OF PROPERTIES, FRANCHISES, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, (a) maintain or cause to be
maintained in good repair, working order and condition the properties now or
hereafter owned, leased or otherwise possessed by it and shall make or cause to
be made all needful and proper repairs, renewals, replacements and improvements
thereto so that the business carried on in connection therewith may be properly
and advantageously conducted at all times, except where failure to do so does
not, and would not be likely to, have a Material Adverse Effect, and (b)
maintain and hold in full force and effect all franchises, licenses, permits,
certificates, authorizations, qualification, accreditations and other rights,
consents and approvals (whether issued, made or given by a Governmental
Authority or otherwise), necessary to own and operate its properties and to
carry on its business as presently conducted and as presently planned to be
conducted, except where failure to do so does not, and would not be likely to,
have a Material Adverse Effect.
6.07. AVOIDANCE OF OTHER CONFLICTS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or other) on account of any violation or conflict with
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<PAGE> 49
(a) any Law,
(b) its certificate or articles of incorporation or by-laws
(or other constituent documents), or
(c) any agreement or instrument to which it or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties may be subject or bound,
except for matters of the type referred to in clauses (a) and (c) that could
not, individually or in the aggregate, do not, and would not be likely to, have
a Material Adverse Effect.
6.08. FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and
shall cause each of its Subsidiaries to, make and keep books, records and
accounts which, in reasonable detail, accurately and fairly reflect its
transactions and dispositions of its assets, and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general or specific
authorization, (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with GAAP and (ii) to maintain
accountability for assets, (c) access to assets is permitted only in accordance
with management's general or specific authorization and (d) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
6.09. USE OF PROCEEDS. The Borrower shall apply the proceeds
of the Loans under this Agreement, together with other funds of the Borrower, to
(a) payment in full on the Closing Date of all principal, interest and fees
outstanding and accrued under the prior credit facilities of the Borrower
referred to in Section 5.01(f), and (b) from and after the Closing Date, for
general corporate purposes of the Borrower (including, to the extent otherwise
consistent with this Agreement and the other Loan Documents, the making of
acquisitions). The Borrower shall not use any Letters of Credit or the proceeds
of any Loans directly or indirectly for any unlawful purpose, in any manner
inconsistent with Section 4.12, or inconsistent with any other provision of this
Agreement or any other Loan Document.
6.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower
shall, and shall cause each of its Subsidiaries to, engage in the businesses
they have engaged in during the present and preceding fiscal years and the
Borrower shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than the financial information services business, other
information services businesses and matters incidental thereto; provided, that
TIMCO may continue to conduct its business in substantially the manner in which
it conducts such business as of the date hereof. Without limitation of the
foregoing, the Borrower shall continue to operate as a holding company and shall
not conduct any material business other than holding the capital stock of
Subsidiaries and matters incidental thereto.
6.11. PLANS AND MULTIEMPLOYER PLANS.
(a) REQUIRED CONTRIBUTIONS. The Borrower shall, and shall
cause each Subsidiary of the Borrower and Controlled Group Members to, make
contributions to each Plan when due in accordance with the minimum funding
requirements under ERISA and the Code applicable to such Plan and pay any
required PBGC premiums as and when due for such Plan.
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<PAGE> 50
(b) REQUIRED CONTRIBUTIONS TO MULTIEMPLOYER PLANS. The
Borrower shall, and shall cause each Subsidiary of the Borrower and Controlled
Group Members to, make contributions required to be made by it, or any of them,
to each Multiemployer Plan, if any, when due in accordance with its, or any of
their, obligations under any collective bargaining agreement related to such
Multiemployer Plan or participation agreements applicable to such Multiemployer
Plan, except those contributions the requirement of which are reasonably being
contested by a Controlled Group Member provided that failure to make such
contested contributions is not a violation of applicable Law and does not
present a material risk of resulting in liability (contingent or other) to the
Borrower or any Subsidiary of the Borrower.
(c) FUNDING. The Borrower shall, and shall cause each of its
Subsidiaries to, make any required contributions to any arrangements for
providing retirement and/or death benefits when due, in accordance with the
terms of the arrangement and/or any minimum funding requirements which are
applicable to the arrangement from time to time. The Borrower shall not, nor
shall it permit any of its Subsidiaries to, allow any arrangement for providing
retirement and/or death benefits to become underfunded (as determined on the
basis of reasonable actuarial assumptions) by an amount which, in the aggregate
for all such arrangements, exceeds $10,000,000.
6.12. DISASTER RECOVERY PLAN. The Borrower shall cause each of
Datastream International Limited, Disclosure Incorporated and ICV Limited to
maintain in full force and effect at all times disaster recovery plans
consistent with prudent practice for Persons engaged in the same or a similar
business.
6.13. ANNUAL BANK MEETING. The Borrower shall hold meetings of
the Lenders annually at the request of the Agent.
6.14. SEPARATE CORPORATE EXISTENCE. The Borrower acknowledges
that the Lender Parties are entering into the transactions contemplated by this
Agreement and the other Loan Documents in reliance upon the identity of the
Subsidiaries of the Borrower as legal entities separate from the Borrower.
Accordingly, the Borrower shall take, and shall cause its Subsidiaries to take,
all reasonable steps to continue the identities of its Subsidiaries as separate
legal entities, and to make it apparent to third Persons that its Subsidiaries
are entities with assets and liabilities distinct from those of the Borrower.
Without limiting the generality of the foregoing, the Borrower shall take such
actions as shall be required in order that:
(a) For each Subsidiary of the Borrower in which the Borrower
directly owns, beneficially or of record, Shares of Capital Stock, at
least one director or officer of the Borrower shall be a person who is
not a director or officer of such Subsidiary.
(b) The books and records of each Subsidiary of the Borrower
shall be maintained separately from those of the Borrower and each of
its other Subsidiaries.
(c) The assets of each Subsidiary of the Borrower will be
maintained in a manner that facilitates their identification and
segregation from those of the Borrower and its other Subsidiaries.
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(d) The Borrower and each Subsidiary of the Borrower shall
strictly observe corporate formalities. The Borrower and each of its
Subsidiaries will conduct their respective businesses in their own
respective names. The business and affairs of the Borrower and each
Subsidiary shall be managed by or under the direction of the board of
directors of such Person.
(e) Funds or other assets of Subsidiaries of the Borrower will
not be commingled with those of the Borrower and its other Subsidiaries
(it being understood that such restriction shall not be interpreted to
forbid intercompany loans and Advances that have been properly
documented and accounted for on the books and records of each relevant
entity, made in compliance with corporate formalities, and otherwise
made in compliance with this Agreement and the other Loan Documents).
(f) The operating expenses of the Borrower and each Subsidiary
of the Borrower will be paid by such Person. To the extent, if any,
that the Borrower and any of its Subsidiaries share items of expenses,
such expenses will be allocated to the extent practical on the basis of
actual use or the value of services rendered, and otherwise on a basis
reasonably related to actual use or the value of services rendered, and
each such Person shall pay its allocated share of such expenses on a
current basis. To the extent, if any, that the Borrower and any of its
Subsidiaries provides services to one another, the provider shall be
compensated by the recipient on a current basis at fair and reasonable
rates. To the extent, if any, that any consolidated or combined tax
return is filed including any of the Borrower or its Subsidiaries, each
such Person shall pay or be paid, as the case may be, on a current
basis an equitable share of the consolidated tax payment or refund
associated therewith.
(g) Annual financial statements of the Borrower which are
consolidated to include its Subsidiaries will contain notes clearly
stating that each such Subsidiary is a corporate or similar entity
separate from the Borrower and its other Subsidiaries, and that the
stock of each direct Subsidiary of the Borrower has been pledged to
secure the Obligations.
6.15. ADDITIONAL SECURITY.
(a) GENERAL. Promptly upon the request of the Agent from time
to time, the Borrower shall as promptly as practicable (and in any case within
30 days after such request, or such longer period as the Agent may specify in
writing) further secure the Obligations by granting to the Collateral Agent a
valid and perfected Lien, prior to all other Liens except Permitted Liens, on
such of its properties from time to time as the Agent may designate (except for
property subject to a Permitted Lien as to which the Borrower is required to
obtain the consent of the holder of such Permitted Lien before granting such a
Lien to the Collateral Agent and as to which the Borrower is unable, using
reasonable efforts, to obtain such consent). In connection therewith, the
Borrower shall (i) execute and deliver to the Agent such mortgages, security
agreements and other agreements and instruments, and do such other acts and
things as shall be necessary or, in the judgment of the Agent, appropriate to
grant to the Collateral Agent a valid and perfected Lien on such property, prior
to all other Liens except Permitted Liens, and (ii) procure and deliver to the
Agent such other items (including but not limited to lien searches, title
insurance policies, surveys, environmental audits, insurance endorsements and
opinions of counsel), and do such other acts and things, as the Agent may
request in connection with the foregoing. All of the
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foregoing shall be in form and substance satisfactory to the Agent. From time to
time as requested by the Agent, the Borrower shall use reasonable efforts to (w)
obtain the consent of any Person whose consent is necessary or advisable to the
creation, perfection or maintenance of any such Lien, including but not limited
to that of any lessor whose consent may be required in connection with any such
Lien on any leasehold interest, and to obtain nondisturbance and like agreements
from mortgagees and other holders of superior rights in the property subject to
any such leasehold interest, (x) obtain waivers of Liens from such landlords and
mortgagees and from other Persons described in Section 6.03(b) hereof, (y) with
respect to securities accounts, commodity accounts, deposit accounts or similar
interests, obtain consent agreements from each securities intermediary,
commodity intermediary, depository bank or similar person, satisfactory in form
and substance to the Agent, which shall include provisions giving the Collateral
Agent sole dominion and control over such interest upon the giving of notice by
the Collateral Agent (it being understood that the related security agreement
shall provide that the Collateral Agent may exercise such sole dominion and
control upon the occurrence and during the continuance of an Event of Default),
and (z) do such other acts and things as the Agent may deem appropriate to
enhance, preserve or protect the security for the Obligations.
(b) NOTICE OF CERTAIN REALTY TRANSACTIONS. The Borrower shall
promptly give notice to the Agent of any acquisition by the Borrower of any
interest or interests in real property (fee, leasehold or otherwise) or fixtures
having a fair market value, individually or in the aggregate, in excess of
$5,000,000 (except for leasehold interests having a term, including all options
exercisable by the lessee, less than 5 years).
6.16. INTEREST RATE PROTECTION.
(a) REQUIRED HEDGE. The Borrower shall, promptly (and in any
event not later than 60 days) after the first date on or after the Closing Date
on which the three-month Euro-Rate (as determined by the Agent) is at least
8.00% on at least ten of the 30 days immediately preceding such date, enter into
an Interest Rate Hedging Agreement having an effective rate and other terms and
conditions satisfactory to the Agent, for notional principal amounts and tenors
sufficient to hedge at least 65% of the scheduled outstanding principal amount
of the Indebtedness under the Term Loan Agreement for the period from the
effective date of such Interest Rate Hedging Agreement through the fifth
anniversary thereof (or, if earlier, the Term Loan Maturity Date). The Borrower
shall thereafter select interest rate options under the Term Loan Agreement that
match, in time and amount, as closely as may be the terms of the rate hedge
represented by such Interest Rate Hedging Agreement.
(b) SECURING THE REQUIRED HEDGE. If the Borrower so requests,
the Agent shall consent to a Swap Party Supplement to the Collateral Agency
Agreement whereby the Interest Rate Hedging Agreement referred to in Section
6.16(a) hereof shall be deemed a Swap Agreement entitled to the benefits of the
Collateral Agency Agreement, but only if the following conditions are met: (i)
the counterparty to such Interest Rate Hedging Agreement is a Lender, (ii) the
"Swap Shared Security Cap" set forth in such Swap Party Supplement is, in the
good faith judgment of the Agent, not more than 110% of the credit equivalent
exposure represented by such Swap Agreement (calculated in accordance with the
Agent's ordinary methods), and (iii) the Borrower provides the Agent with such
contemporaneous bringdown Lien searches as the Agent may request, the results of
which shall be satisfactory to the Agent.
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<PAGE> 53
(c) EXISTING RATE HEDGES, ETC. To the extent otherwise
consistent with this Agreement and the other Loan Documents, the Borrower may
enter into Interest Rate Hedging Agreements in advance of the date on which it
is required to do so under Section 6.16(a), and to the extent that such Interest
Rate Hedging Agreements satisfy the requirements of Sections 6.16(a) and 6.16(b)
the Agent may enter into a Swap Party Supplement to the Collateral Agency
Agreement with respect to such Interest Rate Hedging Agreements. In the event
that the Borrower becomes obligated to enter into Interest Rate Hedging
Agreements under Section 6.16(a), any then-existing Interest Rate Hedging
Agreements to which Borrower is party and which otherwise satisfy the
requirements of Section 6.16(a) shall be counted toward satisfaction of the
Borrower's obligations under Section 6.16(a), to the extent of the notional
amounts and tenors of such then-existing Interest Rate Hedging Agreements.
Nothing in Section 6.16(b) shall be construed to forbid the Agent from
consenting to a Swap Party Supplement relating to Interest Rate Hedging
Agreements if the conditions set forth in Section 6.16(b) are satisfied, even if
such Interest Rate Hedging Agreements in the aggregate exceed in amount or time
the minimum requirements set forth in Section 6.16(a).
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
7.01. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH (ADJUSTED). As of the end of each
fiscal quarter of the Borrower ending on or after December 31, 1996,
Consolidated Net Worth (Adjusted) shall not be less than the applicable amount
specified below:
<TABLE>
<CAPTION>
Consolidated Net Worth (Adjusted)
From and including To and including shall not be less than
------------------ ---------------- ----------------------
<S> <C> <C>
December 31, 1996 December 30, 1997 $425,000,000
December 31, 1997 December 30, 1998 $450,000,000
December 31, 1998 December 30, 1999 $475,000,000
Thereafter $500,000,000
</TABLE>
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the end of
each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Fixed Charge Coverage Ratio for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be less than the applicable amount set forth
below.
<TABLE>
<CAPTION>
Fiscal quarter ending on Consolidated Fixed Charge Coverage Ratio
a date in the following for the four fiscal quarters ending
period (inclusive) on such date shall not be less than
------------------ -----------------------------------
<S> <C>
December 31, 1996 through December 31, 1997 1.75
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
January 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 2.25
Thereafter 2.50
</TABLE>
(c) CONSOLIDATED FUNDED DEBT RATIO (ADJUSTED). As of the end
of each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Funded Debt Ratio (Adjusted) for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be greater than the applicable amount set
forth below.
<TABLE>
<CAPTION>
Fiscal quarter ending on Consolidated Funded Debt Ratio (Adjusted)
a date in the following for the four fiscal quarters ending
period (inclusive) on such date shall not be greater than
------------------ --------------------------------------
<S> <C>
December 31, 1996 through December 30, 1997 5.50
December 31, 1997 through December 30, 1998 5.00
December 31, 1998 through December 30, 1999 4.00
Thereafter 3.00
</TABLE>
7.02. LIENS. The Borrower shall not, and shall not permit any
Subsidiary of the Borrower to, at any time create, incur, assume or permit to
exist any Lien on any of its property (now owned or hereafter acquired), or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except for the following (referred to herein as "Permitted Liens"):
(a) Liens pursuant to the Shared Security Documents in favor
of the Collateral Agent for the benefit of the Secured Parties to
secure the Obligations;
(b) Liens arising from taxes, assessments, charges or claims
described in Sections 6.03(a) and 6.03(b), to the extent permitted to
remain unpaid under such Section 6.03;
(c) Deposits or pledges of cash or securities in the ordinary
course of business to secure (i) workmen's compensation, unemployment
insurance or other social security obligations, (ii) performance of
bids, tenders, trade contracts (other than for payment of money) or
leases, (iii) stay, surety or appeal bonds, or (iv) other obligations
of a like nature incurred in the ordinary course of business;
(d) Judgment liens fully bonded pending appeal;
(e) Liens by the Borrower or a Subsidiary of the Borrower on
property securing all or part of the purchase price thereof and Liens
(whether or not assumed) existing on property at the time of purchase
thereof by the Borrower or a Subsidiary of the Borrower, provided that:
(i) such Lien is created before or substantially
simultaneously with the purchase of such property in the
ordinary course of business by the Borrower or such Subsidiary
(or is a Lien securing successor obligations incurred to
extend or refinance predecessor obligations allowed under this
Section 7.02(e), provided that in each case the
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successor obligation is an obligation of the same Person
subject to the predecessor obligation, is not greater than
(and is not otherwise on terms less advantageous than) the
predecessor obligation, and the Lien securing the successor
obligation does not extend to any property other than that
subject to the Lien securing the predecessor obligation);
(ii) such Lien is confined solely to the property
so purchased, improvements thereto and proceeds thereof;
(iii) the aggregate amount secured by all such
Liens on any particular property at the time purchased by the
Borrower or such Subsidiary, as the case may be, shall not
exceed the lesser of the purchase price of such property or
the fair market value of such property at the time of purchase
thereof ("purchase price" for this purpose including the
amount secured by each such Lien thereon whether or not
assumed); and
(iv) the obligation secured by such Lien is
Indebtedness permitted under Section 7.03(e) hereof;
(f) Liens in favor of the United States Government which arise
in the ordinary course of business resulting from progress payments or
partial payments under United States Government contracts or
subcontracts thereunder;
(g) Rights arising or reserved to the lessor under any
Capitalized Lease Obligations permitted by Section 7.03(e) hereof;
(h) Zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other
minor Liens that do not secure the payment of money or the performance
of an obligation and that do not in the aggregate materially detract
from the value of a property or asset to, or materially impair its use
in the business of, the Borrower or such Subsidiary;
(i) Liens existing on the Closing Date and listed on Schedule
7.02 hereof (but not any extension, renewal or replacement Liens); and
(j) Liens on property of TIMCO to secure payment of
reimbursement obligations of TIMCO with respect to the TIMCO Bonds
Letter of Credit, and Liens on property of TIMCO securing Indebtedness
of TIMCO constituting a refinancing of the TIMCO Bonds and the TIMCO
Lease permitted by Section 7.03(j) hereof.
Notwithstanding the foregoing, "Permitted Lien" in respect of the Borrower or
any Subsidiary of the Borrower shall in no event include (x) any Lien imposed
by, or required to be granted pursuant to, ERISA, the Code or any Environmental
Law, (y) except as provided in Section 7.02(a) hereof, any Lien on the Shared
Collateral Account or any other account (custodial, deposit or other) maintained
by or with the Collateral Agent pursuant to the Shared Security Documents, or
any other investment property or deposit account (as such terms are defined in
the Uniform Commercial Code), or (z) except as provided in Section 7.02(a)
hereof, any Lien on Shares of Capital Stock of, or obligations owed by, a
Subsidiary of the Borrower.
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7.03. INDEBTEDNESS. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, at any time create, incur, assume or
permit to exist any Indebtedness, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Indebtedness of the Borrower in favor of the Lender
Parties pursuant to this Agreement and the other Loan Documents;
(b) Indebtedness of the Borrower under the Term Loan
Agreement, in aggregate principal amount not to exceed $225,000,000
(but not any extensions, renewals or refinancings of any thereof);
(c) Indebtedness of the Borrower or any of its Subsidiaries
not exceeding $8,250,000 in principal amount, issued in connection with
the acquisition by the Borrower or a Subsidiary of all of the Shares of
Capital Stock of ICV (such Indebtedness being referred to herein as the
"ICV Notes"); and Indebtedness of the Borrower under the Note Backup
Agreement and the letters of credit subject thereto;
(d) Indebtedness of the Borrower under the Senior Notes, in
aggregate principal amount not to exceed $112,000,000 (but not any
extensions, renewals or refinancings of any thereof);
(e) Indebtedness constituting Capitalized Lease Obligations of
the Borrower and its Subsidiaries incurred in the ordinary course of
business from time to time, and Indebtedness of the Borrower and its
Subsidiaries secured by Liens described in Section 7.02(e) on property
used in the ordinary course of business of the Borrower or such
Subsidiary from time to time; provided, that the aggregate amount of
Indebtedness described in this Section 7.03(e) shall not exceed
$20,000,000 at any time;
(f) Other Indebtedness of the Borrower and its Subsidiaries
not exceeding $30,000,000 aggregate principal amount at any time
outstanding;
(g) Current accounts payable of the Borrower or any of its
Subsidiaries on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of business;
(h) Indebtedness of the Borrower pursuant to any Interest Rate
Hedge Agreement required to be entered into pursuant to Section 6.16(a)
hereof; and Indebtedness of the Borrower or any of its Subsidiaries
under any other interest rate or currency swap, cap, floor, collar,
future, forward or option agreement, or similar interest rate or
currency protection agreement, entered into for the purpose of hedging
and not for purposes of speculation (and not structured to contain an
embedded loan);
(i) Indebtedness constituting intercompany loans and Advances
permitted by Sections 7.05(d), 7.05(e), 7.05(h) and 7.05(i) hereof;
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(j) Indebtedness of TIMCO constituting a letter of credit
issued for its account not exceeding $12,600,000 in stated amount,
which letter of credit effectively secures the TIMCO Bonds; any
extension, renewal or refinancing of such letter of credit, provided,
however, that the stated amount thereof is not increased and TIMCO
remains the account party with respect thereto (such letter of credit,
together with any such extension, renewal or refinancing letter of
credit, being referred to herein as the "TIMCO Bonds Letter of
Credit"); and any Indebtedness of TIMCO which amends, renews or
refinances (collectively, "refinances") the TIMCO Bonds, the TIMCO
Lease and the TIMCO Bonds Letter of Credit, provided, however, that
after giving effect to such refinancing, (i) the principal amount of
Indebtedness is not increased, (ii) neither the stated maturity nor the
average life of the Indebtedness is reduced, and (iii) TIMCO remains
the obligor on such refinancing Indebtedness; and
(k) Indebtedness for borrowed money of Primark Economics or
any of its Subsidiaries not exceeding $6,000,000 in aggregate principal
amount at any time outstanding.
7.04. GUARANTIES, INDEMNITIES, ETC. The Borrower shall not,
and shall not permit any Subsidiary of the Borrower to, be or become subject to
or bound by any Guaranty Equivalent, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar
transactions in the ordinary course of business;
(b) Indemnities by the Borrower or a Subsidiary of the
liabilities of its directors, officers and employees in their
capacities as such as permitted by Law;
(c) Guaranty Equivalents existing on the Closing Date and
listed in Schedule 7.04 hereof (but not extensions, renewals or
refinancings thereof or of any associated Assured Obligation);
provided, that this Section 7.04(c) shall not apply to any Guaranty
Equivalent as to which the Deemed Obligor is, on the Closing Date, a
Subsidiary of the Borrower if such Subsidiary thereafter ceases to be a
Subsidiary of the Borrower;
(d) Guaranty Equivalents by the Borrower or a Subsidiary
constituting usual and customary indemnities with respect to
liabilities (other than Indebtedness) in connection with a disposition
of stock or assets by the Borrower or such Subsidiary;
(e) Other Guaranty Equivalents by the Borrower or a Subsidiary
of the Borrower from time to time of obligations of a Substantially
Owned Subsidiary of the Borrower, provided that the Deemed Obligor in
respect of such Guaranty Equivalent is a Substantially Owned Subsidiary
of the Deemed Guarantor;
(f) Other Guaranty Equivalents by a Borrower or a Subsidiary
of the Borrower from time to time, provided that the sum of (i) the
maximum aggregate potential obligation of the Borrower or any
Subsidiary of the Borrower under Guaranty Equivalents described in this
Section 7.04(f), plus (ii) the aggregate amount of all payments made by
the Borrower and its Subsidiaries after the date hereof under Guaranty
Equivalents described in this Section 7.04(f), shall not exceed
$2,000,000; and
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(g) Obligations of a Subsidiary of the Borrower as general
partner of a partnership permitted under Sections 7.05(g) or 7.05(j).
7.05. LOANS, ADVANCES AND INVESTMENTS. The Borrower shall not,
and shall not permit any Subsidiary of the Borrower to, at any time make or
permit to exist or remain outstanding any loan or Advance to, or purchase,
acquire or own (beneficially or of record) any Shares of Capital Stock of, any
stock, bonds, notes or securities of, or any partnership interest (whether
general or limited), membership interest or beneficial interest in, or any other
debt or equity interest in, or make any capital contribution to or other
investment in, any other Person, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except:
(a) Receivables owing to the Borrower or any Subsidiary of the
Borrower arising from performance of services and sales of goods under
usual and customary terms in the ordinary course of business;
(b) Loans and Advances extended by the Borrower or any
Subsidiary of the Borrower to contractors or suppliers (excluding
contractors or suppliers that are Affiliates of the Borrower) under
usual and customary terms in the ordinary course of business and in
amount at any one time outstanding not exceeding $1,000,000 (or the
equivalent thereof in one or more foreign currencies) in the aggregate;
(c) Advances to officers and employees of the Borrower and its
Subsidiaries in the ordinary course of business, in amounts at any time
outstanding not exceeding $1,000,000 (or the equivalent thereof in one
or more foreign currencies) to any one officer or employee and
$2,000,000 (or the equivalent thereof in one or more foreign
currencies) in the aggregate; provided, however, that for purposes of
this Section 7.05(c) only, the outstanding amount of Advances shall not
be deemed to include amounts secured by perfected liens on shares of
the publicly-traded common stock of the Borrower, to the extent of the
market value of such common stock (as determined at least quarterly,
based on publicly-available quotations);
(d) Loans and Advances by a Subsidiary of the Borrower to the
Borrower;
(e) Ownership of Shares of Capital Stock of, and capital
contributions, loans and Advances to, Corporations that are Wholly
Owned Subsidiaries of the Borrower (other than a Broker-Dealer);
(f) (i) Ownership of Shares of Capital Stock of a Corporation
that is a Wholly Owned Subsidiary of the Borrower that is a
Broker-Dealer, as owned on the Closing Date, and (ii) capital
contributions by the Borrower or its Subsidiaries from time to time to
such Subsidiary, so long as such Subsidiary does not at the time of
such capital contribution, or immediately thereafter and after giving
effect thereto, have net capital (calculated in accordance with
regulatory standards) in excess of 150% of the minimum capital required
by Law;
(g) (i) Ownership of general partnership interests and other
equity interests in the Worldscope Entities representing an 80% or
greater interest in the capital, profits and losses of
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each of the Worldscope Entities, as owned on the Closing Date, and (ii)
capital contributions to and acquisition of additional equity interests
in the Worldscope Entities from time to time after the Closing Date,
and loans and Advances to the Worldscope Entities from time to time;
(h) Acquisition and ownership of Shares of Capital Stock of
Corporations that are Subsidiaries of the Borrower other than Wholly
Owned Subsidiaries of the Borrower, and capital contributions, loans
and Advances to Subsidiaries of the Borrower other than Wholly Owned
Subsidiaries of the Borrower, provided, that the aggregate amount of
all such acquisitions and capital contributions made under this Section
7.05(h) after the Closing Date, plus the aggregate outstanding
principal amount of all such loans and Advances made under this Section
7.05(h), shall not at any time exceed $10,000,000;
(i) Acquisition and ownership by the Borrower or its
Subsidiaries of equity interests in Primark Economics representing a
20% or greater interest in the capital, profits and losses of Primark
Economics, and capital contributions, convertible debt and demand loans
by the Borrower or its Subsidiaries to Primark Economics from time to
time; provided, that (i) the sum of the aggregate amount of all
consideration paid for such equity interests and convertible debt plus
the aggregate amount of all such capital contributions (in each case
whether before or after the Closing Date), plus the aggregate
outstanding principal amount of all such demand loans, shall not at any
time exceed $5,000,000, and (ii) no such acquisitions, capital
contributions or loans may be made unless the Borrower continues to own
(directly or indirectly) at least a 20% interest (and, assuming full
conversion of convertible loans due to the Borrower or its
Subsidiaries, a 51% or greater interest) in the capital, profits and
losses of Primark Economics;
(j) Partnerships and joint ventures of which all partners,
participants and other Persons having ownership interests therein are
Wholly Owned Subsidiaries of the Borrower;
(k) Other loans, Advances and investments, not to exceed
$3,000,000 in the aggregate; and
(l) Cash Equivalent Investments.
7.06. DIVIDENDS AND RELATED DISTRIBUTIONS. The Borrower shall
not, and shall not permit any Subsidiary to, declare or make any Stock Payment,
or agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except as follows:
(a) The Borrower may from time to time repurchase for cash
shares of its common stock of a series publicly traded, subject to the
following conditions:
(i) Repurchases under this Section 7.06(a) shall
not exceed $25,000,000 from and after the Closing Date;
(ii) No Event of Default or Potential Default shall
exist on the date of such repurchase, or immediately
thereafter and after giving effect to such repurchase;
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(iii) The Borrower would have been in compliance
with Sections 7.01(a) and 7.01(c) on the last day of the
fiscal quarter ending most recently before such repurchase,
after giving effect on a pro forma basis to such repurchase
and to any incurrence of Indebtedness after such day, as if
such repurchase and incurrence had occurred on such day; and
(iv) The Agent shall receive, with a copy for each
Lender, not later than the Business Day after the date such
repurchase is made, a certificate signed by a Responsible
Officer of the Borrower, dated such repurchase date,
describing such dividend, certifying that such repurchase is
in compliance with the provisions of this Section 7.06(a), and
including a statement in reasonable detail of the information
and calculations necessary to establish compliance with this
Section 7.06(a);
(b) A Subsidiary of the Borrower may declare and pay dividends
or other distributions with respect to its Shares of Capital Stock,
provided, that such dividend or other distribution is made on a pro
rata basis, consistent with the ownership interests in such Shares of
Capital Stock, to the owners of such shares; and
(c) The Borrower may make Stock Payments if such Stock Payment
is paid solely in Shares of Capital Stock (or warrants, options or
rights therefor) of the Borrower.
The Borrower shall not declare any dividend payable later than 60 days after
declaration, and the Borrower shall not permit any Subsidiary to declare any
dividend payable later than 15 days after declaration.
7.07. SALE-LEASEBACKS. The Borrower shall not, and shall not
permit any Subsidiary to, at any time enter into or permit to remain in effect
any transaction to which the Borrower or such Subsidiary is a party involving
the sale, transfer or other disposition by the Borrower or any Subsidiary of any
property (now owned or hereafter acquired), with a view directly or indirectly
to the leasing back of any part of the same property or any other property used
for the same or a similar purpose or purposes, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except for transactions
existing on the date hereof and listed in Schedule 7.07 hereof (but not
extensions, renewals or refinancings thereof).
7.08. MERGERS, ETC. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, directly or indirectly, (w) merge with
or into or consolidate with any other Person, or (x) liquidate, Wind-Up,
dissolve or divide, (y) acquire all or any substantial portion of the properties
of any going concern or going line of business (whether or not constituting a
distinct legal entity), or (z) acquire all or any substantial portion of the
properties of any other Person, or all or any substantial portion of the Shares
of Capital Stock of any other Person which is organized as a Corporation, or all
or any substantial portion of any equity interest in any other Person which is
not organized as a Corporation, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except for the following (referred to
herein as "Permitted Mergers"):
(a) A Subsidiary of the Borrower may merge with or into or
consolidate with, or acquire all or any substantial portion of the
properties of, or liquidate or dissolve into, any other
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Subsidiary of the Borrower, if the acquiring, surviving or new
Corporation shall be a Wholly Owned Subsidiary of the Borrower; and
(b) The Borrower, or a Subsidiary of the Borrower, may make
acquisitions of the types referred to in the foregoing clauses (y) and
(z) of properties of Persons other than a Subsidiary of the Borrower,
consistent with the other provisions of this Agreement and the other
Loan Documents, provided that the aggregate Adjusted Acquisition
Consideration in connection with all such acquisitions made after the
Closing Date (and specifically excluding the acquisition of WEFA, if
made on or before the Closing Date) shall not exceed the sum of
$75,000,000 plus the amount, if any, of aggregate cash proceeds (net of
underwriting discounts, fees and other transaction costs) received by
the Borrower after the Closing Date from issuance of Shares of Capital
Stock of the Borrower (or options or warrants therefor).
7.09. DISPOSITIONS OF PROPERTIES. The Borrower shall not, and
shall not permit any Subsidiary to, sell, convey, assign, lease, transfer,
abandon or otherwise dispose of, voluntarily or involuntarily, directly or
indirectly, any of its properties, now existing or hereafter acquired, or agree,
become or remain liable (contingently or otherwise) to do any of the foregoing,
except:
(a) Sales of inventory, licenses (as licensor) of software or
other intellectual property, all in the ordinary course of business;
(b) Disposition of equipment and other operating assets which
are obsolete or no longer useful in the business of the Borrower or
such Subsidiary, as the case may be;
(c) Lease or sublease of unoccupied office space;
(d) Dispositions in Permitted Mergers, and other dispositions
between Wholly Owned Subsidiaries of the Borrower;
(e) Disposition outside the ordinary course of business of all
(but not less than all) of the Shares of Capital Stock of TIMCO, or
substantially all the assets of TIMCO (but not less than substantially
all of such assets), subject to the following conditions:
(i) any such disposition of property is for not less
than the Fair Market Value of the property disposed of (as
determined in good faith by the Board of Directors of the
transferor, whose determination shall be evidenced by a
written resolution of such Board), and the consideration
received by the Borrower or the relevant Subsidiary in respect
of such disposition consists entirely of cash or Cash
Equivalent Investments; and
(ii) in the case of disposition of Shares of Capital
Stock of, or assets of, TIMCO, TIMCO shall be conducting
substantially the business conducted by it on the Closing
Date, and shall not be conducting any different or additional
business or have any material assets in addition to those it
had on the Closing Date; and
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(f) Other dispositions of property from time to time for not
less than its Fair Market Value, provided that dispositions under this Section
7.09(f) shall not exceed $5,000,000 in the aggregate in any fiscal year.
Without limitation of the foregoing, it is understood that the following are
dispositions of property subject to this Section 7.09: any disposition of
accounts, chattel paper or general intangibles, with or without recourse; any
disposition of any leasehold interest; and any disposition of any Shares of
Capital Stock in or Indebtedness of any Subsidiary. The Borrower shall not, and
shall not permit any Subsidiary to sell, convey, assign, transfer or otherwise
dispose of, voluntarily or involuntarily, any of its accounts, chattel paper,
general intangibles or other financial assets with or without recourse, in any
factoring, structured financing, or other transaction having the practical
effect, directly or indirectly, of a financing, whether or not such transaction
is in the form of a "true sale" of such financial assets by the Borrower or such
Subsidiary.
7.10. DEALINGS WITH AFFILIATES. The Borrower shall not, and
shall not permit any Subsidiary of the Borrower to, enter into or carry out any
transaction with (including, without limitation, purchase or lease property or
services from, sell or lease property or services to, loan or advance to, or
enter into, permit to remain in existence or amend any contract, agreement or
arrangement with) any Affiliate of the Borrower, directly or indirectly, or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except:
(a) Transactions between (i) on the one hand, any Affiliate of
the Borrower, and (ii) on the other hand, the Borrower or any of its
Subsidiaries, in good faith and on fair and reasonable terms; and
(b) Compensation of directors, officers, employees and
consultants of the Borrower and its Subsidiaries for services rendered
in such capacity in good faith and on fair and reasonable terms, which
terms (in the case of compensation under employment contracts entered
into after the Closing Date will be approved by a majority of the board
of directors of such Borrower or Subsidiary (including a majority of
the directors having no direct or indirect interest in such
transaction).
7.11. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND
INSTRUMENTS.
(a) SENIOR NOTES. The Borrower shall not amend, modify or
supplement the terms or provisions contained in, or applicable to, the Senior
Notes, the Senior Note Indenture, or any agreement or instrument evidencing or
applicable to any of the foregoing.
(b) [Reserved]
(c) TERM LOAN AGREEMENT. The Borrower shall not amend, modify
or supplement the Term Loan Agreement or its obligations thereunder, in any way
that would (i) increase the principal amount thereof, or require payments on
account of principal to be made (by way of scheduled amortization, mandatory
prepayment or otherwise) earlier or in greater amount than is required under the
terms of the Term Loan Agreement as constituted on the Closing Date, (ii)
increase the rate or shorten the date for payment of interest thereon, or (iii)
require payment of any fee or other amount not
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provided for under the Term Loan Agreement as constituted on the Closing Date.
In the event that the Agent hereunder is not also the "Agent" under the Term
Loan Agreement, the Borrower shall promptly (and in any event within five days)
give the Agent, with a copy for each Lender, a copy of any amendment,
modification or supplement to the Term Loan Agreement.
(d) NOTE BACKUP AGREEMENT. The Borrower shall not amend,
modify or supplement the Note Backup Agreement (as constituted on the Closing
Date) or its obligations thereunder, in any way that would (i) increase the
principal amount thereof (including the aggregate stated amount of letters of
credit issued thereunder), or require payments on account of principal
(including reimbursement of draws under letters of credit issued thereunder) to
be made earlier or in greater amount than is required under the terms of the
Note Backup Agreement as constituted on the Closing Date, or (ii) increase the
rate or shorten the date for payment of interest thereon. In the event that the
Agent hereunder is not also the "Agent" under the Note Backup Agreement, the
Borrower shall promptly (and in any event within five days) give the Agent, with
a copy for each Lender, a copy of any amendment, modification or supplement to
the Note Backup Agreement.
(e) [Reserved]
7.12. LIMITATION ON PAYMENTS ON CERTAIN OBLIGATIONS. The
Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, pay, prepay, purchase, redeem, retire, defease or acquire, or
otherwise make any payment (on account of principal, interest, premium or
otherwise) of, any obligation under or evidenced by the Senior Notes, except
that the Borrower may (x) pay principal and interest on the Senior Notes as and
when expressly required to do so by the mandatory terms of the Senior Notes, and
(y) purchase Senior Notes as and when expressly required to do so by the
mandatory terms of Sections 4.12 and 4.13 of the Senior Note Indenture (it being
understood that the foregoing may nevertheless give rise to an Event of
Default).
7.13. LIMITATION ON OTHER RESTRICTIONS ON LIENS, DIVIDEND
RESTRICTIONS ON SUBSIDIARIES, ETC. The Borrower shall not, and shall not permit
any Subsidiary to,
(x) enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by
which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound that would (i) prohibit the
grant of any Lien upon any of its properties (now owned or hereafter
acquired), or (ii) restrict or prohibit the transfer or disposition of
any of its properties (now owned or hereafter acquired), or require it
to dispose of or apply the proceeds of any such disposition in a
specified manner, or
(y) be or become subject to any restriction of any nature
(whether arising by operation of Law, by agreement, by its certificate
or articles of incorporation, by-laws or other constituent documents,
or otherwise) on the right of the Borrower or such Subsidiary from time
to time (i) in the case of a Subsidiary, to declare and pay Stock
Payments with respect to Shares of Capital Stock owned by the Borrower
or any Subsidiary of the Borrower, (ii) in the case of the Borrower or
any Subsidiary of the Borrower, to pay any obligations from time to
time owed to the Borrower or any Subsidiary of the Borrower, or (iii)
in the case of the Borrower or any Subsidiary of the Borrower, make
loans or advances to the Borrower or any Subsidiary of the Borrower,
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except:
(a) the Credit Facilities;
(b) the Senior Notes and the Senior Note Indenture;
(c) with respect to the foregoing clause (x), non-assignment
provisions of any executory contract or software or programs or of any
lease by the Borrower or such Subsidiary as lessee;
(d) with respect to the foregoing clause (x), restrictions on
property subject to a Permitted Lien in favor of the holder of such
Permitted Lien;
(e) restrictions with respect to TIMCO imposed pursuant to an
agreement entered into for sale or disposition (which sale or
disposition is not in violation of this Agreement or any other Loan
Document) of all or substantially all of the Shares of Capital Stock or
assets of such Subsidiary; provided, that such restriction, by its
terms, terminates on the earlier of the termination of such agreement
or the consummation of such agreement, and is agreed to in good faith;
and
(f) in the case of the foregoing clause (y), legal
restrictions of general applicability under the corporation or similar
law under which the Borrower or such Subsidiary is incorporated,
fraudulent conveyance or similar laws or general applicability for the
benefit of creditors generally, and other legal restrictions of general
applicability to similarly situated business corporations; and
(g) in the case of subclause (ii) of the foregoing clause (x),
restrictions on transfer of property arising in the ordinary course of
business; provided, that such restrictions do not directly or
indirectly secure any obligation of the Borrower or such Subsidiary to
pay money or to perform an obligation, and do not in the aggregate
materially detract from the value of a property or asset to, or
materially impair its use in the business of, the Borrower or such
Subsidiary.
7.14. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE
LOAN DOCUMENTS, ETC. The Borrower shall not, and shall not permit any Subsidiary
of the Borrower to, enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by which any
of them or any of their respective properties (now owned or hereafter acquired)
may be subject or bound that would prohibit or require the consent of any Person
to any amendment, modification or supplement to any of the Loan Documents,
except: (a) the Loan Documents, and (b) provisions in each of the other Credit
Facilities no more restrictive than those in such other Credit Facility,
respectively, as constituted on the Closing Date.
7.15. LIMITATION ON CERTAIN BENEFIT LIABILITIES. The Borrower
shall not, and shall not permit any Subsidiary of the Borrower or any Controlled
Group Member to, become subject to Primark Group Benefits Exposures in excess of
$20,000,000 in the aggregate for all such Persons. As used herein, the term
"Primark Group Benefits Exposures" shall mean the sum of the maximum potential
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liabilities (direct, contingent or other) of the Borrower and its Subsidiaries
and the Controlled Group Members in connection with the following: (a)
withdrawal liability (within the meaning of Section 4201 of ERISA) from any
Multiemployer Plan, whether or not such liability has yet been triggered as a
result of a withdrawal; (b) contributions due and unpaid with respect to a
Multiemployer Plan; (c) the "amount of unfunded benefit liabilities" (within the
meaning of Section 4001(a)(18) of ERISA) under any Plan, whether or not such
liability has yet been triggered as a result of a termination of such Plan; (d)
excise taxes assessed in connection with all of the above or otherwise in
connection with any Plan; (e) Postretirement Benefit Obligations of the
Borrower, any Subsidiary of the Borrower or any Controlled Group Member; and (f)
any other liability (contingent or other) in connection with a Plan or
Multiemployer Plan which represent a material risk that it may result in a Lien
attaching to assets of the Borrower or any Subsidiary of the Borrower, without
regard to any minimum amount required by Law to cause such Lien to attach.
7.16. FISCAL YEAR. The Borrower shall maintain a fiscal year
beginning on each January 1 and ending on the following December 31, divided
into fiscal quarters ending on the last day of each March, June, September and
December.
ARTICLE VIII
DEFAULTS
8.01. EVENTS OF DEFAULT. An "Event of Default" shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any
Loan, any Letter of Credit Reimbursement Obligation, or make when due
any required cash collateralization of outstanding Letters of Credit.
(b) The Borrower shall fail to pay when due interest on any
Loan, any fees, indemnity or expenses, or any other amount due
hereunder or under any other Loan Document, and such failure shall have
continued for a period of five Business Days.
(c) Any representation or warranty made or deemed made by the
Borrower in or pursuant to or in connection with any Loan Document or
any transaction contemplated hereby or thereby, or any statement made
by the Borrower or any Subsidiary of the Borrower or any in any
financial statement, certificate, report, exhibit or document furnished
by the Borrower or any Subsidiary of the Borrower to the Collateral
Agent or any Lender Party pursuant to or in connection with any Loan
Document or any transaction contemplated hereby or thereby, shall prove
to have been false or misleading in any material respect as of the time
when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not
misleading).
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VII hereof or any of
the covenants contained in Sections 2.07, 6.01(j)(i),
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6.11, 6.12, 6.14, 6.15 or 6.16 hereof, or in Sections 4.02 or 4.06 of
the Borrower Pledge Agreement.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 6.01 hereof (other than as referred to in Sections
6.01(j)(i) hereof) such default shall have continued for a period of 10
days and (ii) in the case of any other default such default shall have
continued for a period of 30 days.
(f) (i) The Borrower or any Subsidiary of the Borrower shall
default in any payment of any amount in respect of any Cross-Default
Triggering Obligation beyond any period of grace with respect thereto
or, if any amount payable in respect of any Cross-Default Triggering
Obligation is payable on demand, shall fail to pay such amount when
demanded, or (ii) the Borrower or any Subsidiary of the Borrower shall
default in the observance of any covenant, term or condition of any
agreement or instrument by which any Cross-Default Triggering
Obligation is created, secured or evidenced, if the effect of such
default referred to in this clause (ii) is to cause, or to permit the
holder or holders of any Cross-Default Triggering Obligation (or a
trustee or agent on behalf of such holder or holders) to cause, all or
part of such Cross-Default Triggering Obligation to become due before
its otherwise stated maturity (by way of acceleration, mandatory
prepayment or otherwise), or, in the case of an interest rate or
currency swap, cap, collar, floor, future, forward or similar
transaction, to terminate before its otherwise scheduled termination.
As used in this Agreement, "Cross-Default Triggering Obligation" shall
mean
(A) any obligation under or in connection with any of
the other Credit Facilities, any Swap Agreement, the Senior
Notes or the Senior Note Indenture,
(B) any obligation, as principal or as guarantor or
other surety, in respect of the TIMCO Bond Order, the TIMCO
Lease, any reimbursement agreement relating to the TIMCO Bonds
Letter of Credit, or any other obligation referred to in
Section 7.03(j) hereof,
(C) any obligation (or set of related obligations),
as principal or as guarantor or other surety, in respect of
Indebtedness in excess of $5,000,000 (or the equivalent
thereof in one or more foreign currencies) in aggregate
amount, and
(D) any obligation (or set of related obligations,
including all obligations under a master agreement), as
principal or as guarantor or other surety, in respect of any
interest rate or currency swap, cap, collar, floor, future,
forward or similar transactions relating to a principal or
notional principal amount in excess of $5,000,000 (or the
equivalent thereof in one or more foreign currencies) in
aggregate amount.
(g) One or more judgments for the payment of money shall have
been entered against the Borrower or any Subsidiary of the Borrower,
which judgment or judgments exceed $2,000,000 in the aggregate, and
such judgment or judgments shall have remained undischarged and
unstayed for a period of 30 consecutive days.
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(h) Any Governmental Action now or hereafter made by or with
any Governmental Authority in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall
have been modified or amended or shall have been held to be illegal or
invalid, and such event or condition has, or would be likely to have, a
Material Adverse Effect.
(i) Any Shared Security Document shall cease to be in full
force and effect; or any Lien created or purported to be created in any
Shared Collateral pursuant to any Shared Security Document shall fail
to be a valid, enforceable and perfected Lien in favor of the
Collateral Agent for the benefit of the Secured Parties securing the
Obligations, prior to all other Liens except Permitted Liens.
(j) Any Loan Document or term or provision thereof shall cease
to be in full force and effect (except in accordance with the express
terms of such Loan Document), or the Borrower or any other party to any
Loan Document shall, or shall purport to, terminate (except in
accordance with the terms of such Loan Document), repudiate, declare
voidable or void or otherwise contest, any Loan Document or term or
provision thereof or any obligation or liability of the Borrower or
such other party thereunder.
(k) Any one or more Pension-Related Events referred to in
subsection (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events
shall have occurred which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(l) The Borrower shall make, or shall be required by the terms
of the Senior Note Indenture to make or to offer to make, any purchase
of Senior Notes under Sections 4.12 or 4.13 of the Senior Note
Indenture; or the Borrower or any of its Subsidiaries otherwise shall
make or offer to make any payment on account of principal of, or any
purchase, redemption, retirement, defeasance or acquisition of, any of
the Senior Notes (except for principal payment in accordance with the
terms thereof at the scheduled maturity thereof).
(m) Any Person or group (as such term is used in Sections 13
and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have
become the direct or indirect beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of 35% or more of any class of
voting securities of the Borrower; or any Person shall have been
elected or shall have become a director of the Borrower who was not
nominated and recommended for such position or elected to such position
by a majority of the then-incumbent Board of Directors of the Borrower;
or a "Change in Control" (as defined in the Senior Note Indenture as
constituted on the Closing Date shall have occurred (without regard to
any subsequent amendment, modification or supplement to, or termination
or expiration of, the Senior Note Indenture).
(n) A Control-Related Event shall have occurred, and the
Required Lenders shall have determined in good faith that such
Control-Related Event has or would be likely to have a Material Adverse
Effect (by reason of suspension, withdrawal or impairment of any
security
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clearance of the Borrower or any of its Subsidiaries, or impairment of
the business relationship between the Borrower and its Subsidiaries, on
the one hand, and the U.S. Government and its agencies and departments,
on the other hand). "Control-Related Event" shall mean that any Person
or group (as such term is used in Sections 13 and 14 of the Exchange
Act, and the rules and regulations thereunder) shall have become the
direct or indirect beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of 5% or more of any class of voting
securities of the Borrower (except for any such Person or group
existing on the Closing Date, to the extent of the voting securities
then owned by them).
(o) A proceeding shall have been instituted in respect of the
Borrower or any Significant Subsidiary of the Borrower (and for this
purpose, each Subsidiary of the Borrower which is subject to an event
or condition described in this Section 8.01(o) or in Section 8.01(p)
hereof shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single
entity, they would constitute a Significant Subsidiary)
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, Winding-up,
administration, charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition or other
similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief
of debtors or protection of creditors, termination of legal
entities or any other similar Law now or hereafter in effect,
or
(ii) seeking appointment of a receiver,
administrative receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
30 consecutive days.
(p) The Borrower or any Significant Subsidiary of the Borrower
(and for this purpose, each Subsidiary of the Borrower which is subject
to an event or condition described in Section 8.01(o) hereof or in this
Section 8.01(p) shall be deemed a Significant Subsidiary if,
collectively, together with their respective Subsidiaries, treated as a
single entity, they would constitute a Significant Subsidiary) shall
not be Solvent; shall fail to pay, become unable to pay, or state that
it is or will be unable to pay, its debts as they become due; shall
voluntarily suspend transaction of its business; shall make a general
assignment for the benefit of creditors; shall institute (or fail to
controvert in a timely and appropriate manner) a proceeding described
in Section 8.01(o)(i) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 8.01(o)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce
in any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his property; shall
dissolve, Wind-up, go into administration or revoke
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or forfeit its articles of incorporation (or other constituent
documents); or shall take any action in furtherance of any of the
foregoing.
8.02. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) GENERAL. If an Event of Default specified in subsections
(a) through (n) of Section 8.01 hereof shall have occurred and be continuing or
exist, or if an Event of Default specified in subsections (o) or (p) of Section
8.01 hereof shall have occurred and be continuing or exist with respect to a
Person other than the Borrower, then, in addition to all other rights and
remedies which the Collateral Agent or any Lender Party may have hereunder or
under any other Loan Document, at law, in equity or otherwise, the Lenders shall
be under no further obligation to make Loans, and the Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, from
time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Loan Obligations (including the
obligation to cash collateralize outstanding Letters of Credit) to be
immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue.
(b) BANKRUPTCY AND CERTAIN OTHER EVENTS. If an Event of
Default specified in subsection (o) or (p) of Section 8.01 hereof shall have
occurred and be continuing or exist with respect to the Borrower, then, in
addition to all other rights and remedies which the Collateral Agent or any
Lender Party may have hereunder or under any other Loan Document, at law, in
equity or otherwise, the Commitments shall automatically terminate and the
Lenders shall be under no further obligation to make Loans, and the unpaid
principal amount of the Loans, interest accrued thereon and all other Loan
Obligations (including but not limited to the obligation to cash collateralize
outstanding Letters of Credit) shall become immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
waived, and an action therefor shall immediately accrue.
8.03. APPLICATION OF PROCEEDS. Subject to Section 3.07 hereof,
after the occurrence of an Event of Default and acceleration of the Loans, any
distributions made on account of Loan Obligations under the Collateral Agency
Agreement and all other payments received on account of Loan Obligations shall
be applied by the Agent to payment of the Loan Obligations in the following
order:
First, to payment of that portion of the Loan Obligations
constituting fees, indemnities and other amounts due to the Agent in
its capacity as such;
Second, to payment of that portion of the Loan Obligations
constituting fees, indemnities and other amounts due to the Swingline
Lender and the Issuing Banks in their capacities as such, other than
principal of and interest on Swingline Loans, Letter of Credit
Reimbursement
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Obligations and accrued and unpaid Letter of Credit Fees, ratably
amongst the Swingline Lender and the Issuing Banks in proportion to the
respective amounts described in this clause "Second" due to them;
Third, to payment of that portion of the Loan Obligations
constituting accrued and unpaid interest on Loans, accrued and unpaid
interest on Letter of Credit Unreimbursed Draws, and accrued and unpaid
Letter of Credit Fees and Revolving Credit Commitment Fees, ratably
amongst the Lenders and the Issuing Banks in proportion to the
respective amounts described in this clause "Third" due to them;
Fourth, to payment of that portion of the Loan Obligations
constituting unpaid principal of the Loans and Letter of Credit
Unreimbursed Draws, ratably amongst the Lenders and the Issuing Banks
in proportion to the respective amounts described in this clause
"Fourth" due to them;
Fifth, to payment of all other Loan Obligations, ratably
amongst the Lender Parties in proportion to the respective amounts
described in this clause "Fifth" due to them; and
Finally, the balance, if any, after all of the Loan
Obligations have been indefeasibly paid in full in cash, all
Commitments have terminated, and all Letters of Credit shall have
terminated, to the Borrower or as otherwise required by law.
ARTICLE IX
THE AGENT
9.01. APPOINTMENT. Each Lender Party hereby irrevocably
appoints Mellon Bank, N.A. to act as Agent for the Lender Parties under this
Agreement and the other Loan Documents. Each Lender Party hereby irrevocably
authorizes the Agent to take such action on behalf of the Lender Parties under
the provisions of this Agreement and the other Loan Documents, and to exercise
such powers and to perform such duties, as are expressly delegated to or
required of the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto. Mellon Bank, N.A. hereby agrees to act as
Agent on behalf of the Lender Parties on the terms and conditions set forth in
this Agreement and the other Loan Documents, subject to its right to resign as
provided herein. Each Lender Party hereby irrevocably authorizes the Agent to
execute and deliver each of the Loan Documents and to accept delivery of such of
the other Loan Documents as may not require execution by the Agent. Without
limiting the generality of the foregoing, each Lender Party hereby irrevocably
authorizes the Agent to execute and deliver the Collateral Agency Agreement on
behalf of such Lender Party. Each Lender Party hereby agrees that the rights and
remedies granted to the Agent under the Loan Documents shall be exercised
exclusively by the Agent, and that no Lender Party shall have any right
individually to exercise any such right or remedy, except to the extent, if any,
expressly provided herein or therein.
9.02. GENERAL NATURE OF AGENT'S DUTIES.
(a) NO IMPLIED DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or
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responsibilities on the part of the Agent shall be read into this Agreement or
any Loan Document or shall otherwise exist.
(b) NOT A FIDUCIARY. The duties and responsibilities of the
Agent under this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Agent shall not have a fiduciary relationship
in respect of any Lender Party.
(c) AGENT OF LENDER PARTIES. The Agent is and shall be solely
the agent of the Lender Parties. The Agent does not assume, and shall not at any
time be deemed to have, any relationship of agency or trust with or for, or any
other duty or responsibility to, the Borrower or any Person other than the
Lender Parties. The provisions of this Article IX are for the benefit of the
Lender Parties (and the other Persons named in Section 9.07 hereof), and the
Borrower shall not have any rights under any of the provisions of this Article
IX.
(d) NO OBLIGATION TO TAKE ACTION. The Agent shall be under no
obligation to take any action hereunder or under any other Loan Document if the
Agent believes in good faith that taking such action may conflict with any Law
or any provision of this Agreement or any other Loan Document, or may require
the Agent to qualify to do business in any jurisdiction where it is not then so
qualified.
9.03. EXERCISE OF POWERS. Subject to the other provisions of
this Agreement and the other Loan Documents, the Agent shall take any action of
the type specified in this Agreement or any other Loan Document as being within
the Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case the Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lender Parties. The Agent shall not have any liability to any Person as a result
of (x) the Agent acting or refraining from acting in accordance with the
directions of the Required Lenders (or other applicable Person or set of
Persons), (y) the Agent refraining from acting in the absence of instructions to
act from the Required Lenders (or other applicable Person or set of Persons),
whether or not the Agent has discretionary power to take such action, or (z) the
Agent taking discretionary action it is authorized to take under this Section
(subject, in the case of this clause (z), to the provisions of Section 9.04(a)
hereof).
9.04. GENERAL EXCULPATORY PROVISIONS.
(a) GENERAL. The Agent shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or willful
misconduct.
(b) AGENT NOT RESPONSIBLE FOR LOAN DOCUMENTS, ETC. The Agent
shall not be responsible for (i) the execution, delivery, effectiveness,
enforceability, genuineness, validity or adequacy of this Agreement or any other
Loan Document, (ii) any recital, representation, warranty,
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document, certificate, report or statement in, provided for in, or received
under or in connection with, this Agreement or any other Loan Document, (iii)
any failure of the Borrower, any Lender or Issuing Bank to perform any of their
respective obligations under this Agreement or any other Loan Document, (iv) the
existence, validity, enforceability, perfection, recordation, priority, adequacy
or value, now or hereafter, of any Lien or other direct or indirect security
afforded or purported to be afforded by any of the Loan Documents or otherwise
from time to time, or (v) caring for, protecting, insuring, or paying any taxes,
charges or assessments with respect to any collateral.
(c) NO DUTY OF INQUIRY. The Agent shall not be under any
obligation to ascertain, inquire or give any notice relating to (i) the
performance or observance of any of the terms or conditions of this Agreement or
any other Loan Document on the part of the Borrower, (ii) the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
any other Person, or (iii) except to the extent set forth in Section 9.05(f)
hereof, the existence of any Event of Default or Potential Default.
(d) NOTICES. The Agent shall not be under any obligation,
either initially or on a continuing basis, to provide any Lender Party with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, except for such notices, reports and other information
expressly required by this Agreement or any other Loan Document to be furnished
by the Agent to such Lender Party.
9.05. ADMINISTRATION BY THE AGENT.
(a) RELIANCE ON NOTICES. The Agent may rely upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Agent
shall not have any duty to verify the identity or authority of any Person giving
such notice or other communication.
(b) CONSULTATION. The Agent may consult with legal counsel
(including, without limitation, in-house counsel for the Agent or in-house or
other counsel for the Borrower), independent public accountants and any other
experts selected by it from time to time, and the Agent shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts.
(c) RELIANCE ON CERTIFICATES, ETC. The Agent may conclusively
rely upon the truth of the statements and the correctness of the opinions
expressed in any certificates or opinions furnished to the Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Agent shall deem it necessary or desirable that a matter be proved or
established with respect to the Borrower or any Lender Party, such matter may be
established by a certificate of the Borrower or such Lender Party, as the case
may be, and the Agent may conclusively rely upon such certificate (unless other
evidence with respect to such matter is specifically prescribed in this
Agreement or another Loan Document).
(d) INDEMNITY. The Agent may fail or refuse to take any action
unless it shall be indemnified to its satisfaction from time to time against any
and all amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
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nature which may be imposed on, incurred by or asserted against the Agent by
reason of taking or continuing to take any such action.
(e) PERFORMANCE THROUGH AGENTS. The Agent may perform any of
its duties under this Agreement or any other Loan Document by or through agents
or attorneys-in-fact. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in fact selected by it with reasonable
care.
(f) NOTICE OF DEFAULT. The Agent shall not be deemed to have
any knowledge or notice of the occurrence of any Event of Default or Potential
Default unless the Agent has received notice from a Lender Party or the Borrower
referring to this Agreement, describing such Event of Default or Potential
Default, and stating that such notice is a "notice of default." If the Agent
receives such a notice, the Agent shall give prompt notice thereof to each
Lender.
9.06. LENDERS NOT RELYING ON AGENT OR OTHER LENDERS. Each
Lender Party hereby acknowledges as follows: (a) Neither the Agent nor any other
Lender Party has made any representations or warranties to it, and no act taken
hereafter by the Agent or any other Lender Party shall be deemed to constitute
any representation or warranty by the Agent or such other Lender Party to it.
(b) It has, independently and without reliance upon the Agent or any other
Lender Party, and based upon such documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into
this Agreement and the other Loan Documents. (c) It will, independently and
without reliance upon the Agent or any other Lender Party, and based upon such
documents and information as it shall deem appropriate at the time, make its own
decisions to take or not take action under or in connection with this Agreement
and the other Loan Documents.
9.07. INDEMNIFICATION OF AGENT BY LENDERS. Each Lender hereby
agrees to reimburse and indemnify the Agent and its directors, officers,
employees and agents (to the extent not reimbursed by the Borrower and without
limitation of the obligations of the Borrower to do so), Pro Rata, from and
against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and disbursements of
counsel for the Agent or such other Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
the Agent or such other Person shall be designated a party thereto) that may at
any time be imposed on, incurred by or asserted against the Agent or such other
Person as a result of, or arising out of, or in any way related to or by reason
of, this Agreement, any other Loan Document, any transaction from time to time
contemplated hereby or thereby, or any transaction financed in whole or in part
or directly or indirectly with the proceeds of any Loan or Letter of Credit;
provided, that no Lender shall be liable for any portion of such amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting from the gross negligence or
willful misconduct of the Agent or such other Person, as finally determined by a
court of competent jurisdiction.
9.08. AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
Commitments and the Loan Obligations owing to it, the Agent shall have the same
rights and powers under this Agreement and each other Loan Document as any other
Lender and may exercise the same as though it were not the Agent, and the terms
"Lender," "Swingline Lender," "Issuing Bank," "holders of Notes" and like terms
shall include the Agent in its individual capacity as such. The Agent and its
affiliates may, without liability to
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account, make loans to, accept deposits from, acquire debt or equity interests
in, enter into interest rate or currency hedging transactions with, act as
trustee under indentures of, and engage in any other business or transaction
with, the Borrower or any stockholder, subsidiary or affiliate of the Borrower,
as though the Agent were not the Agent hereunder.
9.09. HOLDERS OF NOTES. The Agent may deem and treat the
Lender which is payee of a Note as the owner and holder of such Note for all
purposes hereof unless and until a Transfer Supplement with respect to the
assignment or transfer thereof shall have been filed with the Agent in
accordance with Section 10.14 hereof. Any authority, direction or consent of any
Person who at the time of giving such authority, direction or consent is shown
in the Register as being a Lender shall be conclusive and binding on each
present and subsequent holder, transferee or assignee of any Note or Notes
payable to such Lender or of any Note or Notes issued in exchange therefor.
9.10. SUCCESSOR AGENT. The Agent may resign at any time by
giving 45 days' prior written notice thereof to the Lenders and the Borrower.
The Agent may be removed by the Required Lenders at any time by giving 10 days'
prior written notice thereof to the Agent, the other Lenders and the Borrower.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
and consented to, and shall have accepted such appointment, within 30 days after
such notice of resignation or removal, then the retiring Agent may (but shall
not be required to) appoint a successor Agent. Each successor Agent shall be a
commercial bank or trust company organized under the laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance by a successor Agent of its appointment
as Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the properties, rights, powers, privileges and duties of the
former Agent in its capacity as such, without further act, deed or conveyance.
Upon the effective date of resignation or removal of a retiring Agent, such
Agent shall be discharged from its duties as such under this Agreement and the
other Loan Documents, but the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted by it while it was Agent under this
Agreement. If and so long as no successor Agent shall have been appointed, then
any notice or other communication required or permitted to be given by the Agent
shall be sufficiently given if given by the Required Lenders, all notices or
other communications required or permitted to be given to the Agent shall be
given to each Lender, and all payments to be made to the Agent shall be made
directly to the Borrower or Lender Party for whose account such payment is made.
9.11. CALCULATIONS. The Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender Party to whom payment
was due but not made shall be to recover from the other Lender Parties any
payment in excess of the amount to which they are determined to be entitled or,
if the amount due was not paid by the Borrower, to recover such amount from the
Borrower.
9.12. AGENT'S FEE. The Borrower agrees to pay to the Agent,
for its individual account, a nonrefundable Agent's fee of $50,000 per annum,
payable for the period from and including the Closing Date to but not including
the date on which all Loan Obligations (other than Contingent Indemnification
Obligations) have been indefeasibly paid in full and all Revolving Credit
Commitments have been terminated. Payments of such Agent's fee shall be made (a)
on the Closing Date, for the
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period from and including such date to but not including June 29, 1997
(provided, that to the extent that the Borrower has paid the Agent's fee
allocable to such period under the prior "Revolving Credit Agreement" referred
to in Section 5.01(f), such payment shall be credited against the Borrower's
obligation under this clause (a)), and (b) thereafter, in advance on each June
29 and December 29 for the period from and including such payment date to but
not including the next such payment date.
9.13. FUNDING BY AGENT. Unless the Agent shall have been
notified in writing by any Lender not later than the close of business on the
day before the day on which Loans are requested by the Borrower to be made that
such Lender will not make its ratable share of such Loans, the Agent may assume
that such Lender will make its ratable share of the Loans, and in reliance upon
such assumption the Agent may (but in no circumstances shall be required to)
make available to the Borrower a corresponding amount. If and to the extent that
any Lender fails to make such payment to the Agent on such date, such Lender
shall pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the Borrower shall pay such amount on demand), together with interest,
for the Agent's own account, for each day from and including the date of the
Agent's payment to and including the date of repayment to the Agent (before and
after judgment) at the following rates per annum: (x) for each day from and
including the date of such payment by the Agent to and including the second
Business Day thereafter, at the Federal Funds Effective Rate for such day, and
(y) for each day thereafter, at the rate applicable to such Loans for such day.
All payments to the Agent under this Section shall be made to the Agent at its
Office in Dollars in funds immediately available at such Office, without
set-off, withholding, counterclaim or other deduction of any nature.
ARTICLE X
MISCELLANEOUS
10.01. HOLIDAYS. Except as otherwise expressly provided herein
or therein, whenever any payment or action to be made or taken hereunder or
under any other Loan Document shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on the next
following Business Day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
10.02. RECORDS. The unpaid principal amount of the Revolving
Credit Loans owing to each Lender, the unpaid interest accrued thereon, the
interest rate or rates applicable to such unpaid principal amount, the duration
of such applicability, each Lender's Revolving Credit Committed Amount and the
accrued and unpaid fees owing to each Lender Party shall at all times be
ascertained from the records of the Agent, which shall be conclusive absent
manifest error. The unpaid Letter of Credit Reimbursement Obligations, the
unpaid interest accrued thereon, and the interest rate or rates applicable
thereto shall at all times be ascertained from the records of the Issuing Bank,
which shall be conclusive absent manifest error. The unpaid principal amount of
the Swingline Loans, the unpaid interest accrued thereon and the interest rate
or rates applicable thereto shall at all times be ascertained from the records
of the Swingline Lender, which shall be conclusive absent manifest error.
10.03. AMENDMENTS AND WAIVERS. The Agent and the Borrower may
from time to time amend, modify or supplement the provisions of this Agreement
or any other Loan Document (other than the Shared Security Documents) for the
purpose of amending, adding to, or waiving any provisions,
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releasing any collateral, or changing in any manner the rights and duties of the
Borrower or any Lender Party. Any such amendment, modification or supplement
made by the Borrower and the Agent in accordance with the provisions of this
Section 10.03 shall be binding upon the Borrower and each Lender Party. The
Agent shall enter into such amendments, modifications or supplements from time
to time as directed by the Required Lenders, and only as so directed, provided,
that no such amendment, modification or supplement may be made which will:
(a) Increase the Revolving Credit Committed Amount of any
Lender over the amount thereof then in effect without the written
consent of each Lender affected thereby, or extend the Revolving Credit
Maturity Date without the written consent of each Lender;
(b) Reduce the principal amount of or extend the time for any
scheduled payment of principal of any Loan without the written consent
of each Lender affected thereby, or reduce the rate of interest or
extend the time for payment of interest borne by any Loan or Letter of
Credit Reimbursement Obligation (other than as a result of waiving the
applicability of any increase in interest rates applicable to overdue
amounts), or extend the time for payment of or reduce the amount of any
Revolving Credit Commitment Fee or Letter of Credit Fee, without the
written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 10.03, without the written consent of each Lender;
(d) Amend or waive any of the provisions of Article IX, or
impose additional duties upon the Agent, or otherwise affect the
rights, interests or obligations of the Agent, without the written
consent of the Agent;
(e) Release all or a major portion of the Shared Collateral
(other than in accordance with the provisions of the Loan Documents),
or subordinate the priority of the Liens in favor of the Collateral
Agent to Liens in favor of another Person with respect to all or a
major portion of the Shared Collateral (other than in accordance with
the provisions of the Loan Documents), without the written consent of
each Lender;
(f) Alter the priority of distributions set forth in Section
8.03 hereof, without the written consent of each Lender affected
thereby;
(g) Amend or waive any of the provisions of Article III, or
impose additional duties upon the Swingline Lender or any Issuing Bank
or otherwise affect the rights, interests or obligations of the
Swingline Lender or any Issuing Bank, without the written consent of
Mellon Bank, N.A.; or
(h) Reduce any Letter of Credit Unreimbursed Draw, or extend
the time for repayment by the Borrower of any Letter of Credit
Unreimbursed Draw, without the written consent of each Lender;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing, manually
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signed by or on behalf of the Borrower and the Lender Party which is party
thereto, and shall be effective only to the extent set forth in such writing.
Any Event of Default or Potential Default waived or consented to in any such
amendment, modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such waiver or consent,
but no such waiver or consent shall extend to any other or subsequent Event of
Default or Potential Default or impair any right consequent thereto. Shared
Security Documents may be amended, modified and supplemented from time to time
in accordance with the terms thereof and of the Collateral Agency Agreement, and
any such amendment, modification or supplement so made shall be binding upon the
Borrower and each Lender Party (and to the extent that any consent, direction or
other action is required by the Agent in connection therewith, the provisions of
the third sentence of this Section 10.03 shall apply to the Agent in giving such
consent or direction or taking such action).
10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of the Collateral Agent or any Lender Party in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the
Collateral Agent and the Lender Parties under this Agreement and any other Loan
Document are cumulative and not exclusive of any rights or remedies which any of
them would otherwise have hereunder or thereunder, at law, in equity or
otherwise.
10.05. NOTICES.
(a) GENERAL. Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") to the Borrower or any Lender
Party under this Agreement or any Loan Document shall be in writing (including
telexes and facsimile transmission) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or facsimile transmission
(with confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party at the address stated on the signature pages hereof or in accordance with
the last unrevoked written direction from such party to the other parties
hereto, in all cases with postage or other charges prepaid. Any such properly
given notice to any Lender Party shall be effective when received. Any such
properly given notice to the Borrower shall be effective on the earliest to
occur of receipt, telephone confirmation of receipt of telex or facsimile
transmission, one Business Day after delivery to a nationally-recognized
overnight courier, or three Business Days after deposit in the mail.
(b) COPIES TO AGENT. Any Lender giving any notice to the
Borrower or any other party to a Loan Document shall simultaneously send a copy
thereof to the Agent, and the Agent shall promptly notify the other Lenders of
the receipt by it of any such notice.
(c) RELIANCE. Each Lender Party may rely on any notice
(whether or not such notice is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the
Borrower, and no Lender Party shall have any duty to verify the identity or
authority of any Person giving such notice.
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10.06. EXPENSES; TAXES; INDEMNITY.
(a) EXPENSES. The Borrower agrees to pay or cause to be paid
and to save each Lender Party harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of outside counsel, including local counsel,
auditors, and all other professional, accounting, evaluation and consulting
costs) incurred by any Lender Party from time to time arising from or relating
to (i) in the case of the Agent, the negotiation, preparation, execution,
delivery, administration and performance of this Agreement and the other Loan
Documents, (ii) in the case of the Agent, any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, (iii) in the
case of each Lender Party, the enforcement or preservation of rights under this
Agreement or any Loan Document (including but not limited to any such costs or
expenses arising from or relating to (A) the creation, perfection or protection
of any Lien on any collateral, (B) the protection, collection, lease, sale,
taking possession of, preservation of, or realization on, any collateral,
including without limitation advances for taxes, filing fees and the like, (C)
collection or enforcement by any Lender Party of any outstanding Loan or any
other amount owing hereunder or thereunder, and (D) any litigation, proceeding,
dispute, work-out, restructuring or rescheduling related in any way to this
Agreement or the Loan Documents), and (iv) in the case of Mellon Bank, N.A., any
syndication of this Agreement prior to the first anniversary of the Closing Date
(but amounts payable under this clause (iv), plus amounts payable under Section
10.06(a)(iv) of the other Credit Facilities as constituted on the Closing Date,
shall in no event exceed an aggregate of $50,000).
(b) TAXES. The Borrower hereby agrees to pay all stamp,
document, transfer, recording, filing, registration, search, sales and excise
fees and taxes and all similar impositions now or hereafter determined by any
Lender Party to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save each Lender
Party harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) INDEMNITY. The Borrower hereby agrees to reimburse and
indemnify the Lender Parties, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing (the "Lender
Indemnified Parties"), and each of them, and to hold each of them harmless from
and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of outside counsel for such Lender Indemnified Party in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Lender Indemnified Party shall be designated a
party thereto) that may at any time be imposed on, asserted against or incurred
by such Lender Indemnified Party as a result of, or arising out of, or in any
way related to or by reason of this Agreement or any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed or secured in whole or in part, directly or indirectly, with the
proceeds of any Loan or by any Letter of Credit or the proceeds thereof (and
without in any way limiting the generality of the foregoing, including any grant
of any Lien on collateral or any exercise by the Collateral Agent or any Lender
Party of any of its rights or remedies under this Agreement or any other Loan
Document); but excluding any portion of such losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
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disbursements resulting from the gross negligence or willful misconduct of such
Lender Indemnified Party, as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing obligations of the
Borrower under this Section 10.06(c), or any other indemnification obligation of
the Borrower hereunder or under any other Loan Document, are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable Law.
10.07. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
10.08. PRIOR UNDERSTANDINGS. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto and thereto relating to the
transactions provided for herein and therein, including the engagement letter
between the Borrower and Mellon Bank, N.A. dated December 13, 1996.
10.09. DURATION; SURVIVAL. All representations and warranties
of the Borrower contained herein or in any other Loan Document or made in
connection herewith or therewith shall survive the making of, and shall not be
waived by the execution and delivery, of this Agreement or any other Loan
Document, any investigation by or knowledge of any Lender Party, the making of
any Loan, the issuance of any Letter of Credit or any other event or condition
whatever. All covenants and agreements of the Borrower contained herein or in
any other Loan Document shall continue in full force and effect from and after
the date hereof (or, in the case of Section 7.01 hereof, from and after December
31, 1996) until all Commitments have terminated, all Letters of Credit have
expired or have been terminated, and all Loan Obligations (other than Contingent
Indemnification Obligations) have been indefeasibly paid in full in cash.
Without limitation, all obligations of the Borrower hereunder or under any other
Loan Document to make payments to or indemnify any Lender Party or Lender
Indemnified Party (including but not limited to obligations arising under
Sections 2.10, 2.11 and 10.06 hereof) shall survive the payment in full of all
other Loan Obligations, termination of the Borrower's right to borrow hereunder,
and all other events and conditions whatever. In addition, all obligations of
each Lender to make payments to or indemnify the Agent, the Swingline Lender or
the Issuing Banks and Persons related to the Agent, the Swingline Lender or the
Issuing Banks (including but not limited to obligations arising under Sections
3.08(c), 3.13(c) and 9.07 hereof) shall survive the payment in full by the
Borrower of all Loan Obligations, termination of the Borrower's right to borrow
hereunder, and all other events and conditions whatever.
10.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
10.11. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall
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refund any payment made by the Borrower, to the extent that such requirement or
such failure to refund would violate or conflict with nonwaivable provisions of
applicable Laws limiting the maximum amount of interest which may be charged or
collected by such Lender.
10.12. SET-OFF. The Borrower hereby agrees that if any Loan
Obligation of the Borrower shall be due and payable (by acceleration or
otherwise), each Lender Party shall have the right, without notice to the
Borrower, to set-off against and to appropriate and apply to such Loan
Obligation any obligation of any nature owing to the Borrower by such Lender
Party, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a certificate of deposit) now or hereafter maintained by the
Borrower with such Lender Party. Such right shall be absolute and unconditional
in all circumstances and, without limitation, shall exist whether or not such
Lender Party or any other Person shall have given notice or made any demand to
the Borrower or any other Person, whether such obligation owed to the Borrower
is contingent, absolute, matured or unmatured (it being agreed that such Lender
Party may deem such obligation to be then due and payable at the time of such
setoff), and regardless of the existence or adequacy of any collateral, guaranty
or any other security, right or remedy available to any Lender Party or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by law, any Participant and any branch, subsidiary or affiliate of any Lender
Party or any Participant shall have the same rights of set-off as a Lender as
provided in this Section 10.12 (regardless of whether such Participant, branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of the Borrower). The rights provided by this Section 10.12 are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender Party (or any such Participant, branch, subsidiary
or affiliate) may otherwise have under this Agreement, any other Loan Document,
at law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the rights
of set-off or bankers' lien of any such Person.
10.13. SHARING OF COLLECTIONS. Subject to Section 2.06 of the
Collateral Agency Agreement, the Lenders hereby agree among themselves that if
any Lender shall receive (by voluntary payment, realization upon security,
set-off or from any other source) any amount on account of the Loans, interest
thereon, or any other Loan Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrower ratably to all Lenders in
greater proportion than any such amount received by any other Lender, then the
Lender receiving such proportionately greater payment shall notify each other
Lender and the Agent of such receipt, and equitable adjustment will be made in
the manner stated in this Section so that, in effect, all such excess amounts
will be shared ratably among all of the Lenders. The Lender receiving such
excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Loan Obligations owed to such other
Lenders in such amount as shall result in a ratable sharing by all Lenders of
such excess amount (and to such extent the receiving Lender shall be a
Participant). If all or any portion of such excess amount is thereafter
recovered from the Lender making such purchase, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law to be paid by the Lender
making such purchase. The Borrower hereby consents to and confirms the foregoing
arrangements. Each Participant shall be bound by this Section as fully as if it
were a Lender hereunder.
10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
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(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lender Parties, all future
holders of the Notes, and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights hereunder without the
prior written consent of all the Lenders and the Agent, and any purported
assignment without such consent shall be void, and except that, to the fullest
extent permitted by law, a Lender may not voluntarily assign or transfer any of
its rights hereunder except in accordance with the other provisions of this
Section 10.14, and any other purported voluntary assignment or transfer shall be
void; provided, that this Agreement shall inure to the benefit of successors of
Lenders by operation of law or resulting from an involuntary assignment or
transfer (including but not limited to receivers, conservators, trustees and
like Persons, and successors by merger or consolidation).
(b) PARTICIPATIONS. Any Lender may, in the ordinary course of
its business and in accordance with applicable Law, at any time sell
participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it and any Note held by it);
provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
and
(iv) such Participant shall, by accepting such Participation,
be bound by the provisions of Section 10.13 hereof, and
(v) if such Participant is not already a Participant or a
Lender, and if such Participation gives such Participant any voting
rights (other than on matters described in clauses (a) through (h),
inclusive, of Section 10.03 hereof), such Participation shall be
subject to consent of the Agent, Mellon Bank, N.A. and the Borrower
pursuant to clause (i) of Section 10.14(c) hereof as if such
Participation were an assignment described therein.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.11, 10.06 and 10.12 hereof with respect to its participation
in the Commitments and the Loans outstanding from time to time; provided, that
no such Participant shall be entitled to receive any greater amount pursuant to
such Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred.
(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable Law, at any time assign all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all or any portion of its
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Commitments and Loans owing to it and any Note held by it) to any Lender or to
one or more additional commercial banks or other Persons (each a "Purchasing
Lender"); provided, that
(i) any such assignment to a Purchasing Lender shall be made
only with the consent of the Agent and Mellon Bank, N.A. (which each of
them may grant or withhold in their absolute discretion) and of the
Borrower (which consent may not be unreasonably withheld or delayed);
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $10,000,000 of the
Commitments, and after giving effect to such assignment the transferee
Lender shall have a minimum aggregate principal amount of $10,000,000
of the Commitments,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of the Revolving Credit Commitment and Revolving
Credit Loans of the transferor Lender, and of all of the transferor
Lender's related rights and obligations under this Agreement and the
other Loan Documents,
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit B to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $3,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the close of business at the Agent's Office on the Transfer Effective Date
specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in a Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Revolving Credit Notes evidencing such
Purchasing Lender's assigned Commitments or Loans and (for delivery to
the transferor Lender) replacement Revolving Credit Notes in the principal
amount of the Loans or Commitments retained by the transferor Lender (such Notes
to be in exchange for, but not in payment
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of, those Notes then held by such transferor Lender). Each such Note shall be
dated the date and be substantially in the form of the predecessor Note. The
Agent shall mark the predecessor Notes "exchanged" and deliver them to the
Borrower. Accrued interest and accrued fees shall be paid to the Purchasing
Lender at the same time or times provided in the predecessor Notes and this
Agreement.
(d) REGISTER. The Agent shall maintain at its office a copy of
each Transfer Supplement delivered to it and a register (the "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
entries in the Register shall be conclusive absent manifest error and the
Borrower and each Lender Party may treat each person whose name is recorded in
the Register as a Lender hereunder for all purposes of the Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) FINANCIAL AND OTHER INFORMATION. Subject to Section
10.14(g) hereof, the Borrower authorizes the Agent and each Lender to disclose
to any Participant or Purchasing Lender, or prospective Participant or
Purchasing Lender, any and all financial and other information delivered to,
received by, or otherwise in the possession of, such Person from time to time
relating to the Borrower, its Subsidiaries and affiliates, or the matters
contemplated by the Loan Documents. At the request of any Lender, the Borrower,
at the Borrower's expense, shall provide to each prospective transferee the
conformed copies of documents referred to in Section 4 of the form of Transfer
Supplement.
(f) SYNDICATION. The Borrower shall, at the reasonable request
of Mellon Bank, N.A. from time to time, at the Borrower's expense, use all
reasonable efforts to cooperate with its syndication effort, including, without
limitation, (i) assisting it from time to time in preparing information packages
for delivery to prospective Participants and Purchasing Lenders, and (ii)
causing appropriate officers, representative and experts to meet with
prospective Participants and Purchasing Lenders from time to time. Mellon Bank,
N.A. agrees to make such information packages available to the Borrower for
reasonable review before initial dissemination of the same in primary
syndication, and to consult with the Borrower as to the content thereof.
(g) CONFIDENTIALITY. Each Lender Party agrees to take
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower or any Subsidiary
in connection with this Agreement; provided, however, that any Lender Party may
disclose such information (i) at the request of any bank regulatory authority or
other Governmental Authority or in connection with an examination of such Lender
Party by any such Governmental Authority, (ii) pursuant to subpoena or other
court process, (iii) to the extent such Lender Party is required (or believes in
good faith that it is required) to do so in accordance with any applicable Law,
(iv) to such Lender Party's independent auditors and other professional
advisors, (v) in connection with the enforcement of any of its rights under or
in connection with any Loan Document, (vi) to any other Lender Party, and (vii)
to any actual or potential Participant or Purchasing Lender, or to any other
actual or potential creditor of or participant in a credit to the Borrower or
any of its Subsidiaries or Affiliates, so long as, in the case of this clause
(vii), such Person agrees to comply with the provisions of this Section
10.14(g).
(h) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any
time assign all or any portion of its rights under this Agreement, including
without limitation any Loans owing to it and
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any Note held by it, to a Federal Reserve Bank. No such assignment shall relieve
the transferor Lender from any of its obligations hereunder.
10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER PARTY TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE
SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS
OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER AGAINST ANY LENDER PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY). THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT
TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS
OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
PRIMARK CORPORATION
By /s/ STEPHEN H. CURRAN
------------------------------------------
Stephen H. Curran
Senior Vice President and Chief Financial
Officer
Address for Notices:
Primark Corporation
1000 Winter Street, Suite 4300N
Waltham, MA 02154
Attn: Stephen H. Curran,
Senior Vice President and Chief Financial
Officer
Telephone: 617-487-2140
Facsimile: 617-890-6129
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MELLON BANK, N.A.,
individually and as Agent
By /s/ R. JANE WESTRICH
-------------------------------------------
R. Jane Westrich
Vice President
Initial Revolving Credit
Committed Amount: $75,000,000
Commitment Percentage: 100%
Address for Notices:
Mellon Bank, N.A.
Loan Administration
Three Mellon Bank Center
Room 153-2332
Pittsburgh, PA 15259-0003
Attn: Terpsie Katsafanas
Telephone: 412-234-4769
Facsimile: 412-236-2028
With a copy to:
Mellon Bank, N.A.
One Boston Place, 6th Floor
Boston, MA 02108
Attn: R. Jane Westrich, Vice President
Telephone: 617-722-7969
Facsimile: 617-722-3516
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ANNEX A
TO
REVOLVING CREDIT AGREEMENT
DEFINITIONS; CONSTRUCTION
1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used in this Agreement the
following words and terms defined have the meanings given them below, unless the
context of this Agreement otherwise clearly requires.
"Adjusted Acquisition Consideration" in connection with an
acquisition of a type referred to in clause (y) or (z) of Section 7.08
hereof by the Borrower or a Subsidiary of the Borrower means the
amount, not less than zero, equal to, without duplication, the sum of:
(a) the gross consideration paid or payable by the
Borrower and its Subsidiaries in connection with such
acquisition (including, without limitation, the purchase price
therefor and transaction expenses), with non-cash
consideration valued at its Fair Market Value on the closing
date of the acquisition; provided, that for purposes of this
clause (a) (i) the value of consideration in the form of
Shares of Capital Stock of the Borrower or options or warrants
therefor shall be deemed zero, and (ii) the value of
consideration in the form of Indebtedness or other deferred
payment obligations of the Borrower or its Subsidiaries
(exclusive of Indebtedness or other deferred payment
obligations payable and paid exclusively in Shares of Capital
Stock of the Borrower or options or warrants therefor) shall
be deemed the maximum aggregate amount of all payments which
in any circumstances may be required thereunder, as determined
at the time such Indebtedness or other deferred payment
obligation is incurred (except that, for purposes of this
clause (ii), interest on Indebtedness accruing after such
determination date at a market rate shall be excluded from
such maximum aggregate amount), plus
(b) the aggregate Indebtedness and Guarantee
Equivalents assumed or incurred, directly or indirectly, by
the Borrower or any Subsidiary of the Borrower in connection
with such acquisition (including, in the case of an
acquisition of any or all of the Shares of Capital Stock or
other equity interests of a Person, the aggregate Indebtedness
and Guarantee Equivalents of such Person), exclusive of
Indebtedness and Guarantee Equivalents of the Person being
acquired constituting current accounts payable of such Person
on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of
business and not incurred in contemplation of such
acquisition, minus
(c) the aggregate cash and Cash Equivalent
Investments (valued at the lower of cost or market) acquired
by the Borrower and its Subsidiaries in such acquisition
(including, in the case of an acquisition of all, but not less
than all, of the Shares of Capital Stock or other
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equity interests of a Person, the aggregate cash and Cash
Equivalent Investments of such Person, it being understood
that in the event that the Borrower and its Subsidiaries
acquire less than all of the Shares of Capital Stock or other
equity interests of a Person, no part of the cash or Cash
Equivalent Investments of such Person shall be deemed within
the scope of this clause (c)); provided, that in the event
that the Borrower and its Subsidiaries acquire all of the
Shares of Capital Stock or other equity interests of a Person,
the cash and Cash Equivalent Investments of such Person shall
be deemed within the scope of this clause (c) only in the
event that the relevant acquisition agreement requires the
amount of cash and Cash Equivalent Investments of such Person
to be determined at the closing date of the acquisition and
provides for an adjustment to the purchase price based on such
amount.
"Advance" shall mean any loan, advance or other extension of
credit, direct or indirect.
"Affected Lender" shall have the meaning set forth in Section
2.03(e) hereof.
"Affiliate" of a Person shall mean any Person which directly
or indirectly controls, or is controlled by, or is under common control
with, such Person. For purposes of the preceding sentence, "control" of
a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise, and in any case shall include, without
limitation, (a) being a director or officer (or a Person having powers
analogous to those of a corporate director or officer) of such Person,
or of a Person that directly or indirectly controls such Person, (b)
having direct or indirect ownership (beneficially or of record) of, or
direct or indirect power to vote, 30% or more of the outstanding Shares
of Capital Stock of any class of such Person having ordinary voting
power for the election of directors (or in the case of a Person that is
not a Corporation, 30% or more of any class of equity interest having
voting or control power analogous to corporate common stock), and (b)
being a general partner of such Person, or of a Person having direct or
indirect control over a general partner of such Person.
"Applicable Margin" shall have the meaning set forth in
Section 2.03(b) hereof.
"Assured Obligation" shall have the meaning given that term in
the definition of "Guaranty Equivalent."
"Base Rate" for any day shall mean the greater of (a) the
Prime Rate for such day or (b) 0.50% plus the Federal Funds Effective
Rate for such day, such interest rate to change automatically from time
to time effective as of the effective date of each change in the Prime
Rate or the Federal Funds Effective Rate.
"Base Rate Option" shall have the meaning set forth in Section
2.03(a) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.09(c)(ii) hereof. If no Loan or Loans is
specified, "Base Rate Portion" shall refer to the Base Rate Portion of
all Loans outstanding at such time.
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"Borrower Pledge Agreement" shall mean the Pledge Agreement of
approximately even date herewith between the Borrower and the
Collateral Agent, as amended, modified or supplemented from time to
time.
"Broker-Dealer" shall mean a Person who is, or is registered
as, a broker, dealer, municipal securities dealer, government
securities broker or government securities dealer under the Securities
Exchange Act of 1934, as amended, or under any state securities law, or
who has a comparable status under any securities law of any other
Governmental Authority.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania or other day on which banking institutions are authorized
or obligated to close in the city in which is located the Agent's
Office.
"Capital Expenditures" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person during such period which
would be classified as capital expenditures in accordance with GAAP
(including, without limitation, expenditures for maintenance and
repairs which are capitalized, and Capitalized Leases to the extent an
asset is recorded in connection therewith in accordance with GAAP).
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of
the lessee at such time, and "Capitalized Lease Obligation" of any
Person at any time shall mean the aggregate amount which is, or is
required under GAAP to be, reported as a liability on the balance sheet
of such Person at such time as lessee under a Capitalized Lease.
"Capitalized Software" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person which would be
classified as capitalized software in accordance with GAAP.
"Cash Equivalent Investments" shall have the meaning given
that term in the Collateral Agency Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute
of similar import, and regulations thereunder, in each case as in
effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be
amended from time to time.
"Closing Date" shall mean the date of the first Loan
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
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"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement of approximately even date herewith between the Borrower,
certain "Revolving Credit Parties," by Mellon Bank, N.A., as Revolving
Credit Agent, certain "Term Loan Parties," by Mellon Bank, N.A., as
Term Loan Agent, certain "Note Backup Parties," by Mellon Bank, N.A.,
as Note Backup Agent, and Mellon Bank, N.A., as Collateral Agent, as
amended, modified or supplemented from time to time.
"Collateral Agent" shall have the meaning given that term in
the Collateral Agency Agreement.
"Commitment" of a Lender shall mean the Revolving Credit
Commitment of such Lender.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the
signature page hereof, subject to transfer to another Lender as
provided in Section 10.14 hereof.
"Consolidated Cash Interest Expense" for any period shall mean
the total cash interest expense payable by the Borrower and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" for any period shall mean the sum of (a)
Consolidated Net Income for such period, (b) Consolidated Interest
Expense for such period, (c) Consolidated Income Tax Expense for such
period, (d) depreciation expense of the Borrower and its Subsidiaries
for such period, and (e) amortization expense of the Borrower and its
Subsidiaries for such period, minus the sum of (x) extraordinary gains
(but not any losses) to the extent included in determining such
Consolidated Net Income, and (y) equity earnings (but not any losses)
of Affiliates of the Borrower to the extent included in determining
Consolidated Net Income for such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA Less Capital Expenditures" for any period
shall mean Consolidated EBITDA for such period, minus the sum of
Capital Expenditures of the Borrower and its Subsidiaries for such
period and, without duplication of amounts included in Capital
Expenditures, Capitalized Software of the Borrower and its Subsidiaries
for such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" for any period
shall mean the ratio of the Consolidated EBITDA Less Capital
Expenditures for such period to the Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges" for any period shall mean the sum
of (a) Consolidated Cash Interest Expense for such period, (b)
principal payments made by the Borrower and its Subsidiaries during
such period with respect to any outstanding Indebtedness (excluding (i)
payments of Indebtedness under the Revolving Credit Agreement, (ii)
prepayments made at the option of the Borrower of Indebtedness under
the Term Loan Agreement, to the extent the amounts so prepaid are not
otherwise due during such period, and (iii) payments of the Senior
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Notes at the scheduled maturity thereof), (c) the amount of Stock
Payments made by the Borrower and its Subsidiaries during such period
(excluding (i) Stock Payments made to the Borrower or its Subsidiaries,
and (ii) Stock Payments made solely in Shares of Capital Stock (or
warrants, options or rights therefor) of the Borrower) all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt Ratio (Adjusted)" for any period
shall mean the following ratio: (a) the amount, not less than zero,
determined as of the last day of such period, equal to (i) Consolidated
Funded Indebtedness, minus (ii) the amount, not less than zero, equal
to (A) the amount of cash and Cash Equivalent Investments owned by the
Borrower and its Subsidiaries, valued at the lower of cost or market,
minus (B) $10,000,000, divided by (b) Consolidated EBITDA Less Capital
Expenditures for such period.
"Consolidated Funded Indebtedness" at any time shall mean
Indebtedness (including the current portion thereof) of the Borrower
and its Subsidiaries which as of such date would be classified in whole
or in part as a long-term liability in accordance with GAAP, and in any
event includes (a) Indebtedness under the Credit Facilities and the
Senior Notes, (b) any Indebtedness of the Borrower and its Subsidiaries
having a final maturity later than one year after the date of
incurrence of such Indebtedness, (c) any Indebtedness, regardless of
its term, of the Borrower and its Subsidiaries which is renewable or
extendable by the obligor to a date later than one year after the date
of incurrence of such Indebtedness, and (d) Indebtedness of TIMCO
described in Section 7.03(j) hereof.
"Consolidated Income Tax Expense" for any period shall mean
the charges against income of the Borrower and its Subsidiaries for
foreign, federal, state and local income taxes for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" for any period shall mean the
total interest expense of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" for any period shall mean the net
earnings (or loss) after taxes of the Borrower and its Subsidiaries for
such period, determined on a consolidated basis in accordance with
GAAP; provided, that there shall be deducted therefrom (a) the income
(but not any deficit) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with or is
otherwise acquired by or combined with the Borrower or any Subsidiary
in a business combination accounted for as a pooling of interests,
including, in the case of a successor to the Borrower or any Subsidiary
by consolidation or merger or transfer of assets, any earnings of the
successor Corporation prior to such consolidation, merger or transfer
of assets, (b) income (but not any loss) accounted for by the Borrower
on the equity method resulting from an ownership interest in any
Person, but the deduction for such equity income shall be reversed to
the extent that during such period an amount not in excess of such
income has been actually received by the Borrower or such Subsidiary in
the form of cash dividends or similar cash distributions, (c) the
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is restricted (whether such restriction arises by operation
of Law, by agreement, by its certificate or articles of incorporation
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or by-laws (or other constituent documents), or otherwise), (d) any
gain arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of the Borrower or any
Subsidiary, and (e) income (but not any loss) from discontinued
operations of the Borrower or any Subsidiary.
"Consolidated Net Worth" at any time shall mean the total
amount of common stockholders' equity and preferred stock of the
Borrower and its consolidated Subsidiaries at such time, determined on
a consolidated basis in accordance with GAAP; provided, that each item
of the following types shall be deducted, to the extent such item is
positive and is otherwise included therein: (a) any write-ups or other
revaluation after the Closing Date in the book value of any asset owned
by the Borrower or any of its consolidated Subsidiaries (other than
write-ups resulting from the acquisition of assets of a business made
within one year after such acquisition and accounted for by purchase
accounting, and write-ups resulting from the valuation in the ordinary
course of business of investment securities and inventory at the lower
of cost or market), (b) all investments in and loans and Advances to
(i) unconsolidated Subsidiaries of the Borrower, and (ii) Persons that
are not Subsidiaries of the Borrower (other than Cash Equivalent
Investments), (c) treasury stock, (d) assets attributable to interests
held by Persons other than the Borrower and its Subsidiaries that are
Wholly Owned Subsidiaries of the Borrower, (e) Disqualified Capital
Stock of the Borrower or of any Subsidiary of the Borrower, and (f) the
amount, whether positive or negative, of foreign currency translation
adjustments to stockholders' equity of the Borrower and its
Subsidiaries, all of the foregoing as determined in accordance with
GAAP.
"Consolidated Net Worth (Adjusted)" at any time shall mean
Consolidated Net Worth at such time plus the lesser of (a) $50,000,000,
or (b) the sum of (i) aggregate writeoffs of goodwill on or after
January 1, 1997 resulting from an impairment loss pursuant to Statement
of Financial Accounting Standards No. 121, made by the Borrower in
accordance with GAAP, and (ii) aggregate writeoffs of the cost of
computer software purchased in an acquisition of the Person which
developed such software (or by acquisition of assets comprising a line
of business of such Person which includes such software) on or after
January 1, 1997, made pursuant to Statement of Financial Accounting
Standards No. 86, provided that such writeoffs are made at the time of
the related acquisition and are made by the Borrower in accordance with
GAAP.
"Contingent Indemnification Obligations" shall have the
meaning given that term in the Collateral Agency Agreement.
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with the Borrower or any
Subsidiary of the Borrower is treated as a controlled group or single
employer under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections
414(b), (c), (m) or (o) of the Code.
"Corporation" shall mean a corporation, limited liability
company or business trust organized under the Laws of any state of the
United States, a company limited by shares incorporated under the Laws
of England and Wales, or any similar entity organized under the
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Laws of any other jurisdiction, the owners of which are not by
operation of Law generally liable for the obligations of such entity.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through
a Notional Euro-Rate Funding Office of one or more Dollar deposits in
the interbank eurodollar market at the beginning of the Euro-Rate
Funding Period corresponding to such Funding Segment having maturities
approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Credit Facilities" shall mean the Revolving Credit Agreement,
the Term Loan Agreement and the Note Backup Agreement.
"Datastream" shall mean Datastream International Limited, a
corporation incorporated under the Laws of England and Wales.
"Disqualified Capital Stock" shall mean any Shares of Capital
Stock that, other than solely at the option of the issuer thereof, by
their terms (or by the terms of any security into which they are
convertible or exchangeable) are, or upon the happening of an event or
the passage of time would be, required to be redeemed or repurchased,
in whole or in part, or have, or upon the happening of an event or the
passage of time would have, a redemption or similar payment due on or
prior to the Facilities Termination Date.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Environmental Affiliate": a Person ("Y") shall be an
"Environmental Affiliate" of another Person ("X"), if X has retained or
assumed, or is otherwise liable (contingently or otherwise) for, any
liability (contingent or other) of Y with respect to any Environmental
Claim, whether such retention, assumption or liability on the part of X
arises by agreement, by Law or otherwise.
"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person
(the "specified Person"), any action, suit, proceeding, investigation,
notice, claim, complaint, demand, request for information or other
communication (written or oral) by any other Person (including but not
limited to any Governmental Authority, citizens' group or present or
former employee of the specified Person) alleging, asserting or
claiming any actual or potential liability on the part of the specified
Person for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries,
fines or penalties, arising out of, based on or resulting from (a) the
presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person, or (b)
circumstances forming the basis of any violation or alleged violation
of any Environmental Law.
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"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on
CERCLIS or on any similar state list of sites requiring investigation
or cleanup, or which is the subject of any pending or threatened
action, suit, proceeding or investigation related to or arising from
any alleged violation of any Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, solid waste, pollutant, contaminant
or any related material, raw material, substance, product or by-product
of any substance, as the foregoing terms are defined in, or any other
substance regulated by, any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any
similar state Law), (b) any toxic chemical from or related to
industrial, commercial or institutional activities, and (c) asbestos,
gasoline, diesel fuel, motor oil, waste and used oil, heating oil and
other petroleum products or compounds, polychlorinated biphenyls, radon
and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture,
formulation, packaging, labeling, distribution, transportation,
handling, storage or disposal. Without limitation, "Environmental Law"
shall also include any Environmental Approval and the terms and
conditions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Euro-Rate" for any day, as used herein, shall mean for each
Funding Segment of the Euro-Rate Portion corresponding to a proposed or
existing Euro-Rate Funding Period the rate per annum determined by the
Agent by dividing (the resulting quotient to be rounded upward to the
nearest 1/100 of 1%) (a) the rate of interest (which shall be the same
for each day in such Euro-Rate Funding Period) determined in good faith
by the Agent in accordance with its usual procedures (which
determination shall be conclusive) to be the average of the rates per
annum for deposits in Dollars offered to major money center banks in
the London interbank market at approximately 11:00 a.m., London time,
two London Business Days prior to the first day of such Euro-Rate
Funding Period for delivery on the first day of such Euro-Rate Funding
Period in amounts comparable to such Funding Segment and having
maturities comparable to such Funding Period by (b) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 2.03(c) hereof.
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"Euro-Rate Option" shall have the meaning set forth in Section
2.03(a) hereof.
"Euro-Rate Portion" of any part of any Loan or Loans shall
mean at any time the portion, including the whole, of such part of such
Loan or Loans bearing interest at any time under the Euro-Rate Option
or at a rate calculated by reference to the Euro-Rate under Section
2.09(c)(i) hereof. If no Loan or Loans is specified, "Euro-Rate
Portion" shall refer to the Euro-Rate Portion of all Loans outstanding
at such time.
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100
of 1%), as determined in good faith by the Agent (which determination
shall be conclusive), which is in effect on such day as prescribed by
the Board of Governors of the Federal Reserve System (or any successor)
representing the maximum reserve requirement (including, without
limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System. The
Euro-Rate shall be adjusted automatically as of the effective date of
each change in the Euro-Rate Reserve Percentage. The Euro-Rate Option
shall be calculated in accordance with the foregoing whether or not any
Lender is actually required to hold reserves in connection with its
eurocurrency funding or, if required to hold such reserves, is required
to hold reserves at the "Euro-Rate Reserve Percentage" as herein
defined.
"Event of Default" shall mean any of the Events of Default
described in Section 8.01 hereof.
"Facilities Termination Date" shall mean the later to occur of
the Revolving Credit Maturity Date, the Term Loan Maturity Date and the
Note Backup Final Expiration Date.
"Fair Market Value" shall mean, with respect to any asset, the
sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and
an informed and willing buyer.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the
Agent (which determination shall be conclusive) to be the rate per
annum announced by the Federal Reserve Bank of New York (or any
successor) as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not so announce such rate for such previous trading
day, the "Federal Funds Effective Rate" shall be the average rate
charged to Mellon Bank, N.A. on such previous trading day on such
transactions as determined by the Agent.
"Funding Periods" shall have the meaning set forth in Section
2.03(c) hereof.
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"Funding Segment" of the Euro-Rate Portion at any time shall
mean the entire principal amount of such Portion to which at the time
in question there is applicable a particular Funding Period beginning
on a particular day and ending on a particular day. (By definition,
each such Portion is at all times composed of an integral number of
discrete Funding Segments and the sum of the principal amounts of all
Funding Segments of any such Portion at any time equals the principal
amount of such Portion at such time.)
"GAAP" shall have the meaning given that term in Section 1.03
of this Annex A.
"Governmental Action" shall have the meaning set forth in
Section 4.04 hereof.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to subject to a Guaranty Equivalent in respect of any
obligation (the "Assured Obligation") of another Person (the "Deemed
Obligor") if the Deemed Guarantor directly or indirectly guarantees,
becomes surety for, endorses, assumes, agrees to indemnify the Deemed
Obligor against, or otherwise agrees, becomes or remains liable
(contingently or otherwise) for, such Assured Obligation, in whole or
in part. Without limitation, a Guaranty Equivalent shall be deemed to
exist if a Deemed Guarantor agrees, becomes or remains liable
(contingently or otherwise), directly or indirectly, to do any of the
following: (a) to purchase or assume, or to supply funds for the
payment, purchase or satisfaction of, an Assured Obligation, (b) to
make any loan, advance, capital contribution or other investment in, or
to purchase or lease any property or services from, a Deemed Obligor
(i) to maintain the solvency of the Deemed Obligor, (ii) to enable the
Deemed Obligor to meet any other financial condition, (iii) to enable
the Deemed Obligor to satisfy any Assured Obligation or to make any
Stock Payment or any other payment, or (iv) to assure the holder of
such Assured Obligation against loss, (c) to purchase or lease property
or services from the Deemed Obligor regardless of the non-delivery of
or failure to furnish of such property or services, (d) in a
transaction having the characteristics of a take-or-pay or throughput
contract or as described in paragraph 6 of FASB Statement of Financial
Accounting Standards No. 47, or (e) in respect of any other transaction
the effect of which is to assure the payment or performance (or payment
of damages or other remedy in the event of nonpayment or
nonperformance) in whole or in part of any Assured Obligation.
"ICV" shall mean ICV Limited, a Corporation incorporated under
the Laws of England and Wales.
"ICV Notes" shall have the meaning given that term in Section
7.03(c) hereof.
"Indebtedness" of a Person shall mean the following: (a) all
obligations on account of money borrowed by, or credit extended to or
on behalf of, or for or on account of deposits with or advances to,
such Person; (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such
Person for the deferred purchase price of property or services; (d) all
obligations secured by a Lien on property owned by such Person
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(whether or not assumed), and all obligations of such Person under
Capitalized Leases (without regard to any limitation of the rights and
remedies of the holder of such Lien or the lessor under such
Capitalized Lease to repossession or sale of such property); (e) the
stated amount of all letters of credit issued for the account of such
Person and, without duplication, the unreimbursed amount of all drafts
drawn thereunder, and all other obligations of such Person associated
with such letters of credit or draws thereon; (f) all obligations of
such Person in respect of acceptances or similar obligations issued for
the account of such Person; (g) all obligations of such Person under a
product financing or similar arrangement described in paragraph 8 of
FASB Statement of Accounting Standards No. 49 or any similar
requirement of GAAP; (h) all obligations of such Person under any
interest rate or currency swap, cap, floor, collar, future, forward or
option agreement, or other interest rate or currency protection
agreement; and (i) the maximum fixed repurchase price of any
Disqualified Capital Stock of such Person.
"Initial Revolving Credit Committed Amount" shall have the
meaning set forth in Section 2.01(a) hereof.
"Interest Rate Hedging Agreement" shall mean an interest rate
swap, cap or collar agreement.
"Issuing Banks" shall mean (x) Mellon Bank, N.A., and (y) such
of its affiliates as Mellon Bank, N.A. may in its discretion (subject
to the approval of the Borrower, such approval not to be unreasonably
withheld) from time to time elect to cause to issue Letters of Credit.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 10.14 hereof
pertaining to Persons becoming or ceasing to be Lenders. "Lender" shall
in any event include the Issuing Banks and the Swingline Lender.
"Lender Indemnified Parties" shall have the meaning given that
term in Section 10.06(c) hereof.
"Lender Parties" shall mean the Lenders and the Agent.
"Letter of Credit" shall mean any letter of credit outstanding
under this Agreement from time to time (and is synonymous with the term
"Revolving Credit LOC" as defined in the Collateral Agency Agreement).
"Letter of Credit Collateral Account" shall mean the
"Revolving Credit LOC Collateral Account" as defined in the Collateral
Agency Agreement.
"Letter of Credit Exposure" shall mean the "Revolving Credit
LOC Exposure" as defined in the Collateral Agency Agreement).
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"Letter of Credit Facing Fee" shall have the meaning given
that term in Section 3.01(e) hereof.
"Letter of Credit Fee" shall have the meaning given that term
in Section 3.01(d) hereof.
"Letter of Credit Participating Interest" shall have the
meaning given that term in Section 3.03(a) hereof.
"Letter of Credit Reimbursement Obligation" with respect to a
Letter of Credit means the obligation of the Borrower to reimburse the
Issuing Bank for Letter of Credit Unreimbursed Draws, together with
interest thereon.
"Letter of Credit Undrawn Availability" shall mean the
"Revolving Credit LOC Undrawn Availability" as defined in the
Collateral Agency Agreement.
"Letter of Credit Unreimbursed Draws" shall mean "Revolving
Credit LOC Unreimbursed Draws" as defined in the Collateral Agency
Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Loan" shall mean any loan by a Lender to the Borrower under
this Agreement, and "Loans" shall mean all Loans made by the Lenders
under this Agreement, including Revolving Credit Loans and Swingline
Loans.
"Loan Documents" shall mean this Agreement, the Notes, the
Transfer Supplements, the Letters of Credit, the Shared Security
Documents and the Origination Fee Letter.
"Loan Obligations" shall mean the "Revolving Credit
Obligations" as defined in the Collateral Agency Agreement.
"London Business Day" shall mean a day for dealing in deposits
in Dollars by and among banks in the London interbank market and which
is a Business Day.
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) a material adverse effect on the ability of the Borrower to perform
or comply with any of the terms and conditions of any Loan Document, or
(c) an adverse effect on the legality, validity, binding effect,
enforceability or admissibility into evidence of any Loan Document, or
the ability of the Collateral Agent or any Lender Party to enforce any
rights or remedies under or in connection with any Loan Document.
"Multiemployer Plan" shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA and to which the Borrower, any
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Subsidiary of the Borrower or any other Controlled Group Member has or
had an obligation to contribute.
"Net Sale Proceeds" shall have the meaning given that term in
Section 2.07(b) hereof.
"Note" or "Notes" shall mean the Revolving Credit Note(s) and
the Swingline Note of the Borrower executed and delivered under this
Agreement.
"Note Backup Agreement" shall mean the Note Backup Agreement
of even date herewith by and among the Borrower, the lenders parties
thereto from time to time, the issuing bank referred to therein, and
Mellon Bank, N.A., as Agent, as the same may be amended, modified or
supplemented from time to time in accordance with this Agreement.
"Note Backup Final Expiration Date" shall mean the final
scheduled maturity of Indebtedness under the Note Backup Agreement
(being the later of (i) the latest expiration date permitted under the
Note Backup Credit Agreement for letters of credit issued thereunder,
or (ii) the final scheduled maturity of the Borrower's reimbursement
obligation under the Note Backup Agreement).
"Notional Euro-Rate Funding Office" shall have the meaning
given to that term in Section 2.12(a) hereof.
"Obligations" shall have the meaning given that term in the
Collateral Agency Agreement.
"Office," when used in connection with the Agent, shall mean
its office located at One Mellon Bank Center, Pittsburgh, Pennsylvania
15258, or at such other office or offices of the Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from
time to time by the Agent to the Borrower.
"Option" shall mean the Base Rate Option or the Euro-Rate
Option.
"Origination Fee Letter" shall have the meaning given that
term in Section 5.01(q) hereof.
"Participants" shall have the meaning set forth in Section
10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency,
department or instrumentality succeeding to the functions of said
corporation.
"Pension-Related Event" shall mean any of the following events
or conditions:
(a) Any action is taken by any Person (i) to
terminate, or which would result in the termination of, a Plan
pursuant to the distress termination provisions of
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Section 4041(c) of ERISA or (ii) to have a trustee appointed for a Plan
pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination
that an event described in Section 4042 of ERISA has occurred
with respect to a Plan, that a Plan should be terminated, or
that a trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a
Plan;
(d) Any action (other than becoming obligated to
contribute to a Multiemployer Plan) occurs or is taken which
could result in the Borrower, any Subsidiary of the Borrower
or any Controlled Group Member becoming subject to liability
for a complete or partial withdrawal by any Person from a
Multiemployer Plan (including, without limitation, seller
liability incurred under Section 4204(a)(2) of ERISA), or the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member receives from any Multiemployer Plan a notice or
demand for payment on account of any such alleged or asserted
liability;
(e) (i) There occurs any failure to meet the minimum
funding standard under Section 302 of ERISA or Section 412 of
the Code with respect to a Plan, or any tax return is filed
showing any tax payable under Section 4971(a) of the Code with
respect to any such failure, or the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member receives a
notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, (ii) any
request is made by any Person for a variance from the minimum
funding standard, or an extension of the period for amortizing
unfunded liabilities, with respect to a Plan, or (iii) the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member fails to pay the PBGC premium with respect to a
Plan when due and it remains unpaid for more than 30 days
thereafter; or
(f) There occurs any "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the
Code involving a Plan.
"Permitted Liens" shall have the meaning given that term in
Section 7.02 hereof.
"Permitted Mergers" shall have the meaning given that term in
Section 7.08 hereof.
"Person" shall mean an individual, Corporation, partnership,
trust, limited liability company, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other
entity.
"Plan" shall mean (a) any employee pension benefit plan within
the meaning of Section 3(2) of ERISA covered by Title IV of ERISA by
reason of Section 4021 of ERISA, of which the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member is or has been within
the preceding five years a "contributing sponsor" within the meaning of
Section 4001(a)(13) of ERISA, or which is or has been within the
preceding five years
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maintained for employees of the Borrower, any Subsidiary of the
Borrower or any Controlled Group Member and (b) any employee pension
benefit plan within the meaning of Section 3(2) of ERISA which is
subject to Title I of ERISA by reason of Section 4 of ERISA and is
subject to the minimum funding requirements of Section 302 of ERISA or
Section 412 of the Code, of which the Borrower, any Subsidiary of the
Borrower or any Controlled Group Member is or has been within the
preceding five years an employer liable for contributions within the
meaning of Section 302(c)(11) of ERISA or Section 412(c)(11) of the
Code, or which is or has been within the preceding five years
maintained for employees of the Borrower, any Subsidiary of the
Borrower or any Controlled Group Member.
"Portion" shall mean the Prime Rate Portion or the Euro-Rate
Portion.
"Postretirement Benefits" of a Person shall mean any benefits,
other than retirement income, provided by such Person to retired
employees, or to their spouses, dependents or beneficiaries, including,
without limitation, group medical insurance or benefits, or group life
insurance or death benefits.
"Postretirement Benefit Obligation" of a Person shall mean
that portion of the actuarial present value of all Postretirement
Benefits expected to be provided by such Person which is attributable
to employees' service rendered to the date of determination (assuming
that such liability accrues ratably over an employee's working life to
the earlier of his date of retirement or the date on which the employee
would first become eligible for full benefits), reduced by the fair
market value as of the date of determination of any assets which are
segregated from the assets of such Person and which have been
restricted so that they cannot be used for any purpose other than to
provide Postretirement Benefits or to defray related expenses.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Agent or the
Lenders, or any combination of the foregoing, would constitute an Event
of Default.
"Primark Economics" shall mean Primark Decision Economics,
Inc.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by Mellon Bank, N.A. as its prime
rate, such rate to change automatically effective as of the
effectiveness of each announced change in such prime rate.
"Pro Rata" shall mean from or to each Lender in proportion to
such Lender's applicable Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in
Section 10.14(c) hereof.
"Recapture Asset Amount" shall have the meaning given that
term in Section 2.07(b) hereof.
"Recapture Asset Disposition" shall have the meaning given
that term in Section 2.07(b) hereof.
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"Register" shall have the meaning set forth in Section
10.14(d) hereof.
"Regular Monthly Payment Date" shall mean the last Business
Day of each month after the Closing Date.
"Regular Quarterly Payment Date" shall mean the last Business
Day of each September, December, March and June after the Closing Date.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by
a substantial employer from a Plan to which more than one employer
contributes, as referred to in Section 4063(b) of ERISA, (iii) a
cessation of operations at a facility causing more than twenty percent
(20%) of Plan participants to be separated from employment, as referred
to in Section 4062(e) of ERISA, or (iv) a failure to make a required
installment or other payment with respect to a Plan when due in
accordance with Section 412 of the Code or Section 302 of ERISA which
causes the total unpaid balance of missed installments and payments
(including unpaid interest) to exceed $250,000.
"Required Lenders" shall mean Lenders holding in the aggregate
51% of the Commitment Percentages.
"Responsible Officer" of a Person shall mean its Chairman of
the Board, President, Chief Financial Officer or Treasurer.
"Revolving Credit Agreement" shall mean this Revolving Credit
Agreement as amended, modified or supplemented from time to time (and
is synonymous with references to "this Agreement" herein).
"Revolving Credit Commitment" shall have the meaning set forth
in Section 2.01(a) hereof.
"Revolving Credit Commitment Fee" shall have the meaning set
forth in Section 2.01(e) hereof.
"Revolving Credit Commitment Fee Percentage" shall have the
meaning set forth in Section 2.01(e) hereof.
"Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Revolving Credit Exposure" of any Lender at any time shall
mean the sum at such time of the outstanding principal amount of such
Lender's Revolving Credit Loans plus such Lender's Pro Rata share of
the sum of the aggregate Letter of Credit Exposure and the aggregate
outstanding principal amount of Swingline Loans.
"Revolving Credit Loans" shall have the meaning set forth in
Section 2.01(a) hereof.
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"Revolving Credit Maturity Date" shall mean October 15, 2000.
"Revolving Credit Note" shall mean the promissory note of the
Borrower executed and delivered under Section 2.01(c) hereof and any
promissory note issued in substitution therefor pursuant to Sections
2.12(b) or 10.14(c) hereof.
"Secured Parties" shall have the meaning given that term in
the Collateral Agency Agreement.
"Senior Note Indenture" shall mean the Indenture dated as of
October 18, 1993 between the Borrower and The First National Bank of
Boston, as Trustee, relating to the Senior Notes, as constituted on the
Closing Date.
"Senior Notes" shall mean the Borrower's 8 3/4% Senior Notes
Due 2000.
"Shared Collateral" shall have the meaning given that term in
the Collateral Agency Agreement.
"Shared Collateral Account" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shared Security Documents" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shares of Capital Stock" shall mean shares of capital stock
of, membership interest in, beneficial interest in, or similar
ownership interest in, a Corporation organized under the Laws of any
state of the United States or any other jurisdiction, including,
without limitation, in the case of Corporations incorporated under the
Laws of England and Wales, equity share capital, ordinary shares and
loan stock.
"Significant Subsidiary" of Borrower shall mean any Subsidiary
of the Borrower (a) which is TASC, Datastream, Disclosure Incorporated,
or a Subsidiary of any of the foregoing, (b) which, together with its
Subsidiaries, has assets (determined on a consolidated basis) greater
than or equal to 5% of the total assets of the Borrower and its
Subsidiaries (determined on a consolidated basis) as of the end of the
most recently completed fiscal year for which financial information is
available, or (c) which, together with its Subsidiaries, has revenues
(determined on a consolidated basis) greater than or equal to 5% of the
total revenues of the Borrower and its Subsidiaries (determined on a
consolidated basis) for the most recent four fiscal quarters for which
financial information is available.
"Solvent" means:
(a) with respect to any Person organized under the
Laws of any state of the United States or subject to the U.S.
Bankruptcy Code of 1978, as amended, the Uniform Fraudulent
Conveyance Act as enacted by any state, the Uniform Fraudulent
Transfer
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Act as enacted by any state or any other applicable U.S. Law
pertaining to fraudulent conveyances, fraudulent transfers or
preferences at any time, that at such time (i) the sum of the
debts and liabilities (including, without limitation,
contingent liabilities) of such Person is not greater than all
of the assets of such Person at a fair valuation, (ii) the
present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute
and matured, (iii) such Person has not incurred, will not
incur, does not intend to incur, and does not believe that it
will incur, debts or liabilities (including, without
limitation, contingent liabilities) beyond such person's
ability to pay as such debts and liabilities mature, (iv) such
Person is not engaged in, and is not about to engage in, a
business or a transaction for which such person's property
constitutes or would constitute unreasonably small capital (as
such term is used in any Law referred to in the following
clause (v)), and (v) such Person is not otherwise insolvent as
defined in, or otherwise in a condition which could in any
circumstances then or subsequently render any transfer,
conveyance, obligation or act then made, incurred or performed
by it avoidable or fraudulent pursuant to, any Law that may be
applicable to such Person pertaining to bankruptcy, insolvency
or creditors' rights (including but not limited to the
Bankruptcy Code of 1978, as amended, and, to the extent
applicable to such Person, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act, or any other
applicable Law pertaining to fraudulent conveyances or
fraudulent transfers or preferences);
(b) With respect to any Person organized under the
Laws of England and Wales or subject to any English insolvency
law at any time, that at such time such Person is not
insolvent, or unable to pay its debts and is not deemed by an
English court to be unable to pay its debts within the meaning
of Section 123 of the United Kingdom Insolvency Act of 1986;
and
(c) With respect to any other Person, that at such
time such Person is not insolvent or unable to pay its debts
as they come due as contemplated by any applicable insolvency,
bankruptcy or similar Law.
"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is
(a) At least one Business Day in advance in the case
of selection of, conversion to or renewal of the Base Rate
Option or prepayment of any Base Rate Portion; and
(b) At least three London Business Days in advance in
the case of selection of the Euro-Rate Option or prepayment of
any Euro-Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or
other property) on account of or in respect of any Shares
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of the Capital Stock (or warrants, options or rights therefor) of such
Person, including but not limited to any payment on account of the
purchase, redemption, retirement, defeasance or acquisition of any
Shares of the Capital Stock (or warrants, options or rights therefor)
of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any
other agreement or instrument.
"Subsidiary" of a Person at any time shall mean any
Corporation of which a majority (by number of shares or number of
votes) of the outstanding Shares of Capital Stock of any class is at
such time owned directly or indirectly, beneficially or of record, by
such Person or one or more Subsidiaries of such Person, and any
partnership, trust or other Person of which a majority of any class of
outstanding equity interest is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person. For the avoidance of doubt, as used in the
preceding sentence "majority" means more than half (and not precisely
half).
"Substantially Owned Subsidiary" of a Person at any time shall
mean any Corporation of which 80% or more of the outstanding Shares of
Capital Stock of each class are at such time beneficially owned
directly or indirectly by such Person (both on the basis of outstanding
shares and on a fully diluted basis).
"Swap Agreement" shall have the meaning given that term in the
Collateral Agency Agreement.
"Swingline Current Availability" shall have the meaning given
that term in Section 3.10(a) hereof.
"Swingline Lender" shall mean Mellon.
"Swingline Loan Participating Interest" shall have the meaning
given that term in Section 3.11(a) hereof.
"Swingline Loans" shall have the meaning given that term in
Section 3.09(a) hereof.
"Swingline Note" shall mean the promissory note of the
Borrower executed and delivered under Section 3.09(c) hereof, together
with all extensions, renewals, refinancings or refundings thereof in
whole or part.
"Swingline Subfacility Amount" shall have the meaning given
that term in Section 3.09(a) hereof.
"TASC" shall mean TASC, Inc., a Massachusetts Corporation.
"Taxes" shall have the meaning set forth in Section 2.11
hereof.
"Term Loan Agreement" shall mean the Term Loan Agreement of
even date herewith by and among the Borrower, the lenders parties
thereto from time to time, and Mellon Bank, N.A.,
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as Agent, as the same may be amended, modified or supplemented from
time to time in accordance with this Agreement (but not any refinancing
or renewal thereof).
"Term Loan Maturity Date" shall mean the final scheduled
maturity of Indebtedness under the Term Loan Agreement.
"TIMCO" shall mean Triad International Maintenance
Corporation, a Delaware Corporation.
"TIMCO Bond Order" means the Bond Order adopted by the
Piedmont Triad Airport Authority on October 31, 1989 with respect to
the TIMCO Bonds, as such Bond Order may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"TIMCO Bonds" means the $13,800,000 original aggregate
principal amount of Special Facility Revenue Bonds (Triad International
Maintenance Corporation Project), Series 1989 issued by the Piedmont
Triad Airport Authority pursuant to the TIMCO Bond Order.
"TIMCO Bonds Letter of Credit" has the meaning given that term
in Section 7.03(j) hereof.
"TIMCO Lease" shall mean the Lease Agreement, dated as of
November 1, 1989, between the Piedmont Triad Airport Authority, as
lessor, and TIMCO, as lessee, covering certain property situate at the
Piedmont Triad International Airport in Guilford County, North
Carolina, as such Lease Agreement may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in
Section 10.14(c) hereof.
"Wholly Owned Subsidiary" of any Person means a Corporation
that is a Subsidiary of such Person as to which all of the Shares of
Capital Stock of each class (other than directors' qualifying shares
that are required under applicable law) are at such time beneficially
owned directly or indirectly by such Person (both on the basis of
outstanding shares and on a fully diluted basis).
"Wind-up" or "Winding-up" of a Person shall include the
liquidation, administration, amalgamation, reconstruction,
reorganization or dissolution of such Person and any equivalent or
analogous procedure under the laws of any jurisdiction in which such
Person is incorporated, domiciled, resident or carries on a business or
has assets.
"Worldscope Entities" shall mean Worldscope/Disclosure
Partners, a Connecticut general partnership, Worldscope/Disclosure
International Partners, an partnership organized under the laws of
Ireland, Worldscope/Disclosure Incorporated LLC, a Connecticut limited
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liability company, and Worldscope/Disclosure India Pvt. Ltd., a
Corporation organized under the laws of India, and each of their
respective Subsidiaries from time to time.
1.02. CONSTRUCTION. In this Agreement and each other Loan
Document, unless the context otherwise clearly requires, references to the
plural include the singular, the singular the plural and the part the whole;
"or" has the inclusive meaning represented by the phrase "and/or;" and the terms
"property" and "assets" each includes all properties and assets of any kind or
nature, tangible or intangible, real, personal or mixed, now existing or
hereafter acquired. The words "hereof," "herein" and "hereunder" (and similar
terms) in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Loan Document. The words
"includes" and "including" (and similar terms) in this Agreement or any other
Loan Document mean "includes without limitation" and "including without
limitation," respectively (and similarly for similar terms). References in this
Agreement or any other Loan Document to "determination" (and similar terms) by
the Agent or by any Lender include good faith estimates by the Agent or by such
Lender (in the case of quantitative determinations) and good faith beliefs by
the Agent or by such Lender (in the case of qualitative determinations). No
doctrine of construction of ambiguities in agreements or instruments against the
interests of the party controlling the drafting thereof shall apply to this
Agreement or any other Loan Document. The section and other headings contained
in this Agreement and in each other Loan Document, and any tables of contents
contained herein or therein, are for reference purposes only and shall not
affect the construction or interpretation of this Agreement or such other Loan
Document in any respect. Section, subsection, annex, exhibit and schedule
references in this Agreement and in each other Loan Document are to this
Agreement or such other Loan Document, as the case may be, unless otherwise
specified. Each annex, exhibit and schedule to this Agreement or any other Loan
Document constitutes part of this Agreement or such Loan Document, as the case
may be. Each of the covenants, terms and provisions of this Agreement and the
other Loan Documents is intended to have, and shall have, independent effect,
and compliance with any particular covenant, term or provision shall not
constitute compliance with any other covenant, term or provision.
1.03. ACCOUNTING PRINCIPLES.
(a) GAAP. As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing the Borrower's financial statements as of
December 31, 1995, and for the fiscal year then ended, as referred to in Section
4.06 hereof.
(b) ACCOUNTING AND FINANCIAL DETERMINATIONS, ETC. Except as
otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters shall be made, and all financial statements to
be delivered pursuant to this Agreement shall be prepared, in accordance with
GAAP (including principles of consolidation where appropriate), and all
accounting or financial terms shall have the meanings ascribed to such terms by
GAAP.
(c) CHANGES. If and to the extent that the financial
statements generally prepared by the Borrower apply accounting principles other
than GAAP, all financial statements referred to in this Agreement or any other
Loan Document shall be delivered in duplicate, one set based on the accounting
principles then generally applied by the Borrower and one set based on GAAP. To
the extent this
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Agreement or such other Loan Document requires financial statements to be
accompanied by an opinion of independent accountants, each such set of financial
statements shall be accompanied by such an opinion.
[End of Annex A]
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Exhibit 10.17
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TERM LOAN AGREEMENT
dated as of February 7, 1997
by and among
PRIMARK CORPORATION,
as Borrower,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
and
MELLON BANK, N.A.,
as Agent
U.S. $225,000,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 110
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION TITLE PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS; CONSTRUCTION........................................................... 1
1.01 Definitions; Construction........................................................... 1
ARTICLE II THE FACILITY........................................................................ 1
2.01 The Term Loan Facility.............................................................. 1
2.02 Making of Loans..................................................................... 2
2.03 Interest Rates...................................................................... 2
2.04 Conversion or Renewal of Interest Rate Options...................................... 6
2.05 Prepayments Generally............................................................... 7
2.06 Optional Prepayments................................................................ 8
2.07 Mandatory Prepayments .............................................................. 8
2.08 Interest Payment Dates.............................................................. 10
2.09 Pro Rata Treatment; Payments Generally.............................................. 10
2.10 Additional Compensation in Certain Circumstances.................................... 11
2.11 Taxes............................................................................... 12
2.12 Funding by Branch, Subsidiary or Affiliate.......................................... 14
ARTICLE III [Reserved].......................................................................... 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................................... 15
4.01 Corporate Status.................................................................... 15
4.02 Corporate Power and Authorization................................................... 15
4.03 Execution and Binding Effect........................................................ 15
4.04 Governmental Approvals and Filings.................................................. 15
4.05 Absence of Conflicts................................................................ 16
4.06 Audited Financial Statements........................................................ 16
4.07 Interim Financial Statements........................................................ 16
4.08 Absence of Undisclosed Liabilities.................................................. 16
4.09 Accurate and Complete Disclosure.................................................... 17
4.10 Projections......................................................................... 17
4.11 Solvency............................................................................ 17
4.12 Margin Regulations.................................................................. 17
4.13 Regulatory Restrictions............................................................. 17
4.14 Subsidiaries........................................................................ 17
4.15 Partnerships, etc................................................................... 18
4.16 Litigation.......................................................................... 18
4.17 Absence of Other Conflicts.......................................................... 18
4.18 Insurance........................................................................... 18
4.19 Title to Property................................................................... 18
4.20 Intellectual Property............................................................... 19
4.21 Taxes............................................................................... 19
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
4.22 Employee Benefits................................................................... 19
4.23 Environmental Matters............................................................... 19
ARTICLE V CONDITIONS OF LENDING............................................................... 20
5.01 Conditions to Initial Loans......................................................... 20
ARTICLE VI AFFIRMATIVE COVENANTS............................................................... 23
6.01 Basic Reporting Requirements........................................................ 23
6.02 Insurance........................................................................... 26
6.03 Payment of Taxes and Other Potential Charges and Priority Claims.................... 26
6.04 Preservation of Corporate Status.................................................... 26
6.05 Governmental Approvals and Filings.................................................. 27
6.06 Maintenance of Properties, Franchises, etc.......................................... 27
6.07 Avoidance of Other Conflicts........................................................ 27
6.08 Financial Accounting Practices...................................................... 27
6.09 Use of Proceeds..................................................................... 27
6.10 Continuation of or Change in Business............................................... 28
6.11 Plans and Multiemployer Plans....................................................... 28
6.12 Disaster Recovery Plan.............................................................. 28
6.13 Annual Bank Meeting................................................................. 28
6.14 Separate Corporate Existence........................................................ 28
6.15 Additional Security................................................................. 29
6.16 Interest Rate Protection............................................................ 30
ARTICLE VII NEGATIVE COVENANTS.................................................................. 31
7.01 Financial Covenants................................................................. 31
7.02 Liens............................................................................... 32
7.03 Indebtedness........................................................................ 33
7.04 Guaranties, Indemnities, etc........................................................ 34
7.05 Loans, Advances and Investments..................................................... 35
7.06 Dividends and Related Distributions................................................. 36
7.07 Sale-Leasebacks..................................................................... 37
7.08 Mergers, etc........................................................................ 37
7.09 Dispositions of Properties.......................................................... 38
7.10 Dealings with Affiliates............................................................ 39
7.11 Limitations on Modification of Certain Agreements and Instruments................... 39
7.12 Limitation on Payments on Certain Obligations....................................... 40
7.13 Limitation on Other Restrictions on Liens, Dividend Restrictions
on Subsidiaries, etc............................................................. 40
7.14 Limitation on Other Restrictions on Amendment of the
Loan Documents, etc.............................................................. 41
7.15 Limitation on Certain Benefit Liabilities........................................... 41
7.16 Fiscal Year......................................................................... 41
ARTICLE VIII DEFAULTS............................................................................ 41
</TABLE>
-ii-
<PAGE> 112
<TABLE>
<CAPTION>
<S> <C> <C>
8.01 Events of Default................................................................... 41
8.02 Consequences of an Event of Default................................................. 44
8.03 Application of Proceeds............................................................. 45
ARTICLE IX THE AGENT........................................................................... 45
9.01 Appointment......................................................................... 45
9.02 General Nature of Agent's Duties.................................................... 46
9.03 Exercise of Powers.................................................................. 46
9.04 General Exculpatory Provisions...................................................... 46
9.05 Administration by the Agent......................................................... 47
9.06 Lenders Not Relying on Agent or Other Lenders....................................... 48
9.07 Indemnification of Agent by Lenders................................................. 48
9.08 Agent in its Individual Capacity.................................................... 48
9.09 Holders of Notes.................................................................... 48
9.10 Successor Agent..................................................................... 49
9.11 Calculations........................................................................ 49
9.12 Agent's Fee......................................................................... 49
ARTICLE X MISCELLANEOUS....................................................................... 49
10.01 Holidays............................................................................ 49
10.02 Records............................................................................. 50
10.03 Amendments and Waivers.............................................................. 50
10.04 No Implied Waiver; Cumulative Remedies.............................................. 51
10.05 Notices............................................................................. 51
10.06 Expenses; Taxes; Indemnity.......................................................... 51
10.07 Severability........................................................................ 52
10.08 Prior Understandings................................................................ 52
10.09 Duration; Survival.................................................................. 52
10.10 Counterparts........................................................................ 53
10.11 Limitation on Payments.............................................................. 53
10.12 Set-Off............................................................................. 53
10.13 Sharing of Collections.............................................................. 53
10.14 Successors and Assigns; Participations; Assignments................................. 54
10.15 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Limitation of Liability.......................................................... 57
ANNEX A DEFINITIONS; CONSTRUCTION........................................................... A-1
</TABLE>
Exhibit A-1 Form of Term Loan Note
Exhibit B Form of Transfer Supplement
Exhibit C Form of Annual and Quarterly Compliance Certificate
Schedule 4.04 Governmental Approvals and Filings
-iii-
<PAGE> 113
Schedule 4.05 Conflicts
Schedule 4.08 Liabilities
Schedule 4.13 Regulatory Restrictions
Schedule 4.14 Subsidiaries
Schedule 4.16 Litigation
Schedule 4.21 Taxes
Schedule 4.23 Environmental Matters
Schedule 7.02 Liens
Schedule 7.04 Guaranty Equivalents
Schedule 7.07 Sale-Leasebacks
-iv-
<PAGE> 114
TERM LOAN AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997, by and among
PRIMARK CORPORATION, a Michigan Corporation (the "Borrower"), the Lenders
parties hereto from time to time, and MELLON BANK, N.A., a national banking
association, as agent for the Lender Parties hereunder (in such capacity,
together with its successors in such capacity, the "Agent").
In consideration of the mutual covenants herein contained and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. DEFINITIONS; CONSTRUCTION. In addition to other words
and terms defined elsewhere in this Agreement, as used in this Agreement the
words and terms defined in Annex A hereto have the meanings given them in such
Annex A, and this Agreement shall be construed in accordance with the provisions
of Annex A.
ARTICLE II
THE FACILITY
2.01. THE TERM LOAN FACILITY.
(a) TERM LOAN COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender, severally and not jointly, agrees (such agreement being herein called
such Lender's "Term Loan Commitment") to make a loan (the "Term Loan") to the
Borrower on the date of execution and delivery hereof in principal amount equal
to such Lender's Term Loan Committed Amount. The Term Loan Commitments shall
automatically expire at the close of business on the date of the execution and
delivery hereof by all parties hereto. Each Lender's "Term Loan Committed
Amount" at any time shall be equal to the amount set forth as its "Term Loan
Committed Amount" below its name on the signature pages hereof, subject to
transfer to another Lender as provided in Section 10.14 hereof. The sum of the
Term Loan Committed Amounts of the Lenders shall not exceed $225,000,000 at any
time.
(b) NATURE OF CREDIT. The Borrower may not reborrow amounts
repaid with respect to Term Loans.
(c) TERM LOAN NOTES. The obligation of the Borrower to repay
the unpaid principal amount of the Term Loans made to it by each Lender and to
pay interest thereon shall be evidenced in part by promissory notes of the
Borrower, one to each Lender, dated the Closing Date (the "Term Loan Notes") in
substantially the form attached hereto as Exhibit A-1, with the blanks
appropriately filled, payable to the order of such Lender in a face amount equal
to such Lender's Term Loan.
(d) SCHEDULED AMORTIZATION. The Term Loans shall be due and
payable on the dates ("Scheduled Maturity Dates") and in the aggregate principal
amounts set forth below:
A-1
<PAGE> 115
<TABLE>
<CAPTION>
Aggregate Principal Amount
Last Business Day of of Term Loans due and payable
-------------------- -----------------------------
<S> <C> <C>
December 1997 $ 5,000,000
June 1998 $ 5,000,000
December 1998 $ 10,000,000
June 1999 $ 10,000,000
December 1999 $ 10,000,000
June 2000 $ 15,000,000
December 2000 $ 15,000,000
June 2001 $ 15,000,000
December 2001 $ 20,000,000
June 2002 $ 20,000,000
December 2002 $ 25,000,000
June 2003 $ 25,000,000
December 2003 $ 25,000,000
June 2004 $ 25,000,000
</TABLE>
To the extent not due and payable earlier, the Term Loans shall be due and
payable on the Term Loan Maturity Date.
2.02. MAKING OF LOANS. Prior to the making of the Loans, the
Borrower shall provide Standard Notice to the Agent setting forth the following
information:
(a) The date, which shall be a Business Day, on which the
Loans are to be made;
(b) The aggregate principal amount of the Loans, which shall
be $225,000,000, and which shall be the sum of the principal amounts
selected pursuant to clause (c) of this Section 2.02;
(c) The interest rate Option or Options selected in accordance
with Section 2.03(a) hereof and the principal amounts selected in
accordance with Section 2.03(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion of the Loans; and
(d) With respect to each such Funding Segment of the Loans,
the Funding Period to apply to such Funding Segment and the Maturity
Tranche with respect thereto, selected in accordance with Section
2.03(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article V hereof has not been
satisfied, on the date specified in such Standard Notice each Lender shall make
the proceeds of its Loan available to the Agent at the Agent's Office, no later
than 12:00 o'clock Noon, Pittsburgh time, in funds immediately available at such
Office. The Agent will make the funds so received available to the Borrower in
funds immediately available at the Agent's Office.
2.03. INTEREST RATES.
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<PAGE> 116
(a) OPTIONAL BASES OF BORROWING. The unpaid principal amount
of the Loans shall bear interest for each day until due on one or more bases
selected by the Borrower from among the interest rate Options set forth below.
Subject to the provisions of this Agreement the Borrower may select different
Options to apply simultaneously to different Portions of the Loans and may
select different Funding Segments to apply simultaneously to different parts of
the Euro-Rate Portion of the Loans.
(i) BASE RATE OPTION: A rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed) for each day equal to the Base Rate for such day plus the
Applicable Margin for such day.
(ii) EURO-RATE OPTION: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day.
(b) APPLICABLE MARGINS.
(i) The "Applicable Margin" for each interest rate Option for
each day shall mean the applicable percentage set forth below under "Level II
Performance Margins," "Level III Performance Margins," or "Level IV Performance
Margins," as the case may be, in the event that (x) no Event of Default or
Potential Default shall have occurred and be continuing or exist on such day and
(y) Financial Test II, Financial Test III or Financial Test IV, respectively,
set forth below is satisfied on such day. For purposes of determining the
Applicable Margin, Financial Test II, Financial Test III or Financial Test IV,
as the case may be, shall be deemed to be satisfied effective on the first day
of the calendar month following the calendar month in which the Agent shall have
received from the Borrower a certificate, duly completed and signed by a
Responsible Officer, accompanied by the Borrower's financial statements for the
fiscal quarter most recently ended (or, if such most recently ended fiscal
quarter is the last of a fiscal year, for the fiscal year then ended),
demonstrating compliance with the applicable financial test, and such financial
test shall be deemed to remain satisfied until the last day of the calendar
month in which the Borrower's next annual or quarterly financial statements are
required to be delivered under Section 6.01(a) or 6.01(b) hereof, as the case
may be (or, if earlier, the last day of the calendar month in which the
Borrower's next annual or quarterly financial statements are actually delivered
in compliance with such Section); provided, that for each day in the period from
and including the Closing Date to and including the last day of the calendar
month in which the Borrower's quarterly financial statements for the quarter
ending September 30, 1997 are required to be delivered under Section 6.01(b)
hereof (or, if earlier, the last day of the calendar month in which such
quarterly financial statements are actually delivered in compliance with Section
6.01(b) hereof), the Borrower will be deemed to have satisfied Financial Test
II. If the conditions for application of the Level II Performance Margins, Level
III Performance Margins or Level IV Performance Margins do not apply on a
particular day, the "Applicable Margin" for such day shall mean the applicable
percentage set forth below under "Level I Performance Margins":
LEVEL I PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Applicable Margin for Applicable Margin for
Interest Rate Option Early Maturity Tranches Late Maturity Tranches
-------------------- ----------------------- ----------------------
<S> <C> <C> <C>
Base Rate Option Zero Zero
Euro-Rate Option 1.00% 1.25%
</TABLE>
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<PAGE> 117
Level I Performance Margins shall apply in the event that the conditions for
application of the Level II Performance Margins, Level III Performance Margins
or Level IV Performance Margins do not apply.
LEVEL II PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Applicable Margin for Applicable Margin for
Interest Rate Option Early Maturity Tranches Late Maturity Tranches
-------------------- ----------------------- ----------------------
<S> <C> <C> <C>
Base Rate Option Zero Zero
Euro-Rate Option 0.75% 1.00%
</TABLE>
Level II Performance Margins shall apply in the event that Financial Test II is
satisfied and the other conditions set forth above are met. "Financial Test II"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 4.00 and greater than or equal to 3.00.
LEVEL III PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Applicable Margin for Applicable Margin for
Interest Rate Option Early Maturity Tranches Late Maturity Tranches
-------------------- ----------------------- ----------------------
<S> <C> <C> <C>
Base Rate Option Zero Zero
Euro-Rate Option 0.625% 0.875%
</TABLE>
Level III Performance Margins shall apply in the event that Financial Test III
is satisfied and the other conditions set forth above are met. "Financial Test
III" means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 3.00 and greater than or equal to 2.50.
LEVEL IV PERFORMANCE MARGINS:
<TABLE>
<CAPTION>
Applicable Margin for Applicable Margin for
Interest Rate Option Early Maturity Tranches Late Maturity Tranches
-------------------- ----------------------- ----------------------
<S> <C> <C> <C>
Base Rate Option Zero Zero
Euro-Rate Option 0.50% 0.75%
</TABLE>
Level IV Performance Margins shall apply in the event that Financial Test IV is
satisfied and the other conditions set forth above are met. "Financial Test IV"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 2.50.
(ii) As used in this Agreement, the "Maturity Tranche"
corresponding to a particular Scheduled Maturity Date at any time means the
aggregate principal amount of the Term Loans then outstanding which is scheduled
to be due and payable on such Scheduled Maturity Date in accordance
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<PAGE> 118
with the scheduled maturities set forth in Section 2.01(d) hereof, taking into
account any prepayments applied in accordance with Section 2.05 hereof. As used
in this Agreement, "Early Maturity Tranche" means a Maturity Tranche
corresponding to a Scheduled Maturity Date occurring on or before the June 2000
Scheduled Maturity Date. As used in this Agreement, "Late Maturity Tranche"
means a Maturity Tranche corresponding to a Scheduled Maturity Date occurring on
or after the December 2000 Scheduled Maturity Date. If and to the extent for any
reason any part of any Early Maturity Tranche becomes due (by acceleration or
otherwise) on a day other than its Scheduled Maturity Date, the Applicable
Margin for such part of such Early Maturity Tranche from and after such due date
shall be determined as if such part were a Late Maturity Tranche.
(c) FUNDING PERIODS. At any time when the Borrower shall
select, convert to or renew the Euro-Rate Option to apply to any part of the
Loans, the Borrower shall specify one or more periods (the "Funding Periods")
during which each such Option shall apply, such Funding Periods being as set
forth below:
<TABLE>
<CAPTION>
Interest Rate Option Available Funding Periods
- -------------------- -------------------------
<S> <C>
Euro-Rate Option One, two, three or six months
("Euro-Rate Funding Period");
</TABLE>
provided, that:
(i) Each Euro-Rate Funding Period shall begin on a London
Business Day, and the term "month," when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Agent (which determination shall be conclusive);
(ii) Each Funding Segment shall be designated by the Borrower
to correspond to a single Maturity Tranche, and the Borrower may not
select a Funding Period that would end after the Scheduled Maturity
Date corresponding to such Maturity Tranche (it being understood that,
subject to the other limitations set forth in this Agreement, a
Maturity Tranche may be comprised of more than one Funding Segment);
(iii) The Borrower shall, in selecting any Funding Period,
allow for reasonably foreseeable mandatory prepayments, so as to avoid
to the extent practicable application of Section 2.10(b) hereof;
(iv) The Borrower may not select a Funding Period that would
end after the Term Loan Maturity Date; and
(v) The aggregate number of Funding Segments at any time shall
not exceed twenty.
(d) TRANSACTIONAL AMOUNTS. Each selection of, conversion from,
conversion to or renewal of an interest rate Option and each payment or
prepayment of any Loans (other than mandatory prepayments to the extent set
forth in Section 2.05(c) hereof) shall be in a principal amount such that after
giving effect thereto the aggregate principal amount of the Base Rate Portion of
the Term Loans,
A-5
<PAGE> 119
and the aggregate principal amount of each Funding Segment of the Euro-Rate
Portion of the Term Loans, shall be as set forth below:
<TABLE>
<CAPTION>
Portion or Funding Segment Allowable Aggregate Principal Amounts
- -------------------------- -------------------------------------
<S> <C>
Base Rate Portion Any
Each Funding Segment $500,000 or an integral
of the Euro-Rate Portion multiple thereof
</TABLE>
(e) EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a Euro-Rate would otherwise be set
the Agent (in the case of clauses (A) or (B) below) or any Lender (in
the case of clause (C) below) shall have determined in good faith
(which determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the Euro-Rate
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the Euro-Rate Portion has been
made impracticable or unlawful by compliance by such Lender or a
Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
Euro-Rate Option shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrower (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive) that the circumstance
giving rise to such previous determination no longer exist. If any Lender
notifies the Borrower of a determination under clause (ii) of this Section
2.03(e), the Euro-Rate Portion of the Loans of such Lender (the "Affected
Lender") shall automatically be converted to the Base Rate Option as of the date
specified in such notice (and accrued interest thereon shall be due and payable
on such date). If at the time the Agent or a Lender makes a determination under
clause (i) or (ii) of this Section 2.03(e) the Borrower previously has notified
the Agent that it wishes to select, convert to or renew the Euro-Rate Option
with respect to any proposed Loans but such Loans have not yet been made, such
notification shall be deemed to provide for selection
A-6
<PAGE> 120
of, conversion to or renewal of the Base Rate Option instead of the Euro-Rate
Option with respect to such Loans or, in the case of a determination by a
Lender, such Loans of such Lender.
2.04. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS.
(a) CONVERSION OR RENEWAL. Subject to the provisions of
Section 2.10(b) hereof, the Borrower may convert any part of its Loans from any
interest rate Option or Options to one or more different interest rate Options
and may renew the Euro-Rate Option as to any Funding Segment of the Euro-Rate
Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.03(d) hereof of the Base Rate Portion and each Funding Segment of the
Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.03(a) hereof and the principal amounts selected in
accordance with Section 2.03(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period to apply to such Funding Segment and the
Maturity Tranche with respect thereto, selected in accordance with
Section 2.03(c) hereof.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
2.04(a)(ii) hereof, any part of the Euro-Rate Portion for which such notice is
not received shall be converted automatically to the Base Rate Option on the
last day of the expiring Funding Period.
2.05. PREPAYMENTS GENERALLY. Whenever the Borrower desires or
is required to prepay any part of the Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
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<PAGE> 121
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of
this Section 2.05, and which, if a partial prepayment, shall be an
integral multiple of $1,000,000 (or, in the case of a mandatory
prepayment pursuant to Section 2.07(b) hereof, an integral multiple of
$100,000); and
(c) The principal amounts selected in accordance with Section
2.03(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the Euro-Rate Portion to be prepaid; provided, that in the
case of a mandatory prepayment under Section 2.07(b) hereof, any excess
of the amount of such mandatory prepayment applied to a particular
Maturity Tranche over the Base Rate Portion of such Maturity Tranche
may be applied to the Euro-Rate Portion of such Maturity Tranche
without regard to Section 2.03(d) hereof.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the
Euro-Rate Portion specified in such notice, together with interest on each such
principal amount to such date, shall be due and payable. Prepayments of the Term
Loans shall be applied to the remaining scheduled installments of the Term Loans
set forth in Section 2.01(d) hereof in the following order of priority (in each
case to the extent such scheduled installment remains outstanding): (i) first,
to the installment due December 2000; (ii) second, to the installment due June
2000; (iii) third, to the installment due December 1999; (iv) fourth, to the
installment due June 1999; and (v) thereafter, to remaining installments in the
inverse order of their scheduled maturity.
2.06. OPTIONAL PREPAYMENTS. The Borrower shall have the right
at its option from time to time to prepay its Loans in whole or part without
premium or penalty (subject, however, to Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Funding Period with respect to
prepayment of the Euro- Rate Portion with respect to any part of the
Funding Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.05 hereof.
2.07. MANDATORY PREPAYMENTS.
(a) EXPIRATION OF THE REVOLVING CREDIT AGREEMENT. The Borrower
shall be required to prepay the Term Loans in full in the event that at
any time
(i) there shall fail to be in force a Revolving Credit
Agreement (which, so long as the Senior Note Indenture is in force,
shall constitute a "Credit Agreement" as defined therein), under which
the Borrower at such time has the right to borrow from financial
institutions on a revolving basis from time to time an aggregate
principal amount not less than $75,000,000, or the Revolving Credit
Maturity Date thereunder shall have occurred, or the Borrower shall be
required to make any prepayment of principal thereunder or to post cash
collateral thereunder
A-8
<PAGE> 122
(except prepayments of principal or the posting of cash collateral
which otherwise would be mandatory solely as a result of the Borrower's
provision of notice of prepayment), or
(ii) the Borrower shall not have procured a commitment from a
financial institution to provide a successor Revolving Credit Agreement
complying with the foregoing clause (i) by the 90th day before the
Revolving Credit Maturity Date under the then-current Revolving Credit
Agreement.
If prepayment of the Term Loans is required under this Section 2.07(a), the
Borrower shall give notice of such prepayment in accordance with Section 2.05
hereof so that such prepayment is made not later than the date of the applicable
event referred to in the foregoing clause (i) or (ii).
(b) RECAPTURE ASSET DISPOSITIONS.
(i) The Borrower shall be required from time to time to prepay
the principal amount of the Term Loans by an amount not less than the Recapture
Asset Amount from each Recapture Asset Disposition. If prepayment of the Term
Loans is required under this Section 2.07(b), the Borrower shall give notice of
such reduction in accordance with Section 2.05 hereof so that such reduction
shall be effective not later than
(x) in the case of a Recapture Asset Disposition of Type A,
the date of receipt of the related Net Sale Proceeds by the Borrower or
any of its Subsidiaries, and
(y) in the case of a Recapture Asset Disposition of Type B
(which is not also of Type A), the date on which an amount arising out
of such Recapture Asset Disposition would (but for the requirement
hereunder to prepay the Term Loans) constitute "Excess Proceeds" under
the Senior Note Indenture (taking into account the periods specified in
the Senior Note Indenture which must elapse before amounts constitute
"Excess Proceeds").
(ii) If a prepayment of the Term Loans is required by this
Section 2.07(b), then, if and to the extent that a prepayment of a Funding
Segment of the Euro-Rate Portion of the Loans otherwise would be required to be
made on a day other than the last day of the corresponding Euro-Rate Funding
Period, the Borrower may defer such prepayment until the last day of such
Funding Segment.
(iii) As used in this Agreement, the term "Recapture Asset
Disposition" means
(A) any disposition of any Shares of Capital Stock of TIMCO or
of any of its assets outside the ordinary course of business (Recapture
Asset Dispositions described in this clause (A) being sometimes
referred to herein as being of "Type A"); and
(B) any event or condition which would (but for the
requirement hereunder to prepay the Term Loans) give rise to any
"Excess Proceeds" as defined in the Senior Note Indenture (taking into
account the periods specified in the Senior Note Indenture which must
elapse before amounts constitute "Excess Proceeds") (Recapture Asset
Dispositions described in this clause (B) being sometimes referred to
herein as being of "Type B").
The Borrower shall advise the Agent in writing promptly of each proposed, actual
or anticipated Recapture Asset Disposition and of the material terms thereof and
each scheduled date for the
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<PAGE> 123
consummation or occurrence thereof promptly after the Borrower becomes aware of
the same (but in any event not later than the date of such Recapture Asset
Disposition).
(iv) As used in this Agreement, the term "Recapture Asset
Amount" has the following meaning:
(A) With respect to any Recapture Asset Disposition of Type A,
"Recapture Asset Amount" means 50% of the Net Sale Proceeds from such
Recapture Asset Disposition.
(B) With respect to any Recapture Asset Disposition of Type B,
"Recapture Asset Amount" means the amount with respect to such
Recapture Asset Disposition which (but for the requirement hereunder to
prepay the Term Loans) would constitute "Excess Proceeds" as defined in
the Senior Note Indenture (taking into account the periods specified in
the Senior Note Indenture which must elapse before amounts constitute
"Excess Proceeds").
If an event constitutes a Recapture Asset Disposition of both Type A and Type B,
"Recapture Asset Amount" with respect to such event shall mean the greater of
the amounts described in the foregoing clauses (A) or (B).
(v) "Net Sale Proceeds" means, with respect to any Recapture
Asset Disposition of Type A, the gross proceeds thereof in the form of cash or
cash equivalents (including payments in respect of deferred payment obligations
upon the earliest of (x) receipt of such payments in the form of cash or cash
equivalents, (y) to the extent that such obligations are financed or sold
without recourse to the Borrower or any Subsidiary, the time of such financing
or sale, or (z) to the extent that such obligations are financed or sold with
recourse to the Borrower or such Subsidiary the time that either the original
obligation is discharged or such recourse is no longer in effect), net of the
sum of the following (without duplication): (A) brokerage commissions and other
fees and expenses (including, without limitation, fees and expenses of legal
counsel and investment bankers) related to such Recapture Asset Disposition, (B)
all taxes actually paid or estimated in good faith to be or become payable as a
result of such Recapture Asset Disposition, (C) payments made to retire
obligations (other than to the Borrower and its Subsidiaries) that are secured
by the properties that are the subject of such Recapture Asset Disposition, (D)
payments to holders (other than the Borrower and its Subsidiaries) of Shares of
Capital Stock or other equity interests in Subsidiaries of the Borrower subject
to such Recapture Asset Disposition, so long as such payments are made on a pro
rata basis, consistent with the ownership of such interests, to the holders of
such interests, and (E) appropriate amounts to be provided by the Borrower or
any Subsidiary as a reserve required in accordance with generally accepted
accounting principles in the United States, consistently applied, against any
liabilities associated with such Recapture Asset Disposition and retained by the
Borrower or any Subsidiary thereof after such Recapture Asset Disposition,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Recapture Asset
Disposition; provided, however, that if all or any portion of such reserve is no
longer required, the amount in respect of such reserve shall immediately be
deemed to constitute, and shall be applied as, Net Sale Proceeds.
2.08. INTEREST PAYMENT DATES. Accrued and unpaid interest on
the Loans shall be due and payable on the following dates (and on such other
dates as may be specified elsewhere in this Agreement and the other Loan
Documents): (a) in the case of the Base Rate Portion, on each Regular Monthly
Payment Date, and (b) in the case of each Funding Segment of the Euro-Rate
Portion, on the
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last day of the corresponding Euro-Rate Funding Period and, if such Euro-Rate
Funding Period is longer than three months, also on the last day of the third
month during such Funding Period. After maturity of any part of the Loans (by
acceleration or otherwise), interest on such part of the Loans shall be due and
payable on demand.
2.09. PRO RATA TREATMENT; PAYMENTS GENERALLY.
(a) PRO RATA TREATMENT. Each borrowing and each conversion or
renewal of interest rate Options hereunder shall be made, and all payments made
in respect of principal of and interest on Loans due from the Borrower hereunder
or under the Notes shall be applied, Pro Rata from and to each Lender, except
for (y) payments of interest involving an Affected Lender as provided in Section
2.03(e) hereof, and (z) payments to a Lender subject to a withholding deduction
under Section 2.11(c) hereof. The failure of any Lender to make a Loan shall not
relieve any other Lender of its obligation to lend hereunder, but neither the
Agent nor any Lender shall be responsible for the failure of any other Lender to
make a Loan.
(b) PAYMENTS GENERALLY. All payments and prepayments to be
made by the Borrower in respect of principal, interest, fees, indemnities,
expenses or other amounts due from the Borrower hereunder or under any other
Loan Document shall be payable in Dollars at 1:00 p.m., Pittsburgh time, on the
day when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately
accrue, without setoff, counterclaim, withholding or other deduction of any kind
or nature (except for payments to a Lender subject to a withholding deduction
under Section 2.11(c) hereof). Except for payments under Sections 2.10 or 10.06
hereof, such payments shall be made to the Agent at its Office in funds
immediately available at such Office, and payments under Sections 2.10 or 10.06
hereof shall be made to the applicable Lender at such domestic account as it
shall specify to the Borrower from time to time in funds immediately available
at such account. Any payment received by the Agent or such Lender after 1:00
p.m., Pittsburgh time, on any day shall be deemed to have been received on the
next succeeding Business Day. The Agent shall distribute to the Lenders all such
payments received by the Agent for their respective accounts as promptly as
practicable after receipt by the Agent.
(c) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by
law, after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from the Borrower
hereunder or under any other Loan Document, such amounts shall bear interest for
each day until paid (before and after judgment), payable on demand, at a rate
per annum (in each case based on a year of 365 or 366 days, as the case may be,
and actual days elapsed) which for each day shall be equal to the following:
(i) In the case of any part of the Euro-Rate Portion of any
Loans, (A) until the end of the applicable then-current Funding Period
at a rate per annum 2.00% above the rate otherwise applicable to such
part, and (B) thereafter in accordance with the following clause (ii);
and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, 2.00% above the then-current Base
Rate Option applicable to Late Maturity Tranches.
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To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
2.10. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender Party or any Notional Euro-Rate
Funding Office to any tax or changes the basis of taxation with respect
to this Agreement, the Notes, the Loans, or payments by the Borrower of
principal, interest, fees or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on the overall net
income or overall gross receipts of such Lender Party or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender Party's principal office or Notional
Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit, insurance assessment or any other requirement against
credits or commitments to extend credit extended by, assets (funded or
contingent) of, deposits with or for the account of, other acquisitions
of funds by, such Lender Party or any Notional Euro-Rate Funding Office
(other than requirements expressly included herein in the determination
of the Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent)
of, or credits or commitments to extend credit extended by, any Lender
Party or any Notional Euro-Rate Funding Office, or applicable to the
obligations of any Lender Party or any Notional Euro-Rate Funding
Office under this Agreement, or
(iv) imposes upon any Lender Party or any Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement, the Notes or its making, maintenance or funding of any Loan,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender Party, any Notional Euro-Rate Funding Office or, in the case of clause
(iii) hereof, any Person controlling a Lender Party, with respect to this
Agreement, the Notes or the making, maintenance or funding of any Loan (or, in
the case of any capital adequacy or similar requirement, to have the effect of
reducing the rate of return on such Lender Party's or controlling Person's
capital, taking into consideration such Lender Party's or controlling Person's
policies with respect to capital adequacy) by an amount which such Lender Party
deems to be material (such Lender Party being deemed for this purpose to have
made, maintained or funded each Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds), such Lender Party may from
time to time notify the Borrower of the amount determined in good faith by such
Lender Party (which determination shall be conclusive) to be necessary to
compensate such Lender Party or such Notional Euro-Rate Funding Office for such
increase, reduction or imposition. In making any such determination
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such Lender Party may take into account any special, supplemental or other
nonrecurring items, may apply any averaging or attribution methods, and may make
such determination prospectively or retrospectively. Such amount shall be due
and payable by the Borrower to such Lender Party five Business Days after such
notice is given, together with an amount equal to interest on such amount from
the date two Business Days after the date demanded until such due date at the
Base Rate Option applicable to the related portion of the Loan. The Borrower
shall not be required to make any payment in respect of clause (a)(i) above to a
Lender to the extent that such payment is attributable to a breach by such
Lender of its obligations under Section 2.11(c) below.
(b) FUNDING BREAKAGE. In the event that for any reason (i) the
Borrower fails to borrow, convert or renew any part of any Loan hereunder which
would, after such borrowing, conversion or renewal, have a Euro-Rate Portion,
after notice requesting such borrowing, conversion or renewal has been given by
the Borrower (whether such failure results from failure to satisfy applicable
conditions to such borrowing, conversion or renewal or otherwise), or (ii) any
part of any Funding Segment of any Euro-Rate Portion becomes due (by
acceleration or otherwise), or is paid, prepaid or converted to another interest
rate Option (whether or not such payment, prepayment or conversion is mandatory
or automatic and whether or not such payment or prepayment is then due), on a
day other than the last day of the corresponding Funding Period, the Borrower
shall indemnify each Lender on demand against any loss, liability, cost or
expense of any kind or nature which such Lender may sustain or incur in
connection with or as a result of such event. Such indemnification in any event
shall include an amount equal to the excess, if any, of (x) the aggregate amount
of interest which would have accrued on the amount of the Euro-Rate Portion not
so borrowed, converted or renewed, or which so becomes due, or which is so paid,
prepaid or converted, as the case may be, from and including the date on which
such borrowing, conversion or renewal would have been made pursuant to such
notice, or on which such part of such Funding Segment so becomes due, or on
which such part of such Funding Segment is so paid, prepaid or converted, as the
case may be, to the last day of the Funding Period applicable to such amount
(or, in the case of a failure to borrow, convert or renew, the Funding Period
that would have been applicable to such amount but for such failure), in each
case at the applicable rate of interest for such Euro-Rate Portion provided for
herein (excluding, however, the Applicable Margin included therein, if any),
over (y) the aggregate amount of interest (as determined in good faith by such
Lender) which would have accrued to such Lender on such amount for such period
by placing such amount on deposit for such period with leading banks in the
interbank market. A certificate by the Lender as to any amount that such Lender
is entitled to receive pursuant to this Section 2.10(b) shall be conclusive if
made in good faith.
2.11. TAXES.
(a) PAYMENT NET OF TAXES. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of each Lender Party, income or franchise
taxes imposed on such Lender Party by the jurisdiction under the laws
of which such Lender Party is organized or any political subdivision or
taxing authority thereof or therein or as a result of a connection
between such Lender Party and any jurisdiction other than a connection
resulting solely from this Agreement and the transactions contemplated
hereby, and
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(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to any Lender Party under this
Agreement or any other Loan Document, the Borrower shall pay the relevant amount
of such Taxes and the amounts so payable to such Lender Party shall be increased
to the extent necessary to yield to such Lender Party (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the other Loan Documents. Whenever
any Taxes are paid by the Borrower with respect to payments made in connection
with this Agreement or any other Loan Document, as promptly as possible
thereafter, the Borrower shall send to the Agent for its own account or for the
account of such Lender Party, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof.
(b) INDEMNITY. The Borrower hereby indemnifies each Lender
Party for the full amount of all Taxes attributable to payments by or on behalf
of the Borrower to such Lender Party hereunder or under any of the other Loan
Documents, any Taxes paid by such Lender Party, and any present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any Taxes (including any incremental Taxes, interest or
penalties that may become payable by such Lender Party as a result of any
failure to pay such Taxes). Such indemnification shall be made within five
Business Days from the date such Lender Party makes written demand therefor. The
Borrower shall not be required to make any payment under this Section 2.11(b) to
a Lender to the extent that such payment is attributable to a breach by such
Lender of its obligations under Section 2.11(c) below.
(c) WITHHOLDING. Each Lender that is incorporated or organized
under the laws of any jurisdiction other than the United States or any state
thereof agrees that, on or prior to the date it becomes party to this Agreement,
it will furnish to the Borrower and the Agent two valid, duly completed copies
of United States Internal Revenue Service Form 4224 or United States Internal
Revenue Service Form 1001 or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or withholding of
any United States federal income taxes. Each Lender which so delivers to the
Borrower and the Agent a Form 1001 or 4224, or a successor applicable form,
agrees to deliver to the Borrower and the Agent two further copies of the said
Form 1001 or 4224 or a successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrower or the Agent, certifying in the case of a Form 1001 or
Form 4224 that such Lender is entitled to receive payments under this Agreement
or any other Loan Document without deduction or withholding of any United States
federal income taxes, unless in any such cases an event (including any changes
in law) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such letter or form
with respect to it and such Lender advises the Borrower and the Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax. In addition, if at any time the Borrower believes
that
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payments to any Lender (foreign or domestic) may be subject to U.S. backup
withholding tax, such Lender shall, at the Borrower's reasonable request from
time to time, if such Lender is legally able to do so, provide the Borrower with
evidence establishing an exemption from U.S. backup withholding tax.
(d) CREDITS. If any payment by the Borrower is made to or for
the account of the Lender Party after deduction for or on account of any Taxes,
and increased payments are made by the Borrower pursuant to Section 2.11(a),
then, if such Lender Party in its reasonable opinion determines that it has
received or been granted a credit against or remission for such Taxes, such
Lender Party shall, to the extent it can do so without prejudice to the
retention of the amount of such credit or remission, reimburse to the Borrower
such amount as such Lender Party shall, in its reasonable opinion acting in good
faith, have determined to be attributable to the relevant Taxes or deduction or
withholding. Any payment made by a Lender Party under this Section 2.11(d) shall
be prima facie evidence of the amount due to the Borrower hereunder. Nothing
herein contained shall interfere with the right of any Lender Party to arrange
its tax affairs in whatever manner it thinks fit and, in particular, no Lender
Party shall be under any obligation to claim relief from its corporate profits
or similar tax liability in respect of such tax in priority to any other claims,
reliefs, credits or deductions available to it nor oblige any Lender Party to
disclose any information relating to its tax affairs or any computations in
respect thereof.
2.12. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
(a) NOTIONAL FUNDING. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding Office." Such Lender shall deem any part of the Euro-Rate Portion of the
Loans or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.03(e)(ii) hereof or would lessen compensation
payable by the Borrower under Section 2.10(a) hereof, and if such Lender
determines in its sole discretion that such transfer would be practicable and
would not have a material adverse effect on such part of the Loans, such Lender
or any Notional Euro-Rate Funding Office (it being assumed for purposes of such
determination that each part of the Euro-Rate Portion is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) ACTUAL FUNDING. Each Lender shall have the right from time
to time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
promissory notes in the principal amount of such Euro-Rate Portion, in
substantially the form attached hereto as Exhibit A-1, with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate. The
Borrower agrees to comply promptly with any request under clause (ii) of this
Section 2.12(b). If any Lender causes a branch, subsidiary or affiliate to make
or maintain any part of the Euro-Rate Portion hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Euro-Rate Portion and to any note
payable to the order of such branch, subsidiary or affiliate to the same extent
as if such part of the Euro-Rate Portion were made or maintained and such note
were a Term Loan Note payable to such Lender's order.
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ARTICLE III
[RESERVED]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender
Party as follows:
4.01. CORPORATE STATUS. The Borrower and each Subsidiary of
the Borrower is a Corporation duly organized and validly existing under the laws
of its jurisdiction of organization. The Borrower and each Subsidiary of the
Borrower has corporate power and authority to own its property and to transact
the business in which it is engaged or presently proposes to engage. The
Borrower and each Subsidiary of the Borrower is duly qualified to do business as
a foreign Corporation and, to the extent applicable, is in good standing in all
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary or advisable, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect.
4.02. CORPORATE POWER AND AUTHORIZATION. The Borrower has
corporate power and authority to execute, deliver, perform, and take all actions
contemplated by, each Loan Document to which it is a party, and all such action
has been duly and validly authorized by all necessary corporate proceedings on
its part. Without limitation of the foregoing, the Borrower has the corporate
power and authority to borrow pursuant to the Loan Documents to the fullest
extent permitted hereby and thereby, and has taken all necessary corporate
action to authorize such borrowings.
4.03. EXECUTION AND BINDING EFFECT. This Agreement, each other
Loan Document to which the Borrower is a party and which is executed and
delivered or required to be executed and delivered on or before the date as of
which this representation and warranty is made, has been duly and validly
executed and delivered by the Borrower. This Agreement and each such Loan
Document constitutes, and each other Loan Document when executed and delivered
by the Borrower will constitute, the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
4.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary or advisable in connection with execution and delivery of
any Loan Document, consummation of the transactions herein or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof or thereof, except for the following: (a)
filings and recordings in respect of the Liens in favor of the Collateral Agent
and the Agent contemplated hereby and thereby, and (b) other matters set forth
in Schedule 4.04 hereof. Each Governmental Action referred to in the foregoing
clauses (a) and (b) has been duly obtained or made, as the case may be, and is
in full force and effect (except, in the case of clause (a), for the filing of
continuation statements and like renewal filings and recordings which are not
yet required to be made). There is no action, suit, proceeding or investigation
pending or (to the Borrower's knowledge after due inquiry) threatened which
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seeks or may result in the reversal, rescission, termination, modification or
suspension of any such Governmental Action.
4.05. ABSENCE OF CONFLICTS. Neither the execution and delivery
of any Loan Document nor consummation of the transactions herein or therein
contemplated, nor performance of or compliance with the terms and conditions
hereof or thereof, does or will
(a) violate or conflict with any Law, or
(b) violate or conflict with, or constitute a default under,
or result in (or give rise to any right, contingent or other, of any
Person to cause) any termination, cancellation, prepayment or
acceleration of performance of, or result in the creation or imposition
of (or give rise to any obligation, contingent or other, to create or
impose) any Lien upon any property of the Borrower or any Subsidiary of
the Borrower (except for any Lien in favor of the Collateral Agent
securing the Obligations) pursuant to, or otherwise result in (or give
rise to any right, contingent or other, of any Person to cause) any
change in any right, power, privilege, duty or obligation of the
Borrower or any Subsidiary of the Borrower under or in connection with,
(i) the articles of incorporation or by-laws (or other constituent
documents) of the Borrower or any Subsidiary of the Borrower, or (ii)
any agreement or instrument to which the Borrower or any Subsidiary of
the Borrower is a party or by which any of them or any of their
respective properties may be subject or bound,
except, in the case of the foregoing clause (b)(ii), for matters set forth on
Schedule 4.05 hereof.
4.06. AUDITED FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender consolidated balance sheets of
the Borrower and its consolidated Subsidiaries as of December 31, 1994 and
December 31, 1995 and the related consolidated statements of income, cash flows
and changes in stockholders' equity for the fiscal years then ended, as audited
and reported on by Deloitte & Touche, independent certified public accountants
for the Borrower, who delivered an unqualified opinion in respect thereof. Such
financial statements (including the notes thereto) present fairly the financial
position of the Borrower and its consolidated Subsidiaries as of the end of each
such fiscal year and the results of their operations and their cash flows for
the fiscal years then ended, all in conformity with GAAP.
4.07. INTERIM FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender interim consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as of September 30,
1996, together with the related consolidated statements of income, cash flows
and changes in stockholders' equity for the period from January 1, 1996 to such
date. Such financial statements (including the notes thereto) present fairly the
financial condition of the Borrower and its consolidated Subsidiaries as of
September 30, 1996, and their respective results of operations and cash flows
for the fiscal period then ended, all in conformity with GAAP (except that such
financial statements do not contain all of the footnote disclosures required by
GAAP), subject to normal and recurring year-end audit adjustments.
4.08. ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Borrower
nor any Subsidiary of the Borrower has any liability or obligation of any nature
(whether absolute, accrued, contingent or other, whether or not due, including
but not limited to forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments) that would be required by GAAP to be
reflected on
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a consolidated balance sheet of the Borrower and its Subsidiaries (including the
notes thereto) or that has, or would be likely to have, a Material Adverse
Effect, except (a) matters set forth on Schedule 4.08 hereto, (b) liabilities
and obligations disclosed in the financial statements referred to in Sections
4.05 and 4.06 hereof, (c) liabilities and obligations incurred after December
31, 1995 in the ordinary course of business and consistent with past practices,
and (d) obligations under the Credit Facilities.
4.09. ACCURATE AND COMPLETE DISCLOSURE. All written
information heretofore, contemporaneously or hereafter provided by or on behalf
of the Borrower or any Subsidiary of the Borrower to any Secured Party pursuant
to or in connection with any Loan Document or any transaction contemplated
hereby or thereby is or will be (as the case may be) true and accurate in all
material respects on the date as of which such information is dated (or, if not
dated, when received by such Secured Party) and does not or will not (as the
case may be) omit to state any material fact necessary to make such information
not misleading at such time in light of the circumstances in which it was
provided. Except as disclosed to the Agent and each Lender in writing, the
Borrower is not aware of any event, change or effect (other than political,
social or economic events, changes or effects of general national or global
scope) having or likely to have individually or in the aggregate, a Material
Adverse Effect.
4.10. PROJECTIONS. The Borrower has delivered to the Agent
projections prepared by the Borrower, dated February 5, 1997, for the years 1997
through 2001, demonstrating the projected consolidated financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries, which
projections are accompanied by a written statement of the assumptions and
estimates underlying such projections. Such projections, assumptions and
estimates, as of the Closing Date, are reasonable, consistent with the Loan
Documents, and represent the best judgment of the Borrower on such matters. Such
projections, assumptions and estimates are based upon political, social and
economic assumptions that are believed to be reasonable. Nothing has come to the
attention of the Borrower as of the Closing Date which would lead it to believe
that such projections will not be attained or exceeded. Such projections are not
a guarantee of future performance.
4.11. SOLVENCY. On and as of the date hereof, and on the
Closing Date, the Borrower and each Significant Subsidiary of the Borrower is
and will be Solvent (and for this purpose, each Subsidiary of the Borrower which
is not Solvent shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single entity, they
would constitute a Significant Subsidiary).
4.12. MARGIN REGULATIONS. No part of the proceeds of any
extension of credit hereunder will be used for the purpose of buying or carrying
any "margin stock," as such term is used in Regulations G and U of the Board of
Governors of the Federal Reserve System, as amended from time to time, to extend
credit to others for the purpose of buying or carrying any "margin stock," or to
extend credit to any Subsidiary of the Borrower that is a Broker-Dealer. Neither
the Borrower nor any Subsidiary of the Borrower is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock."
Neither the Borrower nor any Subsidiary of the Borrower owns "margin stock"
sufficient to cause any Loan Obligations to be deemed "indirectly secured" by
"margin stock" within the meaning of such Regulations. Neither any extension of
credit pursuant to this Agreement nor any use of proceeds of any such extension
of credit will violate or conflict with the provisions of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time.
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4.13. REGULATORY RESTRICTIONS. Except as set forth in Schedule
4.13 hereof, neither the Borrower nor any Subsidiary of the Borrower is (a) an
"investment company" or a company "controlled" by an investment company within
the meaning of the Investment Company Act of 1940, as amended, (b) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (c) subject to
regulation under the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, as amended, or (d) subject to any other Law
which purports to restrict or regulate its ability to borrow money or obtain
credit as a consequence of the nature of the business conducted by such Person.
4.14. SUBSIDIARIES. Schedule 4.14 hereof states the authorized
capitalization of each Subsidiary of the Borrower, the number of Shares of
Capital Stock of each class issued and outstanding of each such Subsidiary, and
the number and percentage of outstanding Shares of Capital Stock of each such
class owned by the Borrower and by each Subsidiary of the Borrower. The
outstanding Shares of Capital Stock of each Subsidiary of the Borrower have been
duly authorized and validly issued and are fully paid and nonassessable. The
Borrower and each Subsidiary of the Borrower owns beneficially and of record and
has good title to all of the Shares of Capital Stock it is listed as owning in
such Schedule 4.14, free and clear of any Lien, except for Liens in favor of the
Collateral Agent securing the Obligations. Except as set forth on Schedule 4.14
hereof, there are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or other) which may in any circumstances now or hereafter obligate
any Subsidiary of the Borrower to issue any Shares of its Capital Stock or any
other securities.
4.15. PARTNERSHIPS, ETC. Neither the Borrower nor any
Subsidiary of the Borrower is a partner (general or limited) of any partnership,
is a party to any joint venture, or owns (beneficially or of record) any equity
or similar interest in any Person (including but not limited to any interest
pursuant to which the Borrower or such Subsidiary has or may in any circumstance
have an obligation to make capital contributions to, or be generally liable for
or on account of the liabilities, acts or omissions of such other Person),
except (a) distributorship or similar arrangements that do not involve liability
on the part of the Borrower or any of its Subsidiaries in the nature of the
liability of a general partner, and (b) partnership interests permitted under
Sections 7.05(g) and 7.05(j) hereof.
4.16. LITIGATION. There is no pending or (to the knowledge of
the Borrower after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Borrower or any Subsidiary of the Borrower, except for (x) matters set forth on
Schedule 4.16 hereto, and (y) matters that if adversely decided, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
4.17. ABSENCE OF OTHER CONFLICTS. Neither the Borrower nor any
Subsidiary of the Borrower is in violation of or conflict with, or is subject to
any contingent liability on account of any violation of or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constituent documents), or
(c) any agreement or instrument to which it is party or by
which it or any of its properties may be subject or bound,
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except for matters that, individually or in the aggregate, do not, and would not
be likely to, have a Material Adverse Effect.
4.18. INSURANCE. The Borrower and each Subsidiary of the
Borrower maintains, or causes there to be maintained, with financially sound and
reputable insurers not related to or affiliated with the Borrower insurance with
respect to its properties and business and against at least such liabilities,
casualties and contingencies and in at least such types and amounts as is
customary in the case of Persons engaged in the same or a similar business or
having similar properties similarly situated.
4.19. TITLE TO PROPERTY. The Borrower and each Subsidiary of
the Borrower has good and marketable title in fee simple to all real property
owned or purported to be owned by it and good title to all other property of
whatever nature owned or purported to be owned by it, including but not limited
to all property reflected in the most recent audited balance sheet referred to
in Section 4.06 hereof (except as sold or otherwise disposed of in the ordinary
course of business after the date of such balance sheet), in each case free and
clear of all Liens, other than Permitted Liens.
4.20. INTELLECTUAL PROPERTY. The Borrower and each Subsidiary
of the Borrower owns, or is licensed or otherwise has the right to use, all the
patents, trademarks, service marks, names (trade, service, fictitious or other),
copyrights, technology (including but not limited to computer programs and
software), know-how, processes, data bases and other rights, free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others, except for matters that,
individually or in the aggregate, do not, and would not be likely to, have a
Material Adverse Effect.
4.21. TAXES. All federal income tax returns required to be
filed by or on behalf of the Borrower or any Subsidiary of the Borrower have
been properly prepared, executed and filed. All other tax and information
returns required to be filed by or on behalf of the Borrower or any Subsidiary
of the Borrower have been properly prepared, executed and filed, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect. All taxes, assessments, fees and other
governmental charges upon the Borrower or any Subsidiary of the Borrower or upon
any of their respective properties, incomes, sales or franchises which are due
and payable have been paid, other than those not yet delinquent and payable
without premium or penalty, and except for those being diligently contested in
good faith by appropriate proceedings, and in each case such reserves and
provisions for taxes as may be required by GAAP shall have been made on the
books of the Borrower and each Subsidiary of the Borrower. The reserves and
provisions for taxes on the books of the Borrower and each Subsidiary of the
Borrower for all open years and for its current fiscal period are adequate in
accordance with GAAP. As of the Closing Date, neither the Borrower nor any
Subsidiary of the Borrower knows of any proposed additional assessment or basis
for any material assessment for additional taxes (whether or not reserved
against), other than as set forth on Schedule 4.21 hereto.
4.22. EMPLOYEE BENEFITS. Except for matters disclosed to the
Agent before the date as of which this representation and warranty is made or
reaffirmed, neither the Borrower, any Subsidiary of the Borrower or Controlled
Group Member has incurred any liability that has not been fully discharged (or
any contingent or other potential liability that represents a material risk of
becoming an actual liability) exceeding $150,000 in the aggregate for all such
Persons for or in connection with any of the following: (a) any Pension-Related
Event (whether or not any such Pension-Related Event has occurred) or (b) any
complete or partial withdrawal from any Multiemployer Plan (whether or not such
withdrawal
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has occurred). All employee benefit arrangements covering employees of the
Borrower or any of its Subsidiaries have been administered in substantial
compliance with, and funded in accordance with, applicable Law.
4.23. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule
4.23 hereof, the Borrower and each Subsidiary of the Borrower and each of their
respective Environmental Affiliates is and has been in full compliance with all
applicable Environmental Laws, except for matters which, individually or in the
aggregate, do not, and would not be likely to, have a Material Adverse Effect.
Except as disclosed in Schedule 4.23 hereof, there is no Environmental Claim
pending or to the knowledge of the Borrower threatened, and there are no past or
present acts, omissions, events or circumstances (including but not limited to
any dumping, leaching, deposition, removal, abandonment, escape, emission,
discharge or release of any Environmental Concern Material at, on or under any
facility or property now or previously owned, operated or leased by the Borrower
or any Subsidiary of the Borrower or any of their respective Environmental
Affiliates) that could form the basis of any Environmental Claim, against the
Borrower or any Subsidiary of the Borrower or any of their respective
Environmental Affiliates, except for matters which do not, and, if adversely
decided, individually or in the aggregate, would not, have a Material Adverse
Effect. Except as disclosed in Schedule 4.23 hereof, no facility or property now
or previously owned, operated or leased by the Borrower or any Subsidiary of the
Borrower or any of their respective Environmental Affiliates is an Environmental
Cleanup Site. No Lien exists, and no condition exists which would be likely to
result in the filing of a Lien, against any property of the Borrower or any
Subsidiary of the Borrower under any Environmental Law.
ARTICLE V
CONDITIONS OF LENDING
5.01. CONDITIONS TO INITIAL LOANS. The obligation of each
Lender to make Term Loans on the Closing Date is subject to performance by the
Borrower of its obligations to be performed hereunder or under the other Loan
Documents, to the satisfaction of the conditions precedent set forth herein and
in the other Loan Documents and to the satisfaction, immediately prior to or
concurrently with the making of such Loan of the following further conditions
precedent:
(a) AGREEMENT; NOTES. The Agent shall have received, with a
copy for each Lender, this Agreement, duly executed on behalf of the
Borrower, and Term Loan Notes conforming to the requirements hereof,
duly executed on behalf of the Borrower.
(b) SHARED SECURITY DOCUMENTS. The Collateral Agent shall have
received the following, each of which shall be in form and substance
satisfactory to the Agent, with a copy for each Lender (except that the
Lenders shall not be entitled to receive duplicate originals of the
stock certificates and other instruments pledged pursuant to the
following Shared Security Documents and the stock powers delivered in
connection therewith):
(i) The Collateral Agency Agreement, duly executed on behalf
of Borrower and the other parties thereto.
(ii) The Borrower Pledge Agreement, duly executed on behalf of
the Borrower.
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(iii) Certificates and instruments representing the stock
certificates and other instruments pledged pursuant to the Borrower
Pledge Agreement, accompanied by undated duly executed instruments of
transfer or assignment in blank, in form and substance satisfactory to
the Agent.
(iv) Financing statements executed by the Borrower and in
proper form for filing under the Uniform Commercial Code in such
jurisdictions as may be necessary or, in the opinion of the Agent,
desirable to create, perfect or protect the Liens created or purported
to be created by the Borrower Pledge Agreement (which financing
statements shall cover all personal property of the Borrower, whether
or not constituting collateral security under the Borrower Pledge
Agreement).
(v) Evidence that all other actions necessary or, in the
opinion of the Agent, desirable to create, perfect or protect the Liens
created or purported to be created by the Borrower Pledge Agreement
have been taken.
(vi) Evidence of contemporaneous searches of UCC, tax and
other appropriate registers, dockets and records, which shall have
revealed no filings or recordings with respect to property of the
Borrower (other than those relating to Permitted Liens).
(c) WEFA ACQUISITION. The Borrower or a Wholly Owned
Subsidiary of the Borrower shall have entered into a contract to
acquire good title, free of all Liens, to all of the outstanding Shares
of Capital Stock of WEFA Holdings, Inc. ("WEFA").
(d) ACQUISITION DOCUMENTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on behalf of the Borrower) of the following, each of
which shall be satisfactory in form and substance to the Agent: all
agreements relating to the acquisition of the Shares of Capital Stock
of WEFA (including in each case all exhibits, schedules and disclosure
letters delivered pursuant thereto), all amendments, waivers and
consents relating thereto, and all other side letters or agreements
affecting the terms thereof or other transactions contemplated thereby.
(e) OTHER CREDIT FACILITIES. The Agent shall have received
evidence satisfactory to it that all conditions precedent to funding
under the Revolving Credit Agreement and the Note Backup Agreement
shall have been satisfied.
(f) DISCHARGE OF PRIOR CREDIT FACILITIES. With respect to (a)
the Revolving Credit Agreement dated as of June 29, 1995 among the
Borrower, the Issuing Banks referred to therein, the Lenders parties
thereto from time to time, Mellon Bank, N.A., The First National Bank
of Boston, and NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon
Bank, N.A., as Agent, as amended, (b) the Term Loan Agreement dated as
of June 29, 1995 among the Borrower, the Lenders parties thereto from
time to time, Mellon Bank, N.A., The First National Bank of Boston and
NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon Bank, N.A., as
Agent, as amended, and (c) the Credit Agreement dated as of October 23,
1996 among the Borrower, the Issuing Bank referred to therein, and
Mellon Bank, N.A., as Agent, as amended, all principal, interest,
letter of credit draws, fees and other amounts outstanding or otherwise
due and payable shall have been paid in full, all commitments
thereunder shall have terminated, all outstanding letters of credit
thereunder shall have been terminated or assumed under one of the
Credit Facilities, and all collateral security therefor shall have been
released.
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(g) GOVERNMENTAL APPROVALS AND FILINGS. The Agent shall have
received, with copies for each Lender, true and correct copies (in each
case certified as to authenticity on such date on behalf of the
Borrower) of all items referred to in clause (b) of Section 4.04 hereof
and such items shall be satisfactory in form and substance to the Agent
and shall be in full force and effect.
(h) OTHER CONFLICTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on such date on behalf of the Borrower) of each
consent, waiver, amendment or agreement which has been obtained by or
on behalf of the Borrower or any Subsidiary of the Borrower in respect
of any matter which would, absent such consent, waiver, amendment or
agreement, be within the scope of clause (b)(ii) of Section 4.05
hereof, and such items shall be satisfactory in form and substance to
the Agent and shall be in full force and effect.
(i) CORPORATE PROCEEDINGS. The Agent shall have received, with
a counterpart for each Lender, certificates by the Secretary or
Assistant Secretary of the Borrower dated as of the Closing Date as to
(i) true copies of the articles of incorporation and by-laws (or other
constituent documents) of the Borrower in effect on such date, (ii)
true copies of all corporate action taken by the Borrower relative to
this Agreement and the other Loan Documents and (iii) the incumbency
and signature of the respective officers of the Borrower executing this
Agreement and the other Loan Documents to which the Borrower is a
party, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Agent shall have received, with a
copy for each Lender, certificates from the appropriate Secretary of
State or other applicable Governmental Authorities dated not more than
30 days before the Closing Date showing the good standing of the
Borrower in its state of incorporation.
(j) 1996 FINANCIAL STATEMENTS. The Borrower shall have
furnished to the Agent an unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of December 31, 1996, and
unaudited consolidated statements of income and stockholders' equity of
the Borrower and its consolidated Subsidiaries for the fiscal year
ended December 31, 1996. Such financial statements shall have been
certified by a Responsible Officer of the Borrower as presenting fairly
the consolidated financial position of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year and the
consolidated results of their operations and stockholders' equity for
such fiscal year, in conformity with GAAP, subject to normal and
recurring audit adjustments.
(k) FORM U-1. The Agent shall have received, with a
counterpart for each Lender, a Federal Reserve Board Form U-1, duly
executed by the Borrower, satisfactory in form and substance to the
Agent.
(l) LITIGATION. There shall not be pending or (to the
knowledge of the Borrower after due inquiry) threatened action, suit,
proceeding or investigation by or before any Governmental Authority
seeking to challenge, prevent or declare illegal any of the
transactions contemplated by the Loan Documents.
(m) LEGAL OPINION OF COUNSEL TO THE BORROWER. The Agent shall
have received, with an executed counterpart for each Lender, an opinion
addressed to the Agent and each Lender, dated the Closing Date, of
counsel to the Borrower (who shall be satisfactory to the Agent), as to
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such matters as may be requested by the Agent and in form and substance
satisfactory to the Agent.
(n) OFFICERS' CERTIFICATES. The Agent shall have received,
with an executed counterpart for each Lender, certificates from such
officers of the Borrower as to such matters as the Agent may request.
(o) NO MATERIAL ADVERSE CHANGE. No material adverse change
shall have occurred in the business, operations, assets, condition
(financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole since September 30, 1996.
(p) REPRESENTATIONS AND WARRANTIES, ETC. All representations
and warranties set forth in Article IV hereof shall be true and correct
on and as of the Closing Date as if made on and as of the Closing Date,
after giving effect to the transactions contemplated by the Loan
Documents to occur on or before the Closing Date.
(q) NO DEFAULTS. No Event of Default or Potential Default
shall have occurred and be continuing or exist on the Closing Date or
after giving effect to the transactions contemplated by the Loan
Documents to occur on or before the Closing Date.
(r) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of
the Loans shall cause any Lender Party to violate any Law.
(s) NOTICE. Notice with respect to the Loans shall have been
given by the Borrower in accordance with Article II hereof.
(t) FEES, EXPENSES, ETC. The Borrower shall have executed and
delivered an origination fee letter (the "Origination Fee Letter") of
even date herewith satisfactory in form and substance to the Agent. All
fees and other compensation required to be paid to the Agent or the
Lenders pursuant hereto or pursuant to such Origination Fee Letter on
or prior to the Closing Date shall have been paid or received.
(u) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other matters in connection with the
transactions contemplated by this Agreement and the other Loan
Documents, shall be satisfactory in form and substance to the Agent.
The Agent shall have received such other documents, instruments and
other items as the Agent may reasonably request.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
6.01. BASIC REPORTING REQUIREMENTS.
(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any
event within 105 days after the close of each fiscal year of the Borrower, the
Borrower shall furnish to the Agent, with a copy
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for each Lender, audited consolidated statements of income, cash flows and
stockholders' equity of the Borrower and its consolidated Subsidiaries for such
fiscal year, an unaudited consolidating statement of income of the Borrower and
its consolidated Subsidiaries for such fiscal year, and an audited consolidated
balance sheet and unaudited consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal year, and notes to
each, all in reasonable detail, prepared on a comparative basis in accordance
with GAAP. Such audited financial statements shall be accompanied by an opinion
of Deloitte & Touche or other independent certified public accountants of
recognized national standing selected by the Borrower and reasonably
satisfactory to the Agent. Such opinion shall be free of any exception,
qualification or explanation not acceptable to the Agent (and in any event shall
be free of any exception, qualification or explanation relating to ability to
continue as a going concern, a limited scope of examination or independence).
Such opinion in any event shall contain a written statement of such accountants
substantially to the effect that (i) such accountants audited such consolidated
financial statements in accordance with generally accepted auditing standards
and (ii) in the opinion of such accountants such audited financial statements
present fairly the financial position of the Borrower and its consolidated
Subsidiaries as of the end of such fiscal year and the results of their
operations and their cash flows and stockholders' equity for such fiscal year,
in conformity with GAAP. Such unaudited financial statements shall be certified
by a Responsible Officer of the Borrower as presenting fairly the consolidated
and consolidating financial position of the Borrower and its consolidated
Subsidiaries as of the end of such fiscal year, and the respective consolidated
and consolidating results of their operations and their cash flows and
stockholders' equity for such fiscal year, in conformity with GAAP.
(b) QUARTERLY REPORTS. As soon as practicable, and in any
event within 60 days after the close of each of the first three fiscal quarters
of each fiscal year of the Borrower, the Borrower shall furnish to the Agent,
with a copy for each Lender, unaudited consolidated statements of income, cash
flows and stockholders' equity of the Borrower and its consolidated Subsidiaries
for such fiscal quarter and for the period from the beginning of such fiscal
year to the end of such fiscal quarter, an unaudited consolidating statement of
income for such fiscal quarter and for the period from the beginning of such
fiscal year to the end of such fiscal quarter, and unaudited consolidated and
consolidating balance sheets of the Borrower and its consolidated Subsidiaries
as of the close of such fiscal quarter, and notes to each, all in reasonable
detail, setting forth in comparative form the corresponding figures for the same
periods or as of the same date during the preceding fiscal year (except for the
consolidated balance sheet, which shall set forth in comparative form the
corresponding balance sheet as of the prior fiscal year end, and cash flow
statements, which shall report only year to date periods). Such financial
statements shall be certified by a Responsible Officer of the Borrower as
presenting fairly the consolidated and consolidating financial position of the
Borrower and its consolidated Subsidiaries as of the end of such fiscal quarter
and the respective consolidated and consolidating results of their operations
and their cash flows and stockholders' equity for such fiscal quarter, in
conformity with GAAP, subject to normal and recurring year-end audit
adjustments.
(c) COMPLIANCE CERTIFICATES. Concurrently with the delivery of
the financial statements referred to in Sections 6.01(a) and 6.01(b), the
Borrower shall deliver, or cause to be delivered, to the Agent, with a copy for
each Lender, a certificate in substantially the form set forth as Exhibit C,
duly completed and signed by a Responsible Officer of the Borrower.
(d) ACCOUNTANTS' CERTIFICATES. Concurrently with the Agent's
receipt from the Borrower of each set of audited financial statements delivered
pursuant to Section 6.01(a), the Borrower shall deliver, or cause to be
delivered, to the Agent, with sufficient copies for each Lender, a report signed
by
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the independent certified public accountants who opined on such financial
statements and dated the date of such financial statements, stating in substance
that they have reviewed this Agreement and the other Loan Documents and that in
making the examination necessary for their opinion on such financial statements
they did not become aware of any Event of Default or Potential Default pursuant
to Sections 7.01, 7.02(e)(iv), 7.03(e) and 7.03(f) as of the end of such fiscal
year, or, if they did become so aware, such certificate or report shall state
the nature and period of existence thereof.
(e) ANNUAL BUSINESS PLAN. Not later than January 31 of each
year, the Borrower shall furnish to the Agent, with a copy for each Lender, a
business plan for the Borrower and its Subsidiaries for the next five years,
certified as such by a Responsible Officer of the Borrower. Such business plan
shall be not less detailed than the 1997-2001 corporate plan heretofore
delivered to the Agent and each Lender, and shall include or be accompanied by,
among other matters reasonably requested from time to time, projected income,
cash flows and summary balance sheet for the Borrower and its Subsidiaries, on
both a consolidated and a separate unconsolidated basis for each year in such
five year period.
(f) QUARTERLY PLAN UPDATES. Concurrently with the delivery of
the financial statements referred to in Section 6.01(b), the Borrower shall
furnish to the Agent, with a copy for each Lender, a quarterly update to the
most recent annual business plan, certified as such by a Responsible Officer of
the Borrower. Such business plan shall be not less detailed than the third
quarter update for 1996 heretofore delivered to the Agent and each Lender.
(g) QUARTERLY FINANCIAL INFORMATION. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall provide the Agent, with a copy for each Lender,
summary financial information as to the Borrower and its consolidated
Subsidiaries on a consolidated basis (and separate financial information for
such Subsidiaries as the Agent may reasonably request) as of the end of the
preceding month, all in reasonable detail and in any case including, among other
matters reasonably requested by the Agent from time to time, financial
information on a monthly and year-to-date basis, and separate line-items showing
EBIT, depreciation and amortization, all certified by a Responsible Officer of
the Borrower.
(h) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their
becoming available to the Borrower, the Borrower shall deliver, or cause to be
delivered, to the Agent, with a copy for each Lender, a copy of (i) all regular
or special reports, registration statements and amendments to the foregoing
which the Borrower or any Subsidiary of the Borrower shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) all reports, proxy statements, financial statements and other
information distributed by the Borrower to its security holders or the financial
community generally, and (iii) upon request by any Lender Party, all reports
submitted by outside accountants in connection with any audit of the Borrower or
any Subsidiary of the Borrower, including but not limited to all management
letters commenting on the internal controls of the Borrower or any Subsidiary of
the Borrower submitted in connection with any such audit.
(i) FURTHER INFORMATION. The Borrower will promptly furnish,
or cause to be furnished, to the Agent, with a copy for each Lender, such other
information and in such form as the Agent or any Lender may reasonably request
from time to time.
(j) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of
any of the following, the Borrower shall give the Agent notice thereof, together
with a written statement of a Responsible
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Officer of the Borrower setting forth the details thereof and any action with
respect thereto taken or proposed to be taken by the Borrower, and the Agent
shall promptly notify each Lender thereof:
(i) Any Event of Default or Potential Default.
(ii) Any material adverse change in the business, operations,
condition (financial or otherwise) or prospects (exclusive, in the case
of prospects, of political, social or economic events, changes or
effects of general national or global scope) of the Borrower and its
Subsidiaries taken as a whole.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting the Borrower or any Subsidiary of the Borrower which, if
adversely decided, individually or in the aggregate, would, or would be
likely to, have a Material Adverse Effect.
(iv) Any termination for default by the Borrower of any
contract which would reasonably be likely to result in a direct loss of
aggregate revenues in excess of $20,000,000 to which the Borrower or
any Subsidiary of the Borrower is a party.
(v) Any Pension-Related Event, other than (w) any Reportable
Event described in subsection (i) of the definition of such term herein
as to which the 30 day notice requirement to the PBGC is waived under
applicable regulations, and (x) any Pension-Related Event described in
subsection (d) or (f) of the definition thereof which involves a
liability of the Borrower, any Subsidiary of the Borrower or any
Controlled Group Member that has not been fully discharged (or a
contingent or other potential liability that represents a material risk
of becoming an actual liability) of less than $1,000,000 in the
aggregate for all such Persons. Such notice shall be accompanied by the
following: (y) a copy of any notice, request, return, petition or other
document received by the Borrower, any Subsidiary of the Borrower or
any Controlled Group Member from any Person, or which has been or is to
be filed with or provided to any Person (including, without limitation,
the Internal Revenue Service, the Department of Labor, the PBGC or any
Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (z)
in the case of any Pension-Related Event with respect to a Plan, the
most recent Annual Report (5500 Series), with attachments thereto, and
if such Plan is required by applicable Law to have an actuarial
valuation report, the most recent actuarial valuation report, for such
Plan.
(k) VISITATION AND VERIFICATION GENERALLY. The Borrower shall
permit such Persons as the Agent or any Lender may designate from time to time
to visit and inspect any of the properties of the Borrower and any Subsidiary of
the Borrower, to examine their respective books and records and take copies and
extracts therefrom and to discuss their respective affairs with their respective
directors, officers, employees and independent accountants at such times and as
often as the Agent or any Lender may reasonably request, subject to mandatory
national security regulations. The Borrower hereby authorizes such officers,
employees and independent accountants to discuss with the Agent or any Lender
the affairs of the Borrower and its Subsidiaries, subject to mandatory national
security regulations. The Agent and the Lenders shall have the right to examine
and verify accounts, inventory and other properties and liabilities of the
Borrower and its Subsidiaries from time to time, and the Borrower shall
cooperate, and shall cause each of its Subsidiaries to cooperate, with the Agent
and the Lenders in such verification, subject to mandatory national security
regulations.
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(l) DUTY TO MAINTAIN INDEPENDENT ACCOUNTANTS WITH SECURITY
CLEARANCES; VERIFICATION OF CLASSIFIED CONTRACTS. The Borrower shall, and shall
cause each such Subsidiary to, retain at all times an independent certified
public accountant of national standing having personnel who at all times have
security clearances sufficient to permit them to examine and verify all such
classified contracts, accounts and other assets which, individually or in the
aggregate, are material to the business, operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
The Borrower shall, from time to time at the reasonable request of the Agent,
cause such independent accountants to examine, verify and report to the Agent on
such classified contracts, accounts and assets as the Agent may request, to the
fullest extent permitted by mandatory national security regulations.
(m) CHANGES IN CORPORATE STRUCTURE. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall deliver to the Agent notice of any change in the
matters set forth in Section 4.14 hereof, together with an amended and restated
Schedule 4.14 which reflects such change.
6.02. INSURANCE. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types as are reasonably
satisfactory to the Agent from time to time, and in any case as is customary in
the case of Persons engaged in the same or a similar business or having similar
properties similarly situated. The Borrower shall, if so requested by the Agent,
deliver to the Agent original or duplicate policies or certificates of such
insurance and, as often as the Agent may reasonably request, a report of a
reputable insurance broker, or an insurance company representative if an
insurance broker is not involved, with respect to such insurance.
6.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Borrower shall promptly notify the Agent in writing if it
or any of its Subsidiaries learns of any proposed additional assessment or basis
for any assessment for additional taxes (whether or not reserved against) which,
if paid or incurred, would have a Material Adverse Effect. The Borrower shall,
and shall cause each of its Subsidiaries to, pay and discharge, or cause to be
paid and discharged,
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges imposed upon it,
or any of them, or any of its, or any of their, properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in
any bankruptcy, insolvency, receivership or similar proceeding;
provided, that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, the Borrower or such Subsidiary need not
pay or discharge, or cause the payment or discharge, of any such tax,
assessment, charge or claim above so long as (x) the validity thereof is
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contested in good faith and by appropriate proceedings diligently conducted, and
(y) such reserves or other appropriate provisions as may be required by GAAP
shall have been made therefor.
6.04. PRESERVATION OF CORPORATE STATUS. The Borrower shall,
and shall cause each of its Subsidiaries to, maintain its status as a
Corporation duly organized, validly existing and, to the extent applicable, in
good standing under the laws of its jurisdiction of organization, except for
Permitted Mergers. The Borrower shall, and shall cause each of its Subsidiaries
to, at all times be duly qualified to do business as a foreign Corporation and,
to the extent applicable, in good standing in all jurisdictions in which the
ownership of its properties or the nature of its business or both make such
qualification necessary or advisable, except for matters that, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
6.05. GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall,
and shall cause each of its Subsidiaries to, keep and maintain in full force and
effect all Governmental Actions necessary or advisable in connection with
execution and delivery of any Loan Document, consummation of the transactions
herein or therein contemplated, performance of or compliance with the terms and
conditions hereof or thereof, or to ensure the legality, validity, binding
effect, enforceability or admissibility in evidence hereof or thereof.
6.06. MAINTENANCE OF PROPERTIES, FRANCHISES, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, (a) maintain or cause to be
maintained in good repair, working order and condition the properties now or
hereafter owned, leased or otherwise possessed by it and shall make or cause to
be made all needful and proper repairs, renewals, replacements and improvements
thereto so that the business carried on in connection therewith may be properly
and advantageously conducted at all times, except where failure to do so does
not, and would not be likely to, have a Material Adverse Effect, and (b)
maintain and hold in full force and effect all franchises, licenses, permits,
certificates, authorizations, qualification, accreditations and other rights,
consents and approvals (whether issued, made or given by a Governmental
Authority or otherwise), necessary to own and operate its properties and to
carry on its business as presently conducted and as presently planned to be
conducted, except where failure to do so does not, and would not be likely to,
have a Material Adverse Effect.
6.07. AVOIDANCE OF OTHER CONFLICTS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or other) on account of any violation or conflict with
(a) any Law,
(b) its certificate or articles of incorporation or by-laws
(or other constituent documents), or
(c) any agreement or instrument to which it or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties may be subject or bound,
except for matters of the type referred to in clauses (a) and (c) that could
not, individually or in the aggregate, do not, and would not be likely to, have
a Material Adverse Effect.
6.08. FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and
shall cause each of its Subsidiaries to, make and keep books, records and
accounts which, in reasonable detail, accurately and
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fairly reflect its transactions and dispositions of its assets, and maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (a) transactions are executed in accordance with management's
general or specific authorization, (b) transactions are recorded as necessary
(i) to permit preparation of financial statements in conformity with GAAP and
(ii) to maintain accountability for assets, (c) access to assets is permitted
only in accordance with management's general or specific authorization and (d)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
6.09. USE OF PROCEEDS. The Borrower shall apply the proceeds
of the Loans under this Agreement, together with other funds of the Borrower, to
(a) payment in full on the Closing Date of all principal, interest and fees
outstanding and accrued under the prior credit facilities of the Borrower
referred to in Section 5.01(f), and (b) from and after the Closing Date, for
general corporate purposes of the Borrower (including, to the extent otherwise
consistent with this Agreement and the other Loan Documents, the making of
acquisitions). The Borrower shall not use the proceeds of any Loans directly or
indirectly for any unlawful purpose, in any manner inconsistent with Section
4.12, or inconsistent with any other provision of this Agreement or any other
Loan Document.
6.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower
shall, and shall cause each of its Subsidiaries to, engage in the businesses
they have engaged in during the present and preceding fiscal years and the
Borrower shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than the financial information services business, other
information services businesses and matters incidental thereto; provided, that
TIMCO may continue to conduct its business in substantially the manner in which
it conducts such business as of the date hereof. Without limitation of the
foregoing, the Borrower shall continue to operate as a holding company and shall
not conduct any material business other than holding the capital stock of
Subsidiaries and matters incidental thereto.
6.11. PLANS AND MULTIEMPLOYER PLANS.
(a) REQUIRED CONTRIBUTIONS. The Borrower shall, and shall
cause each Subsidiary of the Borrower and Controlled Group Members to, make
contributions to each Plan when due in accordance with the minimum funding
requirements under ERISA and the Code applicable to such Plan and pay any
required PBGC premiums as and when due for such Plan.
(b) REQUIRED CONTRIBUTIONS TO MULTIEMPLOYER PLANS. The
Borrower shall, and shall cause each Subsidiary of the Borrower and Controlled
Group Members to, make contributions required to be made by it, or any of them,
to each Multiemployer Plan, if any, when due in accordance with its, or any of
their, obligations under any collective bargaining agreement related to such
Multiemployer Plan or participation agreements applicable to such Multiemployer
Plan, except those contributions the requirement of which are reasonably being
contested by a Controlled Group Member provided that failure to make such
contested contributions is not a violation of applicable Law and does not
present a material risk of resulting in liability (contingent or other) to the
Borrower or any Subsidiary of the Borrower.
(c) FUNDING. The Borrower shall, and shall cause each of its
Subsidiaries to, make any required contributions to any arrangements for
providing retirement and/or death benefits when due, in accordance with the
terms of the arrangement and/or any minimum funding requirements which are
applicable to the arrangement from time to time. The Borrower shall not, nor
shall it permit any of its Subsidiaries to, allow any arrangement for providing
retirement and/or death benefits to become
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underfunded (as determined on the basis of reasonable actuarial assumptions) by
an amount which, in the aggregate for all such arrangements, exceeds
$10,000,000.
6.12. DISASTER RECOVERY PLAN. The Borrower shall cause each of
Datastream International Limited, Disclosure Incorporated and ICV Limited to
maintain in full force and effect at all times disaster recovery plans
consistent with prudent practice for Persons engaged in the same or a similar
business.
6.13. ANNUAL BANK MEETING. The Borrower shall hold meetings of
the Lenders annually at the request of the Agent.
6.14. SEPARATE CORPORATE EXISTENCE. The Borrower acknowledges
that the Lender Parties are entering into the transactions contemplated by this
Agreement and the other Loan Documents in reliance upon the identity of the
Subsidiaries of the Borrower as legal entities separate from the Borrower.
Accordingly, the Borrower shall take, and shall cause its Subsidiaries to take,
all reasonable steps to continue the identities of its Subsidiaries as separate
legal entities, and to make it apparent to third Persons that its Subsidiaries
are entities with assets and liabilities distinct from those of the Borrower.
Without limiting the generality of the foregoing, the Borrower shall take such
actions as shall be required in order that:
(a) For each Subsidiary of the Borrower in which the Borrower
directly owns, beneficially or of record, Shares of Capital Stock, at
least one director or officer of the Borrower shall be a person who is
not a director or officer of such Subsidiary.
(b) The books and records of each Subsidiary of the Borrower
shall be maintained separately from those of the Borrower and each of
its other Subsidiaries.
(c) The assets of each Subsidiary of the Borrower will be
maintained in a manner that facilitates their identification and
segregation from those of the Borrower and its other Subsidiaries.
(d) The Borrower and each Subsidiary of the Borrower shall
strictly observe corporate formalities. The Borrower and each of its
Subsidiaries will conduct their respective businesses in their own
respective names. The business and affairs of the Borrower and each
Subsidiary shall be managed by or under the direction of the board of
directors of such Person.
(e) Funds or other assets of Subsidiaries of the Borrower will
not be commingled with those of the Borrower and its other Subsidiaries
(it being understood that such restriction shall not be interpreted to
forbid intercompany loans and Advances that have been properly
documented and accounted for on the books and records of each relevant
entity, made in compliance with corporate formalities, and otherwise
made in compliance with this Agreement and the other Loan Documents).
(f) The operating expenses of the Borrower and each Subsidiary
of the Borrower will be paid by such Person. To the extent, if any,
that the Borrower and any of its Subsidiaries share items of expenses,
such expenses will be allocated to the extent practical on the basis of
actual use or the value of services rendered, and otherwise on a basis
reasonably related to actual use or the value of services rendered, and
each such Person shall pay its allocated share of such
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expenses on a current basis. To the extent, if any, that the Borrower
and any of its Subsidiaries provides services to one another, the
provider shall be compensated by the recipient on a current basis at
fair and reasonable rates. To the extent, if any, that any consolidated
or combined tax return is filed including any of the Borrower or its
Subsidiaries, each such Person shall pay or be paid, as the case may
be, on a current basis an equitable share of the consolidated tax
payment or refund associated therewith.
(g) Annual financial statements of the Borrower which are
consolidated to include its Subsidiaries will contain notes clearly
stating that each such Subsidiary is a corporate or similar entity
separate from the Borrower and its other Subsidiaries, and that the
stock of each direct Subsidiary of the Borrower has been pledged to
secure the Obligations.
6.15. ADDITIONAL SECURITY.
(a) GENERAL. Promptly upon the request of the Agent from time
to time, the Borrower shall as promptly as practicable (and in any case within
30 days after such request, or such longer period as the Agent may specify in
writing) further secure the Obligations by granting to the Collateral Agent a
valid and perfected Lien, prior to all other Liens except Permitted Liens, on
such of its properties from time to time as the Agent may designate (except for
property subject to a Permitted Lien as to which the Borrower is required to
obtain the consent of the holder of such Permitted Lien before granting such a
Lien to the Collateral Agent and as to which the Borrower is unable, using
reasonable efforts, to obtain such consent). In connection therewith, the
Borrower shall (i) execute and deliver to the Agent such mortgages, security
agreements and other agreements and instruments, and do such other acts and
things as shall be necessary or, in the judgment of the Agent, appropriate to
grant to the Collateral Agent a valid and perfected Lien on such property, prior
to all other Liens except Permitted Liens, and (ii) procure and deliver to the
Agent such other items (including but not limited to lien searches, title
insurance policies, surveys, environmental audits, insurance endorsements and
opinions of counsel), and do such other acts and things, as the Agent may
request in connection with the foregoing. All of the foregoing shall be in form
and substance satisfactory to the Agent. From time to time as requested by the
Agent, the Borrower shall use reasonable efforts to (w) obtain the consent of
any Person whose consent is necessary or advisable to the creation, perfection
or maintenance of any such Lien, including but not limited to that of any lessor
whose consent may be required in connection with any such Lien on any leasehold
interest, and to obtain nondisturbance and like agreements from mortgagees and
other holders of superior rights in the property subject to any such leasehold
interest, (x) obtain waivers of Liens from such landlords and mortgagees and
from other Persons described in Section 6.03(b) hereof, (y) with respect to
securities accounts, commodity accounts, deposit accounts or similar interests,
obtain consent agreements from each securities intermediary, commodity
intermediary, depository bank or similar person, satisfactory in form and
substance to the Agent, which shall include provisions giving the Collateral
Agent sole dominion and control over such interest upon the giving of notice by
the Collateral Agent (it being understood that the related security agreement
shall provide that the Collateral Agent may exercise such sole dominion and
control upon the occurrence and during the continuance of an Event of Default),
and (z) do such other acts and things as the Agent may deem appropriate to
enhance, preserve or protect the security for the Obligations.
(b) NOTICE OF CERTAIN REALTY TRANSACTIONS. The Borrower shall
promptly give notice to the Agent of any acquisition by the Borrower of any
interest or interests in real property (fee, leasehold or otherwise) or fixtures
having a fair market value, individually or in the aggregate, in excess of
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$5,000,000 (except for leasehold interests having a term, including all options
exercisable by the lessee, less than 5 years).
6.16. INTEREST RATE PROTECTION.
(a) REQUIRED HEDGE. The Borrower shall, promptly (and in any
event not later than 60 days) after the first date on or after the Closing Date
on which the three-month Euro-Rate (as determined by the Agent) is at least
8.00% on at least ten of the 30 days immediately preceding such date, enter into
an Interest Rate Hedging Agreement having an effective rate and other terms and
conditions satisfactory to the Agent, for notional principal amounts and tenors
sufficient to hedge at least 65% of the scheduled outstanding principal amount
of the Indebtedness under the Term Loan Agreement for the period from the
effective date of such Interest Rate Hedging Agreement through the fifth
anniversary thereof (or, if earlier, the Term Loan Maturity Date). The Borrower
shall thereafter select interest rate options under the Term Loan Agreement that
match, in time and amount, as closely as may be the terms of the rate hedge
represented by such Interest Rate Hedging Agreement.
(b) SECURING THE REQUIRED HEDGE. If the Borrower so requests,
the Agent shall consent to a Swap Party Supplement to the Collateral Agency
Agreement whereby the Interest Rate Hedging Agreement referred to in Section
6.16(a) hereof shall be deemed a Swap Agreement entitled to the benefits of the
Collateral Agency Agreement, but only if the following conditions are met: (i)
the counterparty to such Interest Rate Hedging Agreement is a Lender, (ii) the
"Swap Shared Security Cap" set forth in such Swap Party Supplement is, in the
good faith judgment of the Agent, not more than 110% of the credit equivalent
exposure represented by such Swap Agreement (calculated in accordance with the
Agent's ordinary methods), and (iii) the Borrower provides the Agent with such
contemporaneous bringdown Lien searches as the Agent may request, the results of
which shall be satisfactory to the Agent.
(c) EXISTING RATE HEDGES, ETC. To the extent otherwise
consistent with this Agreement and the other Loan Documents, the Borrower may
enter into Interest Rate Hedging Agreements in advance of the date on which it
is required to do so under Section 6.16(a), and to the extent that such Interest
Rate Hedging Agreements satisfy the requirements of Sections 6.16(a) and 6.16(b)
the Agent may enter into a Swap Party Supplement to the Collateral Agency
Agreement with respect to such Interest Rate Hedging Agreements. In the event
that the Borrower becomes obligated to enter into Interest Rate Hedging
Agreements under Section 6.16(a), any then-existing Interest Rate Hedging
Agreements to which Borrower is party and which otherwise satisfy the
requirements of Section 6.16(a) shall be counted toward satisfaction of the
Borrower's obligations under Section 6.16(a), to the extent of the notional
amounts and tenors of such then-existing Interest Rate Hedging Agreements.
Nothing in Section 6.16(b) shall be construed to forbid the Agent from
consenting to a Swap Party Supplement relating to Interest Rate Hedging
Agreements if the conditions set forth in Section 6.16(b) are satisfied, even if
such Interest Rate Hedging Agreements in the aggregate exceed in amount or time
the minimum requirements set forth in Section 6.16(a).
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
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7.01. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH (ADJUSTED). As of the end of each
fiscal quarter of the Borrower ending on or after December 31, 1996,
Consolidated Net Worth (Adjusted) shall not be less than the applicable amount
specified below:
<TABLE>
<CAPTION>
Consolidated Net Worth (Adjusted)
From and including To and including shall not be less than
------------------ ---------------- ----------------------
<S> <C> <C>
December 31, 1996 December 30, 1997 $425,000,000
December 31, 1997 December 30, 1998 $450,000,000
December 31, 1998 December 30, 1999 $475,000,000
December 31, 1999 December 30, 2000 $500,000,000
December 31, 2000 December 30, 2001 $525,000,000
December 31, 2001 December 30, 2002 $550,000,000
December 31, 2002 December 30, 2003 $575,000,000
Thereafter $600,000,000
</TABLE>
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the end of
each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Fixed Charge Coverage Ratio for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be less than the applicable amount set forth
below.
<TABLE>
<CAPTION>
Fiscal quarter ending on Consolidated Fixed Charge Coverage Ratio
a date in the following for the four fiscal quarters ending
period (inclusive) on such date shall not be less than
------------------ -----------------------------------
<S> <C>
December 31, 1996 through December 31, 1997
1.75
January 1, 1998 through December 31, 1998
2.00
January 1, 1999 through December 31, 1999
2.25
Thereafter 2.50
</TABLE>
(c) CONSOLIDATED FUNDED DEBT RATIO (ADJUSTED). As of the end
of each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Funded Debt Ratio (Adjusted) for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be greater than the applicable amount set
forth below.
<TABLE>
<CAPTION>
Fiscal quarter ending on Consolidated Funded Debt Ratio (Adjusted)
a date in the following for the four fiscal quarters ending
period (inclusive) on such date shall not be greater than
------------------ --------------------------------------
<S> <C>
December 31, 1996 through December 30, 1997
5.50
December 31, 1997 through December 30, 1998
5.00
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
December 31, 1998 through December 30, 1999
4.00
Thereafter 3.00
</TABLE>
7.02. LIENS. The Borrower shall not, and shall not permit any
Subsidiary of the Borrower to, at any time create, incur, assume or permit to
exist any Lien on any of its property (now owned or hereafter acquired), or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except for the following (referred to herein as "Permitted Liens"):
(a) Liens pursuant to the Shared Security Documents in favor
of the Collateral Agent for the benefit of the Secured Parties to
secure the Obligations;
(b) Liens arising from taxes, assessments, charges or claims
described in Sections 6.03(a) and 6.03(b), to the extent permitted to
remain unpaid under such Section 6.03;
(c) Deposits or pledges of cash or securities in the ordinary
course of business to secure (i) workmen's compensation, unemployment
insurance or other social security obligations, (ii) performance of
bids, tenders, trade contracts (other than for payment of money) or
leases, (iii) stay, surety or appeal bonds, or (iv) other obligations
of a like nature incurred in the ordinary course of business;
(d) Judgment liens fully bonded pending appeal;
(e) Liens by the Borrower or a Subsidiary of the Borrower on
property securing all or part of the purchase price thereof and Liens
(whether or not assumed) existing on property at the time of purchase
thereof by the Borrower or a Subsidiary of the Borrower, provided that:
(i) such Lien is created before or substantially
simultaneously with the purchase of such property in the
ordinary course of business by the Borrower or such Subsidiary
(or is a Lien securing successor obligations incurred to
extend or refinance predecessor obligations allowed under this
Section 7.02(e), provided that in each case the successor
obligation is an obligation of the same Person subject to the
predecessor obligation, is not greater than (and is not
otherwise on terms less advantageous than) the predecessor
obligation, and the Lien securing the successor obligation
does not extend to any property other than that subject to the
Lien securing the predecessor obligation);
(ii) such Lien is confined solely to the property
so purchased, improvements thereto and proceeds thereof;
(iii) the aggregate amount secured by all such
Liens on any particular property at the time purchased by the
Borrower or such Subsidiary, as the case may be, shall not
exceed the lesser of the purchase price of such property or
the fair market value of such property at the time of purchase
thereof ("purchase price" for this purpose including the
amount secured by each such Lien thereon whether or not
assumed); and
(iv) the obligation secured by such Lien is
Indebtedness permitted under Section 7.03(e) hereof;
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(f) Liens in favor of the United States Government which arise
in the ordinary course of business resulting from progress payments or
partial payments under United States Government contracts or
subcontracts thereunder;
(g) Rights arising or reserved to the lessor under any
Capitalized Lease Obligations permitted by Section 7.03(e) hereof;
(h) Zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other
minor Liens that do not secure the payment of money or the performance
of an obligation and that do not in the aggregate materially detract
from the value of a property or asset to, or materially impair its use
in the business of, the Borrower or such Subsidiary;
(i) Liens existing on the Closing Date and listed on Schedule
7.02 hereof (but not any extension, renewal or replacement Liens); and
(j) Liens on property of TIMCO to secure payment of
reimbursement obligations of TIMCO with respect to the TIMCO Bonds
Letter of Credit, and Liens on property of TIMCO securing Indebtedness
of TIMCO constituting a refinancing of the TIMCO Bonds and the TIMCO
Lease permitted by Section 7.03(j) hereof.
Notwithstanding the foregoing, "Permitted Lien" in respect of the Borrower or
any Subsidiary of the Borrower shall in no event include (x) any Lien imposed
by, or required to be granted pursuant to, ERISA, the Code or any Environmental
Law, (y) except as provided in Section 7.02(a) hereof, any Lien on the Shared
Collateral Account or any other account (custodial, deposit or other) maintained
by or with the Collateral Agent pursuant to the Shared Security Documents, or
any other investment property or deposit account (as such terms are defined in
the Uniform Commercial Code), or (z) except as provided in Section 7.02(a)
hereof, any Lien on Shares of Capital Stock of, or obligations owed by, a
Subsidiary of the Borrower.
7.03. INDEBTEDNESS. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, at any time create, incur, assume or
permit to exist any Indebtedness, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Indebtedness of the Borrower under the Revolving Credit
Agreement, in aggregate principal amount not to exceed $75,000,000
(including any extension, renewal or refinancing thereof made in
compliance with Section 7.11(c) hereof);
(b) Indebtedness of the Borrower in favor of the Lender
Parties pursuant to this Agreement and the other Loan Documents;
(c) Indebtedness of the Borrower or any of its Subsidiaries
not exceeding $8,250,000 in principal amount, issued in connection with
the acquisition by the Borrower or a Subsidiary of all of the Shares of
Capital Stock of ICV (such Indebtedness being referred to herein as the
"ICV Notes"); and Indebtedness of the Borrower under the Note Backup
Agreement and the letters of credit subject thereto;
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(d) Indebtedness of the Borrower under the Senior Notes, in
aggregate principal amount not to exceed $112,000,000 (but not any
extensions, renewals or refinancings of any thereof);
(e) Indebtedness constituting Capitalized Lease Obligations of
the Borrower and its Subsidiaries incurred in the ordinary course of
business from time to time, and Indebtedness of the Borrower and its
Subsidiaries secured by Liens described in Section 7.02(e) on property
used in the ordinary course of business of the Borrower or such
Subsidiary from time to time; provided, that the aggregate amount of
Indebtedness described in this Section 7.03(e) shall not exceed
$20,000,000 at any time;
(f) Other Indebtedness of the Borrower and its Subsidiaries
not exceeding $30,000,000 aggregate principal amount at any time
outstanding;
(g) Current accounts payable of the Borrower or any of its
Subsidiaries on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of business;
(h) Indebtedness of the Borrower pursuant to any Interest Rate
Hedge Agreement required to be entered into pursuant to Section 6.16(a)
hereof; and Indebtedness of the Borrower or any of its Subsidiaries
under any other interest rate or currency swap, cap, floor, collar,
future, forward or option agreement, or similar interest rate or
currency protection agreement, entered into for the purpose of hedging
and not for purposes of speculation (and not structured to contain an
embedded loan);
(i) Indebtedness constituting intercompany loans and Advances
permitted by Sections 7.05(d), 7.05(e), 7.05(h) and 7.05(i) hereof;
(j) Indebtedness of TIMCO constituting a letter of credit
issued for its account not exceeding $12,600,000 in stated amount,
which letter of credit effectively secures the TIMCO Bonds; any
extension, renewal or refinancing of such letter of credit, provided,
however, that the stated amount thereof is not increased and TIMCO
remains the account party with respect thereto (such letter of credit,
together with any such extension, renewal or refinancing letter of
credit, being referred to herein as the "TIMCO Bonds Letter of
Credit"); and any Indebtedness of TIMCO which amends, renews or
refinances (collectively, "refinances") the TIMCO Bonds, the TIMCO
Lease and the TIMCO Bonds Letter of Credit, provided, however, that
after giving effect to such refinancing, (i) the principal amount of
Indebtedness is not increased, (ii) neither the stated maturity nor the
average life of the Indebtedness is reduced, and (iii) TIMCO remains
the obligor on such refinancing Indebtedness; and
(k) Indebtedness for borrowed money of Primark Economics or
any of its Subsidiaries not exceeding $6,000,000 in aggregate principal
amount at any time outstanding.
7.04. GUARANTIES, INDEMNITIES, ETC. The Borrower shall not,
and shall not permit any Subsidiary of the Borrower to, be or become subject to
or bound by any Guaranty Equivalent, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar
transactions in the ordinary course of business;
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(b) Indemnities by the Borrower or a Subsidiary of the
liabilities of its directors, officers and employees in their
capacities as such as permitted by Law;
(c) Guaranty Equivalents existing on the Closing Date and
listed in Schedule 7.04 hereof (but not extensions, renewals or
refinancings thereof or of any associated Assured Obligation);
provided, that this Section 7.04(c) shall not apply to any Guaranty
Equivalent as to which the Deemed Obligor is, on the Closing Date, a
Subsidiary of the Borrower if such Subsidiary thereafter ceases to be a
Subsidiary of the Borrower;
(d) Guaranty Equivalents by the Borrower or a Subsidiary
constituting usual and customary indemnities with respect to
liabilities (other than Indebtedness) in connection with a disposition
of stock or assets by the Borrower or such Subsidiary;
(e) Other Guaranty Equivalents by the Borrower or a Subsidiary
of the Borrower from time to time of obligations of a Substantially
Owned Subsidiary of the Borrower, provided that the Deemed Obligor in
respect of such Guaranty Equivalent is a Substantially Owned Subsidiary
of the Deemed Guarantor;
(f) Other Guaranty Equivalents by a Borrower or a Subsidiary
of the Borrower from time to time, provided that the sum of (i) the
maximum aggregate potential obligation of the Borrower or any
Subsidiary of the Borrower under Guaranty Equivalents described in this
Section 7.04(f), plus (ii) the aggregate amount of all payments made by
the Borrower and its Subsidiaries after the date hereof under Guaranty
Equivalents described in this Section 7.04(f), shall not exceed
$2,000,000; and
(g) Obligations of a Subsidiary of the Borrower as general
partner of a partnership permitted under Sections 7.05(g) or 7.05(j).
7.05. LOANS, ADVANCES AND INVESTMENTS. The Borrower shall not,
and shall not permit any Subsidiary of the Borrower to, at any time make or
permit to exist or remain outstanding any loan or Advance to, or purchase,
acquire or own (beneficially or of record) any Shares of Capital Stock of, any
stock, bonds, notes or securities of, or any partnership interest (whether
general or limited), membership interest or beneficial interest in, or any other
debt or equity interest in, or make any capital contribution to or other
investment in, any other Person, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except:
(a) Receivables owing to the Borrower or any Subsidiary of the
Borrower arising from performance of services and sales of goods under
usual and customary terms in the ordinary course of business;
(b) Loans and Advances extended by the Borrower or any
Subsidiary of the Borrower to contractors or suppliers (excluding
contractors or suppliers that are Affiliates of the Borrower) under
usual and customary terms in the ordinary course of business and in
amount at any one time outstanding not exceeding $1,000,000 (or the
equivalent thereof in one or more foreign currencies) in the aggregate;
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(c) Advances to officers and employees of the Borrower and its
Subsidiaries in the ordinary course of business, in amounts at any time
outstanding not exceeding $1,000,000 (or the equivalent thereof in one
or more foreign currencies) to any one officer or employee and
$2,000,000 (or the equivalent thereof in one or more foreign
currencies) in the aggregate; provided, however, that for purposes of
this Section 7.05(c) only, the outstanding amount of Advances shall not
be deemed to include amounts secured by perfected liens on shares of
the publicly-traded common stock of the Borrower, to the extent of the
market value of such common stock (as determined at least quarterly,
based on publicly-available quotations);
(d) Loans and Advances by a Subsidiary of the Borrower to the
Borrower;
(e) Ownership of Shares of Capital Stock of, and capital
contributions, loans and Advances to, Corporations that are Wholly
Owned Subsidiaries of the Borrower (other than a Broker-Dealer);
(f) (i) Ownership of Shares of Capital Stock of a Corporation
that is a Wholly Owned Subsidiary of the Borrower that is a
Broker-Dealer, as owned on the Closing Date, and (ii) capital
contributions by the Borrower or its Subsidiaries from time to time to
such Subsidiary, so long as such Subsidiary does not at the time of
such capital contribution, or immediately thereafter and after giving
effect thereto, have net capital (calculated in accordance with
regulatory standards) in excess of 150% of the minimum capital required
by Law;
(g) (i) Ownership of general partnership interests and other
equity interests in the Worldscope Entities representing an 80% or
greater interest in the capital, profits and losses of each of the
Worldscope Entities, as owned on the Closing Date, and (ii) capital
contributions to and acquisition of additional equity interests in the
Worldscope Entities from time to time after the Closing Date, and loans
and Advances to the Worldscope Entities from time to time;
(h) Acquisition and ownership of Shares of Capital Stock of
Corporations that are Subsidiaries of the Borrower other than Wholly
Owned Subsidiaries of the Borrower, and capital contributions, loans
and Advances to Subsidiaries of the Borrower other than Wholly Owned
Subsidiaries of the Borrower, provided, that the aggregate amount of
all such acquisitions and capital contributions made under this Section
7.05(h) after the Closing Date, plus the aggregate outstanding
principal amount of all such loans and Advances made under this Section
7.05(h), shall not at any time exceed $10,000,000;
(i) Acquisition and ownership by the Borrower or its
Subsidiaries of equity interests in Primark Economics representing a
20% or greater interest in the capital, profits and losses of Primark
Economics, and capital contributions, convertible debt and demand loans
by the Borrower or its Subsidiaries to Primark Economics from time to
time; provided, that (i) the sum of the aggregate amount of all
consideration paid for such equity interests and convertible debt plus
the aggregate amount of all such capital contributions (in each case
whether before or after the Closing Date), plus the aggregate
outstanding principal amount of all such demand loans, shall not at any
time exceed $5,000,000, and (ii) no such acquisitions, capital
contributions or loans may be made unless the Borrower continues to own
(directly or indirectly) at least a 20% interest (and, assuming full
conversion of convertible loans due to the Borrower or its
Subsidiaries, a 51% or greater interest) in the capital, profits and
losses of Primark Economics;
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(j) Partnerships and joint ventures of which all partners,
participants and other Persons having ownership interests therein are
Wholly Owned Subsidiaries of the Borrower;
(k) Other loans, Advances and investments, not to exceed
$3,000,000 in the aggregate; and
(l) Cash Equivalent Investments.
7.06. DIVIDENDS AND RELATED DISTRIBUTIONS. The Borrower shall
not, and shall not permit any Subsidiary to, declare or make any Stock Payment,
or agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except as follows:
(a) The Borrower may from time to time repurchase for cash
shares of its common stock of a series publicly traded, subject to the
following conditions:
(i) Repurchases under this Section 7.06(a) shall
not exceed $25,000,000 from and after the Closing Date;
(ii) No Event of Default or Potential Default shall
exist on the date of such repurchase, or immediately
thereafter and after giving effect to such repurchase;
(iii) The Borrower would have been in compliance
with Sections 7.01(a) and 7.01(c) on the last day of the
fiscal quarter ending most recently before such repurchase,
after giving effect on a pro forma basis to such repurchase
and to any incurrence of Indebtedness after such day, as if
such repurchase and incurrence had occurred on such day; and
(iv) The Agent shall receive, with a copy for each
Lender, not later than the Business Day after the date such
repurchase is made, a certificate signed by a Responsible
Officer of the Borrower, dated such repurchase date,
describing such dividend, certifying that such repurchase is
in compliance with the provisions of this Section 7.06(a), and
including a statement in reasonable detail of the information
and calculations necessary to establish compliance with this
Section 7.06(a);
(b) A Subsidiary of the Borrower may declare and pay dividends
or other distributions with respect to its Shares of Capital Stock,
provided, that such dividend or other distribution is made on a pro
rata basis, consistent with the ownership interests in such Shares of
Capital Stock, to the owners of such shares; and
(c) The Borrower may make Stock Payments if such Stock Payment
is paid solely in Shares of Capital Stock (or warrants, options or
rights therefor) of the Borrower.
The Borrower shall not declare any dividend payable later than 60 days after
declaration, and the Borrower shall not permit any Subsidiary to declare any
dividend payable later than 15 days after declaration.
7.07. SALE-LEASEBACKS. The Borrower shall not, and shall not
permit any Subsidiary to, at any time enter into or permit to remain in effect
any transaction to which the Borrower or such
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Subsidiary is a party involving the sale, transfer or other disposition by the
Borrower or any Subsidiary of any property (now owned or hereafter acquired),
with a view directly or indirectly to the leasing back of any part of the same
property or any other property used for the same or a similar purpose or
purposes, or agree, become or remain liable (contingently or otherwise) to do
any of the foregoing, except for transactions existing on the date hereof and
listed in Schedule 7.07 hereof (but not extensions, renewals or refinancings
thereof).
7.08. MERGERS, ETC. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, directly or indirectly, (w) merge with
or into or consolidate with any other Person, or (x) liquidate, Wind-Up,
dissolve or divide, (y) acquire all or any substantial portion of the properties
of any going concern or going line of business (whether or not constituting a
distinct legal entity), or (z) acquire all or any substantial portion of the
properties of any other Person, or all or any substantial portion of the Shares
of Capital Stock of any other Person which is organized as a Corporation, or all
or any substantial portion of any equity interest in any other Person which is
not organized as a Corporation, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except for the following (referred to
herein as "Permitted Mergers"):
(a) A Subsidiary of the Borrower may merge with or into or
consolidate with, or acquire all or any substantial portion of the
properties of, or liquidate or dissolve into, any other Subsidiary of
the Borrower, if the acquiring, surviving or new Corporation shall be a
Wholly Owned Subsidiary of the Borrower; and
(b) The Borrower, or a Subsidiary of the Borrower, may make
acquisitions of the types referred to in the foregoing clauses (y) and
(z) of properties of Persons other than a Subsidiary of the Borrower,
consistent with the other provisions of this Agreement and the other
Loan Documents, provided that the aggregate Adjusted Acquisition
Consideration in connection with all such acquisitions made after the
Closing Date (and specifically excluding the acquisition of WEFA, if
made on or before the Closing Date) shall not exceed the sum of
$75,000,000 plus the amount, if any, of aggregate cash proceeds (net of
underwriting discounts, fees and other transaction costs) received by
the Borrower after the Closing Date from issuance of Shares of Capital
Stock of the Borrower (or options or warrants therefor).
7.09. DISPOSITIONS OF PROPERTIES. The Borrower shall not, and
shall not permit any Subsidiary to, sell, convey, assign, lease, transfer,
abandon or otherwise dispose of, voluntarily or involuntarily, directly or
indirectly, any of its properties, now existing or hereafter acquired, or agree,
become or remain liable (contingently or otherwise) to do any of the foregoing,
except:
(a) Sales of inventory, licenses (as licensor) of software or
other intellectual property, all in the ordinary course of business;
(b) Disposition of equipment and other operating assets which
are obsolete or no longer useful in the business of the Borrower or
such Subsidiary, as the case may be;
(c) Lease or sublease of unoccupied office space;
(d) Dispositions in Permitted Mergers, and other dispositions
between Wholly Owned Subsidiaries of the Borrower;
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(e) Disposition outside the ordinary course of business of all
(but not less than all) of the Shares of Capital Stock of TIMCO, or
substantially all the assets of TIMCO (but not less than substantially
all of such assets), subject to the following conditions:
(i) any such disposition of property is for not less
than the Fair Market Value of the property disposed of (as
determined in good faith by the Board of Directors of the
transferor, whose determination shall be evidenced by a
written resolution of such Board), and the consideration
received by the Borrower or the relevant Subsidiary in respect
of such disposition consists entirely of cash or Cash
Equivalent Investments; and
(ii) in the case of disposition of Shares of Capital
Stock of, or assets of, TIMCO, TIMCO shall be conducting
substantially the business conducted by it on the Closing
Date, and shall not be conducting any different or additional
business or have any material assets in addition to those it
had on the Closing Date; and
(f) Other dispositions of property from time to time for not
less than its Fair Market Value, provided that dispositions under this
Section 7.09(f) shall not exceed $5,000,000 in the aggregate in any
fiscal year.
Without limitation of the foregoing, it is understood that the following are
dispositions of property subject to this Section 7.09: any disposition of
accounts, chattel paper or general intangibles, with or without recourse; any
disposition of any leasehold interest; and any disposition of any Shares of
Capital Stock in or Indebtedness of any Subsidiary. The Borrower shall not, and
shall not permit any Subsidiary to sell, convey, assign, transfer or otherwise
dispose of, voluntarily or involuntarily, any of its accounts, chattel paper,
general intangibles or other financial assets with or without recourse, in any
factoring, structured financing, or other transaction having the practical
effect, directly or indirectly, of a financing, whether or not such transaction
is in the form of a "true sale" of such financial assets by the Borrower or such
Subsidiary.
7.10. DEALINGS WITH AFFILIATES. The Borrower shall not, and
shall not permit any Subsidiary of the Borrower to, enter into or carry out any
transaction with (including, without limitation, purchase or lease property or
services from, sell or lease property or services to, loan or advance to, or
enter into, permit to remain in existence or amend any contract, agreement or
arrangement with) any Affiliate of the Borrower, directly or indirectly, or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except:
(a) Transactions between (i) on the one hand, any Affiliate of
the Borrower, and (ii) on the other hand, the Borrower or any of its
Subsidiaries, in good faith and on fair and reasonable terms; and
(b) Compensation of directors, officers, employees and
consultants of the Borrower and its Subsidiaries for services rendered
in such capacity in good faith and on fair and reasonable terms, which
terms (in the case of compensation under employment contracts entered
into after the Closing Date will be approved by a majority of the board
of directors of such Borrower or Subsidiary (including a majority of
the directors having no direct or indirect interest in such
transaction).
7.11. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND
INSTRUMENTS.
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(a) SENIOR NOTES. The Borrower shall not amend, modify or
supplement the terms or provisions contained in, or applicable to, the Senior
Notes, the Senior Note Indenture, or any agreement or instrument evidencing or
applicable to any of the foregoing.
(b) REVOLVING CREDIT AGREEMENT. The Borrower shall not amend,
modify, supplement, renew or refinance the Revolving Credit Agreement or its
obligations thereunder, in any way that would change its nature as a revolving
credit facility, increase or reduce the principal amount available to be
borrowed thereunder, or cause the Revolving Credit Maturity Date or the final
date on which loans may be borrowed thereunder by the Borrower to occur sooner
than the relevant dates applicable under the Revolving Credit Agreement as
constituted on the Closing Date. In the event that the Agent hereunder is not
also the "Agent" under the Revolving Credit Agreement, the Borrower shall
promptly (and in any event within five days) give the Agent, with a copy for
each Lender, a copy of any amendment, modification or supplement to, or renewal
or refinancing of, the Revolving Credit Agreement.
(c) [Reserved]
(d) NOTE BACKUP AGREEMENT. The Borrower shall not amend,
modify or supplement the Note Backup Agreement (as constituted on the Closing
Date) or its obligations thereunder, in any way that would (i) increase the
principal amount thereof (including the aggregate stated amount of letters of
credit issued thereunder), or require payments on account of principal
(including reimbursement of draws under letters of credit issued thereunder) to
be made earlier or in greater amount than is required under the terms of the
Note Backup Agreement as constituted on the Closing Date, or (ii) increase the
rate or shorten the date for payment of interest thereon. In the event that the
Agent hereunder is not also the "Agent" under the Note Backup Agreement, the
Borrower shall promptly (and in any event within five days) give the Agent, with
a copy for each Lender, a copy of any amendment, modification or supplement to
the Note Backup Agreement.
(e) [Reserved]
7.12. LIMITATION ON PAYMENTS ON CERTAIN OBLIGATIONS. The
Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, pay, prepay, purchase, redeem, retire, defease or acquire, or
otherwise make any payment (on account of principal, interest, premium or
otherwise) of, any obligation under or evidenced by the Senior Notes, except
that the Borrower may (x) pay principal and interest on the Senior Notes as and
when expressly required to do so by the mandatory terms of the Senior Notes, and
(y) purchase Senior Notes as and when expressly required to do so by the
mandatory terms of Sections 4.12 and 4.13 of the Senior Note Indenture (it being
understood that the foregoing may nevertheless give rise to an Event of
Default).
7.13. LIMITATION ON OTHER RESTRICTIONS ON LIENS, DIVIDEND
RESTRICTIONS ON SUBSIDIARIES, ETC. The Borrower shall not, and shall not permit
any Subsidiary to,
(x) enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by
which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound that would (i) prohibit the
grant of any Lien upon any of its properties (now owned or hereafter
acquired), or (ii) restrict or prohibit the transfer or disposition of
any of its properties (now owned or hereafter acquired), or require it
to dispose of or apply the proceeds of any such disposition in a
specified manner, or
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(y) be or become subject to any restriction of any nature
(whether arising by operation of Law, by agreement, by its certificate
or articles of incorporation, by-laws or other constituent documents,
or otherwise) on the right of the Borrower or such Subsidiary from time
to time (i) in the case of a Subsidiary, to declare and pay Stock
Payments with respect to Shares of Capital Stock owned by the Borrower
or any Subsidiary of the Borrower, (ii) in the case of the Borrower or
any Subsidiary of the Borrower, to pay any obligations from time to
time owed to the Borrower or any Subsidiary of the Borrower, or (iii)
in the case of the Borrower or any Subsidiary of the Borrower, make
loans or advances to the Borrower or any Subsidiary of the Borrower,
except:
(a) the Credit Facilities;
(b) the Senior Notes and the Senior Note Indenture;
(c) with respect to the foregoing clause (x), non-assignment
provisions of any executory contract or software or programs or of any
lease by the Borrower or such Subsidiary as lessee;
(d) with respect to the foregoing clause (x), restrictions on
property subject to a Permitted Lien in favor of the holder of such
Permitted Lien;
(e) restrictions with respect to TIMCO imposed pursuant to an
agreement entered into for sale or disposition (which sale or
disposition is not in violation of this Agreement or any other Loan
Document) of all or substantially all of the Shares of Capital Stock or
assets of such Subsidiary; provided, that such restriction, by its
terms, terminates on the earlier of the termination of such agreement
or the consummation of such agreement, and is agreed to in good faith;
and
(f) in the case of the foregoing clause (y), legal
restrictions of general applicability under the corporation or similar
law under which the Borrower or such Subsidiary is incorporated,
fraudulent conveyance or similar laws or general applicability for the
benefit of creditors generally, and other legal restrictions of general
applicability to similarly situated business corporations; and
(g) in the case of subclause (ii) of the foregoing clause (x),
restrictions on transfer of property arising in the ordinary course of
business; provided, that such restrictions do not directly or
indirectly secure any obligation of the Borrower or such Subsidiary to
pay money or to perform an obligation, and do not in the aggregate
materially detract from the value of a property or asset to, or
materially impair its use in the business of, the Borrower or such
Subsidiary.
7.14. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE
LOAN DOCUMENTS, ETC. The Borrower shall not, and shall not permit any Subsidiary
of the Borrower to, enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by which any
of them or any of their respective properties (now owned or hereafter acquired)
may be subject or bound that would prohibit or require the consent of any Person
to any amendment,
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modification or supplement to any of the Loan Documents, except: (a) the Loan
Documents, and (b) provisions in each of the other Credit Facilities no more
restrictive than those in such other Credit Facility, respectively, as
constituted on the Closing Date.
7.15. LIMITATION ON CERTAIN BENEFIT LIABILITIES. The Borrower
shall not, and shall not permit any Subsidiary of the Borrower or any Controlled
Group Member to, become subject to Primark Group Benefits Exposures in excess of
$20,000,000 in the aggregate for all such Persons. As used herein, the term
"Primark Group Benefits Exposures" shall mean the sum of the maximum potential
liabilities (direct, contingent or other) of the Borrower and its Subsidiaries
and the Controlled Group Members in connection with the following: (a)
withdrawal liability (within the meaning of Section 4201 of ERISA) from any
Multiemployer Plan, whether or not such liability has yet been triggered as a
result of a withdrawal; (b) contributions due and unpaid with respect to a
Multiemployer Plan; (c) the "amount of unfunded benefit liabilities" (within the
meaning of Section 4001(a)(18) of ERISA) under any Plan, whether or not such
liability has yet been triggered as a result of a termination of such Plan; (d)
excise taxes assessed in connection with all of the above or otherwise in
connection with any Plan; (e) Postretirement Benefit Obligations of the
Borrower, any Subsidiary of the Borrower or any Controlled Group Member; and (f)
any other liability (contingent or other) in connection with a Plan or
Multiemployer Plan which represent a material risk that it may result in a Lien
attaching to assets of the Borrower or any Subsidiary of the Borrower, without
regard to any minimum amount required by Law to cause such Lien to attach.
7.16. FISCAL YEAR. The Borrower shall maintain a fiscal year
beginning on each January 1 and ending on the following December 31, divided
into fiscal quarters ending on the last day of each March, June, September and
December.
ARTICLE VIII
DEFAULTS
8.01. EVENTS OF DEFAULT. An "Event of Default" shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any
Loan.
(b) The Borrower shall fail to pay when due interest on any
Loan, any fees, indemnity or expenses, or any other amount due
hereunder or under any other Loan Document, and such failure shall have
continued for a period of five Business Days.
(c) Any representation or warranty made or deemed made by the
Borrower in or pursuant to or in connection with any Loan Document or
any transaction contemplated hereby or thereby, or any statement made
by the Borrower or any Subsidiary of the Borrower or any in any
financial statement, certificate, report, exhibit or document furnished
by the Borrower or any Subsidiary of the Borrower to the Collateral
Agent or any Lender Party pursuant to or in connection with any Loan
Document or any transaction contemplated hereby or thereby, shall prove
to have been false or misleading in any material respect as of the time
when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not
misleading).
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(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VII hereof or any of
the covenants contained in Sections 2.07, 6.01(j)(i), 6.11, 6.12, 6.14,
6.15 or 6.16 hereof, or in Sections 4.02 or 4.06 of the Borrower Pledge
Agreement.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 6.01 hereof (other than as referred to in Sections
6.01(j)(i) hereof) such default shall have continued for a period of 10
days and (ii) in the case of any other default such default shall have
continued for a period of 30 days.
(f) (i) The Borrower or any Subsidiary of the Borrower shall
default in any payment of any amount in respect of any Cross-Default
Triggering Obligation beyond any period of grace with respect thereto
or, if any amount payable in respect of any Cross-Default Triggering
Obligation is payable on demand, shall fail to pay such amount when
demanded, or (ii) the Borrower or any Subsidiary of the Borrower shall
default in the observance of any covenant, term or condition of any
agreement or instrument by which any Cross-Default Triggering
Obligation is created, secured or evidenced, if the effect of such
default referred to in this clause (ii) is to cause, or to permit the
holder or holders of any Cross-Default Triggering Obligation (or a
trustee or agent on behalf of such holder or holders) to cause, all or
part of such Cross- Default Triggering Obligation to become due before
its otherwise stated maturity (by way of acceleration, mandatory
prepayment or otherwise), or, in the case of an interest rate or
currency swap, cap, collar, floor, future, forward or similar
transaction, to terminate before its otherwise scheduled termination.
As used in this Agreement, "Cross-Default Triggering Obligation" shall
mean
(A) any obligation under or in connection with any of
the other Credit Facilities, any Swap Agreement, the Senior
Notes or the Senior Note Indenture,
(B) any obligation, as principal or as guarantor or
other surety, in respect of the TIMCO Bond Order, the TIMCO
Lease, any reimbursement agreement relating to the TIMCO Bonds
Letter of Credit, or any other obligation referred to in
Section 7.03(j) hereof,
(C) any obligation (or set of related obligations),
as principal or as guarantor or other surety, in respect of
Indebtedness in excess of $5,000,000 (or the equivalent
thereof in one or more foreign currencies) in aggregate
amount, and
(D) any obligation (or set of related obligations,
including all obligations under a master agreement), as
principal or as guarantor or other surety, in respect of any
interest rate or currency swap, cap, collar, floor, future,
forward or similar transactions relating to a principal or
notional principal amount in excess of $5,000,000 (or the
equivalent thereof in one or more foreign currencies) in
aggregate amount.
(g) One or more judgments for the payment of money shall have
been entered against the Borrower or any Subsidiary of the Borrower,
which judgment or judgments exceed
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$2,000,000 in the aggregate, and such judgment or judgments shall have
remained undischarged and unstayed for a period of 30 consecutive days.
(h) Any Governmental Action now or hereafter made by or with
any Governmental Authority in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall
have been modified or amended or shall have been held to be illegal or
invalid, and such event or condition has, or would be likely to have, a
Material Adverse Effect.
(i) Any Shared Security Document shall cease to be in full
force and effect; or any Lien created or purported to be created in any
Shared Collateral pursuant to any Shared Security Document shall fail
to be a valid, enforceable and perfected Lien in favor of the
Collateral Agent for the benefit of the Secured Parties securing the
Obligations, prior to all other Liens except Permitted Liens.
(j) Any Loan Document or term or provision thereof shall cease
to be in full force and effect (except in accordance with the express
terms of such Loan Document), or the Borrower or any other party to any
Loan Document shall, or shall purport to, terminate (except in
accordance with the terms of such Loan Document), repudiate, declare
voidable or void or otherwise contest, any Loan Document or term or
provision thereof or any obligation or liability of the Borrower or
such other party thereunder.
(k) Any one or more Pension-Related Events referred to in
subsection (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events
shall have occurred which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(l) The Borrower shall make, or shall be required by the terms
of the Senior Note Indenture to make or to offer to make, any purchase
of Senior Notes under Sections 4.12 or 4.13 of the Senior Note
Indenture; or the Borrower or any of its Subsidiaries otherwise shall
make or offer to make any payment on account of principal of, or any
purchase, redemption, retirement, defeasance or acquisition of, any of
the Senior Notes (except for principal payment in accordance with the
terms thereof at the scheduled maturity thereof).
(m) Any Person or group (as such term is used in Sections 13
and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have
become the direct or indirect beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of 35% or more of any class of
voting securities of the Borrower; or any Person shall have been
elected or shall have become a director of the Borrower who was not
nominated and recommended for such position or elected to such position
by a majority of the then-incumbent Board of Directors of the Borrower;
or a "Change in Control" (as defined in the Senior Note Indenture as
constituted on the Closing Date shall have occurred (without regard to
any subsequent amendment, modification or supplement to, or termination
or expiration of, the Senior Note Indenture).
(n) A Control-Related Event shall have occurred, and the
Required Lenders shall have determined in good faith that such
Control-Related Event has or would be likely to have a Material Adverse
Effect (by reason of suspension, withdrawal or impairment of any
security
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clearance of the Borrower or any of its Subsidiaries, or impairment of
the business relationship between the Borrower and its Subsidiaries, on
the one hand, and the U.S. Government and its agencies and departments,
on the other hand). "Control-Related Event" shall mean that any Person
or group (as such term is used in Sections 13 and 14 of the Exchange
Act, and the rules and regulations thereunder) shall have become the
direct or indirect beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of 5% or more of any class of voting
securities of the Borrower (except for any such Person or group
existing on the Closing Date, to the extent of the voting securities
then owned by them).
(o) A proceeding shall have been instituted in respect of the
Borrower or any Significant Subsidiary of the Borrower (and for this
purpose, each Subsidiary of the Borrower which is subject to an event
or condition described in this Section 8.01(o) or in Section 8.01(p)
hereof shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single
entity, they would constitute a Significant Subsidiary)
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, Winding-up,
administration, charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition or other
similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief
of debtors or protection of creditors, termination of legal
entities or any other similar Law now or hereafter in effect,
or
(ii) seeking appointment of a receiver,
administrative receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
30 consecutive days.
(p) The Borrower or any Significant Subsidiary of the Borrower
(and for this purpose, each Subsidiary of the Borrower which is subject
to an event or condition described in Section 8.01(o) hereof or in this
Section 8.01(p) shall be deemed a Significant Subsidiary if,
collectively, together with their respective Subsidiaries, treated as a
single entity, they would constitute a Significant Subsidiary) shall
not be Solvent; shall fail to pay, become unable to pay, or state that
it is or will be unable to pay, its debts as they become due; shall
voluntarily suspend transaction of its business; shall make a general
assignment for the benefit of creditors; shall institute (or fail to
controvert in a timely and appropriate manner) a proceeding described
in Section 8.01(o)(i) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 8.01(o)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce
in any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his property; shall
dissolve, Wind-up, go into administration or revoke or forfeit its
articles of incorporation (or other constituent documents); or shall
take any action in furtherance of any of the foregoing.
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8.02. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) GENERAL. If an Event of Default specified in subsections
(a) through (n) of Section 8.01 hereof shall have occurred and be continuing or
exist, or if an Event of Default specified in subsections (o) or (p) of Section
8.01 hereof shall have occurred and be continuing or exist with respect to a
Person other than the Borrower, then, in addition to all other rights and
remedies which the Collateral Agent or any Lender Party may have hereunder or
under any other Loan Document, at law, in equity or otherwise, the Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, declare the unpaid principal amount of the Loans, interest accrued
thereon and all other Loan Obligations to be immediately due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
(b) BANKRUPTCY AND CERTAIN OTHER EVENTS. If an Event of
Default specified in subsection (o) or (p) of Section 8.01 hereof shall have
occurred and be continuing or exist with respect to the Borrower, then, in
addition to all other rights and remedies which the Collateral Agent or any
Lender Party may have hereunder or under any other Loan Document, at law, in
equity or otherwise, the unpaid principal amount of the Loans, interest accrued
thereon and all other Loan Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
8.03. APPLICATION OF PROCEEDS. After the occurrence of an
Event of Default and acceleration of the Loans, any distributions made on
account of Loan Obligations under the Collateral Agency Agreement and all other
payments received on account of Loan Obligations shall be applied by the Agent
to payment of the Loan Obligations in the following order:
First, to payment of that portion of the Loan Obligations
constituting fees, indemnities and other amounts due to the Agent in
its capacity as such;
Second, to payment of that portion of the Loan Obligations
constituting accrued and unpaid interest on Loans, ratably amongst the
Lenders in proportion to the respective amounts described in this
clause "Second" due to them;
Third, to payment of that portion of the Loan Obligations
constituting unpaid principal of the Loans, ratably amongst the Lenders
in proportion to the respective amounts described in this clause
"Third" due to them;
Fourth, to payment of all other Loan Obligations, ratably
amongst the Lender Parties in proportion to the respective amounts
described in this clause "Fourth" due to them; and
Finally, the balance, if any, after all of the Loan
Obligations have been indefeasibly paid in full in cash, and all
Commitments have terminated, to the Borrower or as otherwise required
by law.
ARTICLE IX
THE AGENT
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9.01. APPOINTMENT. Each Lender Party hereby irrevocably
appoints Mellon Bank, N.A. to act as Agent for the Lender Parties under this
Agreement and the other Loan Documents. Each Lender Party hereby irrevocably
authorizes the Agent to take such action on behalf of the Lender Parties under
the provisions of this Agreement and the other Loan Documents, and to exercise
such powers and to perform such duties, as are expressly delegated to or
required of the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto. Mellon Bank, N.A. hereby agrees to act as
Agent on behalf of the Lender Parties on the terms and conditions set forth in
this Agreement and the other Loan Documents, subject to its right to resign as
provided herein. Each Lender Party hereby irrevocably authorizes the Agent to
execute and deliver each of the Loan Documents and to accept delivery of such of
the other Loan Documents as may not require execution by the Agent. Without
limiting the generality of the foregoing, each Lender Party hereby irrevocably
authorizes the Agent to execute and deliver the Collateral Agency Agreement on
behalf of such Lender Party. Each Lender Party hereby agrees that the rights and
remedies granted to the Agent under the Loan Documents shall be exercised
exclusively by the Agent, and that no Lender Party shall have any right
individually to exercise any such right or remedy, except to the extent, if any,
expressly provided herein or therein.
9.02. GENERAL NATURE OF AGENT'S DUTIES.
(a) NO IMPLIED DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Agent shall be read into this Agreement or any Loan Document or shall
otherwise exist.
(b) NOT A FIDUCIARY. The duties and responsibilities of the
Agent under this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Agent shall not have a fiduciary relationship
in respect of any Lender Party.
(c) AGENT OF LENDER PARTIES. The Agent is and shall be solely
the agent of the Lender Parties. The Agent does not assume, and shall not at any
time be deemed to have, any relationship of agency or trust with or for, or any
other duty or responsibility to, the Borrower or any Person other than the
Lender Parties. The provisions of this Article IX are for the benefit of the
Lender Parties (and the other Persons named in Section 9.07 hereof), and the
Borrower shall not have any rights under any of the provisions of this Article
IX.
(d) NO OBLIGATION TO TAKE ACTION. The Agent shall be under no
obligation to take any action hereunder or under any other Loan Document if the
Agent believes in good faith that taking such action may conflict with any Law
or any provision of this Agreement or any other Loan Document, or may require
the Agent to qualify to do business in any jurisdiction where it is not then so
qualified.
9.03. EXERCISE OF POWERS. Subject to the other provisions of
this Agreement and the other Loan Documents, the Agent shall take any action of
the type specified in this Agreement or any other Loan Document as being within
the Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires
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the direction or consent of the Required Lenders (or some other Person or set of
Persons), in which case the Agent shall not take such action absent such
direction or consent. Any action or inaction pursuant to such direction,
discretion or consent shall be binding on all the Lender Parties. The Agent
shall not have any liability to any Person as a result of (x) the Agent acting
or refraining from acting in accordance with the directions of the Required
Lenders (or other applicable Person or set of Persons), (y) the Agent refraining
from acting in the absence of instructions to act from the Required Lenders (or
other applicable Person or set of Persons), whether or not the Agent has
discretionary power to take such action, or (z) the Agent taking discretionary
action it is authorized to take under this Section (subject, in the case of this
clause (z), to the provisions of Section 9.04(a) hereof).
9.04. GENERAL EXCULPATORY PROVISIONS.
(a) GENERAL. The Agent shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or willful
misconduct.
(b) AGENT NOT RESPONSIBLE FOR LOAN DOCUMENTS, ETC. The Agent
shall not be responsible for (i) the execution, delivery, effectiveness,
enforceability, genuineness, validity or adequacy of this Agreement or any other
Loan Document, (ii) any recital, representation, warranty, document,
certificate, report or statement in, provided for in, or received under or in
connection with, this Agreement or any other Loan Document, (iii) any failure of
the Borrower or any Lender to perform any of their respective obligations under
this Agreement or any other Loan Document, (iv) the existence, validity,
enforceability, perfection, recordation, priority, adequacy or value, now or
hereafter, of any Lien or other direct or indirect security afforded or
purported to be afforded by any of the Loan Documents or otherwise from time to
time, or (v) caring for, protecting, insuring, or paying any taxes, charges or
assessments with respect to any collateral.
(c) NO DUTY OF INQUIRY. The Agent shall not be under any
obligation to ascertain, inquire or give any notice relating to (i) the
performance or observance of any of the terms or conditions of this Agreement or
any other Loan Document on the part of the Borrower, (ii) the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
any other Person, or (iii) except to the extent set forth in Section 9.05(f)
hereof, the existence of any Event of Default or Potential Default.
(d) NOTICES. The Agent shall not be under any obligation,
either initially or on a continuing basis, to provide any Lender Party with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, except for such notices, reports and other information
expressly required by this Agreement or any other Loan Document to be furnished
by the Agent to such Lender Party.
9.05. ADMINISTRATION BY THE AGENT.
(a) RELIANCE ON NOTICES. The Agent may rely upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Agent
shall not have any duty to verify the identity or authority of any Person giving
such notice or other communication.
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(b) CONSULTATION. The Agent may consult with legal counsel
(including, without limitation, in-house counsel for the Agent or in-house or
other counsel for the Borrower), independent public accountants and any other
experts selected by it from time to time, and the Agent shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts.
(c) RELIANCE ON CERTIFICATES, ETC. The Agent may conclusively
rely upon the truth of the statements and the correctness of the opinions
expressed in any certificates or opinions furnished to the Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Agent shall deem it necessary or desirable that a matter be proved or
established with respect to the Borrower or any Lender Party, such matter may be
established by a certificate of the Borrower or such Lender Party, as the case
may be, and the Agent may conclusively rely upon such certificate (unless other
evidence with respect to such matter is specifically prescribed in this
Agreement or another Loan Document).
(d) INDEMNITY. The Agent may fail or refuse to take any action
unless it shall be indemnified to its satisfaction from time to time against any
and all amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Agent by reason of taking
or continuing to take any such action.
(e) PERFORMANCE THROUGH AGENTS. The Agent may perform any of
its duties under this Agreement or any other Loan Document by or through agents
or attorneys-in-fact. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in fact selected by it with reasonable
care.
(f) NOTICE OF DEFAULT. The Agent shall not be deemed to have
any knowledge or notice of the occurrence of any Event of Default or Potential
Default unless the Agent has received notice from a Lender Party or the Borrower
referring to this Agreement, describing such Event of Default or Potential
Default, and stating that such notice is a "notice of default." If the Agent
receives such a notice, the Agent shall give prompt notice thereof to each
Lender.
9.06. LENDERS NOT RELYING ON AGENT OR OTHER LENDERS. Each
Lender Party hereby acknowledges as follows: (a) Neither the Agent nor any other
Lender Party has made any representations or warranties to it, and no act taken
hereafter by the Agent or any other Lender Party shall be deemed to constitute
any representation or warranty by the Agent or such other Lender Party to it.
(b) It has, independently and without reliance upon the Agent or any other
Lender Party, and based upon such documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into
this Agreement and the other Loan Documents. (c) It will, independently and
without reliance upon the Agent or any other Lender Party, and based upon such
documents and information as it shall deem appropriate at the time, make its own
decisions to take or not take action under or in connection with this Agreement
and the other Loan Documents.
9.07. INDEMNIFICATION OF AGENT BY LENDERS. Each Lender hereby
agrees to reimburse and indemnify the Agent and its directors, officers,
employees and agents (to the extent not reimbursed by the Borrower and without
limitation of the obligations of the Borrower to do so), Pro Rata, from and
against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and
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disbursements of counsel for the Agent or such other Person in connection with
any investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Agent or such other Person shall be designated a
party thereto) that may at any time be imposed on, incurred by or asserted
against the Agent or such other Person as a result of, or arising out of, or in
any way related to or by reason of, this Agreement, any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part or directly or indirectly with the proceeds of any
Loan; provided, that no Lender shall be liable for any portion of such amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting from the gross negligence or
willful misconduct of the Agent or such other Person, as finally determined by a
court of competent jurisdiction.
9.08. AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
Commitments and the Loan Obligations owing to it, the Agent shall have the same
rights and powers under this Agreement and each other Loan Document as any other
Lender and may exercise the same as though it were not the Agent, and the terms
"Lender," "holders of Notes" and like terms shall include the Agent in its
individual capacity as such. The Agent and its affiliates may, without liability
to account, make loans to, accept deposits from, acquire debt or equity
interests in, enter into interest rate or currency hedging transactions with,
act as trustee under indentures of, and engage in any other business or
transaction with, the Borrower or any stockholder, subsidiary or affiliate of
the Borrower, as though the Agent were not the Agent hereunder.
9.09. HOLDERS OF NOTES. The Agent may deem and treat the
Lender which is payee of a Note as the owner and holder of such Note for all
purposes hereof unless and until a Transfer Supplement with respect to the
assignment or transfer thereof shall have been filed with the Agent in
accordance with Section 10.14 hereof. Any authority, direction or consent of any
Person who at the time of giving such authority, direction or consent is shown
in the Register as being a Lender shall be conclusive and binding on each
present and subsequent holder, transferee or assignee of any Note or Notes
payable to such Lender or of any Note or Notes issued in exchange therefor.
9.10. SUCCESSOR AGENT. The Agent may resign at any time by
giving 45 days' prior written notice thereof to the Lenders and the Borrower.
The Agent may be removed by the Required Lenders at any time by giving 10 days'
prior written notice thereof to the Agent, the other Lenders and the Borrower.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
and consented to, and shall have accepted such appointment, within 30 days after
such notice of resignation or removal, then the retiring Agent may (but shall
not be required to) appoint a successor Agent. Each successor Agent shall be a
commercial bank or trust company organized under the laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance by a successor Agent of its appointment
as Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the properties, rights, powers, privileges and duties of the
former Agent in its capacity as such, without further act, deed or conveyance.
Upon the effective date of resignation or removal of a retiring Agent, such
Agent shall be discharged from its duties as such under this Agreement and the
other Loan Documents, but the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted by it while it was Agent under this
Agreement. If and so long as no successor Agent shall have been appointed, then
any notice or other communication required or permitted to be given by the Agent
shall be sufficiently given if given by the Required Lenders, all notices or
other communications required or permitted to be given to the Agent shall be
given to each
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Lender, and all payments to be made to the Agent shall be made directly to the
Borrower or Lender Party for whose account such payment is made.
9.11. CALCULATIONS. The Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender Party to whom payment
was due but not made shall be to recover from the other Lender Parties any
payment in excess of the amount to which they are determined to be entitled or,
if the amount due was not paid by the Borrower, to recover such amount from the
Borrower.
9.12. AGENT'S FEE. The Borrower agrees to pay to the Agent,
for its individual account, a nonrefundable Agent's fee of $50,000 per annum,
payable for the period from and including the Closing Date to but not including
the date on which all Loan Obligations (other than Contingent Indemnification
Obligations) have been indefeasibly paid in full. Payments of such Agent's fee
shall be made (a) on the Closing Date, for the period from and including such
date to but not including June 29, 1997 (provided, that to the extent that the
Borrower has paid the Agent's fee allocable to such period under the prior "Term
Loan Agreement" referred to in Section 5.01(f), such payment shall be credited
against the Borrower's obligation under this clause (a)), and (b) thereafter, in
advance on each June 29 and December 29 for the period from and including such
payment date to but not including the next such payment date.
ARTICLE X
MISCELLANEOUS
10.01. HOLIDAYS. Except as otherwise expressly provided herein
or therein, whenever any payment or action to be made or taken hereunder or
under any other Loan Document shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on the next
following Business Day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
10.02. RECORDS. The unpaid principal amount of the Loans owing
to each Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, and the duration of such
applicability, shall at all times be ascertained from the records of the Agent,
which shall be conclusive absent manifest error.
10.03. AMENDMENTS AND WAIVERS. The Agent and the Borrower may
from time to time amend, modify or supplement the provisions of this Agreement
or any other Loan Document (other than the Shared Security Documents) for the
purpose of amending, adding to, or waiving any provisions, releasing any
collateral, or changing in any manner the rights and duties of the Borrower or
any Lender Party. Any such amendment, modification or supplement made by the
Borrower and the Agent in accordance with the provisions of this Section 10.03
shall be binding upon the Borrower and each Lender Party. The Agent shall enter
into such amendments, modifications or supplements from time to time as directed
by the Required Lenders, and only as so directed, provided, that no such
amendment, modification or supplement may be made which will:
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(a) Increase the Term Loan Committed Amount of any Lender over
the amount thereof then in effect without the written consent of each
Lender affected thereby, or extend the Term Loan Maturity Date without
the written consent of each Lender;
(b) Reduce the principal amount of or extend the time for any
scheduled payment of principal of any Loan without the written consent
of each Lender affected thereby, or reduce the rate of interest or
extend the time for payment of interest borne by any Loan (other than
as a result of waiving the applicability of any increase in interest
rates applicable to overdue amounts), without the written consent of
each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 10.03, without the written consent of each Lender;
(d) Amend or waive any of the provisions of Article IX, or
impose additional duties upon the Agent, or otherwise affect the
rights, interests or obligations of the Agent, without the written
consent of the Agent;
(e) Release all or a major portion of the Shared Collateral
(other than in accordance with the provisions of the Loan Documents),
or subordinate the priority of the Liens in favor of the Collateral
Agent to Liens in favor of another Person with respect to all or a
major portion of the Shared Collateral (other than in accordance with
the provisions of the Loan Documents), without the written consent of
each Lender; or
(f) Alter the priority of distributions set forth in Section
8.03 hereof, without the written consent of each Lender affected
thereby;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing, manually signed by or on behalf of the Borrower
and the Lender Party which is party thereto, and shall be effective only to the
extent set forth in such writing. Any Event of Default or Potential Default
waived or consented to in any such amendment, modification or supplement shall
be deemed to be cured and not continuing to the extent and for the period set
forth in such waiver or consent, but no such waiver or consent shall extend to
any other or subsequent Event of Default or Potential Default or impair any
right consequent thereto. Shared Security Documents may be amended, modified and
supplemented from time to time in accordance with the terms thereof and of the
Collateral Agency Agreement, and any such amendment, modification or supplement
so made shall be binding upon the Borrower and each Lender Party (and to the
extent that any consent, direction or other action is required by the Agent in
connection therewith, the provisions of the third sentence of this Section 10.03
shall apply to the Agent in giving such consent or direction or taking such
action).
10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of the Collateral Agent or any Lender Party in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the
Collateral Agent and the Lender Parties under this Agreement and any other Loan
Document are
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cumulative and not exclusive of any rights or remedies which any of them would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
10.05. NOTICES.
(a) GENERAL. Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") to the Borrower or any Lender
Party under this Agreement or any Loan Document shall be in writing (including
telexes and facsimile transmission) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or facsimile transmission
(with confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party at the address stated on the signature pages hereof or in accordance with
the last unrevoked written direction from such party to the other parties
hereto, in all cases with postage or other charges prepaid. Any such properly
given notice to any Lender Party shall be effective when received. Any such
properly given notice to the Borrower shall be effective on the earliest to
occur of receipt, telephone confirmation of receipt of telex or facsimile
transmission, one Business Day after delivery to a nationally-recognized
overnight courier, or three Business Days after deposit in the mail.
(b) COPIES TO AGENT. Any Lender giving any notice to the
Borrower or any other party to a Loan Document shall simultaneously send a copy
thereof to the Agent, and the Agent shall promptly notify the other Lenders of
the receipt by it of any such notice.
(c) RELIANCE. Each Lender Party may rely on any notice
(whether or not such notice is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the
Borrower, and no Lender Party shall have any duty to verify the identity or
authority of any Person giving such notice.
10.06. EXPENSES; TAXES; INDEMNITY.
(a) EXPENSES. The Borrower agrees to pay or cause to be paid
and to save each Lender Party harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of outside counsel, including local counsel,
auditors, and all other professional, accounting, evaluation and consulting
costs) incurred by any Lender Party from time to time arising from or relating
to (i) in the case of the Agent, the negotiation, preparation, execution,
delivery, administration and performance of this Agreement and the other Loan
Documents, (ii) in the case of the Agent, any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, (iii) in the
case of each Lender Party, the enforcement or preservation of rights under this
Agreement or any Loan Document (including but not limited to any such costs or
expenses arising from or relating to (A) the creation, perfection or protection
of any Lien on any collateral, (B) the protection, collection, lease, sale,
taking possession of, preservation of, or realization on, any collateral,
including without limitation advances for taxes, filing fees and the like, (C)
collection or enforcement by any Lender Party of any outstanding Loan or any
other amount owing hereunder or thereunder, and (D) any litigation, proceeding,
dispute, work-out, restructuring or rescheduling related in any way to this
Agreement or the Loan Documents), and (iv) in the case of Mellon Bank, N.A., any
syndication of this Agreement prior to the first anniversary of the Closing Date
(but amounts payable under this clause (iv), plus amounts payable under Section
10.06(a)(iv) of the other Credit Facilities as constituted on the Closing Date,
shall in no event exceed an aggregate of $50,000).
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(b) TAXES. The Borrower hereby agrees to pay all stamp,
document, transfer, recording, filing, registration, search, sales and excise
fees and taxes and all similar impositions now or hereafter determined by any
Lender Party to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save each Lender
Party harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) INDEMNITY. The Borrower hereby agrees to reimburse and
indemnify the Lender Parties, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing (the "Lender
Indemnified Parties"), and each of them, and to hold each of them harmless from
and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of outside counsel for such Lender Indemnified Party in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Lender Indemnified Party shall be designated a
party thereto) that may at any time be imposed on, asserted against or incurred
by such Lender Indemnified Party as a result of, or arising out of, or in any
way related to or by reason of this Agreement or any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed or secured in whole or in part, directly or indirectly, with the
proceeds of any Loan (and without in any way limiting the generality of the
foregoing, including any grant of any Lien on collateral or any exercise by the
Collateral Agent or any Lender Party of any of its rights or remedies under this
Agreement or any other Loan Document); but excluding any portion of such losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting from the gross negligence or
willful misconduct of such Lender Indemnified Party, as finally determined by a
court of competent jurisdiction. If and to the extent that the foregoing
obligations of the Borrower under this Section 10.06(c), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document, are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
10.07. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
10.08. PRIOR UNDERSTANDINGS. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto and thereto relating to the
transactions provided for herein and therein, including the engagement letter
between the Borrower and Mellon Bank, N.A. dated December 13, 1996.
10.09. DURATION; SURVIVAL. All representations and warranties
of the Borrower contained herein or in any other Loan Document or made in
connection herewith or therewith shall survive the making of, and shall not be
waived by the execution and delivery, of this Agreement or any other Loan
Document, any investigation by or knowledge of any Lender Party, the making of
any Loan, or any other event or condition whatever. All covenants and agreements
of the Borrower contained
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herein or in any other Loan Document shall continue in full force and effect
from and after the date hereof (or, in the case of Section 7.01 hereof, from and
after December 31, 1996) until all Commitments have terminated, and all Loan
Obligations (other than Contingent Indemnification Obligations) have been
indefeasibly paid in full in cash. Without limitation, all obligations of the
Borrower hereunder or under any other Loan Document to make payments to or
indemnify any Lender Party or Lender Indemnified Party (including but not
limited to obligations arising under Sections 2.10, 2.11 and 10.06 hereof) shall
survive the payment in full of all other Loan Obligations, termination of the
Borrower's right to borrow hereunder, and all other events and conditions
whatever. In addition, all obligations of each Lender to make payments to or
indemnify the Agent and Persons related to the Agent (including but not limited
to obligations arising under Section 9.07 hereof) shall survive the payment in
full by the Borrower of all Loan Obligations, termination of the Borrower's
right to borrow hereunder, and all other events and conditions whatever.
10.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
10.11. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
10.12. SET-OFF. The Borrower hereby agrees that if any Loan
Obligation of the Borrower shall be due and payable (by acceleration or
otherwise), each Lender Party shall have the right, without notice to the
Borrower, to set-off against and to appropriate and apply to such Loan
Obligation any obligation of any nature owing to the Borrower by such Lender
Party, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a certificate of deposit) now or hereafter maintained by the
Borrower with such Lender Party. Such right shall be absolute and unconditional
in all circumstances and, without limitation, shall exist whether or not such
Lender Party or any other Person shall have given notice or made any demand to
the Borrower or any other Person, whether such obligation owed to the Borrower
is contingent, absolute, matured or unmatured (it being agreed that such Lender
Party may deem such obligation to be then due and payable at the time of such
setoff), and regardless of the existence or adequacy of any collateral, guaranty
or any other security, right or remedy available to any Lender Party or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by law, any Participant and any branch, subsidiary or affiliate of any Lender
Party or any Participant shall have the same rights of set-off as a Lender as
provided in this Section 10.12 (regardless of whether such Participant, branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of the Borrower). The rights provided by this Section 10.12 are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender Party (or any such Participant, branch, subsidiary
or affiliate) may otherwise have under this Agreement, any other Loan Document,
at law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the rights
of set-off or bankers' lien of any such Person.
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10.13. SHARING OF COLLECTIONS. Subject to Section 2.06 of the
Collateral Agency Agreement, the Lenders hereby agree among themselves that if
any Lender shall receive (by voluntary payment, realization upon security,
set-off or from any other source) any amount on account of the Loans, interest
thereon, or any other Loan Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrower ratably to all Lenders in
greater proportion than any such amount received by any other Lender, then the
Lender receiving such proportionately greater payment shall notify each other
Lender and the Agent of such receipt, and equitable adjustment will be made in
the manner stated in this Section so that, in effect, all such excess amounts
will be shared ratably among all of the Lenders. The Lender receiving such
excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Loan Obligations owed to such other
Lenders in such amount as shall result in a ratable sharing by all Lenders of
such excess amount (and to such extent the receiving Lender shall be a
Participant). If all or any portion of such excess amount is thereafter
recovered from the Lender making such purchase, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law to be paid by the Lender
making such purchase. The Borrower hereby consents to and confirms the foregoing
arrangements. Each Participant shall be bound by this Section as fully as if it
were a Lender hereunder.
10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lender Parties, all future
holders of the Notes, and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights hereunder without the
prior written consent of all the Lenders and the Agent, and any purported
assignment without such consent shall be void, and except that, to the fullest
extent permitted by law, a Lender may not voluntarily assign or transfer any of
its rights hereunder except in accordance with the other provisions of this
Section 10.14, and any other purported voluntary assignment or transfer shall be
void; provided, that this Agreement shall inure to the benefit of successors of
Lenders by operation of law or resulting from an involuntary assignment or
transfer (including but not limited to receivers, conservators, trustees and
like Persons, and successors by merger or consolidation).
(b) PARTICIPATIONS. Any Lender may, in the ordinary course of
its business and in accordance with applicable Law, at any time sell
participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it and any Note held by it);
provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
and
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(iv) such Participant shall, by accepting such Participation,
be bound by the provisions of Section 10.13 hereof, and
(v) if such Participant is not already a Participant or a
Lender, and if such Participation gives such Participant any voting
rights (other than on matters described in clauses (a) through (f),
inclusive, of Section 10.03 hereof), such Participation shall be
subject to consent of the Agent, Mellon Bank, N.A. and the Borrower
pursuant to clause (i) of Section 10.14(c) hereof as if such
Participation were an assignment described therein.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.11, 10.06 and 10.12 hereof with respect to its participation
in the Commitments and the Loans outstanding from time to time; provided, that
no such Participant shall be entitled to receive any greater amount pursuant to
such Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred.
(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable Law, at any time assign all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all or any portion of its Commitments
and Loans owing to it and any Note held by it) to any Lender or to one or more
additional commercial banks or other Persons (each a "Purchasing Lender");
provided, that
(i) any such assignment to a Purchasing Lender shall be made
only with the consent of the Agent and Mellon Bank, N.A. (which each of
them may grant or withhold in their absolute discretion) and of the
Borrower (which consent may not be unreasonably withheld or delayed);
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents and under the Note Backup Agreement, such
transferor Lender shall retain, after such assignment (and any
concurrent assignment under the Note Backup Agreement), a minimum
principal amount of $10,000,000 under this Agreement and the Note
Backup Agreement in the aggregate, and after giving effect to such
assignment (and any concurrent assignment under the Note Backup
Agreement) the transferee Lender shall have a minimum principal amount
of $10,000,000 under this Agreement and the Note Backup Agreement in
the aggregate,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of the Term Loan Commitment and Term Loan of the
transferor Lender, and of all of the transferor Lender's related rights
and obligations under this Agreement and the other Loan Documents,
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit B to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $3,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such
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acceptance in the Register. Upon such execution, delivery, acceptance and
recording, from and after the close of business at the Agent's Office on the
Transfer Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in a Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Term Loan Notes evidencing such
Purchasing Lender's assigned Commitments or Loans and (for delivery to the
transferor Lender) replacement Term Loan Notes in the principal amount of the
Loans or Commitments retained by the transferor Lender (such Notes to be in
exchange for, but not in payment of, those Notes then held by such transferor
Lender). Each such Note shall be dated the date and be substantially in the form
of the predecessor Note. The Agent shall mark the predecessor Notes "exchanged"
and deliver them to the Borrower. Accrued interest and accrued fees shall be
paid to the Purchasing Lender at the same time or times provided in the
predecessor Notes and this Agreement.
(d) REGISTER. The Agent shall maintain at its office a copy of
each Transfer Supplement delivered to it and a register (the "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
entries in the Register shall be conclusive absent manifest error and the
Borrower and each Lender Party may treat each person whose name is recorded in
the Register as a Lender hereunder for all purposes of the Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) FINANCIAL AND OTHER INFORMATION. Subject to Section
10.14(g) hereof, the Borrower authorizes the Agent and each Lender to disclose
to any Participant or Purchasing Lender, or prospective Participant or
Purchasing Lender, any and all financial and other information delivered to,
received by, or otherwise in the possession of, such Person from time to time
relating to the Borrower, its Subsidiaries and affiliates, or the matters
contemplated by the Loan Documents. At the request of any Lender, the Borrower,
at the Borrower's expense, shall provide to each prospective transferee the
conformed copies of documents referred to in Section 4 of the form of Transfer
Supplement.
(f) SYNDICATION. The Borrower shall, at the reasonable request
of Mellon Bank, N.A. from time to time, at the Borrower's expense, use all
reasonable efforts to cooperate with its syndication effort, including, without
limitation, (i) assisting it from time to time in preparing information packages
for delivery to prospective Participants and Purchasing Lenders, and (ii)
causing appropriate officers, representative and experts to meet with
prospective Participants and Purchasing Lenders from time to time. Mellon Bank,
N.A. agrees to make such information packages available to the Borrower for
reasonable review before initial dissemination of the same in primary
syndication, and to consult with the Borrower as to the content thereof.
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(g) CONFIDENTIALITY. Each Lender Party agrees to take
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower or any Subsidiary
in connection with this Agreement; provided, however, that any Lender Party may
disclose such information (i) at the request of any bank regulatory authority or
other Governmental Authority or in connection with an examination of such Lender
Party by any such Governmental Authority, (ii) pursuant to subpoena or other
court process, (iii) to the extent such Lender Party is required (or believes in
good faith that it is required) to do so in accordance with any applicable Law,
(iv) to such Lender Party's independent auditors and other professional
advisors, (v) in connection with the enforcement of any of its rights under or
in connection with any Loan Document, (vi) to any other Lender Party, and (vii)
to any actual or potential Participant or Purchasing Lender, or to any other
actual or potential creditor of or participant in a credit to the Borrower or
any of its Subsidiaries or Affiliates, so long as, in the case of this clause
(vii), such Person agrees to comply with the provisions of this Section
10.14(g).
(h) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any
time assign all or any portion of its rights under this Agreement, including
without limitation any Loans owing to it and any Note held by it, to a Federal
Reserve Bank. No such assignment shall relieve the transferor Lender from any of
its obligations hereunder.
10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER PARTY TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES
THAT SUCH
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SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE
(BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF
PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER AGAINST ANY LENDER PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY). THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT
TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS
OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
PRIMARK CORPORATION
By /s/ STEPHEN H. CURRAN
---------------------------------------------
Stephen H. Curran
Senior Vice President and Chief Financial
Officer
Address for Notices:
Primark Corporation
1000 Winter Street, Suite 4300N
Waltham, MA 02154
Attn: Stephen H. Curran,
Senior Vice President and Chief Financial
Officer
Telephone: 617-487-2140
Facsimile: 617-890-6129
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MELLON BANK, N.A.,
individually and as Agent
By /s/ R. JANE WESTRICH
-------------------------------------------
R. Jane Westrich
Vice President
Term Loan Committed Amount: $225,000,000
Commitment Percentage: 100%
Address for Notices:
Mellon Bank, N.A.
Loan Administration
Three Mellon Bank Center
Room 153-2332
Pittsburgh, PA 15259-0003
Attn: Terpsie Katsafanas
Telephone: 412-234-4769
Facsimile: 412-236-2028
With a copy to:
Mellon Bank, N.A.
One Boston Place, 6th Floor
Boston, MA 02108
Attn: R. Jane Westrich, Vice President
Telephone: 617-722-7969
Facsimile: 617-722-3516
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ANNEX A
TO
TERM LOAN AGREEMENT
DEFINITIONS; CONSTRUCTION
1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used in this Agreement the
following words and terms defined have the meanings given them below, unless the
context of this Agreement otherwise clearly requires.
"Adjusted Acquisition Consideration" in connection with an
acquisition of a type referred to in clause (y) or (z) of Section 7.08
hereof by the Borrower or a Subsidiary of the Borrower means the
amount, not less than zero, equal to, without duplication, the sum of:
(a) the gross consideration paid or payable by the
Borrower and its Subsidiaries in connection with such
acquisition (including, without limitation, the purchase price
therefor and transaction expenses), with non-cash
consideration valued at its Fair Market Value on the closing
date of the acquisition; provided, that for purposes of this
clause (a) (i) the value of consideration in the form of
Shares of Capital Stock of the Borrower or options or warrants
therefor shall be deemed zero, and (ii) the value of
consideration in the form of Indebtedness or other deferred
payment obligations of the Borrower or its Subsidiaries
(exclusive of Indebtedness or other deferred payment
obligations payable and paid exclusively in Shares of Capital
Stock of the Borrower or options or warrants therefor) shall
be deemed the maximum aggregate amount of all payments which
in any circumstances may be required thereunder, as determined
at the time such Indebtedness or other deferred payment
obligation is incurred (except that, for purposes of this
clause (ii), interest on Indebtedness accruing after such
determination date at a market rate shall be excluded from
such maximum aggregate amount), plus
(b) the aggregate Indebtedness and Guarantee
Equivalents assumed or incurred, directly or indirectly, by
the Borrower or any Subsidiary of the Borrower in connection
with such acquisition (including, in the case of an
acquisition of any or all of the Shares of Capital Stock or
other equity interests of a Person, the aggregate Indebtedness
and Guarantee Equivalents of such Person), exclusive of
Indebtedness and Guarantee Equivalents of the Person being
acquired constituting current accounts payable of such Person
on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of
business and not incurred in contemplation of such
acquisition, minus
(c) the aggregate cash and Cash Equivalent
Investments (valued at the lower of cost or market) acquired
by the Borrower and its Subsidiaries in such acquisition
(including, in the case of an acquisition of all, but not less
than all, of the Shares of Capital Stock or other equity
interests of a Person, the aggregate cash and Cash Equivalent
Investments of such Person, it being understood that in the
event that the Borrower and its Subsidiaries acquire less than
all of the Shares of Capital Stock or other equity interests
of a Person, no part of the cash or Cash Equivalent
Investments of such Person shall be deemed within the scope of
this clause (c)); provided, that in the event
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that the Borrower and its Subsidiaries acquire all of the
Shares of Capital Stock or other equity interests of a Person,
the cash and Cash Equivalent Investments of such Person shall
be deemed within the scope of this clause (c) only in the
event that the relevant acquisition agreement requires the
amount of cash and Cash Equivalent Investments of such Person
to be determined at the closing date of the acquisition and
provides for an adjustment to the purchase price based on such
amount.
"Advance" shall mean any loan, advance or other extension of
credit, direct or indirect.
"Affected Lender" shall have the meaning set forth in Section
2.03(e) hereof.
"Affiliate" of a Person shall mean any Person which directly
or indirectly controls, or is controlled by, or is under common control
with, such Person. For purposes of the preceding sentence, "control" of
a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise, and in any case shall include, without
limitation, (a) being a director or officer (or a Person having powers
analogous to those of a corporate director or officer) of such Person,
or of a Person that directly or indirectly controls such Person, (b)
having direct or indirect ownership (beneficially or of record) of, or
direct or indirect power to vote, 30% or more of the outstanding Shares
of Capital Stock of any class of such Person having ordinary voting
power for the election of directors (or in the case of a Person that is
not a Corporation, 30% or more of any class of equity interest having
voting or control power analogous to corporate common stock), and (b)
being a general partner of such Person, or of a Person having direct or
indirect control over a general partner of such Person.
"Applicable Margin" shall have the meaning set forth in
Section 2.03(b) hereof.
"Assured Obligation" shall have the meaning given that term in
the definition of "Guaranty Equivalent."
"Base Rate" for any day shall mean the greater of (a) the
Prime Rate for such day or (b) 0.50% plus the Federal Funds Effective
Rate for such day, such interest rate to change automatically from time
to time effective as of the effective date of each change in the Prime
Rate or the Federal Funds Effective Rate.
"Base Rate Option" shall have the meaning set forth in Section
2.03(a) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.09(c)(ii) hereof. If no Loan or Loans is
specified, "Base Rate Portion" shall refer to the Base Rate Portion of
all Loans outstanding at such time.
"Borrower Pledge Agreement" shall mean the Pledge Agreement of
approximately even date herewith between the Borrower and the
Collateral Agent, as amended, modified or supplemented from time to
time.
"Broker-Dealer" shall mean a Person who is, or is registered
as, a broker, dealer, municipal securities dealer, government
securities broker or government securities dealer under
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the Securities Exchange Act of 1934, as amended, or under any state
securities law, or who has a comparable status under any securities law
of any other Governmental Authority.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania or other day on which banking institutions are authorized
or obligated to close in the city in which is located the Agent's
Office.
"Capital Expenditures" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person during such period which
would be classified as capital expenditures in accordance with GAAP
(including, without limitation, expenditures for maintenance and
repairs which are capitalized, and Capitalized Leases to the extent an
asset is recorded in connection therewith in accordance with GAAP).
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of
the lessee at such time, and "Capitalized Lease Obligation" of any
Person at any time shall mean the aggregate amount which is, or is
required under GAAP to be, reported as a liability on the balance sheet
of such Person at such time as lessee under a Capitalized Lease.
"Capitalized Software" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person which would be
classified as capitalized software in accordance with GAAP.
"Cash Equivalent Investments" shall have the meaning given
that term in the Collateral Agency Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute
of similar import, and regulations thereunder, in each case as in
effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be
amended from time to time.
"Closing Date" shall mean the date of the Loans hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement of approximately even date herewith between the Borrower,
certain "Revolving Credit Parties," by Mellon Bank, N.A., as Revolving
Credit Agent, certain "Term Loan Parties," by Mellon Bank, N.A., as
Term Loan Agent, certain "Note Backup Parties," by Mellon Bank, N.A.,
as Note Backup Agent, and Mellon Bank, N.A., as Collateral Agent, as
amended, modified or supplemented from time to time.
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"Collateral Agent" shall have the meaning given that term in
the Collateral Agency Agreement.
"Commitment" of a Lender shall mean the Term Loan Commitment
of such Lender.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the
signature page hereof, subject to transfer to another Lender as
provided in Section 10.14 hereof.
"Consolidated Cash Interest Expense" for any period shall mean
the total cash interest expense payable by the Borrower and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" for any period shall mean the sum of (a)
Consolidated Net Income for such period, (b) Consolidated Interest
Expense for such period, (c) Consolidated Income Tax Expense for such
period, (d) depreciation expense of the Borrower and its Subsidiaries
for such period, and (e) amortization expense of the Borrower and its
Subsidiaries for such period, minus the sum of (x) extraordinary gains
(but not any losses) to the extent included in determining such
Consolidated Net Income, and (y) equity earnings (but not any losses)
of Affiliates of the Borrower to the extent included in determining
Consolidated Net Income for such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA Less Capital Expenditures" for any period
shall mean Consolidated EBITDA for such period, minus the sum of
Capital Expenditures of the Borrower and its Subsidiaries for such
period and, without duplication of amounts included in Capital
Expenditures, Capitalized Software of the Borrower and its Subsidiaries
for such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" for any period
shall mean the ratio of the Consolidated EBITDA Less Capital
Expenditures for such period to the Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges" for any period shall mean the sum
of (a) Consolidated Cash Interest Expense for such period, (b)
principal payments made by the Borrower and its Subsidiaries during
such period with respect to any outstanding Indebtedness (excluding (i)
payments of Indebtedness under the Revolving Credit Agreement, (ii)
prepayments made at the option of the Borrower of Indebtedness under
the Term Loan Agreement, to the extent the amounts so prepaid are not
otherwise due during such period, and (iii) payments of the Senior
Notes at the scheduled maturity thereof), (c) the amount of Stock
Payments made by the Borrower and its Subsidiaries during such period
(excluding (i) Stock Payments made to the Borrower or its Subsidiaries,
and (ii) Stock Payments made solely in Shares of Capital Stock (or
warrants, options or rights therefor) of the Borrower) all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt Ratio (Adjusted)" for any period
shall mean the following ratio: (a) the amount, not less than zero,
determined as of the last day of such period, equal to (i) Consolidated
Funded Indebtedness, minus (ii) the amount, not less than zero, equal
to (A) the amount of cash and Cash Equivalent Investments owned by the
Borrower and its Subsidiaries,
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valued at the lower of cost or market, minus (B) $10,000,000, divided
by (b) Consolidated EBITDA Less Capital Expenditures for such period.
"Consolidated Funded Indebtedness" at any time shall mean
Indebtedness (including the current portion thereof) of the Borrower
and its Subsidiaries which as of such date would be classified in whole
or in part as a long-term liability in accordance with GAAP, and in any
event includes (a) Indebtedness under the Credit Facilities and the
Senior Notes, (b) any Indebtedness of the Borrower and its Subsidiaries
having a final maturity later than one year after the date of
incurrence of such Indebtedness, (c) any Indebtedness, regardless of
its term, of the Borrower and its Subsidiaries which is renewable or
extendable by the obligor to a date later than one year after the date
of incurrence of such Indebtedness, and (d) Indebtedness of TIMCO
described in Section 7.03(j) hereof.
"Consolidated Income Tax Expense" for any period shall mean
the charges against income of the Borrower and its Subsidiaries for
foreign, federal, state and local income taxes for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" for any period shall mean the
total interest expense of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" for any period shall mean the net
earnings (or loss) after taxes of the Borrower and its Subsidiaries for
such period, determined on a consolidated basis in accordance with
GAAP; provided, that there shall be deducted therefrom (a) the income
(but not any deficit) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with or is
otherwise acquired by or combined with the Borrower or any Subsidiary
in a business combination accounted for as a pooling of interests,
including, in the case of a successor to the Borrower or any Subsidiary
by consolidation or merger or transfer of assets, any earnings of the
successor Corporation prior to such consolidation, merger or transfer
of assets, (b) income (but not any loss) accounted for by the Borrower
on the equity method resulting from an ownership interest in any
Person, but the deduction for such equity income shall be reversed to
the extent that during such period an amount not in excess of such
income has been actually received by the Borrower or such Subsidiary in
the form of cash dividends or similar cash distributions, (c) the
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is restricted (whether such restriction arises by operation
of Law, by agreement, by its certificate or articles of incorporation
or by-laws (or other constituent documents), or otherwise), (d) any
gain arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of the Borrower or any
Subsidiary, and (e) income (but not any loss) from discontinued
operations of the Borrower or any Subsidiary.
"Consolidated Net Worth" at any time shall mean the total
amount of common stockholders' equity and preferred stock of the
Borrower and its consolidated Subsidiaries at such time, determined on
a consolidated basis in accordance with GAAP; provided, that each item
of the following types shall be deducted, to the extent such item is
positive and is otherwise included therein: (a) any write-ups or other
revaluation after the Closing Date in the book value of any asset owned
by the Borrower or any of its consolidated Subsidiaries (other than
write-ups resulting from the acquisition of assets of a business made
within one year after such acquisition
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and accounted for by purchase accounting, and write-ups resulting from
the valuation in the ordinary course of business of investment
securities and inventory at the lower of cost or market), (b) all
investments in and loans and Advances to (i) unconsolidated
Subsidiaries of the Borrower, and (ii) Persons that are not
Subsidiaries of the Borrower (other than Cash Equivalent Investments),
(c) treasury stock, (d) assets attributable to interests held by
Persons other than the Borrower and its Subsidiaries that are Wholly
Owned Subsidiaries of the Borrower, (e) Disqualified Capital Stock of
the Borrower or of any Subsidiary of the Borrower, and (f) the amount,
whether positive or negative, of foreign currency translation
adjustments to stockholders' equity of the Borrower and its
Subsidiaries, all of the foregoing as determined in accordance with
GAAP.
"Consolidated Net Worth (Adjusted)" at any time shall mean
Consolidated Net Worth at such time plus the lesser of (a) $50,000,000,
or (b) the sum of (i) aggregate writeoffs of goodwill on or after
January 1, 1997 resulting from an impairment loss pursuant to Statement
of Financial Accounting Standards No. 121, made by the Borrower in
accordance with GAAP, and (ii) aggregate writeoffs of the cost of
computer software purchased in an acquisition of the Person which
developed such software (or by acquisition of assets comprising a line
of business of such Person which includes such software) on or after
January 1, 1997, made pursuant to Statement of Financial Accounting
Standards No. 86, provided that such writeoffs are made at the time of
the related acquisition and are made by the Borrower in accordance with
GAAP.
"Contingent Indemnification Obligations" shall have the
meaning given that term in the Collateral Agency Agreement.
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with the Borrower or any
Subsidiary of the Borrower is treated as a controlled group or single
employer under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections
414(b), (c), (m) or (o) of the Code.
"Corporation" shall mean a corporation, limited liability
company or business trust organized under the Laws of any state of the
United States, a company limited by shares incorporated under the Laws
of England and Wales, or any similar entity organized under the Laws of
any other jurisdiction, the owners of which are not by operation of Law
generally liable for the obligations of such entity.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through
a Notional Euro-Rate Funding Office of one or more Dollar deposits in
the interbank eurodollar market at the beginning of the Euro-Rate
Funding Period corresponding to such Funding Segment having maturities
approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Credit Facilities" shall mean the Revolving Credit Agreement,
the Term Loan Agreement and the Note Backup Agreement.
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"Datastream" shall mean Datastream International Limited, a
corporation incorporated under the Laws of England and Wales.
"Disqualified Capital Stock" shall mean any Shares of Capital
Stock that, other than solely at the option of the issuer thereof, by
their terms (or by the terms of any security into which they are
convertible or exchangeable) are, or upon the happening of an event or
the passage of time would be, required to be redeemed or repurchased,
in whole or in part, or have, or upon the happening of an event or the
passage of time would have, a redemption or similar payment due on or
prior to the Facilities Termination Date.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Early Maturity Tranche" shall have the meaning given that
term in Section 2.03(b)(ii) hereof.
"Environmental Affiliate": a Person ("Y") shall be an
"Environmental Affiliate" of another Person ("X"), if X has retained or
assumed, or is otherwise liable (contingently or otherwise) for, any
liability (contingent or other) of Y with respect to any Environmental
Claim, whether such retention, assumption or liability on the part of X
arises by agreement, by Law or otherwise.
"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person
(the "specified Person"), any action, suit, proceeding, investigation,
notice, claim, complaint, demand, request for information or other
communication (written or oral) by any other Person (including but not
limited to any Governmental Authority, citizens' group or present or
former employee of the specified Person) alleging, asserting or
claiming any actual or potential liability on the part of the specified
Person for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries,
fines or penalties, arising out of, based on or resulting from (a) the
presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person, or (b)
circumstances forming the basis of any violation or alleged violation
of any Environmental Law.
"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on
CERCLIS or on any similar state list of sites requiring investigation
or cleanup, or which is the subject of any pending or threatened
action, suit, proceeding or investigation related to or arising from
any alleged violation of any Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, solid waste, pollutant, contaminant
or any related material, raw material, substance, product or by-product
of any substance, as the foregoing terms are defined in, or any other
substance regulated by, any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any
similar state Law), (b) any toxic chemical from or related to
industrial,
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commercial or institutional activities, and (c) asbestos, gasoline,
diesel fuel, motor oil, waste and used oil, heating oil and other
petroleum products or compounds, polychlorinated biphenyls, radon and
urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture,
formulation, packaging, labeling, distribution, transportation,
handling, storage or disposal. Without limitation, "Environmental Law"
shall also include any Environmental Approval and the terms and
conditions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Euro-Rate" for any day, as used herein, shall mean for each
Funding Segment of the Euro-Rate Portion corresponding to a proposed or
existing Euro-Rate Funding Period the rate per annum determined by the
Agent by dividing (the resulting quotient to be rounded upward to the
nearest 1/100 of 1%) (a) the rate of interest (which shall be the same
for each day in such Euro-Rate Funding Period) determined in good faith
by the Agent in accordance with its usual procedures (which
determination shall be conclusive) to be the average of the rates per
annum for deposits in Dollars offered to major money center banks in
the London interbank market at approximately 11:00 a.m., London time,
two London Business Days prior to the first day of such Euro-Rate
Funding Period for delivery on the first day of such Euro-Rate Funding
Period in amounts comparable to such Funding Segment and having
maturities comparable to such Funding Period by (b) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 2.03(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.03(a) hereof.
"Euro-Rate Portion" of any part of any Loan or Loans shall
mean at any time the portion, including the whole, of such part of such
Loan or Loans bearing interest at any time under the Euro-Rate Option
or at a rate calculated by reference to the Euro-Rate under Section
2.09(c)(i) hereof. If no Loan or Loans is specified, "Euro-Rate
Portion" shall refer to the Euro-Rate Portion of all Loans outstanding
at such time.
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100
of 1%), as determined in good faith by the Agent (which determination
shall be conclusive), which is in effect on such day as prescribed by
the Board of Governors of the Federal Reserve System (or any successor)
representing the maximum reserve requirement (including, without
limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System. The
Euro-Rate shall be adjusted
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automatically as of the effective date of each change in the Euro-Rate
Reserve Percentage. The Euro-Rate Option shall be calculated in
accordance with the foregoing whether or not any Lender is actually
required to hold reserves in connection with its eurocurrency funding
or, if required to hold such reserves, is required to hold reserves at
the "Euro-Rate Reserve Percentage" as herein defined.
"Event of Default" shall mean any of the Events of Default
described in Section 8.01 hereof.
"Facilities Termination Date" shall mean the later to occur of
the Revolving Credit Maturity Date, the Term Loan Maturity Date and the
Note Backup Final Expiration Date.
"Fair Market Value" shall mean, with respect to any asset, the
sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and
an informed and willing buyer.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the
Agent (which determination shall be conclusive) to be the rate per
annum announced by the Federal Reserve Bank of New York (or any
successor) as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not so announce such rate for such previous trading
day, the "Federal Funds Effective Rate" shall be the average rate
charged to Mellon Bank, N.A. on such previous trading day on such
transactions as determined by the Agent.
"Funding Periods" shall have the meaning set forth in Section
2.03(c) hereof.
"Funding Segment" of the Euro-Rate Portion at any time shall
mean the entire principal amount of such Portion to which at the time
in question there is applicable a particular Funding Period beginning
on a particular day and ending on a particular day. (By definition,
each such Portion is at all times composed of an integral number of
discrete Funding Segments and the sum of the principal amounts of all
Funding Segments of any such Portion at any time equals the principal
amount of such Portion at such time.)
"GAAP" shall have the meaning given that term in Section 1.03
of this Annex A.
"Governmental Action" shall have the meaning set forth in
Section 4.04 hereof.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to subject to a Guaranty Equivalent in respect of any
obligation (the "Assured Obligation") of another Person (the "Deemed
Obligor") if the Deemed Guarantor directly or indirectly guarantees,
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becomes surety for, endorses, assumes, agrees to indemnify the Deemed
Obligor against, or otherwise agrees, becomes or remains liable
(contingently or otherwise) for, such Assured Obligation, in whole or
in part. Without limitation, a Guaranty Equivalent shall be deemed to
exist if a Deemed Guarantor agrees, becomes or remains liable
(contingently or otherwise), directly or indirectly, to do any of the
following: (a) to purchase or assume, or to supply funds for the
payment, purchase or satisfaction of, an Assured Obligation, (b) to
make any loan, advance, capital contribution or other investment in, or
to purchase or lease any property or services from, a Deemed Obligor
(i) to maintain the solvency of the Deemed Obligor, (ii) to enable the
Deemed Obligor to meet any other financial condition, (iii) to enable
the Deemed Obligor to satisfy any Assured Obligation or to make any
Stock Payment or any other payment, or (iv) to assure the holder of
such Assured Obligation against loss, (c) to purchase or lease property
or services from the Deemed Obligor regardless of the non-delivery of
or failure to furnish of such property or services, (d) in a
transaction having the characteristics of a take-or-pay or throughput
contract or as described in paragraph 6 of FASB Statement of Financial
Accounting Standards No. 47, or (e) in respect of any other transaction
the effect of which is to assure the payment or performance (or payment
of damages or other remedy in the event of nonpayment or
nonperformance) in whole or in part of any Assured Obligation.
"ICV" shall mean ICV Limited, a Corporation incorporated under
the Laws of England and Wales.
"ICV Notes" shall have the meaning given that term in Section
7.03(c) hereof.
"Indebtedness" of a Person shall mean the following: (a) all
obligations on account of money borrowed by, or credit extended to or
on behalf of, or for or on account of deposits with or advances to,
such Person; (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such
Person for the deferred purchase price of property or services; (d) all
obligations secured by a Lien on property owned by such Person (whether
or not assumed), and all obligations of such Person under Capitalized
Leases (without regard to any limitation of the rights and remedies of
the holder of such Lien or the lessor under such Capitalized Lease to
repossession or sale of such property); (e) the stated amount of all
letters of credit issued for the account of such Person and, without
duplication, the unreimbursed amount of all drafts drawn thereunder,
and all other obligations of such Person associated with such letters
of credit or draws thereon; (f) all obligations of such Person in
respect of acceptances or similar obligations issued for the account of
such Person; (g) all obligations of such Person under a product
financing or similar arrangement described in paragraph 8 of FASB
Statement of Accounting Standards No. 49 or any similar requirement of
GAAP; (h) all obligations of such Person under any interest rate or
currency swap, cap, floor, collar, future, forward or option agreement,
or other interest rate or currency protection agreement; and (i) the
maximum fixed repurchase price of any Disqualified Capital Stock of
such Person.
"Interest Rate Hedging Agreement" shall mean an interest rate
swap, cap or collar agreement.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
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"Late Maturity Tranche" shall have the meaning given that term
in Section 2.03(b)(ii) hereof.
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 10.14 hereof
pertaining to Persons becoming or ceasing to be Lenders.
"Lender Indemnified Parties" shall have the meaning given that
term in Section 10.06(c) hereof.
"Lender Parties" shall mean the Lenders and the Agent.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Loan" and "Loans" are synonymous with "Term Loan" and "Term
Loans," respectively.
"Loan Documents" shall mean this Agreement, the Notes, the
Transfer Supplements, the Shared Security Documents and the Origination
Fee Letter.
"Loan Obligations" shall mean the "Term Loan Obligations" as
defined in the Collateral Agency Agreement.
"London Business Day" shall mean a day for dealing in deposits
in Dollars by and among banks in the London interbank market and which
is a Business Day.
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) a material adverse effect on the ability of the Borrower to perform
or comply with any of the terms and conditions of any Loan Document, or
(c) an adverse effect on the legality, validity, binding effect,
enforceability or admissibility into evidence of any Loan Document, or
the ability of the Collateral Agent or any Lender Party to enforce any
rights or remedies under or in connection with any Loan Document.
"Maturity Tranche" shall have the meaning given that term in
Section 2.03(b)(ii) hereof.
"Multiemployer Plan" shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA and to which the Borrower, any Subsidiary of the
Borrower or any other Controlled Group Member has or had an obligation
to contribute.
"Net Sale Proceeds" shall have the meaning given that term in
Section 2.07(b) hereof.
"Note" and "Notes" are synonymous with "Term Loan Note" and
"Term Loan Notes," respectively.
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"Note Backup Agreement" shall mean the Note Backup Agreement
of even date herewith by and among the Borrower, the lenders parties
thereto from time to time, the issuing bank referred to therein, and
Mellon Bank, N.A., as Agent, as the same may be amended, modified or
supplemented from time to time in accordance with this Agreement.
"Note Backup Final Expiration Date" shall mean the final
scheduled maturity of Indebtedness under the Note Backup Agreement
(being the later of (i) the latest expiration date permitted under the
Note Backup Credit Agreement for letters of credit issued thereunder,
or (ii) the final scheduled maturity of the Borrower's reimbursement
obligation under the Note Backup Agreement).
"Notional Euro-Rate Funding Office" shall have the meaning
given to that term in Section 2.12(a) hereof.
"Obligations" shall have the meaning given that term in the
Collateral Agency Agreement.
"Office," when used in connection with the Agent, shall mean
its office located at One Mellon Bank Center, Pittsburgh, Pennsylvania
15258, or at such other office or offices of the Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from
time to time by the Agent to the Borrower.
"Option" shall mean the Base Rate Option or the Euro-Rate
Option.
"Origination Fee Letter" shall have the meaning given that
term in Section 5.01(t) hereof.
"Participants" shall have the meaning set forth in Section
10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency,
department or instrumentality succeeding to the functions of said
corporation.
"Pension-Related Event" shall mean any of the following events
or conditions:
(a) Any action is taken by any Person (i) to
terminate, or which would result in the termination of, a Plan
pursuant to the distress termination provisions of Section
4041(c) of ERISA or (ii) to have a trustee appointed for a
Plan pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination
that an event described in Section 4042 of ERISA has occurred
with respect to a Plan, that a Plan should be terminated, or
that a trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a
Plan;
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(d) Any action (other than becoming obligated to
contribute to a Multiemployer Plan) occurs or is taken which
could result in the Borrower, any Subsidiary of the Borrower
or any Controlled Group Member becoming subject to liability
for a complete or partial withdrawal by any Person from a
Multiemployer Plan (including, without limitation, seller
liability incurred under Section 4204(a)(2) of ERISA), or the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member receives from any Multiemployer Plan a notice or
demand for payment on account of any such alleged or asserted
liability;
(e) (i) There occurs any failure to meet the minimum
funding standard under Section 302 of ERISA or Section 412 of
the Code with respect to a Plan, or any tax return is filed
showing any tax payable under Section 4971(a) of the Code with
respect to any such failure, or the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member receives a
notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, (ii) any
request is made by any Person for a variance from the minimum
funding standard, or an extension of the period for amortizing
unfunded liabilities, with respect to a Plan, or (iii) the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member fails to pay the PBGC premium with respect to a
Plan when due and it remains unpaid for more than 30 days
thereafter; or
(f) There occurs any "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the
Code involving a Plan.
"Permitted Liens" shall have the meaning given that term in
Section 7.02 hereof.
"Permitted Mergers" shall have the meaning given that term in
Section 7.08 hereof.
"Person" shall mean an individual, Corporation, partnership,
trust, limited liability company, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other
entity.
"Plan" shall mean (a) any employee pension benefit plan within
the meaning of Section 3(2) of ERISA covered by Title IV of ERISA by
reason of Section 4021 of ERISA, of which the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member is or has been within
the preceding five years a "contributing sponsor" within the meaning of
Section 4001(a)(13) of ERISA, or which is or has been within the
preceding five years maintained for employees of the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member and (b) any
employee pension benefit plan within the meaning of Section 3(2) of
ERISA which is subject to Title I of ERISA by reason of Section 4 of
ERISA and is subject to the minimum funding requirements of Section 302
of ERISA or Section 412 of the Code, of which the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member is or has
been within the preceding five years an employer liable for
contributions within the meaning of Section 302(c)(11) of ERISA or
Section 412(c)(11) of the Code, or which is or has been within the
preceding five years maintained for employees of the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member.
"Portion" shall mean the Prime Rate Portion or the Euro-Rate
Portion.
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"Postretirement Benefits" of a Person shall mean any benefits,
other than retirement income, provided by such Person to retired
employees, or to their spouses, dependents or beneficiaries, including,
without limitation, group medical insurance or benefits, or group life
insurance or death benefits.
"Postretirement Benefit Obligation" of a Person shall mean
that portion of the actuarial present value of all Postretirement
Benefits expected to be provided by such Person which is attributable
to employees' service rendered to the date of determination (assuming
that such liability accrues ratably over an employee's working life to
the earlier of his date of retirement or the date on which the employee
would first become eligible for full benefits), reduced by the fair
market value as of the date of determination of any assets which are
segregated from the assets of such Person and which have been
restricted so that they cannot be used for any purpose other than to
provide Postretirement Benefits or to defray related expenses.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Agent or the
Lenders, or any combination of the foregoing, would constitute an Event
of Default.
"Primark Economics" shall mean Primark Decision Economics,
Inc.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by Mellon Bank, N.A. as its prime
rate, such rate to change automatically effective as of the
effectiveness of each announced change in such prime rate.
"Pro Rata" shall mean from or to each Lender in proportion to
such Lender's applicable Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in
Section 10.14(c) hereof.
"Recapture Asset Amount" shall have the meaning given that
term in Section 2.07(b) hereof.
"Recapture Asset Disposition" shall have the meaning given
that term in Section 2.07(b) hereof.
"Register" shall have the meaning set forth in Section
10.14(d) hereof.
"Regular Monthly Payment Date" shall mean the last Business
Day of each month after the Closing Date.
"Regular Quarterly Payment Date" shall mean the last Business
Day of each September, December, March and June after the Closing Date.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by
a substantial employer from a Plan to which more than one employer
contributes, as referred to in Section 4063(b) of ERISA, (iii) a
cessation of operations at a facility causing more than twenty percent
(20%) of Plan participants to be
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separated from employment, as referred to in Section 4062(e) of ERISA,
or (iv) a failure to make a required installment or other payment with
respect to a Plan when due in accordance with Section 412 of the Code
or Section 302 of ERISA which causes the total unpaid balance of missed
installments and payments (including unpaid interest) to exceed
$250,000.
"Required Lenders" shall mean Lenders holding in the aggregate
51% of the Commitment Percentages.
"Responsible Officer" of a Person shall mean its Chairman of
the Board, President, Chief Financial Officer or Treasurer.
"Revolving Credit Agreement" shall mean the Revolving Credit
Agreement of even date herewith by and among the Borrower, the lenders
parties thereto from time to time, the issuing banks referred to
therein, and Mellon Bank, N.A., as Agent, as the same may be amended,
modified, supplemented, renewed or refinanced from time to time in
accordance with this Agreement.
"Revolving Credit Maturity Date" shall mean the final
scheduled maturity of Indebtedness under the Revolving Credit
Agreement.
"Scheduled Maturity Date" shall have the meaning given that
term in Section 2.01(d) hereof.
"Secured Parties" shall have the meaning given that term in
the Collateral Agency Agreement.
"Senior Note Indenture" shall mean the Indenture dated as of
October 18, 1993 between the Borrower and The First National Bank of
Boston, as Trustee, relating to the Senior Notes, as constituted on the
Closing Date.
"Senior Notes" shall mean the Borrower's 8 3/4% Senior Notes
Due 2000.
"Shared Collateral" shall have the meaning given that term in
the Collateral Agency Agreement.
"Shared Collateral Account" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shared Security Documents" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shares of Capital Stock" shall mean shares of capital stock
of, membership interest in, beneficial interest in, or similar
ownership interest in, a Corporation organized under the Laws of any
state of the United States or any other jurisdiction, including,
without limitation, in the case of Corporations incorporated under the
Laws of England and Wales, equity share capital, ordinary shares and
loan stock.
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"Significant Subsidiary" of Borrower shall mean any Subsidiary
of the Borrower (a) which is TASC, Datastream, Disclosure Incorporated,
or a Subsidiary of any of the foregoing, (b) which, together with its
Subsidiaries, has assets (determined on a consolidated basis) greater
than or equal to 5% of the total assets of the Borrower and its
Subsidiaries (determined on a consolidated basis) as of the end of the
most recently completed fiscal year for which financial information is
available, or (c) which, together with its Subsidiaries, has revenues
(determined on a consolidated basis) greater than or equal to 5% of the
total revenues of the Borrower and its Subsidiaries (determined on a
consolidated basis) for the most recent four fiscal quarters for which
financial information is available.
"Solvent" means:
(a) with respect to any Person organized under the
Laws of any state of the United States or subject to the U.S.
Bankruptcy Code of 1978, as amended, the Uniform Fraudulent
Conveyance Act as enacted by any state, the Uniform Fraudulent
Transfer Act as enacted by any state or any other applicable
U.S. Law pertaining to fraudulent conveyances, fraudulent
transfers or preferences at any time, that at such time (i)
the sum of the debts and liabilities (including, without
limitation, contingent liabilities) of such Person is not
greater than all of the assets of such Person at a fair
valuation, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its
debts as they become absolute and matured, (iii) such Person
has not incurred, will not incur, does not intend to incur,
and does not believe that it will incur, debts or liabilities
(including, without limitation, contingent liabilities) beyond
such person's ability to pay as such debts and liabilities
mature, (iv) such Person is not engaged in, and is not about
to engage in, a business or a transaction for which such
person's property constitutes or would constitute unreasonably
small capital (as such term is used in any Law referred to in
the following clause (v)), and (v) such Person is not
otherwise insolvent as defined in, or otherwise in a condition
which could in any circumstances then or subsequently render
any transfer, conveyance, obligation or act then made,
incurred or performed by it avoidable or fraudulent pursuant
to, any Law that may be applicable to such Person pertaining
to bankruptcy, insolvency or creditors' rights (including but
not limited to the Bankruptcy Code of 1978, as amended, and,
to the extent applicable to such Person, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act, or any other applicable Law pertaining to fraudulent
conveyances or fraudulent transfers or preferences);
(b) With respect to any Person organized under the
Laws of England and Wales or subject to any English insolvency
law at any time, that at such time such Person is not
insolvent, or unable to pay its debts and is not deemed by an
English court to be unable to pay its debts within the meaning
of Section 123 of the United Kingdom Insolvency Act of 1986;
and
(c) With respect to any other Person, that at such
time such Person is not insolvent or unable to pay its debts
as they come due as contemplated by any applicable insolvency,
bankruptcy or similar Law.
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"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is
(a) At least one Business Day in advance in the case
of selection of, conversion to or renewal of the Base Rate
Option or prepayment of any Base Rate Portion; and
(b) At least three London Business Days in advance in
the case of selection of the Euro-Rate Option or prepayment of
any Euro-Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or
other property) on account of or in respect of any Shares of the
Capital Stock (or warrants, options or rights therefor) of such Person,
including but not limited to any payment on account of the purchase,
redemption, retirement, defeasance or acquisition of any Shares of the
Capital Stock (or warrants, options or rights therefor) of such Person,
in each case regardless of whether required by the terms of such
capital stock (or warrants, options or rights) or any other agreement
or instrument.
"Subsidiary" of a Person at any time shall mean any
Corporation of which a majority (by number of shares or number of
votes) of the outstanding Shares of Capital Stock of any class is at
such time owned directly or indirectly, beneficially or of record, by
such Person or one or more Subsidiaries of such Person, and any
partnership, trust or other Person of which a majority of any class of
outstanding equity interest is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person. For the avoidance of doubt, as used in the
preceding sentence "majority" means more than half (and not precisely
half).
"Substantially Owned Subsidiary" of a Person at any time shall
mean any Corporation of which 80% or more of the outstanding Shares of
Capital Stock of each class are at such time beneficially owned
directly or indirectly by such Person (both on the basis of outstanding
shares and on a fully diluted basis).
"Swap Agreement" shall have the meaning given that term in the
Collateral Agency Agreement.
"TASC" shall mean TASC, Inc., a Massachusetts Corporation.
"Taxes" shall have the meaning set forth in Section 2.11
hereof.
"Term Loan" shall have the meaning set forth in Section
2.01(a) hereof, and "Term Loans" shall mean the Term Loans of the
Lenders collectively.
"Term Loan Agreement" shall mean this Term Loan Agreement as
amended, modified or supplemented from time to time (and is synonymous
with references to "this Agreement" herein).
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"Term Loan Commitment" shall have the meaning set forth in
Section 2.01(a) hereof.
"Term Loan Committed Amount" shall have the meaning set forth
in Section 2.01(a) hereof.
"Term Loan Maturity Date" shall mean the last Business Day of
June 2004.
"Term Loan Notes" shall mean the promissory notes of the
Borrower executed and delivered under Section 2.01(c) hereof and any
promissory note issued in substitution therefor pursuant to Sections
2.12(b) or 10.14(c) hereof.
"TIMCO" shall mean Triad International Maintenance
Corporation, a Delaware Corporation.
"TIMCO Bond Order" means the Bond Order adopted by the
Piedmont Triad Airport Authority on October 31, 1989 with respect to
the TIMCO Bonds, as such Bond Order may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"TIMCO Bonds" means the $13,800,000 original aggregate
principal amount of Special Facility Revenue Bonds (Triad International
Maintenance Corporation Project), Series 1989 issued by the Piedmont
Triad Airport Authority pursuant to the TIMCO Bond Order.
"TIMCO Bonds Letter of Credit" has the meaning given that term
in Section 7.03(j) hereof.
"TIMCO Lease" shall mean the Lease Agreement, dated as of
November 1, 1989, between the Piedmont Triad Airport Authority, as
lessor, and TIMCO, as lessee, covering certain property situate at the
Piedmont Triad International Airport in Guilford County, North
Carolina, as such Lease Agreement may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in
Section 10.14(c) hereof.
"Wholly Owned Subsidiary" of any Person means a Corporation
that is a Subsidiary of such Person as to which all of the Shares of
Capital Stock of each class (other than directors' qualifying shares
that are required under applicable law) are at such time beneficially
owned directly or indirectly by such Person (both on the basis of
outstanding shares and on a fully diluted basis).
"Wind-up" or "Winding-up" of a Person shall include the
liquidation, administration, amalgamation, reconstruction,
reorganization or dissolution of such Person and any equivalent or
analogous procedure under the laws of any jurisdiction in which such
Person is incorporated, domiciled, resident or carries on a business or
has assets.
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"Worldscope Entities" shall mean Worldscope/Disclosure
Partners, a Connecticut general partnership, Worldscope/Disclosure
International Partners, an partnership organized under the laws of
Ireland, Worldscope/Disclosure Incorporated LLC, a Connecticut limited
liability company, and Worldscope/Disclosure India Pvt. Ltd., a
Corporation organized under the laws of India, and each of their
respective Subsidiaries from time to time.
1.02. CONSTRUCTION. In this Agreement and each other Loan
Document, unless the context otherwise clearly requires, references to the
plural include the singular, the singular the plural and the part the whole;
"or" has the inclusive meaning represented by the phrase "and/or;" and the terms
"property" and "assets" each includes all properties and assets of any kind or
nature, tangible or intangible, real, personal or mixed, now existing or
hereafter acquired. The words "hereof," "herein" and "hereunder" (and similar
terms) in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Loan Document. The words
"includes" and "including" (and similar terms) in this Agreement or any other
Loan Document mean "includes without limitation" and "including without
limitation," respectively (and similarly for similar terms). References in this
Agreement or any other Loan Document to "determination" (and similar terms) by
the Agent or by any Lender include good faith estimates by the Agent or by such
Lender (in the case of quantitative determinations) and good faith beliefs by
the Agent or by such Lender (in the case of qualitative determinations). No
doctrine of construction of ambiguities in agreements or instruments against the
interests of the party controlling the drafting thereof shall apply to this
Agreement or any other Loan Document. The section and other headings contained
in this Agreement and in each other Loan Document, and any tables of contents
contained herein or therein, are for reference purposes only and shall not
affect the construction or interpretation of this Agreement or such other Loan
Document in any respect. Section, subsection, annex, exhibit and schedule
references in this Agreement and in each other Loan Document are to this
Agreement or such other Loan Document, as the case may be, unless otherwise
specified. Each annex, exhibit and schedule to this Agreement or any other Loan
Document constitutes part of this Agreement or such Loan Document, as the case
may be. Each of the covenants, terms and provisions of this Agreement and the
other Loan Documents is intended to have, and shall have, independent effect,
and compliance with any particular covenant, term or provision shall not
constitute compliance with any other covenant, term or provision.
1.03. ACCOUNTING PRINCIPLES.
(a) GAAP. As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing the Borrower's financial statements as of
December 31, 1995, and for the fiscal year then ended, as referred to in Section
4.06 hereof.
(b) ACCOUNTING AND FINANCIAL DETERMINATIONS, ETC. Except as
otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters shall be made, and all financial statements to
be delivered pursuant to this Agreement shall be prepared, in accordance with
GAAP (including principles of consolidation where appropriate), and all
accounting or financial terms shall have the meanings ascribed to such terms by
GAAP.
(c) CHANGES. If and to the extent that the financial
statements generally prepared by the Borrower apply accounting principles other
than GAAP, all financial statements referred to in this Agreement or any other
Loan Document shall be delivered in duplicate, one set based on the accounting
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principles then generally applied by the Borrower and one set based on GAAP. To
the extent this Agreement or such other Loan Document requires financial
statements to be accompanied by an opinion of independent accountants, each such
set of financial statements shall be accompanied by such an opinion.
[End of Annex A]
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Exhibit 10.17
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEDGE AGREEMENT
dated as of February 7, 1997
made by
PRIMARK CORPORATION,
as Grantor,
in favor of
MELLON BANK, N.A.,
as Collateral Agent
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 200
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION TITLE PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS
1.01 Definitions.................................................................... 2
1.02 UCC Definitions................................................................ 2
ARTICLE II THE SECURITY
2.01 Grant of Security ............................................................. 2
2.02 Grantor Remains Liable......................................................... 3
2.03 Continuing Agreement........................................................... 3
2.04 Release........................................................................ 3
ARTICLE III REPRESENTATIONS AND WARRANTIES
3.01 Title.......................................................................... 4
3.02 Validity, Perfection and Priority.............................................. 4
3.03 Governmental Approvals and Filings............................................. 4
3.04 Offices, etc................................................................... 4
3.05 Names, etc..................................................................... 4
3.06 Certain Receivables............................................................ 5
3.07 Compliance with Laws, etc...................................................... 5
3.08 Designated Collateral.......................................................... 5
ARTICLE IV COVENANTS
4.01 Books and Records; Inspection.................................................. 5
4.02 Transfers and Other Liens, etc................................................. 5
4.03 Change in Name, etc............................................................ 6
4.04 Certain Covenants Relating Primarily
to Subsidiary Receivables.................................................... 6
4.05 Certain Covenants Relating Primarily
to Security Collateral....................................................... 7
4.06 Further Assurances............................................................. 8
ARTICLE V CERTAIN RIGHTS AND REMEDIES
OF THE SECURED PARTIES
5.01 Collateral Agent May Perform................................................... 8
5.02 No Duty to Exercise Powers..................................................... 9
5.03 Duties of Collateral Agent..................................................... 9
5.04 Power of Attorney.............................................................. 9
5.05 Certain Remedies............................................................... 9
5.06 Application of Payments........................................................ 10
</TABLE>
-ii-
<PAGE> 201
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VI MISCELLANEOUS
6.01 Amendments, etc................................................................ 11
6.02 No Implied Waiver; Remedies Cumulative......................................... 11
6.03 Notices........................................................................ 11
6.04 Indemnity and Expenses......................................................... 11
6.05 Entire Agreement............................................................... 11
6.06 Survival....................................................................... 11
6.07 Counterparts................................................................... 11
6.08 Construction................................................................... 12
6.09 Successors and Assigns......................................................... 12
6.10 Certain Legal Matters.......................................................... 12
</TABLE>
Schedule 3.04 Location of Offices, etc.
Schedule 3.05 Names, etc.
Schedule 3.08 Designated Collateral
PLEDGE AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997 made by PRIMARK
CORPORATION, a Michigan Corporation (the "Grantor"), in favor of MELLON BANK,
N.A., as Collateral Agent under the Collateral Agency Agreement referred to
below (in such capacity, together with its successors, the "Collateral Agent")
for the Secured Parties (as defined in the Collateral Agency Agreement).
RECITALS:
A. The Grantor has entered into a Revolving Credit Agreement
of even date herewith (the "Revolving Credit Agreement", as more fully defined
in the Collateral Agency Agreement) with the lenders from time to time parties
thereto, the issuing banks referred to therein, and Mellon Bank, N.A., as Agent
(together with its successors, the "Revolving Credit Agent", as more fully
defined in the Collateral Agency Agreement). The Grantor also has entered into a
Term Loan Agreement of even date herewith (the "Term Loan Agreement", as more
fully defined in the Collateral Agency Agreement) with the lenders from time to
time parties thereto, and Mellon Bank, N.A., as Agent (together with its
successors, the "Term Loan Agent", as defined in the Collateral Agency
Agreement). The Grantor also has entered into a Note Backup Agreement of even
date hereunder (the "Note Backup Agreement", as more fully defined in the
Collateral Agency Agreement) with the lenders from time to time parties thereto,
the issuing bank referred to therein, and Mellon Bank, N.A., as Agent (together
with its successors, the "Note Backup Agent", as defined in the Collateral
Agency Agreement).
B. The Grantor, certain "Revolving Credit Parties", by Mellon
Bank, N.A., as Revolving Credit Agent, certain "Term Loan Parties", by Mellon
Bank, N.A., as Term Loan Agent, certain "Note Backup Parties", by Mellon Bank,
N.A., as Note Backup Agent, and the Collateral Agent, have entered into a
Collateral Agency Agreement of even date herewith (as amended, modified or
supplemented from time to time, the "Collateral Agency Agreement"). Pursuant to
the Collateral Agency Agreement, the Collateral Agent has agreed to serve as the
collateral agent of the Secured
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Parties with respect to certain security (including the security granted by this
Agreement) for obligations of the Grantor to such Secured Parties, including
obligations under or in connection with the Revolving Credit Agreement, the Term
Loan Agreement and the Note Backup Agreement.
C. It is a condition precedent to the extension of credit
under the Revolving Credit Agreement and the Term Loan Agreement that the
Grantor execute and deliver this Agreement. This Agreement is made by the
Grantor among other things to induce the Revolving Credit Parties to enter into
the Revolving Credit Agreement and to extend credit pursuant thereto, and to
induce the Term Loan Parties to enter into the Term Loan Agreement and to extend
credit pursuant thereto, and to induce the Note Backup Parties to enter into the
Note Backup Agreement and to extend credit pursuant thereto.
D. This Agreement is a "Shared Security Document" as provided
in the Collateral Agency Agreement.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound, the Grantor hereby agrees as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the meanings given in the Collateral Agency Agreement. In
addition to the other terms defined elsewhere in this Agreement, as used herein
the following terms shall have the following meanings:
"Designated Collateral" shall mean the Shares of Capital
Stock, other securities and investment property, promissory notes and
other instruments, chattel paper and negotiable documents identified in
Schedule 3.08.
"Distributions" shall mean all property, rights and interests
of any kind or nature (whether cash, securities or other) from time to
time received, receivable or otherwise distributed with respect to or
in exchange for any Security Collateral, including without limitation
all cash, securities or other property received or receivable as
dividends, or as a result of any stock splits, reclassifications,
mergers or consolidations, or as any other distributions (whether
similar or dissimilar to the foregoing), or as a result of exercise of
any options, warrants or rights included in or associated with any
Security Collateral, or as principal, interest or premium.
"UCC" shall mean the Uniform Commercial Code as in effect in
the Commonwealth of Pennsylvania from time to time.
1.02. UCC DEFINITIONS. Unless otherwise defined herein, terms
defined in Article 8 or Article 9 of the UCC shall have the same meanings in
this Agreement.
ARTICLE II
THE SECURITY
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2.01. GRANT OF SECURITY. As security for the full and timely
payment and performance of the Obligations, the Grantor hereby assigns and
pledges to the Collateral Agent for the benefit of the Secured Parties, and
grants to the Collateral Agent for the benefit of the Secured Parties a security
interest in, all right, title and interest of the Grantor in, to and under the
following, whether now or hereafter existing or acquired (the "Collateral"):
(a) all of the following (collectively, the "Security
Collateral"):
(i) the Designated Collateral,
(ii) all other Shares of Capital Stock in any Person
which at any time is or was a Subsidiary of the Grantor,
(iii) all other Shares of Capital Stock and all other
securities of any kind or nature (certificated or
uncertificated), and all other investment property of any kind
or nature, and
(iv) all Distributions;
(b) all obligations from time to time of any Person which at
any time is or was (i) an issuer of any Designated Collateral, (ii) a
Subsidiary of the Grantor (direct or indirect), or (iii) an issuer of
any Security Collateral, in each case of any kind or nature, whether
such obligations constitute accounts, contract rights, chattel paper,
instruments, documents, general intangibles or otherwise, and whether
such obligations are direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due, for payment or
performance, now existing or hereafter arising; together with all
rights of the Grantor now or hereafter existing in and to all security
agreements, guaranties, leases and other contracts securing or
otherwise relating to any such obligations (such obligations being
referred to collectively as the "Subsidiary Receivables", and such
security agreements, guaranties, leases and other contracts being
referred to collectively as the "Related Contracts");
(c) the Shared Collateral Account and all other accounts
(custodial, deposit or other) maintained by or with the Collateral
Agent pursuant to the Shared Security Documents, and all cash,
securities, instruments, investment property and other property from
time to time held in any of the foregoing, and all interest, dividends,
cash, securities, instruments, investment property and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any of the foregoing; and
(d) all proceeds of any of the foregoing (including, without
limitation, proceeds which constitute property of the types described
in the foregoing clauses (a) through (c)).
Notwithstanding the foregoing, Shares of Capital Stock in HealthQual Systems
Corporation and Westmark Group Holdings, Inc. shall not be deemed Collateral
hereunder unless and until the Collateral Agent, in its sole discretion, elects
to give notice to the Borrower that it desires such Shares of Capital Stock to
constitute Collateral hereunder. All Collateral hereunder constitutes "Shared
Collateral", as such term is used in the Collateral Agency Agreement.
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2.02. GRANTOR REMAINS LIABLE. Notwithstanding anything to the
contrary herein or in any other Secured Party Document, (a) the Grantor shall
remain liable under the contracts and agreements included in the Collateral to
the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b)
the exercise by any Secured Party of any rights or remedies under or in
connection with this Agreement or any other Secured Party Document shall not
release the Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral, and (c) the Secured Parties shall not
have any obligation or liability under the contracts and agreements included in
the Collateral by reason of this Agreement or any other Secured Party Document,
nor shall any Secured Party be obligated to perform any of the obligations or
duties of the Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
2.03. CONTINUING AGREEMENT. This Agreement creates a
continuing Lien in the Collateral. The Collateral Agent shall release the Liens
created hereby as provided in Section 6.08 of the Collateral Agency Agreement,
and upon such release the Collateral Agent will, at the Grantor's request and
expense, return to the Grantor, without any representations, warranties or
recourse of any kind whatsoever (except as to Liens created by the Collateral
Agent), such of the Collateral as then may be held by the Collateral Agent
hereunder, and execute and deliver to the Grantor such documents as the Grantor
may reasonably request to evidence such termination.
2.04. RELEASE. Upon any sale, lease, transfer or other
disposition of any item of Collateral in accordance with the terms of the
Secured Party Documents, the Collateral Agent will, at the Grantor's expense,
execute and deliver to the Grantor such documents as the Grantor may reasonably
request to release such item of Collateral from the Lien granted hereby;
provided, however, that (a) at the time of such request and such release no
Facility Potential Default arising from failure by the Grantor to make a payment
under the Secured Party Documents when due, and no Facility Event of Default,
shall have occurred and be continuing, (b) the Grantor shall have delivered to
the Collateral Agent and each Facility Agent, at least two Business Days prior
to the date of the proposed release, a written request for release describing
the item of Collateral and the term of the sale, lease, transfer or other
disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a form for release for execution by the
Collateral Agent and a certification by the Grantor to the effect that the
transaction is in compliance with the Secured Party Documents and as to such
matters as the Collateral Agent may in good faith request, (c) no Facility Agent
shall have given to the Collateral Agent prior to the proposed release a notice
to the effect that the conditions set forth in this Section 2.04 have not been
satisfied and specifically requesting that the Collateral Agent not effect such
release, and (d) the proceeds of any such sale, lease, transfer or other
disposition required to be applied in accordance with Section 2.07(b) of the
Revolving Credit Agreement as constituted on the date hereof, or any successor
provision of similar import, or Section 2.07(b) of the Term Loan Agreement as
constituted on the date hereof, or any successor provision of similar import,
shall be paid to, or in accordance with the instructions of, the Revolving
Credit Agent or the Term Loan Agent, as the case may be, in accordance with the
Revolving Credit Agreement and the Term Loan Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants to each Secured
Party as follows:
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3.01. TITLE. The Grantor is the legal and beneficial owner of
the Collateral, free and clear of any Lien, except for Facility Permitted Liens.
No effective financing statement or other item similar in effect covering any
Collateral is on file in any recording office, except for filings with respect
to Facility Permitted Liens covering only Collateral subject to such Facility
Permitted Liens.
3.02. VALIDITY, PERFECTION AND PRIORITY. This Agreement
creates a valid assignment of and security interest in the Collateral in favor
of the Collateral Agent securing the Obligations, which assignment and security
interest has been duly perfected and is prior to all other Liens except Facility
Permitted Liens. All filings and other actions necessary or desirable to perfect
and protect such assignment and security interest in favor of the Collateral
Agent have been duly made and taken.
3.03. GOVERNMENTAL APPROVALS AND FILINGS. No authorization,
approval or other action by, and no notice to or filing with, any Governmental
Authority is or will be necessary (a) for the grant by the Grantor of the
assignment of and security interest in the Collateral hereunder or for the
execution, delivery or performance of this Agreement by the Grantor, (b) to
ensure the validity, perfection or priority of the assignment of and security
interest in the Collateral granted hereunder, or (c) for the exercise by the
Collateral Agent of any of its rights or remedies hereunder, except for (y) the
filing of UCC financing statements and continuation statements in appropriate
jurisdictions, and (z) completion of such actions as may be required in
connection with any disposition of Collateral constituting securities by Laws
affecting the offering and sale of securities generally.
3.04. OFFICES, ETC. Schedule 3.04 identifies as of the date
hereof the address of the chief executive office of the Grantor, of each office
(whether maintained by the Grantor or otherwise) where books and records
relating to the Collateral are kept, and of each place of business of the
Grantor. Schedule 3.04 also identifies all changes in the foregoing information
during the one year period ending on the date hereof.
3.05. NAMES, ETC. During the one year period ending on the
date hereof, neither the Grantor nor any of its direct or indirect predecessors
by merger, consolidation or other corporate reorganization is or has been known
by or used any corporate or fictitious name or trade name (other than the
corporate name of the Grantor as of the date hereof), nor has the Grantor or any
such predecessor been the subject of any merger, consolidation or other
corporate reorganization, nor has the Grantor or any such predecessor otherwise
changed its name, identity or corporate structure, except as set forth in
Schedule 3.05. For each such direct and indirect predecessor of the Grantor,
Schedule 3.05 also identifies the addresses referred to in Section 3.04 for all
times during such period.
3.06. CERTAIN RECEIVABLES. The Grantor has delivered to the
Collateral Agent possession of all originals of all promissory notes or other
instruments, chattel paper and negotiable documents constituting Collateral.
3.07. COMPLIANCE WITH LAWS, ETC. The Grantor is in compliance
with all laws, the noncompliance with which might have a material adverse effect
on the value of any material portion of the Collateral or the value of the Lien
in favor of the Collateral Agent under this Agreement in any material portion of
the Collateral.
3.08. DESIGNATED COLLATERAL. The Designated Collateral
includes (i) all of the securities and other investment property (including all
Shares of Capital Stock) directly owned by the Grantor as of the date hereof,
except for items constituting Cash Equivalent Investments, and (ii) all of the
promissory notes or other instruments, chattel paper or other documents directly
owned by the
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Grantor as of the date hereof issued by a Subsidiary (direct or indirect) of the
Grantor. Schedule 3.08 sets forth (a) for each item of Designated Collateral
constituting Shares of Capital Stock, a description of such Shares of Capital
Stock and the total number of issued and outstanding shares of such class and
the percentage of such total number of issued and outstanding shares represented
by the Designated Collateral, and (b) for each item of Designated Collateral
other than Shares of Capital Stock, a description of such item. The Grantor owns
the Designated Collateral beneficially and of record, free and clear of any
Lien. The Designated Collateral constituting Shares of Capital Stock have been
duly authorized and validly issued and are fully paid and nonassessable, and the
Designated Collateral constituting obligations constitute the legal, valid,
binding and enforceable obligation of the issuer thereof.
ARTICLE IV
COVENANTS
4.01. BOOKS AND RECORDS; INSPECTION. Subject to mandatory
national security regulations, the Grantor shall (a) keep complete and accurate
books and records concerning the Collateral and, at the request of any Secured
Party from time to time, permit such Secured Party or its representatives to
inspect and copy such books and records, (b) at the request of any Secured Party
from time to time, permit such Secured Party or its representatives to inspect
any Collateral not in the possession of the Collateral Agent, and (c) furnish to
the Collateral Agent such information and reports in connection with the
Collateral at such times and in such form as the Collateral Agent may reasonably
request. Subject to mandatory national security regulations, the Collateral
Agent shall have the right to verify the Collateral from time to time.
4.02. TRANSFERS AND OTHER LIENS, ETC.
(a) TRANSFERS. The Grantor shall not sell, assign, lease,
transfer or otherwise dispose of any Collateral (voluntarily or involuntarily,
by operation of Law or otherwise) in contravention of any provision of any other
Secured Party Document (including but not limited to Section 7.09 of each of the
Revolving Credit Agreement, the Term Loan Agreement and the Note Backup
Agreement).
(b) OTHER LIENS. The Grantor shall not create or permit to
exist any Lien on any Collateral (voluntarily or involuntarily, by operation of
Law or otherwise) in contravention of any provision of any other Secured Party
Document (including but not limited to Section 7.02 of each of the Revolving
Credit Agreement, the Term Loan Agreement and the Note Backup Agreement).
(c) OTHER SHARES. The Grantor shall cause each issuer of
Designated Collateral, and each other Subsidiary of the Grantor in which the
Grantor directly owns (beneficially or of record) any Shares of Capital Stock,
not to issue any Shares of Capital Stock or other securities, except to the
Grantor. All Shares of Capital Stock and other securities of each issuer of
Designated Collateral, and of each Subsidiary of the Grantor in which the
Grantor owns (beneficially or of record) any Shares of Capital Stock, from time
to time outstanding shall constitute Collateral, and the Grantor shall deliver
to the Collateral Agent, immediately upon issuance thereof, all certificates and
instruments constituting or evidencing any such Shares of Capital Stock or other
securities.
4.03. CHANGE IN NAME, ETC. The Grantor shall not have, use or
be known by any corporate or fictitious name or trade name (other than its
corporate name as of the date hereof and names set forth in Schedule 3.05), nor
be the subject of any merger, consolidation or other corporate
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reorganization, nor otherwise change its name, identity or corporate structure,
except, upon 30 days' notice to the Collateral Agent (specifically referring to
this Section 4.03), and after all actions referred to in Section 4.06(a) have
been completed.
4.04. CERTAIN COVENANTS RELATING PRIMARILY TO SUBSIDIARY
RECEIVABLES.
(a) OFFICES. The Grantor shall keep its chief executive
office, the offices (whether maintained by the Grantor or otherwise) where books
and records relating to the Collateral are kept, and its places of business, at
the respective addresses identified in Section 3.04 or, upon 30 days' notice
(specifically referring to this Section 4.04(a)) to the Collateral Agent, at
such other locations in jurisdictions where all actions referred to in Section
4.06(a) have been completed. The Grantor shall maintain its chief executive
office in the 48 contiguous United States.
(b) COLLECTION; SERVICING. Except as otherwise provided in
this Section 4.04(b), the Grantor shall continue to collect, at its own expense,
all amounts due or to become due the Grantor under the Subsidiary Receivables.
The Collateral Agent shall have the right at any time to notify (or require the
Grantor to notify) the account debtors or obligors under any Subsidiary
Receivables of the Lien in favor of the Collateral Agent in the Subsidiary
Receivables. In connection with such collections, the Grantor may take (and, at
the Collateral Agent's direction, shall take) such action as the Grantor or the
Collateral Agent may deem necessary or advisable to enforce collection of the
Subsidiary Receivables; provided, however, that the Collateral Agent shall have
the right at any time upon the occurrence and during the continuance of a
Facility Event of Default or Facility Potential Default to direct (or require
the Grantor to direct) such account debtors or obligors to make payments of all
amounts due or to become due to the Grantor thereunder directly to the
Collateral Agent and, upon notification by the Collateral Agent to the Grantor,
and at the expense of the Grantor, to enforce collection of any such Subsidiary
Receivables, and to adjust, settle or compromise the amount or payment thereof,
in the same manner and to the same extent as the Grantor may have done. After
receipt by the Grantor of the notice from the Collateral Agent referred to in
the proviso to the preceding sentence, (i) all amounts and proceeds (including
instruments) received by the Grantor in respect of the Subsidiary Receivables
shall be received in trust for the benefit of the Secured Parties hereunder,
shall be segregated from other funds of the Grantor and shall be forthwith paid
over or delivered to the Collateral Agent in the same form as so received (with
any necessary indorsement) to be held as collateral hereunder and either (A)
released to the Grantor so long as no Facility Event of Default or Facility
Potential Default shall have occurred and be continuing, or (B) if a Facility
Event of Default or Facility Potential Default shall have occurred and be
continuing, and if the Collateral Agent does not otherwise elect to release such
amounts to Grantor, held by the Collateral Agent as collateral for the
Obligations (or, if a Facility Event of Default shall have occurred and be
continuing, applied as provided in Section 5.06), and (ii) the Grantor shall not
adjust, settle or compromise the amount or payment of any Subsidiary Receivable,
release wholly or partly any account debtor or obligor thereof, or allow any
credit or discount thereon.
4.05. CERTAIN COVENANTS RELATING PRIMARILY TO SECURITY
COLLATERAL.
(a) DELIVERY OF CERTIFICATES AND INSTRUMENTS. All certificates
or instruments at any time representing or evidencing any Security Collateral
(other than Cash Equivalent Investments) shall be immediately delivered to and
held by or on behalf of the Collateral Agent pursuant hereto, and shall be in
suitable form for transfer by delivery, or shall be accompanied by instruments
of transfer or assignment, duly executed in blank, all in form and substance
satisfactory to the Collateral Agent. The Collateral Agent shall have the right,
at any time in its discretion and without notice to the Grantor, to
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transfer to or to register in the name of the Collateral Agent or its nominee
any collateral in registered form. In addition, the Collateral Agent shall have
the right at any time to exchange certificates or instruments representing or
evidencing Security Collateral for certificates or instruments of smaller or
larger denominations.
(b) VOTING RIGHTS.
(i) Subject to Section 4.05(b)(ii), the Grantor shall be
entitled to exercise all voting and other consensual rights pertaining to the
Security Collateral; provided, that the Grantor shall not exercise or refrain
from exercising any such right if such action would (A) conflict with any
provision of this Agreement or any other Secured Party Document, or (B) impair
the value of any Security Collateral or impair the interest or rights of the
Grantor or the Collateral Agent.
(ii) If a Facility Event of Default or Facility Potential
Default has occurred and is continuing, the Collateral Agent may from time to
time give notice to the Grantor revoking in whole or in part the rights of the
Grantor under Section 4.05(b)(i). If and to the extent such notice has been
given, and such Facility Event of Default or Facility Potential Default is
continuing, all voting and other consensual rights pertaining to the Security
Collateral shall thereupon be vested in the Collateral Agent, who shall have the
sole right to exercise or refrain from exercising such rights.
(iii) The Collateral Agent shall execute and deliver to the
Grantor such proxies and other instruments as the Grantor may reasonably request
for the purpose of enabling the Grantor to exercise the voting and other
consensual rights which it is entitled to exercise pursuant to Section
4.05(b)(i). The Grantor hereby grants the Collateral Agent an irrevocable proxy,
with full power of substitution, coupled with an interest, to exercise all
voting and other consensual rights pertaining to the Security Collateral,
exercisable if and to the extent that the Collateral Agent is entitled to
exercise such rights pursuant to Section 4.05(b)(ii). All third parties are
entitled to rely conclusively on a representation by the Collateral Agent that
it is entitled to exercise such power of attorney.
(c) DISTRIBUTIONS.
(i) Subject to Section 4.05(c)(ii), the Grantor shall be
entitled to receive and retain all Distributions that are paid and payable in
cash. Distributions paid or payable other than in cash shall be Security
Collateral, and shall be forthwith delivered to the Collateral Agent to hold as
such.
(ii) If a Facility Event of Default has occurred and is
continuing, all rights of the Grantor to receive and retain the Distributions
that it would otherwise be authorized to receive and retain pursuant to Section
4.05(c)(i) shall automatically cease, and all such rights shall thereupon vest
in the Collateral Agent. Such Distributions shall be Security Collateral, and
shall be forthwith delivered to the Collateral Agent and applied as provided in
Section 5.06.
(iii) If the Grantor receives any payment or property which it
is not entitled to retain pursuant to Section 4.05(c)(i) or 4.05(c)(ii), such
payment or property shall be received in trust for the benefit of the Collateral
Agent, shall be segregated from other funds and property of the Grantor, and
shall be forthwith delivered to the Collateral Agent as Security Collateral in
the same form as so received (with any necessary endorsement).
4.06. FURTHER ASSURANCES.
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(a) GENERAL. The Grantor shall from time to time, at its
expense, promptly execute and deliver all further instruments and agreements,
and take all further actions that may be necessary or appropriate, or that the
Collateral Agent may reasonably request, in order to perfect or protect any
assignment, pledge or security interest granted or purported to be granted
hereby or to enable the Collateral Agent to exercise or enforce its rights and
remedies hereunder. Without limiting the generality of the foregoing, the
Grantor will:
(i) if any Collateral shall be evidenced by a promissory note
or other instrument, chattel paper or negotiable document, immediately
deliver to the Collateral Agent such promissory note or instrument or
chattel paper or negotiable document, duly endorsed and accompanied by
duly executed instruments of transfer or assignment, all in form and
substance satisfactory to the Collateral Agent,
(ii) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Collateral Agent
may reasonably request, in order to perfect and preserve the
assignment, pledge or security interest granted or purported to be
granted hereby,
(iii) at the request of the Collateral Agent, mark
conspicuously each copy of all chattel paper and negotiable documents
included in the Collateral and each Related Contract and each of its
records pertaining to the Collateral with a legend, in form and
substance satisfactory to the Collateral Agent, indicating that such
chattel paper, negotiable document, Related Contract or Collateral is
subject to the security interest granted pursuant hereto, and
(iv) with respect to securities accounts, commodity accounts
or similar interests constituting or holding Collateral, promptly
following request by the Collateral Agent obtain consent agreements
from each securities intermediary, commodity intermediary or similar
person, satisfactory in form and substance to the Collateral Agent,
which shall include provisions giving the Collateral Agent sole
dominion and control over such securities account, commodity account or
other interest upon the giving of notice by the Collateral Agent to
such securities intermediary, commodity intermediary or similar person
(it being understood that (x) the Collateral Agent may give such notice
only upon the occurrence or during the continunace of a Facility Event
of Default, and (y) the Collateral Agent shall revoke such notice
promptly after request by the Grantor if no Facility Event of Default
is continuing).
(b) FINANCING STATEMENTS, ETC. The Grantor hereby authorizes
the Collateral Agent to file one or more financing or continuation statements,
and amendments thereto, relating to any Collateral without the signature of the
Grantor where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering any Collateral shall be sufficient
as a financing statement where permitted by law.
ARTICLE V
CERTAIN RIGHTS AND REMEDIES OF THE SECURED PARTIES
5.01. COLLATERAL AGENT MAY PERFORM. If the Grantor fails to
perform any obligation under or in connection with this Agreement, the
Collateral Agent may (but shall have no duty to) itself perform or cause
performance of such obligation, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by the Grantor pursuant to
Section 6.04. The Collateral Agent
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may from time to time take any other action which the Collateral Agent deems
necessary or appropriate for the maintenance, preservation or protection of any
of the Collateral or of its Lien therein.
5.02. NO DUTY TO EXERCISE POWERS. The powers of the Collateral
Agent under and in connection with this Agreement are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers.
5.03. DUTIES OF COLLATERAL AGENT. Except for exercise of
reasonable care in the custody and preservation of any Collateral in its
possession and accounting for moneys received by it pursuant to this Agreement,
the Collateral Agent shall have no duty as to any Collateral. In any event the
Collateral Agent (a) shall have no duty to take any steps to preserve rights
against prior parties or any other rights pertaining to any Collateral, (b)
shall have no duty as to ascertaining or taking action with respect to calls,
conversions, exchanges, tenders, maturities or other matters pertaining to any
Collateral, whether or not the Collateral Agent or any other Secured Party has
any knowledge of such matters, and (c) shall not be liable for any action,
omission, insolvency or default on the part of any agent or custodian (other
than the Collateral Agent) appointed by the Collateral Agent in good faith. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if it takes such action
for such purpose as the Grantor requests in writing from time to time (but
failure to take any such action shall not in itself be deemed a failure to
exercise reasonable care or evidence of such failure). Subject only to the
performance by the Collateral Agent of its duties set forth in this Section
5.03, risk of loss, damage and diminution in value of the Collateral, of
whatever nature and however caused, shall be on the Grantor.
5.04. POWER OF ATTORNEY. The Grantor hereby irrevocably
appoints the Collateral Agent, with full power of substitution, to be the
attorney-in-fact of the Grantor, with full authority in the place and stead of
the Grantor and in the name of the Grantor or otherwise, from time to time in
the Collateral Agent's discretion, to take any action and to execute any
instruments and agreements which the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement, including the following:
(a) to demand, collect, enforce, file claims for, sue for,
recover, compromise, release, and take any action or institute any
proceedings to collect or enforce, all rights to payments due or to
become due and all other rights of the Grantor under or in connection
with any Collateral,
(b) to receive, endorse and collect any checks, notes or other
instruments, documents, chattel paper or any other payment media in
connection with the foregoing clause (a), and
(c) to perform all obligations of the Grantor hereunder;
provided, however, that except for taking actions referred to in Section
4.06(a), such power of attorney may be exercised only so long as a Facility
Event of Default or Facility Potential Default has occurred and is continuing.
Such power of attorney is irrevocable and coupled with an interest. All third
parties are entitled to rely conclusively on a representation by the Collateral
Agent that it is entitled to exercise such power of attorney. Promptly after
exercising such power of attorney to execute and file any financing statement in
the name of and on behalf of the Grantor, the Collateral Agent shall notify the
Grantor of such fact (but failure to do so shall not invalidate such exercise).
5.05. CERTAIN REMEDIES. If a Facility Event of Default shall
have occurred and be continuing, the Collateral Agent may exercise all rights
and remedies which it may have under this
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Agreement, any other agreement, at law or otherwise, and in addition, the
following provisions shall apply:
(a) The Collateral Agent may exercise all rights and remedies
with respect to the Collateral and each part thereof as are provided by
the UCC to a secured party on default (whether or not the UCC applies
to the affected Collateral). To the extent, if any, the Collateral
Agent does not otherwise have the right to do so, the Collateral Agent
may (i) take absolute possession and control of the Collateral or any
part thereof, (ii) transfer any Collateral into the name of the
Collateral Agent or its nominees, (iii) notify the parties obligated on
the Collateral to make to the Collateral Agent any payments due or to
become due, (iv) receive any payments made under or in connection with
the Collateral, (v) exercise all rights and remedies of the Grantor
under or in connection with the Collateral, (vi) demand, collect,
enforce, file claims for, sue for, recover, compromise, release, and
take any action or institute any proceedings to collect or enforce, all
rights to payments due or to become due and all other rights of the
Grantor under or in connection with any Collateral, and (vii) otherwise
deal in and act with respect to the Collateral in all respects as
though it were the outright owner thereof.
(b) All payments received by the Grantor in respect of any
Collateral shall be received in trust for the benefit of the Secured
Parties, shall be segregated from other funds of the Grantor and shall
be forthwith paid over to the Collateral Agent in the same form as so
received (with any necessary endorsement).
(c) The Collateral Agent may, without notice except to the
extent required by law, sell the Collateral or any part thereof, in one
or more parcels, at public or private sale, at any of the Collateral
Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Collateral Agent may deem
commercially reasonable. The Grantor agrees that, to the extent notice
of sale is required by law, at least ten days' notice to the Grantor of
the time and place of any public sale or the time after which any
private sale is to be made, shall constitute reasonable notification.
The Collateral Agent shall not be obligated to make any sale,
regardless of notice of sale having been given. The Collateral Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(d) The Grantor agrees that the Collateral Agent may comply
with any limitation or restriction in connection with any sale of any
Collateral as the Collateral Agent may deem to be necessary or
advisable in order to comply with any law, or in order to obtain or
make, or avoid the need to obtain or make, any approval or registration
of the offering, sale or purchaser by or with any governmental agency
or regulatory body. The Grantor agrees that (i) the Collateral Agent
may make sales in compliance with such limitations and restrictions,
even though such sales may be at prices and on other terms less
favorable to the seller than if such approvals or registrations were
obtained or made, (ii) the Collateral Agent shall have no obligation to
delay sale of any Collateral in order to obtain or make any such
approval or registration, and (iii) it shall not be commercially
unreasonable to make sales in compliance with such limitations and
restrictions. Without limiting the generality of the foregoing, the
Grantor recognizes that the Collateral Agent may be unable, or may deem
it inadvisable, to effect a public sale of some or all of the
Collateral by reason of requirements of applicable securities laws, but
may deem it advisable, for the purpose of complying with such laws, to
resort to one or more private sales to members of a restricted group of
offerees who will be obliged, among other things, to
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acquire such Collateral for their own accounts for investment and not
with a view to distribution or resale. The Grantor agrees that (x) the
Collateral Agent may make private sales in such manner, even though
such sales may be at prices and on other terms less favorable to the
seller than if such Collateral were sold by public sale, (y) the
Collateral Agent shall have no obligation to delay sale of any
Collateral in order to permit the issuers of such Collateral, even if
such issuers would agree, to register or qualify such Collateral for
public sale under applicable securities laws, and (z) that it shall not
be commercially unreasonable to make private sales in such manner.
5.06. APPLICATION OF PAYMENTS. Except to the extent otherwise
provided by this Agreement or the other Shared Security Documents, all cash held
by the Collateral Agent as Collateral and all cash proceeds received by the
Collateral Agent in respect of any sale of, collection from, or other
realization upon any of the Collateral, shall (after payment of any amounts
payable to the Collateral Agent pursuant to Section 6.04) be deposited in the
Shared Collateral Account and applied as provided in the Collateral Agency
Agreement. The Grantor shall remain liable for any deficiency.
ARTICLE VI
MISCELLANEOUS
6.01. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by the Grantor
herefrom, shall in any event be effective unless in a writing manually signed by
or on behalf of the Grantor and the Collateral Agent. Any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. Such amendments, waivers and consents shall be made in
accordance with, and shall be subject to, Section 6.01 of the Collateral Agency
Agreement.
6.02. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or
failure of the Collateral Agent in exercising any right or remedy under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and remedies of
the Collateral Agent under this Agreement are cumulative and not exclusive of
any other rights or remedies available hereunder, under any other agreement, at
law, or otherwise.
6.03. NOTICES. Except to the extent, if any, otherwise
expressly provided herein, all notices and other communications (collectively,
"notices") under this Agreement shall be given, shall be effective, and may be
relied upon, in the same way as notices under the Collateral Agency Agreement.
6.04. INDEMNITY AND EXPENSES.
(a) INDEMNITY. The Grantor agrees to indemnify each Secured
Party from and against any and all claims, losses, liabilities and expenses
(including reasonable attorney's fees) arising out of or resulting from this
Agreement (including, without limitation, enforcement of this Agreement), except
claims, losses, liabilities and expenses resulting solely from the gross
negligence or willful misconduct of a Secured Party.
(b) EXPENSES. The Grantor will upon demand pay to the
Collateral Agent the amount of all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts
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and agents, which the Collateral Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection of or other realization upon, any
Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, or (iv) the failure by the Grantor to perform or
observe any of the provisions hereof.
6.05. ENTIRE AGREEMENT. This Agreement and the other Secured
Party Documents constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements.
6.06. SURVIVAL. All representations and warranties of the
Grantor contained in or made in connection with this Agreement shall survive,
and shall not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of any Secured Party, any extension of credit,
termination of this Agreement, or any other event or circumstance whatever. The
obligations of the Grantor under Section 6.04 shall survive termination of this
Agreement and the other Secured Party Documents.
6.07. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same agreement.
6.08. CONSTRUCTION. This Agreement is a Shared Security
Document referred to in the Collateral Agency Agreement. The provisions of the
Collateral Agency Agreement are supplemental to the provisions of this
Agreement, as provided in the Collateral Agency Agreement.
6.09. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Grantor and its successors and assigns, and shall inure to the benefit
of and be enforceable by the Collateral Agent and the other Secured Parties and
their respective successors and assigns.
6.10. CERTAIN LEGAL MATTERS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, EXCLUSIVE OF CHOICE OF LAW PRINCIPLES, EXCEPT TO THE EXTENT THAT
PERFECTION AND THE EFFECT OF PERFECTION OR NONPERFECTION OF THE SECURITY
INTERESTS IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE COMMONWEALTH OF PENNSYLVANIA PURSUANT TO THE UCC.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered as of the date first above written.
PRIMARK CORPORATION
By /s/ STEPHEN H. CURRAN
-----------------------------------------
Stephen H. Curran
Senior Vice President and Chief Financial
Officer
Accepted and Agreed:
MELLON BANK, N.A., as Collateral Agent
By /s/ R. JANE WESTRICH
---------------------------
R. Jane Westrich
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Vice President
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<PAGE> 215
Exhibit 10.17
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COLLATERAL AGENCY AGREEMENT
dated as of February 7, 1997
among
PRIMARK CORPORATION,
as Borrower,
THE REVOLVING CREDIT PARTIES,
THE TERM LOAN PARTIES,
THE NOTE BACKUP PARTIES
and
MELLON BANK, N.A.,
as Collateral Agent
- --------------------------------------------------------------------------------
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<PAGE> 216
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION TITLE PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS; CONSTRUCTION
1.01 Certain Definitions................................................................. 1
1.02 Construction........................................................................ 10
ARTICLE II SECURED PARTY DOCUMENTS
2.01 Notice of Default................................................................... 10
2.02 The Swap Agreement and the Swap Party............................................... 11
2.03 Amendments and Refinancing.......................................................... 12
2.04 Delivery of Documents............................................................... 12
2.05 Termination of a Facility Party..................................................... 12
2.06 Certain Intercreditor Matters ...................................................... 13
ARTICLE III SHARED SECURITY DOCUMENTS
3.01 General Relation to Shared Security Documents....................................... 14
3.02 Power of Attorney................................................................... 14
3.03 Certain Rights After Facility Event of Default...................................... 14
3.04 Right to Initiate Judicial Proceedings.............................................. 15
3.05 Right to Appoint a Receiver......................................................... 15
3.06 Remedies Not Exclusive, etc......................................................... 15
3.07 Certain Waivers..................................................................... 16
3.08 Limitation on Collateral Agent's Duty in Respect
of Shared Collateral............................................................. 17
3.09 Fees, Taxes, etc.................................................................... 17
3.10 Maintenance of Liens................................................................ 17
3.11 Further Assurances.................................................................. 17
ARTICLE IV ACCOUNTS
4.01 Shared Collateral Account........................................................... 17
4.02 Investment.......................................................................... 18
4.03 Deposits............................................................................ 18
4.04 Distributions....................................................................... 18
4.05 Calculations........................................................................ 20
4.06 Application of Monies............................................................... 20
4.07 Revolving Credit LOC Collateral Account............................................. 20
4.08 Note Backup LOC Collateral Account.................................................. 21
4.09 General Provisions Relating to Accounts............................................. 21
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE V THE COLLATERAL AGENT
5.01 Appointment......................................................................... 22
5.02 General Nature of Collateral Agent's Duties......................................... 22
5.03 Exercise of Powers.................................................................. 23
5.04 General Exculpatory Provisions...................................................... 23
5.05 Administration by the Collateral Agent.............................................. 24
5.06 No Reliance by Facility Parties..................................................... 24
5.07 Indemnification..................................................................... 24
5.08 Collateral Agent in its Individual Capacity......................................... 25
5.09 Facility Parties.................................................................... 25
5.10 Successor Collateral Agent.......................................................... 25
5.11 Additional Collateral Agents........................................................ 26
5.12 Calculations........................................................................ 27
5.13 Collateral Agent's Fee.............................................................. 27
5.14 Expenses; Indemnity................................................................. 28
5.15 Financial and Other Information; Confidentiality.................................... 29
5.16 Moneys Held as Collateral Agent..................................................... 29
ARTICLE VI MISCELLANEOUS
6.01 Amendments, Supplements and Waivers................................................. 29
6.02 Notices............................................................................. 30
6.03 No Implied Waiver; Cumulative Remedies.............................................. 30
6.04 Severability........................................................................ 30
6.05 Prior Understandings................................................................ 31
6.06 Survival............................................................................ 31
6.07 Counterparts........................................................................ 31
6.08 Termination of Liens................................................................ 31
6.09 Successors and Assigns.............................................................. 31
6.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Limitation of Liability.......................................................... 31
</TABLE>
Exhibit A Form of Swap Party Supplement
Exhibit B Form of Revolving Credit Refinancing Supplement
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COLLATERAL AGENCY AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997, among
Primark Corporation, a Michigan corporation (the "Borrower"),
Mellon Bank, N.A., as "Agent" under the Revolving Credit
Agreement referred to hereinbelow (in such capacity, together with its
successors thereunder or under any successor Revolving Credit Agreement, the
"Revolving Credit Agent", as further defined hereinafter), on behalf of the
"Lenders" (as defined in such Revolving Credit Agreement) from time to time
parties to such Revolving Credit Agreement (together with their successors
thereunder or under any successor Revolving Credit Agreement, the "Revolving
Credit Lenders"), the "Issuing Banks" (as defined in such Revolving Credit
Agreement) from time to time under such Revolving Credit Agreement (together
with their successors thereunder or under any successor Revolving Credit
Agreement, the "Revolving Credit Issuing Banks") and the Revolving Credit Agent
(the Revolving Credit Lenders, the Revolving Credit Issuing Banks and the
Revolving Credit Agent being referred to herein as the "Revolving Credit
Parties"),
Mellon Bank, N.A., as "Agent" under the Term Loan Agreement
referred to hereinbelow (in such capacity, together with its successors, the
"Term Loan Agent", as further defined hereinafter), on behalf of the "Lenders"
(as defined in such Term Loan Agreement) from time to time parties to such Term
Loan Agreement (the "Term Lenders"), and the Term Loan Agent (the Term Lenders
and the Term Loan Agent being referred to herein as the "Term Loan Parties"),
Mellon Bank, N.A., as "Agent" under the Note Backup Agreement
referred to hereinbelow (in such capacity, together with its successors, the
"Note Backup Agent", as further defined hereinafter), on behalf of the "Lenders"
(as defined in such Note Backup Agreement) from time to time parties to such
Note Backup Agreement (the "Note Backup Lenders"), and the Note Backup Agent
(the Note Backup Lenders and the Note Backup Agent being referred to herein as
the "Note Backup Parties"), and
Mellon Bank, N.A., as agent for the Secured Parties (as
hereinafter defined) (in such capacity, together with its successors, the
"Collateral Agent").
The parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Borrower Pledge Agreement" shall mean the Pledge Agreement of
even date herewith between the Borrower and the Collateral Agent, as
the same may be amended, modified or supplemented from time to time.
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"Bankruptcy Default" means the occurrence or existence of
either of the following events or conditions (for any reason, whether
voluntary, involuntary, or effected or required by Law):
(a) a proceeding shall have been instituted
in respect of the Borrower
(i) seeking to have an order for relief
entered in respect of the Borrower, or seeking a
declaration or entailing a finding that the Borrower
is insolvent or a similar declaration or finding, or
seeking dissolution, winding-up, administration,
charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition
or other similar relief with respect to the Borrower,
its assets or its debts under any Law relating to
bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal
entities or any other similar Law now or hereafter in
effect, or
(ii) seeking appointment of a receiver,
administrative receiver, trustee, liquidator,
assignee, sequestrator or other custodian for the
Borrower or for all or any substantial part of its
property
and such proceeding shall result in the entry, making or grant
of any such order for relief, declaration, finding, relief or
appointment, or such proceeding shall remain undismissed and
unstayed for a period of 30 consecutive days; or
(b) the Borrower shall be insolvent; shall fail to
pay, become unable to pay, or state that it is or will be
unable to pay, its debts as they become due; shall voluntarily
suspend transaction of its business; shall make a general
assignment for the benefit of creditors; shall institute (or
fail to controvert in a timely and appropriate manner) a
proceeding described in the foregoing clause (a)(i), or
(whether or not any such proceeding has been instituted) shall
consent to or acquiesce in any such order for relief,
declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in the foregoing clause (a)(ii)
hereof, or (whether or not any such proceeding has been
instituted) shall consent to or acquiesce in any such
appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his
property; shall dissolve, wind-up, go into administration or
revoke or forfeit its articles of incorporation (or other
constituent documents); or shall take any action in
furtherance of any of the foregoing.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of Pennsylvania or
other day on which banking institutions are authorized or obligated to close in
the city in which is located the Collateral Agent's Office.
"Cash Equivalent Investments" shall mean any of the following,
to the extent acquired for investment and not with a view to achieving trading
profits: (a) obligations fully backed by the full faith and credit of the United
States of America or sterling denominated debt securities issued or guaranteed
by the government of the United Kingdom, in each case maturing not in excess of
one year
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from the date of acquisition, (b) commercial paper maturing not in excess of 180
days from the date of acquisition and rated "P-1" by Moody's Investors Service
or "A-1" by Standard & Poor's Corporation on the date of acquisition, (c) the
following obligations of any commercial bank (not in excess of $5,000,000 (or
the equivalent thereof in foreign currencies) in the aggregate for any
commercial bank having capital and surplus less than $500,000,000 (or the
equivalent thereof in foreign currencies)): (i) time deposits, certificates of
deposit and acceptances maturing not in excess of 180 days from the date of
acquisition, or (ii) fully secured overnight repurchase obligations for
underlying securities of the type referred to in clause (a) above, (d) freely
tradeable and readily marketable money market preferred stock which, pursuant to
its terms, has a yield reset not less frequently than every 60 days and rated
"AA" or better by Standard & Poor's Corporation or "Aa" or better by Moody's
Investors Service, Inc., and (e) other investments designated in writing by the
Collateral Agent as being "Cash Equivalent Investments" for purposes of this
Agreement (it being understood that any such designation shall be revocable by
the Collateral Agent upon 60 days' notice to the Borrower). In no event shall
any investment as to which the Borrower or any Subsidiary of the Borrower is an
issuer or a direct or indirect obligor be deemed a Cash Equivalent Investment.
"Collateral Agent Obligations" shall mean all obligations from
time to time of the Borrower to the Collateral Agent in its capacity as such,
including but not limited to amounts payable pursuant to Sections 3.09, 5.13 and
5.14 hereof or Section 6.04 of the Borrower Pledge Agreement, in each case
whether such obligations are direct or indirect, otherwise secured or unsecured,
joint or several, absolute or contingent, due or to become due, whether for
payment or performance, now existing or hereafter arising (specifically
including but not limited to obligations arising or accruing after the
commencement of any bankruptcy, insolvency or similar proceedings with respect
to the Borrower, or which would have arisen or accrued but for the commencement
of such proceeding, even if the claim for such obligation is not allowed in such
proceeding under applicable Law).
"Contingent Indemnification Obligations" at any time shall
mean Obligations which at such time are contingent obligations under
indemnification provisions of the Secured Party Documents which survive
indefinitely; provided, however, that an Obligation under such an
indemnification provision shall not constitute a Contingent Indemnification
Obligation to the extent that (a) an unsatisfied claim for payment of such
Obligation has been made, or (b) an action, suit or proceeding is pending or
threatened at such time which may give rise to a claim under such
indemnification provision.
"Corporation" shall mean a corporation, limited liability
company or business trust organized under the Laws of any state of the United
States, a company limited by shares incorporated under the Laws of England and
Wales, or any similar entity organized under the Laws of any other jurisdiction,
the owners of which are not by operation of Law generally liable for the
obligations of such entity.
"Directing Party" at any time shall mean:
(a) the Term Loan Agent, if at such time (i) a Term
Loan Notice of Default is in effect, at least 15 Business Days
have elapsed since the giving of such Term Loan Notice of
Default, and no Revolving Credit Notice of Default, Note
Backup Notice of Default or Bankruptcy Default is in effect,
or (ii) (A) all Revolving Credit Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, all
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commitments to extend credit under the Revolving Credit
Documents have terminated, and all Letters of Credit have
terminated, and (B) all Note Backup Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, all commitments to extend credit under the Note Backup
Documents have terminated, and all Note Backup LOCs have
terminated;
(b) the Revolving Credit Agent, if at such time (i)
a Revolving Credit Notice of Default is in effect, at least 15
Business Days have elapsed since the giving of such Revolving
Credit Notice of Default, and no Term Loan Notice of Default,
Note Backup Notice of Default or Bankruptcy Default is in
effect, or (ii) (A) all Term Loan Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, and (B) all Note Backup Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, all commitments to extend credit under the Note Backup
Documents have terminated, and all Note Backup LOCs have
terminated;
(c) the Note Backup Agent, if at such time (i) a
Note Backup Notice of Default is in effect, at least 15
Business Days have elapsed since the giving of such Note
Backup Notice of Default, and no Term Loan Notice of Default,
Revolving Credit Notice of Default or Bankruptcy Default is in
effect, or (ii) (A) all Term Loan Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, and (B) all Revolving Credit Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, all commitments to extend credit under the Revolving
Credit Documents have terminated, and all Letters of Credit
have terminated;
(d) all Swap Parties, acting together, if at such
time (i) all Term Loan Obligations (other than Contingent
Indemnification Obligations) have been paid in full, (ii) all
Revolving Credit Obligations (other than Contingent
Indemnification Obligations) have been paid in full, all
commitments to extend credit under the Revolving Credit
Documents have terminated, and (iii) all Letters of Credit
have terminated, all Note Backup Obligations (other than
Contingent Indemnification Obligations) have been paid in
full, all commitments to extend credit under the Note Backup
Documents have terminated, and all Note Backup LOCs have
terminated;
(e) otherwise, Facility Lenders whose Facility
Lender Percentages at such time aggregate at least 51%, acting
together.
"Facility Agents" shall mean the Revolving Credit Agent, the
Term Loan Agent and the Note Backup Agent.
"Facility Event of Default" shall mean the occurrence or
existence of an "Event of Default" under the Revolving Credit
Agreement, the Term Loan Agreement or the Note Backup Agreement.
"Facility Lenders" shall mean the Revolving Credit Lenders,
the Term Loan Lenders and the Note Backup Lenders.
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"Facility Lender Exposure" for a Facility Lender at any time
shall mean the sum of the following: (a) the principal amount of loans
outstanding to such Facility Lender under the Term Loan Agreement, plus
(b) the principal amount of extensions of credit made by or for the
account of such Facility Lender under the Revolving Credit Agreement,
plus (c) the amount equal to (i) if no Revolving Credit Notice of
Default or Bankruptcy Default is in effect, and if the commitment of
such Facility Lender to extend credit under the Revolving Credit
Agreement has not expired or been terminated, then an amount equal to
the principal amount of such Facility Lender's unborrowed commitment to
extend credit under the Revolving Credit Agreement, (ii) otherwise,
zero, plus (d) the principal amount of extensions of credit made by or
for the account of such Facility Lender under the Note Backup
Agreement.
"Facility Lender Percentage" at any time for any Facility
Lender shall mean a fraction, the numerator of which is the Facility
Lender Exposure of such Facility Lender, and the denominator of which
is the sum of the Facility Lender Exposures of each Facility Lender.
"Facility Parties" shall mean the Revolving Credit Parties,
the Term Loan Parties, the Note Backup Parties and the Swap Parties.
"Facility Permitted Lien" shall mean a Lien which is a
"Permitted Lien" under each of the Revolving Credit Agreement, the Term
Loan Agreement and the Note Backup Agreement.
"Facility Potential Default" shall mean any event or condition
which, with notice, passage of time or a determination by the
appropriate Facility Party or Facility Parties, or any combination of
the foregoing, would constitute a Facility Event of Default.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"Interest Rate Hedge Agreement" shall mean an interest rate
swap, cap or collar agreement, forward rate agreement, any other
similar agreement, and any combination of the foregoing.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Note Backup Agent" at any time shall mean the "Agent" under
the Note Backup Agreement at such time. If there is no Agent under the
Note Backup Agreement at such time, then any notice, demand, or other
communication required or permitted to be given by the Note Backup
Agent hereunder or under any Shared Security Document shall be
sufficiently
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given or made if given by the "Required Lenders" (as defined in the
Note Backup Agreement as constituted on the date hereof, as such
definition may be amended, modified or supplemented from time to time,
and any successor term of similar import from time to time in the Note
Backup Agreement), and any notification, demand, consent, document,
payment or other communication or item required to be given or made to
the Note Backup Agent shall be sufficiently given or made if given
directly to each Note Backup Party entitled thereto.
"Note Backup Agreement" shall mean the Note Backup Agreement
dated on or about February 7, 1997 by and among the Borrower, the
lenders parties thereto from time to time, the issuing bank referred to
therein, and Mellon Bank, N.A., as Agent, as the same may be amended,
modified or supplemented from time to time; provided, however, that for
purposes of this Agreement no effect shall be given to any amendment,
modification or supplement entered into without the written consent of
the Revolving Credit Agent and the Term Loan Agent that increases the
maximum aggregate principal amount of extensions of credit thereunder
to the Borrower above $8,382,343.75.
"Note Backup Documents" shall mean the "Loan Documents" as
defined in the Note Backup Agreement, and any successor term of similar
import from time to time in the Note Backup Agreement.
"Note Backup Issuing Bank" shall mean the "Issuing Bank" (as
defined in the Note Backup Agreement) under the Note Backup Agreement,
together with its successors thereunder.
"Note Backup Lenders" shall mean the "Lenders" (as defined in
the Note Backup Agreement) from time to time under the Note Backup
Agreement.
"Note Backup LOC" shall mean any letter of credit outstanding
under the Note Backup Agreement from time to time.
"Note Backup LOC Collateral Account" shall have the meaning
given that term in Section 4.08 hereof.
"Note Backup LOC Exposure" at any time shall mean the sum at
such time of (a) the aggregate Note Backup LOC Unreimbursed Draws and
(b) the aggregate Note Backup LOC Undrawn Availability.
"Note Backup LOC Undrawn Availability" with respect to a Note
Backup LOC at any time shall mean the maximum amount available to be
drawn under such Note Backup LOC at such time or thereafter, regardless
of the existence or satisfaction of any conditions or limitations on
drawing.
"Note Backup LOC Unreimbursed Draws" with respect to a Note
Backup LOC at any time shall mean the aggregate amount at such time of
all payments made by the issuer under such Note Backup LOC, to the
extent not repaid by the Borrower.
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"Note Backup Notice of Default" shall mean a written
certification delivered to the Collateral Agent by the Note Backup
Agent at any time stating that a Facility Event of Default or Facility
Potential Default (as specified therein) has occurred and is continuing
or exists under the Note Backup Agreement, and specifically stating
that such notice is a "Note Backup Notice of Default" under this
Agreement.
"Note Backup Obligations" shall mean all obligations from time
to time of the Borrower to any Note Backup Party from time to time
arising under or in connection with or related to or evidenced by or
secured by the Note Backup Agreement or any other Note Backup Document,
whether such obligations are direct or indirect, otherwise secured or
unsecured, joint or several, absolute or contingent, due or to become
due, whether for payment or performance, now existing or hereafter
arising (specifically including but not limited to obligations arising
or accruing after the commencement of any bankruptcy, insolvency or
similar proceedings with respect to the Borrower, or which would have
arisen or accrued but for the commencement of such proceeding, even if
the claim for such obligation is not allowed in such proceeding under
applicable Law). Without limitation of the foregoing, such obligations
include the principal amount of loans, interest, Note Backup
reimbursement obligations, and fees, indemnities or expenses under or
in connection with any Note Backup Document. Note Backup Obligations
shall remain such notwithstanding any assignment or transfer or any
subsequent assignment or transfer of any of the Note Backup Obligations
or any interest therein.
"Note Backup Parties" shall mean the Note Backup Lenders, the
Note Backup Issuing Bank and the Note Backup Agent.
"Notice of Default" shall mean a Revolving Credit Notice of
Default, a Term Loan Notice of Default or a Note Backup Notice of
Default.
"Obligations" shall mean all Revolving Credit Obligations,
Term Loan Obligations, Note Backup Obligations, Swap Obligations, and
Collateral Agent Obligations.
"Office" of the Collateral Agent shall mean its office located
at One Mellon Bank Center, Pittsburgh, Pennsylvania, or at such other
domestic office or offices of the Collateral Agent as may be designated
in writing from time to time by the Collateral Agent to the Borrower
and the Facility Agents.
"Person" shall mean an individual, corporation, partnership,
trust, limited liability company, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other
entity.
"Restricted Investments" shall mean: (a) readily marketable
obligations backed by the full faith and credit of the United States of
America, maturing not later than 90 days from the date of acquisition,
(b) overnight dollar-denominated deposits in, overnight certificates of
deposit in, or overnight repurchase agreements with, a United States
commercial bank having shareholders' equity of at least $1,000,000,000
which has outstanding general unsecured short-term debt rated "A-1" or
better, and general unsecured short-term debt rated "P-1," in each case
by Moody's Investors Service, Inc., (c) readily marketable commercial
paper maturing not
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later than 90 days from the date of acquisition and rated "P-1" by
Moody's Investors Service, Inc., and (d) freely redeemable shares of
stock or beneficial interest in a money market mutual fund,
substantially all of the assets of which consist of obligations
described in the foregoing clauses (a) through (c).
"Revolving Credit Agent" at any time shall mean the "Agent"
under the Revolving Credit Agreement at such time. If there is no Agent
under the Revolving Credit Agreement at such time, then any notice,
demand, or other communication required or permitted to be given by the
Revolving Credit Agent hereunder or under any Shared Security Document
shall be sufficiently given or made if given by the "Required Lenders"
(as defined in the Revolving Credit Agreement as constituted on the
date hereof, as such definition may be amended, modified or
supplemented from time to time, and any successor term of similar
import from time to time in the Revolving Credit Agreement), and any
notification, demand, consent, document, payment or other communication
or item required to be given or made to the Revolving Credit Agent
shall be sufficiently given or made if given directly to each Revolving
Credit Party entitled thereto.
"Revolving Credit Agreement" shall mean the Revolving Credit
Agreement of even date herewith by and among the Borrower, the lenders
parties thereto from time to time, the issuing banks referred to
therein, and Mellon Bank, N.A., as Agent, as the same may be amended,
modified, supplemented, renewed or refinanced from time to time;
provided, however, that for purposes of this Agreement no effect shall
be given to any amendment, modification, supplement, renewal or
refinancing entered into without the written consent of the Term Loan
Agent and the Note Backup Agent that increases the maximum aggregate
principal amount of extensions of credit thereunder to the Borrower
(whether in the form of loans, Letters of Credit or otherwise) above
$75,000,000.
"Revolving Credit Documents" shall mean the "Loan Documents"
as defined in the Revolving Credit Agreement, and any successor term of
similar import from time to time in the Revolving Credit Agreement.
"Revolving Credit LOC" shall mean any letter of credit
outstanding under the Revolving Credit Agreement from time to time.
"Revolving Credit LOC Collateral Account" shall have the
meaning given that term in Section 4.07 hereof.
"Revolving Credit LOC Exposure" at any time shall mean the sum
at such time of (a) the aggregate Revolving Credit LOC Unreimbursed
Draws and (b) the aggregate Revolving Credit LOC Undrawn Availability.
"Revolving Credit LOC Undrawn Availability" with respect to a
Revolving Credit LOC at any time shall mean the maximum amount
available to be drawn under such Revolving Credit LOC at such time or
thereafter, regardless of the existence or satisfaction of any
conditions or limitations on drawing.
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"Revolving Credit LOC Unreimbursed Draws" with respect to a
Revolving Credit LOC at any time shall mean the aggregate amount at
such time of all payments made by the issuer under such Revolving
Credit LOC, to the extent not repaid by the Borrower.
"Revolving Credit Notice of Default" shall mean a written
certification delivered to the Collateral Agent by the Revolving Credit
Agent at any time stating that a Facility Event of Default or Facility
Potential Default (as specified therein) has occurred and is continuing
or exists under the Revolving Credit Agreement, and specifically
stating that such notice is a "Revolving Credit Notice of Default"
under this Agreement.
"Revolving Credit Obligations" shall mean all obligations from
time to time of the Borrower to any Revolving Credit Party from time to
time arising under or in connection with or related to or evidenced by
or secured by the Revolving Credit Agreement or any other Revolving
Credit Document, whether such obligations are direct or indirect,
otherwise secured or unsecured, joint or several, absolute or
contingent, due or to become due, whether for payment or performance,
now existing or hereafter arising (specifically including but not
limited to obligations arising or accruing after the commencement of
any bankruptcy, insolvency or similar proceedings with respect to the
Borrower, or which would have arisen or accrued but for the
commencement of such proceeding, even if the claim for such obligation
is not allowed in such proceeding under applicable Law). Without
limitation of the foregoing, such obligations include the principal
amount of loans, interest, Revolving Credit LOC reimbursement
obligations, and fees, indemnities or expenses under or in connection
with any Revolving Credit Document. Revolving Credit Obligations shall
remain such notwithstanding any assignment or transfer or any
subsequent assignment or transfer of any of the Revolving Credit
Obligations or any interest therein.
"Secured Parties" shall mean the Collateral Agent and the
Facility Parties.
"Secured Party Documents" shall mean the Revolving Credit
Documents, the Term Loan Documents, the Note Backup Documents and the
Swap Documents, including the Shared Security Documents.
"Shared Collateral" shall mean the collateral from time to
time subject to or intended or purported to be subject to a Lien under
the Shared Security Documents.
"Shared Collateral Account" shall have the meaning given that
term in Section 4.01 hereof.
"Shared Security Documents" shall mean this Agreement, the
Borrower Pledge Agreement, and any other agreements or instruments from
time to time granting or purporting to grant the Collateral Agent a
Lien in any property for the benefit of the Secured Parties to secure
the Obligations.
"Shares of Capital Stock" shall mean shares of capital stock
of, membership interest in, beneficial interest in, or similar
ownership interest in, a Corporation organized under the Laws of any
state of the United States or any other jurisdiction, including,
without limitation, in the
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case of Corporations incorporated under the Laws of England and Wales,
equity share capital, ordinary shares and loan stock.
"Subsidiary" of a Person at any time shall mean any
Corporation of which a majority (by number of shares or number of
votes) of the outstanding Shares of Capital Stock of any class is at
such time owned directly or indirectly, beneficially or of record, by
such Person or one or more Subsidiaries of such Person, and any
partnership, trust or other Person of which a majority of any class of
outstanding equity interest is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person. For the avoidance of doubt, as used in the
preceding sentence "majority" means more than half (and not precisely
half).
"Swap Agreement" shall mean an Interest Rate Hedging Agreement
which is designated a "Swap Agreement" in accordance with Section 2.03
hereof, as the same may be amended, modified or supplemented from time
to time in accordance with this Agreement.
"Swap Documents" shall mean each Swap Agreement and the Shared
Security Documents.
"Swap Obligations" shall mean all obligations from time to
time of the Borrower to any Swap Party under or in connection with a
Swap Agreement, whether such obligations are direct or indirect,
otherwise secured or unsecured, joint or several, absolute or
contingent, due or to become due, whether for payment or performance,
now existing or hereafter arising (specifically including but not
limited to obligations arising or accruing after the commencement of
any bankruptcy, insolvency or similar proceedings with respect to the
Borrower, or which would have arisen or accrued but for the
commencement of such proceeding, even if the claim for such obligation
is not allowed in such proceeding under applicable Law).
"Swap Party" shall mean any Person who becomes party hereto as
"Swap Party" in accordance with Section 2.03 hereof.
"Swap Shared Security Cap" with respect to a Swap Agreement
shall have the meaning given that term in the Swap Party Supplement
with respect to such Swap Agreement.
"Term Loan Agent" at any time shall mean the "Agent" under the
Term Loan Agreement at such time. If there is no Agent under the Term
Loan Agreement at such time, then any notice, demand, or other
communication required or permitted to be given by the Term Loan Agent
hereunder or under any Shared Security Document shall be sufficiently
given or made if given by the "Required Lenders" (as defined in the
Term Loan Agreement), and any notification, demand, consent, document,
payment or other communication or item required to be given or made to
the Term Loan Agent shall be sufficiently given or made if given
directly to each Term Loan Party entitled thereto.
"Term Loan Agreement" shall mean the Term Loan Agreement of
even date herewith by and among the Borrower, the lenders parties
thereto from time to time, and Mellon Bank, N.A., as Agent, as the same
may be amended, modified or supplemented from time to time;
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provided, however, that for purposes of this Agreement no effect shall
be given to any amendment, modification or supplement entered into
without the written consent of the Revolving Credit Agent and the Note
Backup Agent that increases the principal amount outstanding
thereunder.
"Term Loan Documents" shall mean the "Loan Documents" as
defined in the Term Loan Agreement, and any successor term of similar
import from time to time in the Term Loan Agreements.
"Term Loan Notice of Default" shall mean a written
certification delivered to the Collateral Agent by the Term Loan Agent
at any time stating that a Facility Event of Default or Facility
Potential Default (as specified therein) has occurred and is continuing
or exists under the Term Loan Agreement, and specifically stating that
such notice is a "Term Loan Notice of Default" under this Agreement.
"Term Loan Obligations" shall mean all obligations from time
to time of the Borrower to any Term Loan Party from time to time
arising under or in connection with or related to or evidenced by or
secured by the Term Loan Agreement or any other Term Loan Document,
whether such obligations are direct or indirect, otherwise secured or
unsecured, joint or several, absolute or contingent, due or to become
due, whether for payment or performance, now existing or hereafter
arising (specifically including but not limited to obligations arising
or accruing after the commencement of any bankruptcy, insolvency or
similar proceedings with respect to the Borrower, or which would have
arisen or accrued but for the commencement of such proceeding, even if
the claim for such obligation is not allowed in such proceeding under
applicable Law). Without limitation of the foregoing, such obligations
include the principal amount of loans, interest, and fees, indemnities
or expenses under or in connection with any Term Loan Document. Term
Loan Obligations shall remain such notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Loan
Obligations or any interest therein.
1.02. CONSTRUCTION. In this Agreement and each other Shared
Security Document, unless the context otherwise clearly requires, references to
the plural include the singular, the singular the plural and the part the whole;
"or" has the inclusive meaning represented by the phrase "and/or"; and
"property" includes all properties and assets of any kind or nature, tangible or
intangible, real, personal or mixed. The words "hereof," "herein" and
"hereunder" (and similar terms) in this Agreement or any other Shared Security
Document refer to this Agreement or such other Shared Security Document, as the
case may be, as a whole and not to any particular provision of this Agreement or
such other Shared Security Document. The words "includes" and "including" (and
similar terms) in this Agreement or any other Shared Security Document mean
"includes without limitation" and "including without limitation," respectively
(and similarly for similar terms). References in this Agreement or any other
Shared Security Document to "determination" (and similar terms) by the
Collateral Agent or by any Secured Party include good faith estimates by the
Collateral Agent or by such Secured Party (in the case of quantitative
determinations) and good faith beliefs by the Collateral Agent or by such
Secured Party (in the case of qualitative determinations). No doctrine of
construction of ambiguities in agreements or instruments against the interests
of the party controlling the drafting thereof shall apply to this Agreement or
any other Shared Security Document. The section and other headings contained in
this Agreement and in each other Shared Security Document, and any
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tables of contents contained herein or therein, are for reference purposes only
and shall not affect the construction or interpretation of this Agreement or
such other Shared Security Document in any respect. Section, subsection, annex,
exhibit and schedule references in this Agreement and in each other Shared
Security Document are to this Agreement or such other Shared Security Document,
as the case may be, unless otherwise specified.
ARTICLE II
SECURED PARTY DOCUMENTS
2.01. NOTICE OF DEFAULT.
(a) EFFECTIVENESS. A Notice of Default given by a Facility
Agent shall become effective upon receipt thereof by the Collateral Agent. A
Notice of Default given by a Facility Agent, once effective, shall remain in
effect unless and until it is cancelled as provided in Section 2.01(b). Upon
receipt of a Notice of Default from a Facility Agent the Collateral Agent shall
promptly notify the Borrower and the other Facility Agents thereof.
(b) CANCELLATION. A Facility Agent who gave a Notice of
Default may cancel a Notice of Default given by it by delivering a written
notice of cancellation to the Collateral Agent. The Collateral Agent shall
promptly notify the Borrower and the other Facility Agents of any such
cancellation.
(c) BANKRUPTCY DEFAULTS. A Notice of Default shall be deemed
automatically to be in effect from and after the occurrence of a Bankruptcy
Default. Such Notice of Default may not be cancelled except by written notice of
cancellation by each Facility Agent. The Borrower shall immediately give notice
to the Collateral Agent of any Bankruptcy Default. Any Secured Party may give
notice of a Bankruptcy Default to the Collateral Agent. The Collateral Agent
shall be protected and fully justified in relying on any such notice.
(d) EFFECT. To the extent this Agreement or any other Shared
Security Document gives the Collateral Agent any right or remedy upon the
occurrence or existence or during the continuance of a Facility Event of Default
or Facility Potential Default, the Collateral Agent may exercise such right or
remedy regardless of whether it has received a Notice of Default to such effect.
However, the Collateral Agent shall be protected and fully justified in
declining to exercise any such right or remedy at the direction of a Directing
Party absent an effective Notice of Default specifying the existence of a
Facility Event of Default or Facility Potential Default, as the case may be.
2.02. THE SWAP AGREEMENT AND THE SWAP PARTY
(a) GENERALLY. An Interest Rate Hedging Agreement entered into
by the Borrower shall constitute a "Swap Agreement" entitled to the benefit of
this Agreement, and the counterparty to such agreement shall constitute a "Swap
Party," if and only if the Collateral Agent has received the following items,
each in form and substance satisfactory to it: (i) a Swap Party Supplement
executed by the counterparty in substantially the form of Exhibit A hereto, duly
completed, and consented to by the Facility Agents and the Borrower, pursuant to
which such counterparty shall agree to become party hereto and bound hereby as a
"Swap Party," and pursuant to which a particular Interest Rate Hedging
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Agreement is designated as a "Swap Agreement," and (ii) such bringdown Lien
searches, certificates and evidence of completion of such other acts and things
as the Collateral Agent may require in connection with the foregoing. Each
Facility Agent may grant or withhold such consent in its discretion, subject to
any obligation it may have under the Secured Party Documents to which it is
party to grant or withhold such designation.
(b) AMENDMENTS TO THE SWAP PARTY DOCUMENTS. A Swap Agreement
shall cease to constitute a "Swap Agreement" if, without the consent of the
Facility Agents, such Swap Agreement is amended, modified or supplemented,
unless such amendment merely eliminates, waives or renders less restrictive on
the Borrower any term or condition otherwise applicable to the Borrower, reduces
or defers amounts otherwise payable by the Borrower or increases or accelerates
amounts otherwise receivable by the Borrower. Without limiting the generality of
the foregoing, to the extent a Swap Agreement is in the form of a master
agreement, pursuant to which multiple "confirmations" (however named) may be
entered into from time to time, only the transactions evidenced by confirmations
attached to the related Swap Party Supplement shall constitute part of such
"Swap Agreement," and the relevant Swap Party and the Borrower each represent,
warrant and agree that no other transactions have been or will be entered into
pursuant to such master agreement. If the Borrower desires to enter into more
than one Swap Agreement with the same Swap Party at different times, then, if
the provisions of this Agreement are otherwise met, and the Borrower and the
Swap Party so request, all such Swap Agreements may be documented under a single
master agreement, covered by a single Swap Party Supplement (which will
supercede prior Swap Party Supplements relating to such Swap Agreements), in
which case all such Swap Agreements shall be considered to constitute a single
Swap Agreement and will be subject to a single Swap Shared Security Cap.
2.03. AMENDMENTS AND REFINANCING.
(a) AMENDMENTS TO AND REFINANCING OF THE REVOLVING CREDIT
AGREEMENT. The provisions of this Agreement shall remain in full force and
effect as applied to any amendment, modification or supplement to or renewal or
refinancing of the Revolving Credit Agreement, provided that the Revolving
Credit Agreement as so amended, modified, supplemented, renewed or refinanced
remains a "Revolving Credit Agreement" as defined herein. In the event of any
such refinancing, the Collateral Agent shall not make any distribution to or for
the benefit of any incoming Revolving Credit Party or otherwise recognize such
Revolving Credit Agreement as the "Revolving Credit Agreement" hereunder or the
incoming Revolving Credit Parties as the "Revolving Credit Parties" hereunder,
unless the Collateral Agent has received the following items, each in form and
substance satisfactory to it: (i) a Revolving Credit Refinancing Supplement,
executed by each incoming Revolving Credit Party in substantially the form of
Exhibit B hereto, duly completed, and consented to by the Borrower, whereby such
incoming Revolving Credit Parties agree to become party hereto and bound hereby
as "Revolving Credit Parties," (ii) a notice from the outgoing Revolving Credit
Agent under Section 2.05 hereof whereby such outgoing Revolving Credit Parties
cease to be "Revolving Credit Parties" hereunder, and (iii) such opinions of
counsel, certificates, bringdown Lien searches, and evidence of completion of
such other acts and things as the Collateral Agent may require in connection
with the foregoing.
(b) TERM LOAN AGREEMENT. The provisions of this Agreement
shall remain in full force and effect as applied to any amendment, modification
or supplement to the Term Loan
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Agreement, provided that the Term Loan Agreement as so amended, modified or
supplemented remains a "Term Loan Agreement," as defined herein.
(c) NOTE BACKUP AGREEMENT. The provisions of this Agreement
shall remain in full force and effect as applied to any amendment, modification
or supplement to the Note Backup Agreement, provided that the Note Backup
Agreement as so amended, modified or supplemented remains a "Note Backup
Agreement" as defined herein.
2.04. DELIVERY OF DOCUMENTS. The Borrower shall, promptly upon
the execution thereof, deliver to the Collateral Agent a true and complete copy
of any and all Shared Security Documents and all amendments, modifications,
supplements, renewals or refinancings of the Shared Security Documents, the
Revolving Credit Agreement, the Term Loan Agreement, the Note Backup Agreement
or any Swap Agreement.
2.05. TERMINATION OF A FACILITY PARTY. In the event there is
delivered to the Collateral Agent at any time:
(a) in the case of the Revolving Credit Parties, a written
notice from the Revolving Credit Agent to the effect that (i) the Liens
created hereby and by the other Shared Security Documents are to be
released and discharged with respect to the Revolving Credit Parties,
or (ii) all commitments to extend credit under the Revolving Credit
Documents have terminated, all Letters of Credit have terminated, and
all Revolving Credit Obligations (other than Contingent Indemnification
Obligations) have been indefeasibly paid in full in cash;
(b) in the case of the Term Loan Parties, a written notice
from the Term Loan Agent to the effect that (i) the Liens created
hereby and by the other Shared Security Documents are to be released
and discharged with respect to the Term Loan Parties, or (ii) all Term
Loan Obligations (other than Contingent Indemnification Obligations)
have been indefeasibly paid in full in cash;
(c) in the case of the Note Backup Parties, a written notice
from the Note Backup Agent to the effect that (i) the Liens created
hereby and by the other Shared Security Documents are to be released
and discharged with respect to the Note Backup Parties, or (ii) all
commitments to extend credit under the Note Backup Documents have
terminated, all Note Backup LOCs have terminated, and all Note Backup
Obligations (other than Contingent Indemnification Obligations) have
been indefeasibly paid in full in cash; or
(d) in the case of a Swap Party, a written notice from such
Swap Party to the effect that (i) the Liens created hereby and by the
other Shared Security Documents are to be released and discharged with
respect to such Swap Party, or (ii) all Interest Rate Hedge Agreements
under the Swap Documents with respect to such Swap Party have
terminated and all Swap Obligations (other than Contingent
Indemnification Obligations) with respect to such Swap Party have been
indefeasibly paid in full in cash;
then the Facility Parties on whose behalf such notice is given shall for all
purposes hereof cease to be Facility Parties. The Revolving Credit Agent, the
Term Loan Agent, the Note Backup Agent, and each Swap Party, respectively, shall
deliver to the Collateral Agent written notice to the effect set forth in
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clause (a)(ii), (b)(ii), (c)(ii) and (d)(ii), respectively, promptly after
receiving written request to do so by the Borrower after the conditions
described in such clause are satisfied.
2.06. CERTAIN INTERCREDITOR MATTERS.
(a) PAYMENT OBLIGATIONS NOT SUBORDINATED. The provisions of
Article IV hereof apply solely to priorities of distributions resulting from
realization on the Shared Security Documents, and not to the priorities of the
Obligations. Nothing contained in this Agreement or in any other Shared Security
Document is intended to effect a subordination of any Obligation to any other
Obligation. Notwithstanding any other provision of this Agreement or any other
Shared Security Document, nothing herein or therein shall limit or impair the
right of each Secured Party to receive payment of the Obligations owing to it
when due (whether at the stated maturity thereof, by acceleration or otherwise)
or to institute suit for the enforcement of such payment on or after such due
date, or the obligation of the Borrower to make such payment when due.
(b) RIGHTS AND REMEDIES OF SECURED PARTIES NOT IMPAIRED.
Except to the extent specifically provided in this Agreement, nothing contained
herein shall be construed to limit any right or remedy otherwise available to
any Secured Party under any Secured Party Document, at law, in equity, or
otherwise. Nothing contained in this Agreement or in any other Shared Security
Document shall limit or otherwise derogate from the right of any Secured Party
to initiate a proceeding with respect to the Borrower under the U.S. Bankruptcy
Code or similar Laws or to file, vote, give or withhold consent or otherwise
exercise rights in respect to Obligations or any claim in respect thereof in
connection with any proceeding under the U.S. Bankruptcy Code or similar Laws.
(c) SHARED COLLATERAL. Subject to Section 2.06(d) hereof, the
Secured Parties hereby agree that, if any Secured Party (other than the
Collateral Agent, in its capacity as such) shall realize any funds on any Shared
Collateral, or otherwise realize any funds under any Shared Security Document,
other than as a result of distributions by the Collateral Agent in accordance
with the provisions of this Agreement or the other Shared Security Documents,
such Secured Party shall forthwith remit the same to the Collateral Agent, who
shall deposit the same in the Shared Collateral Account.
(d) SHARING OF SETOFFS. The Facility Parties hereby agree
among themselves that if, so long as a Facility Event of Default is in effect,
any Facility Party shall receive any amount on account of the Obligations
through the exercise of set-off, bankers' lien or similar right against any
accounts maintained by the Borrower with such Facility Party, then the Facility
Party receiving such payment shall notify the Collateral Agent of such receipt,
and equitable adjustment will be made in the manner stated in this Section
2.06(d) so that, in effect, all such amounts will be shared among all of the
Secured Parties as if they had been deposited in the Shared Collateral Account.
The Facility Party receiving such amount shall purchase (which it shall be
deemed to have done simultaneously upon the receipt of such amount) for cash
from the other Facility Parties a participation in the applicable Obligations
owed to such other Facility Parties in such amount as shall result in a sharing
by all Facility Parties of such amount in the proportions in which they would
have been entitled to receive the same had such amount been deposited in the
Shared Collateral Account and distributed to the Secured Parties in accordance
with the terms of this Agreement. If all or any portion of such amount is
thereafter recovered from the Facility Party making such purchase, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, together with interest or other amounts, if any, required by Law to be
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paid by the Facility Party making such purchase. The Borrower hereby consents to
and confirms the foregoing arrangements and hereby confirms the right of the
Facility Parties, without notice to or consent of the Borrower, to create
participations in accordance with this Section 2.08(d) notwithstanding any
restrictions contained elsewhere in the Secured Party Documents. Each holder of
a participation in Obligations shall be bound by this Section 2.06(d) fully as
if it were a Facility Party hereunder.
ARTICLE III
SHARED SECURITY DOCUMENTS
3.01. GENERAL RELATION TO SHARED SECURITY DOCUMENTS. All of
the powers, remedies and rights of the Collateral Agent as set forth in this
Agreement may be exercised by the Collateral Agent in respect of any other
Shared Security Document as though set forth in full therein and all of the
powers, remedies and rights of the Collateral Agent as set forth in any other
Shared Security Document may be exercised from time to time as herein and
therein provided. Any property taken or held by the Collateral Agent, in its
capacity as such, by foreclosure or otherwise, shall be held by it pursuant to
this Agreement. This Agreement is intended to be supplemental to, and not in
limitation of, the other Shared Security Documents, and the rights and remedies
of the Collateral Agent contained herein and therein are intended to be
cumulative. In the event of any irreconcilable conflict between the provisions
of this Agreement and any Shared Security Document, the provisions of this
Agreement shall prevail.
3.02. POWER OF ATTORNEY. The Borrower hereby irrevocably
constitutes and appoints the Collateral Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful attorney-in-fact with
full power and authority in the name of the Borrower or the name of such
attorney-in-fact, from time to time in the Collateral Agent's discretion, for
the purpose of signing documents and taking other action as the Collateral Agent
may deem necessary or appropriate to perfect, promote and protect the Liens of
the Collateral Agent in the Shared Collateral or otherwise to accomplish the
purposes hereof. This power of attorney is a power coupled with an interest,
shall be irrevocable and shall not be subject to the limitations of Section 3.03
hereof. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Agreement or any other Shared
Security Document to make collections in respect of the Shared Collateral, the
Collateral Agent shall have the right and power to receive, endorse and collect
all checks made payable to the order of the Borrower representing any Shared
Collateral or dividend, payment or other distribution in respect of the Shared
Collateral and to give full discharge for the same.
3.03. CERTAIN RIGHTS AFTER FACILITY EVENT OF DEFAULT. The
Borrower hereby irrevocably constitutes and appoints the Collateral Agent and
any officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full power and authority in the name of the
Borrower or otherwise, from time to time in the Collateral Agent's discretion,
so long as any Facility Event of Default has occurred and is continuing, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to carry out the terms of this
Agreement or any other Shared Security Document and to accomplish the purposes
hereof and thereof and, without limiting the generality of the foregoing, the
Borrower hereby gives the Collateral Agent the power and right on behalf of the
Borrower, without notice to or further assent by the Borrower, to do the
following:
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(a) to ask for, demand, sue for, collect, receive and give
acquittance for any and all moneys due or to become due upon, or in
connection with, the Shared Collateral;
(b) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents and other negotiable and
non-negotiable instruments taken or received by the Collateral Agent
as, or in connection with, the Shared Collateral;
(c) to commence, prosecute, defend, settle, compromise or
adjust any claim, suit, action or proceeding with respect to, or in
connection with, the Shared Collateral;
(d) to sell, transfer, assign or otherwise deal in or with the
Shared Collateral or any part thereof as fully and effectively as if
the Collateral Agent were the absolute owner thereof; and
(e) to do, at its option and at the expense and for the
account of the Borrower, at any time or from time to time, all acts and
things which the Collateral Agent deems necessary to protect or
preserve the Shared Collateral and to realize upon the Shared
Collateral.
3.04. RIGHT TO INITIATE JUDICIAL PROCEEDINGS. If a Facility
Event of Default has occurred and is continuing, the Collateral Agent (a) shall
have the right and power to institute and maintain such suits and proceedings as
it may deem appropriate to protect and enforce the rights vested in it by this
Agreement and each other Shared Security Document and (b) may either after
entry, or without entry, proceed by suit or suits at law or in equity to enforce
such rights and to foreclose upon the Shared Collateral and to sell all or, from
time to time, any of the Shared Collateral under the judgment or decree of a
court of competent jurisdiction.
3.05. RIGHT TO APPOINT A RECEIVER. If a Facility Event of
Default has occurred and is continuing, upon the filing of a bill in equity or
other commencement of judicial proceedings to enforce the rights of the
Collateral Agent under this Agreement or any other Shared Security Document, the
Collateral Agent shall, to the extent permitted by Law and except to the extent
(if any) expressly forbidden by a Shared Security Document, without notice to
the Borrower or any party claiming through the Borrower, without regard to the
solvency or insolvency at the time of the Borrower or any other Person then
liable for the payment of any of the Obligations, without regard to the then
value of the Shared Collateral, and without requiring any bond from any
complainant in such proceedings, be entitled as a matter of right to the
appointment of a receiver or receivers (who may be the Collateral Agent) of the
Shared Collateral, or any part thereof, and of the rents, issues, tolls,
profits, royalties, revenues and other income thereof, pending such proceedings,
with such powers as the court making such appointment shall confer, and to the
entry of an order directing that the rents, issues, tolls, profits, royalties,
revenues and other income of the property constituting the whole or any part of
the Shared Collateral be segregated, sequestered and impounded for the benefit
of the Collateral Agent, and the Borrower irrevocably consents to the
appointments of such receiver or receivers and to the entry of such order;
provided, that notwithstanding the appointment of any receiver, the Collateral
Agent shall be entitled to retain possession and control of all cash held by or
deposited with it pursuant to this Agreement, any other Shared Security Document
or any other Secured Party Document.
3.06. REMEDIES NOT EXCLUSIVE, ETC.
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(a) REMEDIES NOT EXCLUSIVE. No remedy conferred upon or
reserved to the Collateral Agent or any other Secured Party herein or in any
other Shared Security Document is intended to be exclusive of any other remedy
or remedies, but every such remedy shall be cumulative and shall be in addition
to every other remedy conferred herein or in any other Shared Security Document
or now or hereafter existing at law or in equity or otherwise.
(b) NO IMPLIED WAIVER, ETC. No delay or omission by the
Collateral Agent to exercise any right, remedy or power hereunder or under any
other Shared Security Document or any other Secured Party Document shall impair
any such right, remedy or power or shall be construed to be a waiver thereof,
and every right, power and remedy given by this Agreement, any other Shared
Security Document or any other Secured Party Document to the Collateral Agent
may be exercised from time to time and as often as may be deemed expedient by
the Collateral Agent.
(c) REINSTATEMENT. If the Collateral Agent shall have
proceeded to enforce any right, remedy or power under this Agreement or any
other Shared Security Document and the proceeding for the enforcement thereof
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then the Borrower, the Collateral
Agent and the Facility Parties shall, subject to any determination in such
proceeding, severally and respectively be restored to their former positions and
rights hereunder or thereunder in all respects and, subject to any determination
in such proceeding, thereafter all rights, remedies and powers of the Collateral
Agent and shall continue as though no such proceeding had been taken.
(d) ORIGINAL INSTRUMENTS. All rights of action and of
asserting claims upon or under this Agreement and the other Shared Security
Documents may be enforced by the Collateral Agent without the possession of any
original or executed instrument evidencing or governing any Obligation and
without the production thereof at any trial or other proceeding relative to such
claims, and any suit or proceeding instituted by the Collateral Agent shall be,
subject to the provisions of this Agreement, brought in its name as Collateral
Agent, and any recovery of judgment shall be held as part of the Shared
Collateral Account.
3.07. CERTAIN WAIVERS.
(a) VALUATION, ETC. The Borrower agrees, to the extent it may
lawfully do so, that it will not at any time in any manner whatsoever claim or
take the benefit or advantage of, any appraisement, valuation, stay, extension,
moratorium, turnover or redemption Law, or any Law permitting it to direct the
order in which the Shared Collateral shall be sold, now or at any time hereafter
in force, which may delay, prevent or otherwise affect the performance or
enforcement of this Agreement or any other Shared Security Document, hereby
waives all benefit or advantage of all such Laws, and covenants that it will not
hinder, delay or impede under color of any such Law the execution of any power
granted to the Collateral Agent in this Agreement or any other Shared Security
Document but will suffer and permit the execution of every such power as though
no such Law were in force.
(b) MARSHALLING, ETC. The Borrower, to the extent it may
lawfully do so, on behalf of itself and all who may claim through or under it,
including without limitation any and all subsequent creditors, vendees,
assignees and lienors, waives and releases all rights to demand or to have any
marshalling of the Shared Collateral upon any sale, whether made under any power
of sale granted
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herein or in any other Shared Security Document or pursuant to judicial
proceedings or upon any foreclosure or any enforcement of this Agreement or any
other Shared Security Document, and consents and agrees that all the Shared
Collateral may at any such sale be offered and sold as an entirety. To the
fullest extent permitted by Law, the Borrower hereby waives any and all rights
it may at any time have to require the Collateral Agent or any other Secured
Party to exercise its rights and remedies under this Agreement, any other Shared
Security Document any other Secured Party Document, any other agreement or
instrument, at law or in equity, as between different Persons or against any
single Person in any particular order, method or manner.
(c) NOTICES, ETC. The Borrower waives, to the extent permitted
by applicable Law, presentment, demand, protest and any notice of any kind
(except notices expressly required hereunder or under any other Shared Security
Document) in connection with this Agreement and the other Shared Security
Documents and any action taken by the Collateral Agent with respect to the
Shared Collateral.
3.08. LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT OF
SHARED COLLATERAL. Beyond its duties expressly provided herein or in any other
Shared Security Document and its duty to account to the Borrower and Facility
Parties for moneys and other property received by it hereunder or under any
other Shared Security Document, the Collateral Agent shall not have any duty to
the Borrower or Facility Party as to any other Shared Collateral in its
possession or control or in the possession or control of any of its agents or
nominees, or any income thereon or as to the preservation of rights against
prior parties or any other rights pertaining thereto.
3.09. FEES, TAXES, ETC. The Borrower agrees to pay upon demand
any and all Lien search, stamp, document, transfer, filing, recording,
registration, excise and sales taxes and fees and any and all similar
impositions now or hereafter payable or determined in good faith by the
Collateral Agent to be payable in connection with this Agreement, the other
Shared Security Documents, or any other documents, instruments or transactions
pursuant to or in connection herewith or therewith, and agrees to save the
Collateral Agent and each Facility Party harmless from and against any and all
present or future claims or liabilities with respect to, or resulting from any
delay in paying or omission to pay, any such fees, taxes or impositions. Such
agreement extends, without limitation, to any and all state documentary stamp or
intangible tax with respect to the filing or recording of this Agreement or any
financing statements or mortgages or other instruments in connection herewith or
in connection with any other Shared Security Document, regardless of whom such
taxes are levied or assessed against. The obligations of the Borrower under this
Section 3.09 shall survive the termination of the other provisions of this
Agreement and the termination of any other Shared Security Document.
3.10. MAINTENANCE OF LIENS. The Borrower at its expense will
cause financing statements (and continuation statements with respect to such
financing statements), and any mortgages or other appropriate instruments from
time to time constituting Shared Security Documents, to be recorded, published,
registered and filed in such manner, at such times and in such places, and will
pay all such recording, publishing, registration, filing and other taxes, fees
and charges, and will do such other acts and things as may be required from time
to time to establish, perfect, maintain, preserve, and protect the Liens of the
Shared Security Documents as valid and perfected Liens on the Shared Collateral
covered thereby, prior to all other Liens except Facility Permitted Liens.
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3.11. FURTHER ASSURANCES. At any time and from time to time,
upon the reasonable request of the Collateral Agent, and at the expense of the
Borrower, the Borrower will promptly execute and deliver any and all such
further instruments and documents and take such further actions as are necessary
or requested to establish, confirm, maintain and continue and to perfect, or to
protect the perfection of, the Liens created and intended to be created
hereunder and under the other Shared Security Documents, and all assignments
made or intended to be made pursuant thereto, or to obtain the full benefits of
this Agreement and the other Shared Security Documents and of the rights and
powers herein and therein granted, including, without limitation, the execution
and delivery of any further deeds, conveyances, mortgages, assignments, security
agreements, pledges and further assurances and the filing of any financing or
continuation statements. The Borrower also hereby authorizes the Collateral
Agent to sign and file financing statements and continuation statements at any
time with respect to any Shared Collateral without the signature of the Borrower
(where permitted by applicable Law) and appoints the Collateral Agent as its
attorney-in-fact to do all other acts and things which the Collateral Agent may
deem necessary or advisable to preserve, perfect and continue perfected the
Collateral Agent's Liens in the Shared Collateral.
ARTICLE IV
ACCOUNTS
4.01. SHARED COLLATERAL ACCOUNT. Not later than the first date
on which funds are required to be deposited therein pursuant to this Agreement
or any other Shared Security Document, the Collateral Agent shall maintain an
account (the "Shared Collateral Account") at such office as it may designate
from time to time in its own name as Collateral Agent. All right, title and
interest in and to the Shared Collateral Account and funds on deposit therein
and investments and reinvestments thereof shall vest in the Collateral Agent and
shall be subject to the exclusive dominion and control of the Collateral Agent.
4.02. INVESTMENT. The Collateral Agent shall invest and
reinvest moneys on deposit in the Shared Collateral Account in its own name in
such Restricted Investments as the Collateral Agent may select in its
discretion, and all such investments and the interest and income received
thereon and the net proceeds on the sale or redemption thereof shall be held in
the Shared Collateral Account. The Collateral Agent shall not be responsible or
liable to any other Person for any loss or decline in value of such investments
or any loss or penalties incurred in the liquidation or sale thereof.
The Collateral Agent may liquidate investments prior to maturity to make a
distribution pursuant to Section 4.04 hereof.
4.03. DEPOSITS. Except to the extent, if any, otherwise
expressly provided in this Agreement or in another Shared Security Document, all
moneys which are required by this Agreement or any other Shared Security
Document to be delivered to the Collateral Agent in its capacity as such, or
which are received by the Collateral Agent in its capacity as such in respect of
any property described in the Shared Security Documents (as proceeds of Shared
Collateral or otherwise), shall be deposited by the Collateral Agent in the
Shared Collateral Account. No other funds shall be deposited in the Shared
Collateral Account or commingled with funds in the Shared Collateral Account.
4.04. DISTRIBUTIONS. The Collateral Agent shall make
distributions from the Shared Collateral Account from time to time when directed
by the Directing Party or at such other times as it
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may in good faith believe are required by Law, except that the Collateral Agent
shall have the right at any time to apply monies held by it in the Shared
Collateral Account to the payment of due and unpaid Collateral Agent
Obligations. All remaining monies held by the Collateral Agent in the Shared
Collateral Account shall be distributed by the Collateral Agent as follows:
First: to the Collateral Agent for any Collateral Agent
Obligations due and unpaid upon such distribution date;
Second: to (a) the Revolving Credit Agent, for the payment of
all amounts due to the Revolving Credit Agent in its capacity as such
which are unpaid on such distribution date, (b) the Term Loan Agent,
for the payment of all amounts due to the Term Loan Agent in its
capacity as such which are unpaid on such distribution date, and (c)
the Note Backup Agent, for the payment of all amounts due to the Note
Backup Agent in its capacity as such which are unpaid on such
distribution date; provided, that if such monies to be distributed by
the Collateral Agent shall be insufficient to pay in full the amounts
referred to in the foregoing clauses (a), (b) and (c), then such
distribution shall be made ratably (without priority of any one over
any other) to the Revolving Credit Agent, the Term Loan Agent and the
Note Backup Agent in proportion to the respective amounts referred to
in the foregoing clauses (a), (b) and (c) on such distribution date;
Third: to (a) the Revolving Credit Agent, for the account of
the Revolving Credit Parties, in an amount equal to all amounts due and
payable to the Revolving Credit Parties on such distribution date with
respect to Revolving Credit Obligations (including obligations to pay
Revolving Credit LOC Unreimbursed Draws and to provide cash collateral
for outstanding undrawn Letters of Credit, but only to the extent the
aggregate Revolving Credit LOC Exposure exceeds the amount on deposit
in the Revolving Credit LOC Collateral Account) (to the extent not paid
pursuant to item "Second" above), (b) the Term Loan Agent, for the
account of the Term Loan Parties, in an amount equal to all amounts due
and payable to the Term Loan Parties on such distribution date with
respect to Term Loan Obligations (to the extent not paid pursuant to
item "Second" above), (c) the Note Backup Agent, for the account of the
Note Backup Parties, in an amount equal to all amounts due and payable
to the Note Backup Parties on such distribution date with respect to
Note Backup Obligations (including obligations to pay Note Backup LOC
Unreimbursed Draws and to provide cash collateral for outstanding
undrawn Note Backup LOCs, but only to the extent the aggregate Note
Backup LOC Exposure exceeds the amount on deposit in the Note Backup
LOC Collateral Account) (to the extent not paid pursuant to item
"Second" above), and (d) each Swap Party, in an amount (calculated
separately for each Swap Agreement to which such Swap Party is party)
equal to the lesser of (i) all amounts due and payable to the Swap
Party on such distribution date with respect to Swap Obligations under
or in connection with such Swap Agreement or (ii) the Swap Shared
Security Cap for such Swap Agreement minus the aggregate amount of all
distributions previously made from time to time to the Swap Party with
respect to Swap Obligations under or in connection with such Swap
Agreement pursuant to this item "Third"; provided, that if such moneys
to be distributed by the Collateral Agent shall be insufficient to pay
in full the amounts referred to in the foregoing clauses (a), (b), (c)
and (d), then such distribution shall be made ratably (without priority
of any one over any other) to the Revolving Credit Agent, the Term Loan
Agent, the Note Backup Agent and the Swap Parties in proportion to the
respective amounts referred to in the foregoing clauses (a), (b), (c)
and (d) on such distribution date; and
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further provided, that no further distributions shall be made under
this item "Third" to a Swap Party on account of Swap Obligations under
or in connection with a particular Swap Agreement once the aggregate
amount of all distributions made from time to time to such Swap Party
on account of Swap Obligations under or in connection with such Swap
Agreement pursuant to clause (d) of this item "Third" shall equal the
Swap Shared Security Cap for such Swap Agreement; and further provided,
that no further distributions shall be made under this item "Third"
once the aggregate amount of all distributions made from time to time
pursuant to clause (d) of this item "Third" to each Swap Party on
account of the Swap Obligations under or in connection with each Swap
Agreement shall equal the Swap Shared Security Cap for all such Swap
Agreements;
Fourth: to (a) the Revolving Credit Agent, for the account of
the Revolving Credit Parties, in an amount equal to all amounts due and
payable to the Revolving Credit Parties on such distribution date with
respect to Revolving Credit Obligations (including obligations to pay
Revolving Credit LOC Unreimbursed Draws and to provide cash collateral
for outstanding undrawn Letters of Credit, but only to the extent the
aggregate Revolving Credit LOC Exposure exceeds the amount on deposit
in the Revolving Credit LOC Collateral Account) (to the extent not paid
pursuant to items "Second" and "Third" above), (b) the Term Loan Agent,
for the account of the Term Loan Parties, in an amount equal to all
amounts due and payable to the Term Loan Parties on such distribution
date with respect to Term Loan Obligations (to the extent not paid
pursuant to items "Second" and "Third" above), and (c) the Note Backup
Agent, for the account of the Note Backup Parties, in an amount equal
to all amounts due and payable to the Note Backup Parties on such
distribution date with respect to Note Backup Obligations (including
obligations to pay Note Backup LOC Unreimbursed Draws and to provide
cash collateral for outstanding undrawn Note Backup LOCs, but only to
the extent the aggregate Note Backup LOC Exposure exceeds the amount on
deposit in the Note Backup LOC Collateral Account) (to the extent not
paid pursuant to items "Second" and "Third" above); provided, that if
such moneys to be distributed by the Collateral Agent shall be
insufficient to pay in full the amounts referred to in the foregoing
clauses (a), (b) and (c), then such distribution shall be made ratably
(without priority of any one over any other) to the Revolving Credit
Agent, the Term Loan Agent and the Note Backup Agent in proportion to
the respective amounts referred to in the foregoing clauses (a), (b)
and (c) on such distribution date;
Fifth: to each Swap Party, in an amount equal to all amounts
due and payable to the Swap Party on such distribution date with
respect to Swap Obligations (to the extent not paid pursuant to item
"Third" above); provided, that if such moneys to be distributed by the
Collateral Agent shall be insufficient to pay in full the amounts
referred to in the foregoing clause, then such distribution shall be
made ratably (without priority of any one over any other) to the Swap
Parties in proportion to the respective amounts referred to in the
foregoing clause on such distribution date; and
Finally: if all Revolving Credit Obligations, Term Loan
Obligations, Note Backup Obligations and Swap Obligations (other than,
in each case, Contingent Indemnification Obligations) shall have been
indefeasably paid in full in cash, all commitments to extend credit
under the Revolving Credit Agreement shall have terminated, all
outstanding Letters of Credit shall have terminated, all commitments to
extend credit under the Note Backup Agreement shall have terminated,
all outstanding Note Backup LOCs shall have terminated, and all
Interest
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Rate Hedge Agreements under the Swap Documents have terminated, any
surplus then remaining shall be paid to the Borrower or its successors
or assigns or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
4.05. CALCULATIONS. In making the determinations and
allocations required by Section 4.04 hereof, the Collateral Agent may rely upon
information supplied by (a) the Revolving Credit Agent, as to the amounts
described in clause (a) of item "Second", clause (a) of item "Third", and clause
(a) of item "Fourth", (b) the Term Loan Agent, as to the amounts described in
clause (b) of item "Second", clause (b) of item "Third", and clause (b) of item
"Fourth", (c) the Note Backup Agent, as to the amounts described in clause (c)
of item "Second", clause (c) of item "Third" and clause (c) of item "Fourth,"
and (d) each Swap Party, as to the amounts described in clause (d) of item
"Third" and item "Fifth," and the Collateral Agent shall have no liability to
any Secured Party for actions taken in reliance on such information. All
distributions made by the Collateral Agent pursuant to Section 4.04 hereof shall
be final as against the Collateral Agent (subject to any decree of any court of
competent jurisdiction), and the Collateral Agent shall have no duty to inquire
as to the application by any Secured Party of any amounts distributed to it.
4.06. APPLICATION OF MONIES. Each Secured Party agrees to
apply monies distributed under Section 4.04 hereof to the corresponding
obligation described therein.
4.07. REVOLVING CREDIT LOC COLLATERAL ACCOUNT.
(a) REVOLVING CREDIT LOC COLLATERAL ACCOUNT. Not later than
the first date on which funds are required to be deposited therein pursuant to
this Agreement or any other Shared Security Document, the Collateral Agent shall
maintain an account (the "Revolving Credit LOC Collateral Account") at such
office as it may designate from time to time in its own name as Collateral
Agent.
(b) INVESTMENT. The Collateral Agent shall invest and reinvest
moneys on deposit in the Revolving Credit LOC Collateral Account in its own name
in such Restricted Investments as the Collateral Agent may select in its
discretion, and all such investments and the interest and income received
thereon and the net proceeds on the sale or redemption thereof shall be held in
the Revolving Credit LOC Collateral Account. The Collateral Agent shall not be
responsible or liable to any other Person for any loss or decline in value of
such investments or any loss or penalties incurred in the liquidation or sale
thereof. The Collateral Agent may liquidate investments prior to maturity to
make a distribution pursuant to Section 4.07(d) hereof or otherwise permitted or
required pursuant to this Agreement.
(c) DEPOSITS. Notwithstanding anything to the contrary
contained herein, all funds distributable from the Shared Collateral Account
under Section 4.04 hereof on account of Revolving Credit LOC Exposure shall be
deposited into the Revolving Credit LOC Collateral Account. In addition, the
Revolving Credit Agent shall remit to the Collateral Agent, for deposit into the
Revolving Credit LOC Collateral Account, such amounts as the Revolving Credit
Agreement or any Revolving Credit Document requires or permits to be deposited
therein. No other funds shall be deposited in the Revolving Credit LOC
Collateral Account or commingled with funds in the Revolving Credit LOC
Collateral Account.
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(d) DISBURSEMENTS. The Collateral Agent shall remit funds on
deposit from time to time in the Revolving Credit LOC Collateral Account to, or
at the direction of, the Revolving Credit Agent when and as requested by the
Revolving Credit Agent for the reimbursement of Revolving Credit LOC
Unreimbursed Draws, as and when the same become due and payable, if and to the
extent the Borrower fails to pay the same. The Revolving Credit Agent shall
forthwith remit, or cause the Collateral Agent to remit, such funds to the
Secured Party which is the issuer of such Revolving Credit LOC, who shall apply
such funds to payment of such Revolving Credit LOC Unreimbursed Draw. If at any
time the amount on deposit in the Revolving Credit LOC Collateral Account
exceeds the aggregate Revolving Credit LOC Exposure with respect to all
outstanding Letters of Credit, the excess shall be deposited into the Shared
Collateral Account.
4.08. NOTE BACKUP LOC COLLATERAL ACCOUNT.
(a) NOTE BACKUP LOC COLLATERAL ACCOUNT. Not later than the
first date on which funds are required to be deposited therein pursuant to this
Agreement or any other Shared Security Document, the Collateral Agent shall
maintain an account (the "Note Backup LOC Collateral Account") at such office as
it may designate from time to time in its own name as Collateral Agent.
(b) INVESTMENT. The Collateral Agent shall invest and reinvest
moneys on deposit in the Note Backup LOC Collateral Account in its own name in
such Restricted Investments as the Collateral Agent may select in its
discretion, and all such investments and the interest and income received
thereon and the net proceeds on the sale or redemption thereof shall be held in
the Note Backup LOC Collateral Account. The Collateral Agent shall not be
responsible or liable to any other Person for any loss or decline in value of
such investments or any loss or penalties incurred in the liquidation or sale
thereof. The Collateral Agent may liquidate investments prior to maturity to
make a distribution pursuant to Section 4.08(d) hereof or otherwise permitted or
required pursuant to this Agreement.
(c) DEPOSITS. Notwithstanding anything to the contrary
contained herein, all funds distributable from the Shared Collateral Account
under Section 4.04 hereof on account of Note Backup LOC Exposure shall be
deposited into the Note Backup LOC Collateral Account. In addition, the Note
Backup Agent shall remit to the Collateral Agent, for deposit into the Note
Backup LOC Collateral Account, such amounts as the Note Backup Agreement or any
Note Backup Document requires or permits to be deposited therein. No other funds
shall be deposited in the Note Backup LOC Collateral Account or commingled with
funds in the Note Backup LOC Collateral Account.
(d) DISBURSEMENTS. The Collateral Agent shall remit funds on
deposit from time to time in the Note Backup LOC Collateral Account to, or at
the direction of, the Note Backup Agent when and as requested by the Note Backup
Agent for the reimbursement of Note Backup LOC Unreimbursed Draws, as and when
the same become due and payable, if and to the extent the Borrower fails to pay
the same. The Note Backup Agent shall forthwith remit, or cause the Collateral
Agent to remit, such funds to the Secured Party which is the issuer of such Note
Backup LOC, who shall apply such funds to payment of such Note Backup LOC
Unreimbursed Draw. If at any time the amount on deposit in the Note Backup LOC
Collateral Account exceeds the aggregate Note Backup LOC Exposure with respect
to all outstanding Note Backup LOCs, the excess shall be deposited into the
Shared Collateral Account.
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4.09. GENERAL PROVISIONS RELATING TO ACCOUNTS. To the extent
that the Collateral Agent is permitted or required by this Agreement or any
other Shared Security Document to establish or maintain any deposit, custody or
other account (including but not limited to the Shared Collateral Account, the
Revolving Credit LOC Collateral Account and the Note Backup LOC Collateral
Account), the Borrower shall from time to time pay to the Collateral Agent, for
its own account, all custodial fees, service charges, and other fees and charges
as the Collateral Agent customarily charges in respect of similar accounts from
time to time. The Collateral Agent may establish and maintain such subaccounts
as it may elect from time to time within any such account, and to the extent it
does so, each such subaccount shall be accounted for separately and the
Collateral Agent may apportion deposits and withdrawals among such subaccounts
in such manner as it may elect. Nothing in this Agreement or any other Secured
Party Document shall be construed to require the Collateral Agent to offer to
make any investment in the Collateral Agent's own certificates of deposit or in
other investment media of the Collateral Agent. Notwithstanding any other
provision of this Agreement or any other Shared Security Document, the Agent
shall not be liable for any failure to perform, inability to perform, or delay
in performance due to acts of God, war, civil commotion, governmental action,
fire, explosion, strikes, other labor disturbances, equipment malfunction,
interruption of communications facilities, any action, non-action or delayed
action on the part of any other Person other than the Collateral Agent, or other
causes beyond the Collateral Agent's reasonable control.
ARTICLE V
THE COLLATERAL AGENT
5.01. APPOINTMENT. Each Facility Party hereby irrevocably
appoints Mellon Bank, N.A. to act as Collateral Agent for the Facility Parties
under this Agreement and the other Shared Security Documents. Each Facility
Party hereby irrevocably authorizes the Collateral Agent to take such action on
behalf of the Facility Parties under the provisions of this Agreement and the
other Shared Security Documents, and to exercise such powers and to perform such
duties, as are expressly delegated to or required of the Collateral Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. Mellon Bank, N.A. hereby agrees to act as Collateral Agent on behalf of
the Facility Parties on the terms and conditions set forth in this Agreement and
the other Shared Security Documents, subject to its right to resign as provided
herein. Each Facility Party hereby irrevocably authorizes the Collateral Agent
to execute and deliver each of the Shared Security Documents and to accept
delivery of such of the other Shared Security Documents as may not require
execution by the Collateral Agent. Each Facility Party hereby agrees that the
rights and remedies granted to the Collateral Agent under the Shared Security
Documents shall be exercised exclusively by the Collateral Agent, and that no
Facility Party shall have any right individually to exercise any such right or
remedy, except to the extent, if any, expressly provided herein or therein.
5.02. GENERAL NATURE OF COLLATERAL AGENT'S DUTIES.
(a) NO IMPLIED DUTIES. The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the other Shared Security Documents, and no implied duties or
responsibilities on the part of the Collateral Agent shall be read into this
Agreement or any Shared Security Document or shall otherwise exist.
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(b) NOT A FIDUCIARY. The duties and responsibilities of the
Collateral Agent under this Agreement and the other Shared Security Documents
shall be mechanical and administrative in nature, and the Collateral Agent shall
not have a fiduciary relationship in respect of any Facility Party.
(c) AGENT OF FACILITY PARTIES. The Collateral Agent is and
shall be solely the agent of the Facility Parties. The Collateral Agent does not
assume, and shall not at any time be deemed to have, any relationship of agency
or trust with or for the Borrower or any Person other than the Facility Parties.
The provisions of this Article V are for the benefit of the Facility Parties
(and the other Persons named in Section 5.07 hereof), and the Borrower shall not
have any rights under any of the provisions of this Article V (other than
Sections 5.11(a) and 5.15(b) hereof).
(d) NO OBLIGATION TO TAKE ACTION. The Collateral Agent shall
be under no obligation to take any action hereunder or under any other Shared
Security Document if the Collateral Agent believes in good faith that taking
such action may conflict with any Law or any provision of this Agreement or any
other Shared Security Document, or may require the Collateral Agent to qualify
to do business in any jurisdiction where it is not then so qualified.
5.03. EXERCISE OF POWERS. Subject to the other provisions of
this Agreement and the other Shared Security Documents, the Collateral Agent
shall take any action of the type specified in this Agreement or any other
Shared Security Document as being within the Collateral Agent's rights, powers
or discretion in accordance with directions from the Directing Party (or, to the
extent this Agreement or such Shared Security Document expressly requires the
direction or consent of some other Person or set of Persons, then instead in
accordance with the directions of such other Person or set of Persons). In the
absence of such directions, the Collateral Agent shall have the authority (but
under no circumstances shall be obligated), in its sole discretion, to take any
such action, except to the extent this Agreement or such Shared Security
Document expressly requires the direction or consent of the Directing Party (or
some other Person or set of Persons), in which case the Collateral Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Facility Parties. The Collateral Agent shall not have any liability to any
Person as a result of (x) the Collateral Agent acting or refraining from acting
in accordance with the directions of the Directing Party (or other applicable
Person or set of Persons), (y) the Collateral Agent refraining from acting in
the absence of instructions to act from the Directing Party (or other applicable
Person or set of Persons), whether or not the Collateral Agent has discretionary
power to take such action, or (z) the Collateral Agent taking discretionary
action it is authorized to take under this Section (subject, in the case of this
clause (z), to the provisions of Section 5.04(a) hereof).
5.04. GENERAL EXCULPATORY PROVISIONS.
(a) GENERAL. The Collateral Agent shall not be liable for any
action taken or omitted to be taken by it under or in connection with this
Agreement or any other Shared Security Document, unless caused by its own gross
negligence or willful misconduct.
(b) COLLATERAL AGENT NOT RESPONSIBLE FOR SHARED SECURITY
DOCUMENTS, ETC. The Collateral Agent shall not be responsible for (i) the
execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of this Agreement or any other Secured Party Document, (ii) any
recital, representation, warranty, document, certificate, report or statement
in, provided for in, or
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received under or in connection with, this Agreement or any other Secured Party
Document, (iii) any failure of the Borrower or any Facility Party to perform any
of their respective obligations under this Agreement or any other Secured Party
Document, (iv) the existence, validity, enforceability, perfection, recordation,
priority, adequacy or value, now or hereafter, of any Lien or other direct or
indirect security afforded or purported to be afforded by any of the Shared
Security Documents or otherwise from time to time, or (v) except to the extent,
if any, expressly provided in the Shared Security Documents, caring for,
protecting, insuring, or paying any taxes, charges or assessments with respect
to any Shared Collateral.
(c) NO DUTY OF INQUIRY. The Collateral Agent shall not be
under any obligation to ascertain, inquire or give any notice relating to (i)
the performance or observance of any of the terms or conditions of this
Agreement or any other Shared Security Document on the part of the Borrower,
(ii) the business, operations, condition (financial or otherwise) or prospects
of the Borrower or any other Person, or (iii) the existence of any default under
any Secured Party Document.
(d) NOTICES. The Collateral Agent shall not be under any
obligation, either initially or on a continuing basis, to provide any Facility
Party with any notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports and other
information expressly required by this Agreement or any other Shared Security
Document to be furnished by the Collateral Agent to such Facility Party.
5.05. ADMINISTRATION BY THE COLLATERAL AGENT.
(a) RELIANCE ON NOTICES. The Collateral Agent may rely upon
any notice or other communication of any nature (written or oral, including but
not limited to telephone conversations, whether or not such notice or other
communication is made in a manner permitted or required by this Agreement or any
Shared Security Document) purportedly made by or on behalf of the proper party
or parties, and the Collateral Agent shall not have any duty to verify the
identity or authority of any Person giving such notice or other communication.
(b) CONSULTATION. The Collateral Agent may consult with legal
counsel (including, without limitation, in-house counsel for the Collateral
Agent or in-house or other counsel for the Borrower), independent public
accountants and any other experts selected by it from time to time, and the
Collateral Agent shall not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such counsel, accountants
or experts.
(c) RELIANCE ON CERTIFICATES, ETC. The Collateral Agent may
conclusively rely upon the truth of the statements and the correctness of the
opinions expressed in any certificates or opinions furnished to the Collateral
Agent in accordance with the requirements of this Agreement or any other Shared
Security Document. Whenever the Collateral Agent shall deem it necessary or
desirable that a matter be proved or established with respect to the Borrower or
any Facility Party, such matter may be established by a certificate of the
Borrower or such Facility Party, as the case may be, and the Collateral Agent
may conclusively rely upon such certificate (unless other evidence with respect
to such matter is specifically prescribed in this Agreement or another Shared
Security Document).
(d) INDEMNITY. The Collateral Agent may fail or refuse to take
any action unless it shall be indemnified to its satisfaction from time to time
against any and all amounts, liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature which may be imposed on,
incurred by or asserted against the Collateral Agent by reason of taking or
continuing to take any such action.
(e) PERFORMANCE THROUGH AGENTS. The Collateral Agent may
perform any of its duties under this Agreement or any other Shared Security
Document by or through agents or attorneys-in-fact. The Collateral Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
5.06. NO RELIANCE BY FACILITY PARTIES. Each Facility Party
hereby acknowledges as follows: (a) Neither the Collateral Agent nor any other
Facility Party has made any representations or warranties to it, and no act
taken hereafter by the Collateral Agent or any other Facility Party shall be
deemed to constitute any representation or warranty by the Collateral Agent or
such other Facility Party to it. (b) It has, independently and without reliance
upon the Collateral Agent or any other Facility Party, and based upon such
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the other Secured
Party Documents. (c) It will, independently and without reliance upon the
Collateral Agent or any other Facility Party, and based upon such documents and
information as it shall deem appropriate at the time, make its own decisions to
take or not take action under or in connection with this Agreement and the other
Secured Party Documents.
5.07. INDEMNIFICATION. Each Facility Lender hereby agrees to
reimburse and indemnify each Collateral Agent Indemnified Party (to the extent
not reimbursed by the Borrower and without limitation of the obligations of the
Borrower to do so), ratably in proportion to its Facility Lender Percentage,
from and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of outside counsel for such Collateral Agent Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Collateral Agent Indemnified Party
shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Collateral Agent Indemnified Party as a
result of, or arising out of, or in any way related to or by reason of this
Agreement or any other Secured Party Document, any transaction from time to time
contemplated hereby or thereby, or any transaction financed or secured in whole
or in part, directly or indirectly, with the proceeds of any extension of credit
hereunder or thereunder or the proceeds thereof (and without in any way limiting
the generality of the foregoing, including any grant of any Lien on Collateral
or any exercise by the Collateral Agent or any Facility Party of any of its
rights or remedies under this Agreement or any other Shared Security Document);
but excluding any portion of such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting from the gross negligence or willful misconduct of such
Collateral Agent Indemnified Party, as finally determined by a court of
competent jurisdiction. The agreements contained in this Section 5.07 shall
survive the termination of this Agreement and the other Shared Security
Documents.
5.08. COLLATERAL AGENT IN ITS INDIVIDUAL CAPACITY. The
Collateral Agent may be a Facility Party, and in such event the Collateral
Agent, in its capacity as Facility Party, shall have the same rights and powers
under this Agreement and each other Secured Party Document as any other Facility
Party and may exercise the same as thought it were not the Collateral Agent. The
Collateral
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Agent and its affiliates may, without liability to account, make loans to,
accept deposits from, acquire debt or equity interests in, enter into interest
rate or currency hedging transactions with, act as trustee under indentures of,
and engage in any other business or transaction with, the Borrower or any
stockholder, subsidiary or affiliate of the Borrower, as though the Collateral
Agent were not the Collateral Agent hereunder.
5.09. FACILITY PARTIES. Each Facility Party agrees to deliver
to the Collateral Agent promptly upon its request such information with respect
to the Obligations held by such Secured Party (or, in the case of a Facility
Agent, Obligations under the Revolving Credit Agreement, Term Loan Agreement or
Note Backup Agreement, as the case may be, agented by such Facility Agent) as
the Collateral Agent may request from time to time for the purpose of taking any
action required or permitted to be taken by the Collateral Agent under this
Agreement or any other Shared Security Document, and the Collateral Agent may
rely conclusively upon such information. Without limiting the generality of the
foregoing, the Collateral Agent may rely conclusively upon information supplied
by each Facility Agent as to the identity of each Facility Party under the
Revolving Credit Agreement, Term Loan Agreement or Note Backup Agreement, as the
case may be, agented by such Facility Agent, and as to the Facility Lender
Percentage of each Facility Lender at any time. Any authority, direction or
consent of any Person who at the time of giving such authority, direction or
consent is a Facility Party shall be conclusive and binding on each present and
subsequent holder, transferee or assignee of such Facility Party.
5.10. SUCCESSOR COLLATERAL AGENT. The Collateral Agent may
resign at any time by giving 45 days' prior written notice thereof to each
Facility Agent and the Borrower. The Collateral Agent may be removed by the
Facility Agents, acting together, at any time by giving 10 days' prior written
notice thereof to the Collateral Agent and the Borrower. Upon any such
resignation or removal, the Facility Agents, acting together, shall have the
right to appoint a successor Collateral Agent. If no successor Collateral Agent
shall have been so appointed and consented to, and shall have accepted such
appointment, within 30 days after such notice of resignation or removal, then
the retiring Collateral Agent may (but shall not be required to) appoint a
successor Collateral Agent. If no successor Collateral Agent shall be appointed
and shall have accepted such appointment within thirty days after such notice of
resignation or removal, any Secured Party may apply to any court of competent
jurisdiction to appoint a successor Collateral Agent until such time, if any, as
a successor Collateral Agent shall have been appointed as provided in this
Section 5.10. Any successor so appointed by such court shall immediately and
without further act be superseded by any successor Collateral Agent appointed by
the Agent as provided in this Section 5.10. Each successor Collateral Agent
shall be a commercial bank or trust company organized under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance by a successor Collateral
Agent of its appointment as Collateral Agent hereunder, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
properties, rights, powers, privileges and duties of the former Collateral Agent
in its capacity as such, without further act, deed or conveyance. Upon the
effective date of resignation or removal of a retiring Collateral Agent, such
Collateral Agent shall be discharged from its duties as such under this
Agreement and the other Shared Security Documents, but the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted by it
while it was Collateral Agent under this Agreement. If and so long as no
successor Collateral Agent shall have been appointed, then any notice or other
communication required or permitted to be
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given by the Collateral Agent shall be sufficiently given if given by the
Directing Party, all notices or other communications required or permitted to be
given to the Collateral Agent shall be given to each Lender, and all payments to
be made to the Collateral Agent shall be made directly to the Borrower or
Facility Party for whose account such payment is made. Notwithstanding any other
provision of this Agreement or any other Shared Security Document to the
contrary, neither the Collateral Agent nor any of its directors, officers,
employees or agents shall be liable to any Facility Party for any action taken
or omitted to be taken by it or them under or in connection with this Section
5.10.
5.11. ADDITIONAL COLLATERAL AGENTS.
(a) APPOINTMENT. Whenever the Collateral Agent shall deem it
necessary or advisable, for its own protection in the performance of its duties
hereunder or in the interest of the Facility Parties, or in the event that the
Collateral Agent shall have been requested to do so by the Directing Party, the
Collateral Agent and the Borrower shall execute and deliver all instruments and
agreements necessary or advisable, in the judgment of the Collateral Agent, to
constitute another bank or trust company, or one or more other Persons approved
by the Collateral Agent and, so long as no Facility Event of Default shall have
occurred and be continuing, consented to by the Borrower (which consent shall
not be unreasonably withheld or delayed), either to act as an additional
collateral agent or trustee of all or any part of the Shared Collateral, jointly
with the Collateral Agent, or to act as a separate collateral agent or trustee
of all or any part of the Shared Collateral (any such additional or separate
collateral agent or trustee being herein called an "Additional Collateral
Agent"). If the Borrower shall have withheld its consent as provided above and
shall not have joined in the execution of such instruments and agreements within
ten days after the Borrower receives a written request from the Collateral Agent
to do so, or if a Facility Event of Default has occurred and is continuing, the
Collateral Agent may act under the foregoing provisions of this Section 5.11(a)
without the concurrence of the Borrower and execute and deliver such instruments
and agreements on behalf of the Borrower. The Borrower hereby irrevocably
appoints the Collateral Agent as its agent and attorney-in-fact to act for it
under the foregoing provisions of this Section 5.11(a) in any such contingency.
(b) PROVISIONS. Every Additional Collateral Agent shall, to
the extent permitted by Law, be appointed and act and be such, subject to the
following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Collateral Agent in respect of the receipt, custody, investment and
payment of moneys, shall be exercised solely by the Collateral Agent;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Collateral Agent hereunder and under the
Shared Security Documents shall be conferred or imposed and exercised
or performed by the Collateral Agent and such Additional Collateral
Agent, jointly, as shall be provided in the instrument appointing such
Additional Collateral Agent, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed the Collateral Agent shall be incompetent or unqualified to
perform such act or acts, or unless the performance of such act or acts
would result in the imposition of any tax on the Collateral Agent which
would not be imposed absent such joint acts or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such Additional Collateral Agent;
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(iii) no power given hereby or by the Shared Security
Documents to, or with respect to which it is hereby or thereby provided
may be exercised by, any such Additional Collateral Agent, shall be
exercised hereunder or thereunder by such Additional Collateral Agent
except jointly with, or with the consent of, the Collateral Agent,
anything contained herein to the contrary notwithstanding;
(iv) no Collateral Agent or Additional Collateral Agent shall
be personally liable by reason of any act or omission of any other
Person which is a Collateral Agent or Additional Collateral Agent; and
(v) the Borrower and the Collateral Agent, at any time by an
instrument in writing executed by them jointly, may accept the
resignation of or remove any Additional Collateral Agent and, in that
case by an instrument in writing executed by them jointly, may appoint
a successor Additional Collateral Agent. If the Borrower shall not have
joined in the execution of any such instrument within ten days after
receipt of a written request from the Collateral Agent to do so as
provided above, or if a Facility Event of Default shall have occurred
and be continuing, the Collateral Agent shall have the power to accept
the resignation of or remove any such Additional Collateral Agent and
to appoint a successor without the consent of the Borrower, which
hereby irrevocably appoints the Collateral Agent its agent and
attorney-in-fact to act for it in such connection in any such
contingency. If the Collateral Agent shall have appointed an Additional
Collateral Agent as above provided, the Collateral Agent may at any
time, by an instrument in writing, accept the resignation of or remove
any such Additional Collateral Agent and the successor to any such
Additional Collateral Agent shall be appointed by the Borrower and the
Collateral Agent, or by the Collateral Agent alone pursuant to this
Section 5.11.
5.12. CALCULATIONS. The Collateral Agent shall not be liable
for any calculation, apportionment or distribution of payments made by it in
good faith. If such calculation, apportionment or distribution is subsequently
determined to have been made in error, the sole recourse of any Facility Party
to whom payment was due but not made shall be to recover from the other Facility
Parties any payment in excess of the amount to which they are determined to be
entitled or, if the amount due was not paid by the Borrower, to recover such
amount from the Borrower.
5.13. COLLATERAL AGENT'S FEE. The Borrower hereby agrees to
pay to the Collateral Agent, from time to time upon demand, reasonable
compensation (which shall not be limited by any provision of Law in regard to
compensation of fiduciaries or of a trustee of an express trust) for its
services hereunder and under the other Shared Security Documents; provided, that
if and so long as the Collateral Agent is also the Revolving Credit Agent, the
Term Loan Agent and the Note Backup Agent and no Facility Event of Default has
occurred and is continuing, the Collateral Agent shall not be entitled to any
compensation under this Section 5.13.
5.14. EXPENSES; INDEMNITY.
(a) EXPENSES. The Borrower agrees to pay or cause to be paid
and to save the Collateral Agent harmless against liability for the payment of
all reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of outside counsel, including local counsel,
auditors, and all other professional, accounting, evaluation and consulting
costs) incurred by
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the Collateral Agent from time to time arising from or relating to (i) the
negotiation, preparation, execution, delivery, administration and performance of
this Agreement and the other Shared Security Documents, (ii) any requested
amendments, modifications, supplements, waivers or consents (whether or not
ultimately entered into or granted) to this Agreement or any Shared Security
Document Document, (iii) the enforcement or preservation of rights under this
Agreement or any Shared Security Document (including but not limited to any such
costs or expenses arising from or relating to (A) the creation, perfection or
protection of any Lien on any Shared Collateral, (B) the protection, collection,
lease, sale, taking possession of, preservation of, or realization on, any
Shared Collateral, including without limitation advances for taxes, filing fees
and the like, (C) collection or enforcement by the Collateral Agent of any
amount owing hereunder or thereunder, and (D) any litigation, proceeding,
dispute, work-out, restructuring or rescheduling related in any way to this
Agreement or the Shared Security Documents).
(b) INDEMNITY. The Borrower hereby agrees to reimburse and
indemnify the Collateral Agent, its affiliates, and the directors, officers,
employees, attorneys and agents of each of the foregoing (the "Collateral Agent
Indemnified Parties"), and each of them, and to hold each of them harmless from
and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of outside counsel for such Collateral Agent Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Collateral Agent Indemnified Party
shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Collateral Agent Indemnified Party as a
result of, or arising out of, or in any way related to or by reason of this
Agreement or any other Secured Party Document, any transaction from time to time
contemplated hereby or thereby, or any transaction financed or secured in whole
or in part, directly or indirectly, with the proceeds of any extension of credit
hereunder or thereunder or the proceeds thereof (and without in any way limiting
the generality of the foregoing, including any grant of any Lien on Shared
Collateral or any exercise by the Collateral Agent or any Facility Party of any
of its rights or remedies under this Agreement or any other Shared Security
Document); but excluding any portion of such losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting from the gross negligence or willful misconduct of such
Collateral Agent Indemnified Party, as finally determined by a court of
competent jurisdiction. If and to the extent that the foregoing obligations of
the Borrower under this Section 5.14(b), or any other indemnification obligation
of the Borrower hereunder or under any other Shared Security Document, are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable Law.
(c) INTEREST. All amounts payable by the Borrower to the
Collateral Agent in its capacity as such under this Agreement or any other
Shared Security Document shall bear interest for each day from the date when due
to the date of payment (before and after judgment) at a rate per annum equal to
2% above the Base Rate Option (as such term is defined in the Term Loan
Agreement as constituted on the date hereof).
(d) SURVIVAL. The agreements contained in this Section 5.14
shall survive the termination of this Agreement and the other Shared Security
Documents.
5.15. FINANCIAL AND OTHER INFORMATION; CONFIDENTIALITY.
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(a) FINANCIAL AND OTHER INFORMATION. Subject to Section
5.15(b), the Borrower authorizes the Collateral Agent to disclose to any actual
or prospective assignee or participant in any Obligation, any and all financial
and other information delivered to, received by, or otherwise in the possession
of, the Collateral Agent from time to time relating to the Borrower, its
Subsidiaries and affiliates, or the matters contemplated hereby or by the
Secured Party Documents.
(b) CONFIDENTIALITY. The Collateral Agent agrees to take
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower in connection with
this Agreement; provided, however, that the Collateral Agent may disclose such
information (i) at the request of any bank regulatory authority or other
Governmental Authority or in connection with an examination of the Collateral
Agent by any such Governmental Authority, (ii) pursuant to subpoena or other
court process, (iii) to the extent the Collateral Agent is required (or believes
in good faith that it is required) to do so in accordance with any applicable
Law, (iv) to the Collateral Agent's independent auditors and other professional
advisors, (v) in connection with the enforcement of any of its rights under or
in connection with any Secured Party Document, (vi) to any other Secured Party,
and (vii) to any actual or potential assignee or participant in any of the
Obligations, or to any other actual or potential creditor of or participant in a
credit to the Borrower or any of its Subsidiaries or affiliates, so long as, in
the case of this clause (vii), such Person agrees to comply with the provisions
of this Section 5.15(b).
5.16. MONEYS HELD AS COLLATERAL AGENT. All moneys received by
the Collateral Agent under or pursuant to any provision of this Agreement or any
other Shared Security Document shall be held by it as agent for the purposes for
which they were paid or are held. The Collateral Agent shall not be liable for
any interest thereon (except to the extent, if any, otherwise expressly provided
herein or therein).
ARTICLE VI
MISCELLANEOUS
6.01. AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Collateral
Agent and the Borrower may from time to time enter into amend, modify or
supplement this Agreement or any other Shared Security Document for the purpose
of amending, adding to, or waiving any provisions of, this Agreement or any
other Shared Security Document, releasing any Shared Collateral, releasing or
limiting the obligations of the Borrower under any Shared Security Document, or
changing in any manner the rights of the Collateral Agent, any Secured Party or
the Borrower hereunder or thereunder. The Collateral Agent shall enter into such
agreements from time to time as directed by the Facility Agents, acting
together, and only as so directed; provided, that the Collateral Agent shall not
be required, without its consent, to enter into any amendment of Article V
hereof or any amendment which would impose additional duties or responsibilities
upon it or otherwise affect its rights, interests or obligations; and further
provided, that no direction by or consent of the Facility Agents shall be
required (i) to any amendment that would do more than add to the covenants of
the Borrower or surrender any right or power conferred upon the Borrower, or
(ii) for any release of Shared Collateral in accordance with the provisions of
this Agreement or the other Shared Security Documents. Any such amendment,
modification or supplement made in accordance with this Section 6.01 shall be
binding upon the Borrower and each Secured Party and their respective successors
and assigns. No
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amendment, modification or supplement relating hereto or to any other Shared
Security Document shall be effective unless in writing manually signed by or on
behalf of the party to be charged therewith (it being understood that any such
amendment, modification or supplement signed by the Collateral Agent shall be
binding upon each Secured Party as aforesaid). The Collateral Agent shall
furnish to each Facility Agent a fully executed or conformed copy of any such
amendment, modification, supplement or waiver promptly after the effectiveness
thereof.
6.02. NOTICES.
(a) GENERALLY. Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") to the Borrower or any Secured
Party under this Agreement or any other Shared Security Document shall be given
in writing (including telexes and facsimile transmission) and shall be sent by
first-class mail, or by nationally-recognized overnight courier, or by telex or
facsimile transmission (with confirmation in writing mailed first-class or sent
by such an overnight courier) or by personal delivery. All notices shall be sent
to the applicable party at the address stated on the signature pages hereof (or,
in the case of a Swap Party, as set forth under its signature to a Swap Party
Supplement or, in the case of any other Facility Party, at its address for
notices under the Revolving Credit Agreement, Term Loan Agreement or Note Backup
Agreement, as the case may be) or in accordance with the last unrevoked written
direction from such party to the other parties hereto, in all cases with postage
or other charges prepaid. Any such properly given notice to any Secured Party
shall be effective when received. Any such properly given notice to the Borrower
shall be effective upon the earliest to occur of receipt, telephone confirmation
of receipt of telex or facsimile transmission, one Business Day after delivery
to a nationally-recognized overnight courier, or three Business Days after
deposit in the mail.
(b) MULTIPLE CAPACITIES. To the extent that this Agreement or
any other Shared Security Document permits or requires any notice to be given by
a Person to itself, acting in a different capacity (such as notices by the
Collateral Agent to a Facility Agent, or vice versa, when the same Person is
acting in both such capacities), such Person need not give actual notice to
itself, but may deem such notice to have been given.
6.03. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of the Collateral Agent or any other Secured
Party in exercising any right, power or privilege hereunder or under any other
Shared Security Document, any Secured Party Document, or any other documents or
instruments pursuant to or in connection herewith shall affect any other or
future exercise thereof or exercise of any other right, power or privilege; nor
shall any single or partial exercise of any such right, power or privilege or
any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of the Collateral Agent and each other
Secured Party under this Agreement, the other Shared Security Documents, the
Secured Party Documents and all other agreements and instruments pursuant to or
in connection herewith or therewith are cumulative and not exclusive of any
rights or remedies which any of them would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of the Collateral Agent
of any breach or default under, or term or condition of, this Agreement or any
other Shared Security Document shall be in writing and shall be effective only
to the extent specifically set forth in such writing.
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6.04. SEVERABILITY. The provisions of this Agreement and of
the other Shared Security Documents are intended to be severable. If any
provision of this Agreement or any other Shared Security Document shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof or thereof in any jurisdiction. Where, however, such invalidity or
unenforceability may be waived, it is hereby waived by the Borrower to the
fullest extent permitted by Law, to the end that this Agreement and the other
Shared Security Documents shall be valid and binding agreements enforceable in
accordance with their terms.
6.05. PRIOR UNDERSTANDINGS. This Agreement and the other
Shared Security Documents supersede all prior understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein.
6.06. SURVIVAL. All representations and warranties of the
Borrower contained herein or in any other Shared Security Document or made in
connection herewith or therewith shall be deemed to have been relied upon by the
Collateral Agent and the other Secured Parties and shall survive the execution
and delivery of this Agreement and the other Shared Security Documents, any
knowledge of or investigation by the Collateral Agent or any other Secured
Party, and all other events and conditions whatever. All statements in any
financial statement, certificate, document or instrument from time to time
delivered by or on behalf of the Borrower under or in connection with this
Agreement or any other Shared Security Document shall be deemed to constitute
representations and warranties by the Borrower.
6.07. COUNTERPARTS. This Agreement and any other Shared
Security Document may be executed in any number of counterparts and by the
different parties hereto or thereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
6.08. TERMINATION OF LIENS. Upon payment in full of all
Collateral Agent Obligations and receipt by the Collateral Agent of written
notices (a) from the Revolving Credit Agent to the effect that (i) the Liens
created hereby and by the other Shared Security Documents are to be released and
discharged, or (ii) all commitments to extend credit under the Revolving Credit
Documents have terminated, all Letters of Credit have terminated, and all
Revolving Credit Obligations (other than Contingent Indemnification Obligations)
have been indefeasibly paid in full in cash, (b) from the Term Loan Agent to the
effect that (i) the Liens created hereby and by the other Shared Security
Documents are to be released and discharged, or (ii) all Term Loan Obligations
(other than Contingent Indemnification Obligations) have been indefeasibly paid
in full in cash, (c) from the Note Backup Agent to the effect that (i) the Liens
created hereby and by the other Shared Security Documents are to be released and
discharged, or (ii) all commitments to extend credit under the Note Backup
Documents have terminated, all Note Backup LOC's have terminated, and all Note
Backup Obligations (other than Contingent Indemnification Obligations) have been
indefeasibly paid in full in cash, and (d) from any Swap Party to the effect
that (i) the Liens created hereby and by the other Shared Security Documents are
to be released and discharged, or (ii) all Interest Rate Hedge Agreements under
the Swap Documents have terminated and all Swap Obligations (other than
Contingent Indemnification Obligations) have been indefeasibly paid in full in
cash, any surplus then remaining shall be paid to the Borrower or its successors
or assigns or to whomsoever may be lawfully entitled the Collateral Agent
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shall, at the request of the Borrower, release the Liens created hereby and by
the other Shared Security Documents with respect to the Borrower's property.
6.09. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Collateral Agent (and the Collateral Agent
Indemnified Parties), the other Secured Parties, the Borrower and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder or any interest therein, and any such
purported assignment or transfer shall be void. No other Person shall have any
rights hereunder or shall be entitled to rely on any provision hereof.
6.10. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER SHARED
SECURITY DOCUMENTS (EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN
SUCH OTHER SHARED SECURITY DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER SHARED SECURITY
DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY SECURED PARTY TO
BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 6.02 HEREOF, AND CONSENTS AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE
SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS
OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER AGAINST ANY SECURED PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
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DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR
ANY OTHER SHARED SECURITY DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT,
OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER FOR
BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY). THE BORROWER HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES,
WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH
CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
PRIMARK CORPORATION
By /s/ STEPHEN H. CURRAN
--------------------------------------
Stephen H. Curran
Senior Vice President and
Chief Financial Officer
Address for Notices:
Primark Corporation
1000 Winter Street, Suite 4300N
Waltham, MA 02154
Attn: Stephen H. Curran,
Senior Vice President
and Chief Financial Officer
Telephone: 617-487-2140
Telecopier: 617-890-6129
MELLON BANK, N.A.,
as Collateral Agent, as Revolving Credit Agent
on behalf of each Revolving Credit Party, as Term
Loan Agent on behalf of each Term Loan Party, and
as Note Backup Agent on behalf of each Note
Backup Party
By /s/ R. JANE WESTRICH
--------------------------------------
R. Jane Westrich
Vice President
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Address for Notices:
Mellon Bank, N.A.
Loan Administration
Three Mellon Bank Center
Room 153-2332
Pittsburgh, PA 15259-0003
Attn: Terpsie Katsafanas
Telephone: 412-234-4769
Telecopier: 412-236-2028
With a copy to:
Mellon Bank, N.A.
One Boston Place, 6th Floor
Boston, MA 02108
Attn: R. Jane Westrich, Vice President
Telephone: 617-722-7969
Telecopier: 617-722-3516
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EXHIBIT A
TO
COLLATERAL AGENCY AGREEMENT
SWAP PARTY SUPPLEMENT
THIS SWAP PARTY SUPPLEMENT
to the Collateral Agency Agreement dated as of February 7, 1997 among Primark
Corporation, a Michigan corporation (the "Borrower"), the Revolving Credit
Parties referred to therein, the Term Loan Parties referred to therein, the Note
Backup Parties referred to therein, and Mellon Bank, N.A., as Collateral Agent
(together with its successors, the "Collateral Agent") (such Collateral Agency
Agreement, as amended, modified or supplemented, being referred to as the
"Collateral Agency Agreement").
RECITALS:
A. Capitalized terms used herein and not otherwise defined shall have
the meanings given them in, or by reference in, the Collateral Agency Agreement.
B. The Collateral Agency Agreement contemplates that in certain
circumstances a Person which enters into an Interest Rate Hedging Agreement with
the Borrower may become party to the Collateral Agency Agreement as a "Swap
Party," with such Interest Rate Hedging Agreement being deemed a "Swap
Agreement" as defined in the Collateral Agency Agreement, in which event, among
other things, the Borrower's obligations under such Swap Agreement will be
entitled to the benefit of certain Shared Security Documents.
C. The Person executing this Swap Party Supplement as Swap Party below
desires to become party to the Collateral Agency Agreement as a "Swap Party,"
with the Interest Rate Hedging Agreement attached hereto being deemed a "Swap
Agreement" referred to therein.
NOW, THEREFORE, the Swap Party, intending to be legally bound , hereby
represents, warrants and covenants to the Secured Parties and the Borrower as
follows:
SECTION 1. JOINDER. The Swap Party hereby becomes party to the
Collateral Agency Agreement as a "Swap Party" thereunder, and shall be subject
to and bound by all of the provisions thereof and of the other Shared Security
Documents referred to therein. The attached Interest Rate Hedging Agreement is
hereby designated to be a "Swap Agreement" referred to in such Collateral Agency
Agreement.
SECTION 2. SWAP AGREEMENT. The Swap Party and the Borrower hereby
represent, warrant and agree as follows: (a) the attached Interest Rate Hedging
Agreement, including all schedules and confirmations thereto and attached
hereto, is true, correct and complete and contains the entire agreement of the
Swap Party and the Borrower relating to the subject matter thereof, (b) to the
extent the attached Interest Rate Hedging Agreement is in the form of a master
agreement, pursuant to which multiple "confirmations" (however named) may be
entered into from time to time, only the transactions evidenced by confirmations
attached hereto shall constitute part of such "Swap Agreement," and (c) no other
transactions have been or will be entered into pursuant to such master
agreement.
SECTION 3. SWAP SHARED SECURITY CAP. The Swap Shared Security Cap shall
be $______________ .
SECTION 4. PRIOR SWAP PARTY SUPPLEMENTS. If this Swap Party Supplement
is to supercede any prior Swap Party Supplement between the Swap Party and the
Borrower pursuant to Section 2.02(b) of the Collateral Agency Agreement, such
prior Swap Party Supplement is identified as follows; otherwise, set
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forth "Not Applicable":
SECTION 5. CERTAIN REPRESENTATIONS AND AGREEMENTS. By executing and
delivering this Swap Party Supplement, the Swap Party confirms to and agrees
with the Collateral Agent and each other Secured Party as follows:
(a) The Collateral Agent and the other Secured Parties make no
representation or warranty and assume no responsibility with respect to (i) the
execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of the Collateral Agency Agreement or any other Shared Security
Document, (ii) any recital, representation, warranty, document, certificate,
report or statement in, provided for in, received under or in connection with,
the Collateral Agency Agreement or any other Shared Security Document, or (iv)
the existence, validity, enforceability, perfection, recordation, priority,
adequacy or value, now or hereafter, of any Lien or other direct or indirect
security afforded or purported to be afforded by any of the Shared Security
Documents or otherwise from time to time.
(b) The Collateral Agent and the other Secured Parties make no
representation or warranty and assume no responsibility with respect to (i) the
performance or observance of any of the terms or conditions of the Collateral
Agency Agreement or any other Shared Security Document on the part of the
Borrower, (ii) the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any other Person, or (iii) the existence of any
default under any Secured Party Document.
(c) The Swap Party confirms that it has received a copy of the
Collateral Agency Agreement and each of the other Shared Security Documents,
together with copies of such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter into
this Swap Party Supplement. The Swap Party confirms that it has made such
analysis and decision independently and without reliance upon the Collateral
Agent or any other Secured Party.
(d) The Swap Party, independently and without reliance upon the
Collateral Agent or any other Secured Party, and based on such documents and
information as it shall deem appropriate at the time, will make its own
decisions to take or not take action under or in connection with the Collateral
Agency Agreement or any other Shared Security Document.
(e) The Swap Party irrevocably appoints the Collateral Agent to act as
Collateral Agent for the Swap Party under the Collateral Agency Agreement and
the other Shared Security Documents, all in accordance with the Collateral
Agency Agreement and the other Shared Security Documents.
SECTION 6. EFFECTIVENESS. This Swap Party Supplement shall be effective
on the date set forth under the Collateral Agent's signature below, evidencing
its receipt of copy of hereof executed by the Swap Party and consented to by the
Revolving Credit Agent, the Term Loan Agent, the Note Backup Agent and the
Borrower by executing a copy of the same where indicated below.
SECTION 7. GOVERNING LAW. This Swap Party Supplement shall be governed
by, construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Swap Party has caused this Swap Party
Supplement to be executed on its behalf as of the date set forth below.
as Swap Party
By_________________________________
Name:______________________________
Title:_____________________________
Address:
___________________________________
___________________________________
___________________________________
Attn:
Telephone:_________________________
Telex:_____________________________
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(Answerback: )
Telecopier:
CONSENTED AND AGREED TO:
MELLON BANK, N.A., as Revolving Credit Agent,
Term Loan Agent and Note Backup Agent
By_________________________________
Name:______________________________
Title:_____________________________
CONSENTED AND AGREED TO:
PRIMARK CORPORATION
By_________________________________
Name:______________________________
Title:_____________________________
RECEIPT ACKNOWLEDGED:
MELLON BANK, N.A., as Collateral Agent
By:________________________________
Name:______________________________
Title:_____________________________
Date:
____________________________
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EXHIBIT B
TO
COLLATERAL AGENCY AGREEMENT
REVOLVING CREDIT REFINANCING SUPPLEMENT
THIS REVOLVING CREDIT REFINANCING SUPPLEMENT
to the Collateral Agency Agreement dated as of February 7, 1997 among Primark
Corporation, a Michigan corporation (the "Borrower"), the Revolving Credit
Parties referred to therein, the Term Loan Parties referred to therein, the Note
Backup Parties referred to therein, and Mellon Bank, N.A., as Collateral Agent
(together with its successors, the "Collateral Agent") (such Collateral Agency
Agreement, as amended, modified or supplemented, being referred to as the
"Collateral Agency Agreement").
RECITALS:
A. Capitalized terms used herein and not otherwise defined shall have
the meanings given them in, or by reference in, the Collateral Agency Agreement.
B. The Collateral Agency Agreement contemplates that in certain
circumstances the Borrower may refinance the Revolving Credit Agreement, with
the incoming Revolving Credit Agreement being deemed the "Revolving Credit
Agreement" as defined in the Collateral Agency Agreement, in which event, among
other things, the Borrower's obligations under such incoming Revolving Credit
Agreement will be entitled to the benefit of certain Shared Security Documents.
C. The Persons executing this Revolving Credit Refinancing Supplement
as incoming Revolving Credit Parties below desire to become party to the
Collateral Agency Agreement as "Revolving Credit Parties," with the Revolving
Credit Agreement attached hereto being deemed the "Revolving Credit Agreement"
referred to therein.
NOW, THEREFORE, each incoming Revolving Credit Party, intending to be
legally bound, hereby represents, warrants and covenants to the Secured Parties
and the Borrower as follows:
SECTION 1. JOINDER. Each incoming Revolving Credit Party set forth
below hereby becomes party to the Collateral Agency Agreement as a "Revolving
Credit Party" thereunder, and shall be subject to and bound by all of the
provisions thereof and of the other Shared Security Documents referred to
therein. Each such incoming Revolving Credit Party is a "Revolving Credit
Lender," "Revolving Credit Issuing Bank" or "Revolving Credit Agent" thereunder,
as set forth after such Person's name below. The attached Revolving Credit
Agreement is hereby designated to be the "Revolving Credit Agreement" referred
to in such Collateral Agency Agreement.
SECTION 2. REVOLVING CREDIT AGREEMENT. Each incoming Revolving Credit
Party and the Borrower hereby represents, warrants and agrees that the attached
Revolving Credit Agreement, including all schedules and confirmations thereto
and attached hereto, is true, correct and complete and contains the entire
agreement of the incoming Revolving Credit Parties and the Borrower relating to
the subject matter thereof, and that such Revolving Credit Agreement complies
with the definition of a "Revolving Credit Agreement" in the Collateral Agency
Agreement.
SECTION 3. CERTAIN REPRESENTATIONS AND AGREEMENTS. By executing and
delivering this Revolving Credit Refinancing Supplement, each incoming Revolving
Credit Party confirms to and agrees with the Collateral Agent and each other
Secured Party as follows:
(a) The Collateral Agent and the other Secured Parties make no
representation or warranty and assume no responsibility with respect to (i) the
execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of the Collateral Agency Agreement or any other Shared Security
Document, (ii) any recital, representation, warranty, document, certificate,
report or statement in, provided for in, received under or in connection with,
the Collateral Agency Agreement or any other Shared Security Document, or (iv)
the existence, validity, enforceability, perfection, recordation, priority,
adequacy or value, now or hereafter, of any Lien or other direct or indirect
security afforded or purported to be afforded by any of the Shared Security
Documents or otherwise from time to time.
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<PAGE> 260
(b) The Collateral Agent and the other Secured Parties make no
representation or warranty and assume no responsibility with respect to (i) the
performance or observance of any of the terms or conditions of the Collateral
Agency Agreement or any other Shared Security Document on the part of the
Borrower, (ii) the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any other Person, or (iii) the existence of any
default under any Secured Party Document.
(c) Each incoming Revolving Credit Party confirms that it has received
a copy of the Collateral Agency Agreement and each of the other Shared Security
Documents, together with copies of such other documents and information as it
has deemed appropriate to make its own credit and legal analysis and decision to
enter into this Revolving Credit Refinancing Supplement. Each incoming Revolving
Credit Party confirms that it has made such analysis and decision independently
and without reliance upon the Collateral Agent or any other Secured Party.
(d) Each incoming Revolving Credit Party, independently and without
reliance upon the Collateral Agent or any other Secured Party, and based on such
documents and information as it shall deem appropriate at the time, will make
its own decisions to take or not take action under or in connection with the
Collateral Agency Agreement or any other Shared Security Document.
(e) Each incoming Revolving Credit Party irrevocably appoints the
Collateral Agent to act as Collateral Agent for such Revolving Credit Party
under the Collateral Agency Agreement and the other Shared Security Documents,
all in accordance with the Collateral Agency Agreement and the other Shared
Security Documents.
SECTION 4. EFFECTIVENESS. This Revolving Credit Refinancing Supplement
shall be effective on the date set forth under the Collateral Agent's signature
below, evidencing its receipt of (a) a copy hereof executed by each incoming
Revolving Credit Party, and consented to by the Borrower by executing a copy of
the same where indicated below, (b) a notice from the outgoing Revolving Credit
Agent under Section 2.05 of the Collateral Agency Agreement whereby the outgoing
Revolving Credit Parties cease to be "Revolving Credit Parties" under the
Collateral Agency Agreement, and (c) such other items as the Collateral Agent
may require as set forth in Section 2.03(a) of the Collateral Agency Agreement.
SECTION 5. GOVERNING LAW. This Revolving Credit Refinancing Supplement
shall be governed by, construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each incoming Revolving Credit Party has caused
this Revolving Credit Refinancing Supplement to be executed on its behalf as of
the date set forth below.
_____________________________________________
as an incoming Revolving Credit Party
[and as a Revolving Credit Lender, Revolving Credit Issuing
Bank, and/or Revolving Credit Agent] under the incoming
Revolving Credit Agreement
By_______________________________
Name:____________________________
Title:___________________________
Address:
Attn:
Telephone:_______________________
Telex:___________________________
(Answerback: )
Telecopier:
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CONSENTED AND AGREED TO:
MELLON BANK, N.A., as Term Loan Agent
[and Note Backup Agent]
By_______________________________
Name:____________________________
Title:___________________________
CONSENTED AND AGREED TO:
PRIMARK CORPORATION
By_______________________________
Name:____________________________
Title:___________________________
RECEIPT ACKNOWLEDGED:
MELLON BANK, N.A., as Collateral Agent
By:______________________________
Name:____________________________
Title:___________________________
Date:
____________________________
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Exhibit 10.17
================================================================================
NOTE BACKUP AGREEMENT
dated as of February 7, 1997
by and among
PRIMARK CORPORATION,
as Borrower,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
THE ISSUING BANK REFERRED TO HEREIN,
and
MELLON BANK, N.A.,
as Agent
------------------
U.S. $8,382,343.75
------------------
================================================================================
<PAGE> 263
TABLE OF CONTENTS
SECTION TITLE PAGE
ARTICLE I DEFINITIONS; CONSTRUCTION................................ 1
1.01 Definitions; Construction................................ 1
ARTICLE II [RESERVED]............................................... 1
ARTICLE III THE FACILITIES........................................... 1
3.01 The Letter of Credit Facility............................ 1
3.02 Amendment of Letters of Credit........................... 2
3.03 Letter of Credit Participating Interests................. 2
3.04 Letter of Credit Drawings and Reimbursements............. 3
3.05 Obligations Absolute..................................... 4
3.06 Further Assurances....................................... 4
3.07 Cash Collateral for Letters of Credit.................... 4
3.08 Certain Provisions Relating to the Issuing Bank.......... 5
3.09 Interest Rates........................................... 6
3.10 Conversion or Renewal of Interest Rate Options........... 9
3.11 Prepayments Generally....................................10
3.12 Optional Prepayments.....................................10
3.13 Mandatory Prepayment and Cash Collateralization..........10
3.14 Interest Payment Dates...................................11
3.15 Payments Generally.......................................11
3.16 Additional Compensation in Certain
Circumstances.........................................12
3.17 Taxes....................................................13
3.18 Funding by Branch, Subsidiary or Affiliate...............15
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................15
4.01 Corporate Status.........................................15
4.02 Corporate Power and Authorization........................15
4.03 Execution and Binding Effect.............................15
4.04 Governmental Approvals and Filings.......................16
4.05 Absence of Conflicts.....................................16
4.06 Audited Financial Statements.............................16
4.07 Interim Financial Statements.............................16
4.08 Absence of Undisclosed Liabilities.......................17
4.09 Accurate and Complete Disclosure.........................17
4.10 Projections..............................................17
4.11 Solvency.................................................17
4.12 Margin Regulations.......................................17
4.13 Regulatory Restrictions..................................18
4.14 Subsidiaries.............................................18
4.15 Partnerships, etc........................................18
4.16 Litigation...............................................18
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4.17 Absence of Other Conflicts...............................18
4.18 Insurance................................................19
4.19 Title to Property........................................19
4.20 Intellectual Property....................................19
4.21 Taxes....................................................19
4.22 Employee Benefits........................................19
4.23 Environmental Matters....................................19
ARTICLE V CONDITIONS OF ISSUANCE...................................20
5.01 Conditions to Issuance...................................20
ARTICLE VI AFFIRMATIVE COVENANTS....................................23
6.01 Basic Reporting Requirements.............................23
6.02 Insurance................................................26
6.03 Payment of Taxes and Other Potential Charges and
Priority Claims...................................... 26
6.04 Preservation of Corporate Status.........................27
6.05 Governmental Approvals and Filings.......................27
6.06 Maintenance of Properties, Franchises, etc...............27
6.07 Avoidance of Other Conflicts.............................27
6.08 Financial Accounting Practices...........................27
6.09 Use of Proceeds..........................................28
6.10 Continuation of or Change in Business....................28
6.11 Plans and Multiemployer Plans............................28
6.12 Disaster Recovery Plan...................................28
6.13 Annual Bank Meeting......................................28
6.14 Separate Corporate Existence.............................29
6.15 Additional Security......................................29
6.16 Interest Rate Protection.................................30
ARTICLE VII NEGATIVE COVENANTS.......................................31
7.01 Financial Covenants......................................31
7.02 Liens....................................................32
7.03 Indebtedness.............................................33
7.04 Guaranties, Indemnities, etc.............................35
7.05 Loans, Advances and Investments..........................35
7.06 Dividends and Related Distributions......................37
7.07 Sale-Leasebacks..........................................37
7.08 Mergers, etc.............................................38
7.09 Dispositions of Properties...............................38
7.10 Dealings with Affiliates.................................39
7.11 Limitations on Modification of
Certain Agreements and Instruments....................39
7.12 Limitation on Payments on Certain Obligations............40
7.13 Limitation on Other Restrictions on Liens,
Dividend Restrictions on Subsidiaries, etc............40
7.14 Limitation on Other Restrictions on Amendment
of the Loan Documents, etc............................41
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7.15 Limitation on Certain Benefit Liabilities................41
7.16 Fiscal Year..............................................41
ARTICLE VIII DEFAULTS.................................................42
8.01 Events of Default........................................42
8.02 Consequences of an Event of Default......................45
8.03 Application of Proceeds..................................45
ARTICLE IX THE AGENT................................................46
9.01 Appointment..............................................46
9.02 General Nature of Agent's Duties.........................46
9.03 Exercise of Powers.......................................47
9.04 General Exculpatory Provisions...........................47
9.05 Administration by the Agent..............................48
9.06 Lenders Not Relying on Agent or Other Lenders............48
9.07 Indemnification of Agent by Lenders......................48
9.08 Agent in its Individual Capacity.........................49
9.09 [Reserved]...............................................49
9.10 Successor Agent..........................................49
9.11 Calculations.............................................49
ARTICLE X MISCELLANEOUS............................................50
10.01 Holidays.................................................50
10.02 Records..................................................50
10.03 Amendments and Waivers...................................50
10.04 No Implied Waiver; Cumulative Remedies...................51
10.05 Notices..................................................51
10.06 Expenses; Taxes; Indemnity...............................52
10.07 Severability.............................................53
10.08 Prior Understandings.....................................53
10.09 Duration; Survival.......................................53
10.10 Counterparts.............................................53
10.11 Limitation on Payments...................................53
10.12 Set-Off..................................................53
10.13 Sharing of Collections...................................54
10.14 Successors and Assigns; Participations; Assignments......54
10.15 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial; Limitation of Liability.........57
10.16 Withholding Taxes, etc...................................58
10.17 Defeasance of Certain Covenants..........................58
ANNEX A DEFINITIONS; CONSTRUCTION................................A-1
Exhibit A [Reserved]
Exhibit B Form of Transfer Supplement
Exhibit C Form of Annual and Quarterly Compliance Certificate
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Schedule 4.04 Governmental Approvals and Filings
Schedule 4.05 Conflicts
Schedule 4.08 Liabilities
Schedule 4.13 Regulatory Restrictions
Schedule 4.14 Subsidiaries
Schedule 4.16 Litigation
Schedule 4.21 Taxes
Schedule 4.23 Environmental Matters
Schedule 7.02 Liens
Schedule 7.04 Guaranty Equivalents
Schedule 7.07 Sale-Leasebacks
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NOTE BACKUP AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997, by and among
PRIMARK CORPORATION, a Michigan Corporation (the "Borrower"), the Lenders
parties hereto from time to time, the Issuing Bank referred to herein, and
MELLON BANK, N.A., a national banking association, as agent for the Lender
Parties hereunder (in such capacity, together with its successors in such
capacity, the "Agent").
In consideration of the mutual covenants herein contained and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. DEFINITIONS; CONSTRUCTION. In addition to other words
and terms defined elsewhere in this Agreement, as used in this Agreement the
words and terms defined in Annex A hereto have the meanings given them in such
Annex A, and this Agreement shall be construed in accordance with the provisions
of Annex A.
ARTICLE II
[RESERVED]
ARTICLE III
THE FACILITY
3.01. THE LETTER OF CREDIT FACILITY.
(a) GENERAL. Subject to the terms and conditions of this
Agreement, and relying upon the representations and warranties herein set forth
and upon the agreements of the Lenders set forth in Sections 3.03 and 3.04
hereof, the Issuing Bank agrees (such agreement being herein referred to as the
"Letter of Credit Commitment") to cause the following five letters of credit
previously issued by the Issuing Bank:
<TABLE>
<CAPTION>
BENEFICIARY NUMBER STATED AMOUNT DATE EXPIRATION DATE
<S> <C> <C> <C> <C>
David Taylor S849190 $5,588,229.17 October 24, 1996 November 8, 2002
Adrian Dear S849191 $762,031.25 October 24, 1996 November 8, 2002
Claire Stevens S849192 $1,016,041.67 October 24, 1996 November 8, 2002
Paren Knadjian S849193 $508,020.83 October 24, 1996 November 8, 2002
Kevin Underwood S849194 $508,020.83 October 24, 1996 November 8, 2002
</TABLE>
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<PAGE> 268
(as amended, modified or supplemented from time to time, together with any
successors and replacements, the "Letters of Credit") to be deemed to be issued
under this Agreement effective from and after a date (the "Closing Date"), which
shall not be later than February 15, 1997 (the "Letter of Credit Commitment
Termination Date"). Such deemed issuance under this Agreement shall be effected
by the Issuing Bank and the Borrower executing a certificate, satisfactory in
form and substance to the Issuing Bank, declaring that the Closing Date
hereunder has occurred and specifying such Closing Date. As of the Closing Date
so specified, each of the Letters of Credit shall be deemed to be issued under
this Agreement and shall be subject to all of the terms and provisions of this
Agreement.
(b) PURPOSES OF LETTERS OF CREDIT. Each Letter of Credit shall
be used by the Borrower as a standby letter of credit used solely to provide
credit enhancement for the ICV Notes. The provisions of this Section 3.01(b)
represent only an obligation of the Borrower to the Issuing Bank and the
Lenders; the Issuing Bank shall have no obligation to the Lenders to ascertain
the purpose of any Letter of Credit, and the rights and obligations of the
Lenders and the Issuing Bank among themselves shall not be impaired or affected
by a breach of this Section 3.01(b).
(c) LETTER OF CREDIT FEE. The Borrower shall pay to the Agent
for the account of each Lender a fee (the "Letter of Credit Fee") for each
Letter of Credit for each day from and including the date of issuance thereof to
and including the date of expiration or termination thereof, equal to (x) the
Letter of Credit Undrawn Availability on such day, times (y) the Letter of
Credit Fee Rate applicable on such day, times (z) 1/365 (or 1/366, as the case
may be). Such Letter of Credit Fee shall be due and payable for the preceding
period for which such fee has not been paid on each of the following dates: (i)
each Regular Quarterly Payment Date, and (ii) the date of expiration or
termination of such Letter of Credit. The "Letter of Credit Fee Rate" for any
day shall mean the Applicable Margin applicable under the Euro-Rate Option on
such day.
(d) FACING FEE; ADMINISTRATION FEES. The Borrower shall pay to
the Agent, for the sole account of the Issuing Bank, a fee (the "Letter of
Credit Facing Fee") for each Letter of Credit for each day from and including
the date of issuance thereof to and including the date of expiration or
termination thereof, equal to (x) the Letter of Credit Undrawn Availability on
such day, times (y) 0.25%, times (z) 1/365 (or 1/366, as the case may be). Such
Letter of Credit Facing Fee shall be due and payable for the preceding period
for which such fee has not been paid on each of the following dates: (i) each
Regular Quarterly Payment Date, and (ii) the date of expiration or termination
of such Letter of Credit. In addition, the Borrower shall pay to the Agent, for
the sole account of the Issuing Bank, such other administration, maintenance,
amendment, drawing and negotiation fees as may be customarily charged by the
Issuing Bank from time to time in connection with letters of credit.
3.02. AMENDMENT OF LETTERS OF CREDIT. At the request of the
Borrower from time to time, and subject to satisfaction of such conditions as
the Issuing Bank may require, the Issuing Bank may amend, modify or supplement
Letters of Credit, or waive compliance with any condition of issuance or
payment, without the consent of, and without liability to, the Agent or any
Lender, provided that no such amendment, modification or supplement shall extend
the expiration date or increase the Letter of Credit Undrawn Availability of an
outstanding Letter of Credit.
3.03. LETTER OF CREDIT PARTICIPATING INTERESTS.
(a) GENERALLY. Concurrently with the Closing Date, the Issuing
Bank automatically shall be deemed, irrevocably and unconditionally, to have
sold, assigned, transferred and conveyed to each other Lender, and each other
Lender automatically shall be deemed, irrevocably and unconditionally, severally
to have purchased, acquired, accepted and assumed from the Issuing Bank, without
recourse to, or representation or warranty by, the Issuing Bank, an undivided
interest, in a proportion equal to such
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Lender's Pro Rata share, in all of the Issuing Bank's rights and obligations in,
to or under such Letter of Credit, the Letter of Credit Reimbursement
Obligations, and all collateral, guarantees and other rights from time to time
directly or indirectly securing the foregoing (such interest of each Lender
being referred to herein as a "Letter of Credit Participating Interest").
Amounts other than Letter of Credit Reimbursement Obligations and Letter of
Credit Fees payable from time to time under or in connection with a Letter of
Credit shall be for the sole account of the Issuing Bank. On the date that any
Purchasing Lender becomes a party to this Agreement in accordance with Section
10.14 hereof, Letter of Credit Participating Interests in any outstanding
Letters of Credit held by the Lender from which such Purchasing Lender acquired
its interest hereunder shall be proportionately reallotted between such
Purchasing Lender and such transferor Lender (and, to the extent such transferor
Lender is the Issuing Bank, the Purchasing Lender shall be deemed to have
acquired a Letter of Credit Participating Interest from such transferor Lender
to such extent).
(b) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Lender hereby agrees that its obligation to participate in each
Letter of Credit issued in accordance herewith, and its obligation to make the
payments specified in Section 3.04 hereof, are each absolute, irrevocable and
unconditional and shall not be affected by any event, condition or circumstance
whatever. The failure of any Lender to make any such payment shall not relieve
any other Lender of its funding obligation hereunder on the date due, but no
Lender shall be responsible for the failure of any other Lender to meet its
funding obligations hereunder.
3.04. LETTER OF CREDIT DRAWINGS AND REIMBURSEMENTS.
(a) BORROWER'S REIMBURSEMENT OBLIGATION. The Borrower hereby
agrees to reimburse the Issuing Bank, by making payment to the Agent for the
account of the Issuing Bank in accordance with Section 3.15(b) hereof, in the
amount of each Letter of Credit Unreimbursed Draw, on October 16, 2000 (the
"Reimbursement Target Date") and thereafter ON DEMAND. Such reimbursement shall
also be due at such earlier times as are provided elsewhere in this Agreement
and the other Loan Documents.
(b) PAYMENT BY LENDERS ON ACCOUNT OF UNREIMBURSED DRAWS. If
the Issuing Bank makes a payment under any Letter of Credit and is not
reimbursed in full therefor on such payment date, the Issuing Bank will promptly
notify the Agent thereof (which notice may be by telephone), and the Agent shall
forthwith notify each Lender (which notice may be by telephone promptly
confirmed in writing) thereof. No later than the Agent's close of business on
the date such notice is given, each such Lender will pay to the Agent, for the
account of the Issuing Bank, in immediately available funds, an amount equal to
such Lender's Pro Rata share of the unreimbursed portion of such payment by the
Issuing Bank. If and to the extent that any Lender fails to make such payment to
the Agent for the account of the Issuing Bank on such date, such Lender shall
pay such amount on demand, together with interest, for the Issuing Bank's own
account, for each day from and including the date of the Issuing Bank's payment
to and including the date of payment to the Issuing Bank (before and after
judgment) at the following rates per annum: (x) for each day from and including
the date of such payment by the Issuing Bank to and including the second
Business Day thereafter, at the Federal Funds Effective Rate for such day, and
(y) for each day thereafter, at the rate applicable to such Letter of Credit
Unreimbursed Draw for such day.
(c) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after the
Issuing Bank has made a Letter of Credit Unreimbursed Draw and has received from
any Lender such Lender's share of such Letter of Credit Unreimbursed Draw, the
Issuing Bank receives any payment or makes any application of funds on account
of the Letter of Credit Reimbursement Obligation arising from such Letter of
Credit
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Unreimbursed Draw, the Issuing Bank will pay to the Agent, for the account of
such Lender, such Lender's Pro Rata share of such payment or application.
(d) RESCISSION. If any amount received by the Issuing Bank on
account of any Letter of Credit Reimbursement Obligation shall be avoided,
rescinded or otherwise returned or paid over by the Issuing Bank for any reason
at any time, whether before or after the termination of this Agreement (or the
Issuing Bank believes in good faith that such avoidance, rescission, return or
payment is required, whether or not such matter has been adjudicated), each such
Lender will, promptly upon notice from the Agent or the Issuing Bank, pay over
to the Agent for the account of the Issuing Bank its Pro Rata share of such
amount, together with its Pro Rata share of any interest or penalties payable
with respect thereto.
(e) EQUALIZATION. If any Lender receives any payment or makes
any application on account of its Letter of Credit Participating Interest, such
Lender shall forthwith pay over to the Issuing Bank, in Dollars and in like kind
of funds received or applied by it the amount in excess of such Lender's ratable
share of the amount so received or applied.
3.05. OBLIGATIONS ABSOLUTE. The payment obligations of the
Borrower under Section 3.04 hereof shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of this Agreement,
any Letter of Credit, any other Loan Document, any ICV Note or any
documents, instruments or agreements evidencing or otherwise relating
to any obligation of the Borrower or Subsidiary of the Borrower secured
or supported by any Letter of Credit;
(b) the existence of any claim, set-off, defense or other
right which the Borrower or any other Person may have at any time
against any beneficiary or transferee of any Letter of Credit (or any
Persons for whom any such beneficiary or transferee may be acting), the
Issuing Bank, any Lender, or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or any
unrelated transaction;
(c) any purported Letter of Credit, draft, certificate,
statement or other document presented under any Letter of Credit
proving to be not genuine, stolen, forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(d) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft, certificate or documents which do not
comply with the terms of such Letter of Credit, or payment by the
Issuing Bank under any Letter of Credit in any other circumstances in
which conditions to payment are not met, except any such payment
resulting solely from the gross negligence or willful misconduct of the
Issuing Bank; or
(e) any other event, condition or circumstance whatever,
whether or not similar to any of the foregoing.
The Borrower bears the risk of, and neither the Issuing Bank, any of its
directors, officers, employees or agents, nor any Lender, shall be liable or
responsible for the use which may be made of any Letter of Credit, or acts or
omissions of the beneficiary or any transferee in connection therewith.
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3.06. FURTHER ASSURANCES. The Borrower hereby agrees, from
time to time, to do and perform any and all acts and to execute any and all
further instruments reasonably requested by the Issuing Bank more fully to
effect the purposes of this Agreement and the issuance of the Letters of Credit
hereunder.
3.07. CASH COLLATERAL FOR LETTERS OF CREDIT. The Borrower
agrees that, without limitation of other rights and remedies under this
Agreement or the Loan Documents or at law or in equity, if the Borrower is
required to cash collateralize outstanding Letters of Credit pursuant to Section
3.13, Section 8.02 or any other provision of this Agreement or any other Loan
Document, the Borrower shall immediately pay to the Collateral Agent, for
deposit in the Letter of Credit Collateral Account, an amount equal to the
excess, if any, of the aggregate Letter of Credit Exposure at such time over the
balance in the Letter of Credit Collateral Account. The Agent shall direct the
Collateral Agent to release funds in the Letter of Credit Collateral Account to
the Issuing Bank for payment of Letter of Credit Reimbursement Obligations
constituting Letter of Credit Unreimbursed Draws, as and when the same become
due and payable if and to the extent the Borrower fails to pay the same.
3.08. CERTAIN PROVISIONS RELATING TO THE ISSUING BANK.
(a) GENERAL. The Issuing Bank shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Issuing Bank shall be read into this Agreement or any Loan Document or shall
otherwise exist. The duties and responsibilities of the Issuing Bank to the
other Lender Parties under this Agreement and the other Loan Documents shall be
mechanical and administrative in nature, and the Issuing Bank shall not have a
fiduciary relationship in respect of any Lender Party or any other Person. The
Issuing Bank shall not be liable for any action taken or omitted to be taken by
it under or in connection with this Agreement or any other Loan Document, unless
caused by its own gross negligence or willful misconduct. The Issuing Bank shall
not be under any obligation to ascertain, inquire or give any notice relating to
(i) the performance or observance of any of the terms or conditions of this
Agreement or any other Loan Document on the part of the Borrower, (ii) the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or any other Person, or (iii) the existence of any Event of Default or
Potential Default. The Issuing Bank shall not be under any obligation, either
initially or on a continuing basis, to provide the Agent or any Lender with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, except for such notices, reports and other information
expressly required by this Agreement to be so furnished.
(b) ADMINISTRATION. The Issuing Bank may rely upon any notice
or other communication of any nature (written or oral, including but not limited
to telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and no Issuing
Bank shall have any duty to verify the identity or authority of any Person
giving such notice or other communication. The Issuing Bank may consult with
legal counsel (including, without limitation, in-house counsel for the Issuing
Bank or in-house or other counsel for the Borrower), independent public
accountants and any other experts selected by it from time to time, and no
Issuing Bank shall be liable for any action taken or omitted to be taken in good
faith in accordance with the advice of such counsel, accountants or experts.
Whenever the Issuing Bank shall deem it necessary or desirable that a matter be
proved or established with respect to the Borrower or any Lender Party, such
matter may be established by a certificate of the Borrower or such Lender Party,
as the case may be, and the Issuing Bank may conclusively rely upon such
certificate.
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(c) INDEMNIFICATION OF ISSUING BANK BY LENDERS. Each Lender
hereby agrees to reimburse and indemnify the Issuing Bank and its directors,
officers, employees and agents (to the extent not reimbursed by the Borrower and
without limitation of the obligations of the Borrower to do so), Pro Rata, from
and against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and disbursements of
counsel (other than in-house counsel) for the Issuing Bank or such other Person
in connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not the Issuing Bank or such other Person
shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Issuing Bank, in its capacity as such, or
such other Person, as a result of, or arising out of, or in any way related to
or by reason of, this Agreement, any other Loan Document, any transaction from
time to time contemplated hereby or thereby, or any transaction secured or
financed in whole or in part, directly or indirectly, with any Letter of Credit
or the proceeds thereof, provided, that no Lender shall be liable for any
portion of such amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements
resulting from the gross negligence or willful misconduct of the Issuing Bank or
such other Person, as finally determined by a court of competent jurisdiction.
3.09. INTEREST RATES.
(a) INTEREST RATE OPTIONS. Before the Reimbursement Target
Date, the unpaid amount of Letter of Credit Unreimbursed Draws shall bear
interest for each day until due on one or more bases selected by the Borrower
from among the interest rate Options set forth below. From and after the
Reimbursement Target Date, the unpaid amount of Letter of Credit Unreimbursed
Draws shall bear interest in accordance with Section 3.15(c) hereof, at the rate
set forth in clause (ii) thereof. Subject to the provisions of this Agreement,
for the period before the Reimbursement Target Date, each Letter of Credit
Unreimbursed Draw shall bear interest for each day until due at the Base Rate
Option, unless and until converted to the Euro-Rate Option in accordance with
the provisions of this Agreement. Subject to the provisions of this Agreement,
for the period before the Reimbursement Target Date, the Borrower may select
different Options to apply simultaneously to different Portions of the Letter of
Credit Unreimbursed Draws and may select different Funding Segments to apply
simultaneously to different parts of the Euro-Rate Portion of the Letter of
Credit Unreimbursed Draws. The interest rate Options applicable before the
Reimbursement Target Date are as follows:
(i) BASE RATE OPTION: A rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed) for each day equal to the Base Rate for such day plus the
Applicable Margin for such day.
(ii) EURO-RATE OPTION: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day.
(b) APPLICABLE MARGINS. The "Applicable Margin" for each
interest rate Option for each day shall mean the applicable percentage set forth
below under "Level II Performance Margins," "Level III Performance Margins," or
"Level IV Performance Margins," as the case may be, in the event that (x) no
Event of Default or Potential Default shall have occurred and be continuing or
exist on such day and (y) Financial Test II, Financial Test III or Financial
Test IV, respectively, set forth below is satisfied on such day. For purposes of
determining the Applicable Margin, Financial Test II, Financial Test III or
Financial Test IV, as the case may be, shall be deemed to be satisfied effective
on the first day of the calendar month following the calendar month in which the
Agent shall have received from the Borrower a certificate, duly completed and
signed by a Responsible Officer, accompanied by the
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Borrower's financial statements for the fiscal quarter most recently ended (or,
if such most recently ended fiscal quarter is the last of a fiscal year, for the
fiscal year then ended), demonstrating compliance with the applicable financial
test, and such financial test shall be deemed to remain satisfied until the last
day of the calendar month in which the Borrower's next annual or quarterly
financial statements are required to be delivered under Section 6.01(a) or
6.01(b) hereof, as the case may be (or, if earlier, the last day of the calendar
month in which the Borrower's next annual or quarterly financial statements are
actually delivered in compliance with such Section ); provided, that for each
day in the period from and including the Closing Date to and including the last
day of the calendar month in which the Borrower's quarterly financial statements
for the quarter ending September 30, 1997 are required to be delivered under
Section 6.01(b) hereof (or, if earlier, the last day of the calendar month in
which such quarterly financial statements are actually delivered in compliance
with Section 6.01(b) hereof), the Borrower will be deemed to have satisfied
Financial Test II. If the conditions for application of the Level II Performance
Margins, Level III Performance Margins or Level IV Performance Margins do not
apply on a particular day, the "Applicable Margin" for such day shall mean the
applicable percentage set forth below under "Level I Performance Margins":
LEVEL I PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
Base Rate Option Zero
Euro-Rate Option 1.25%
Level I Performance Margins shall apply in the event that the conditions for
application of the Level II Performance Margins, Level III Performance Margins
or Level IV Performance Margins do not apply.
LEVEL II PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
Base Rate Option Zero
Euro-Rate Option 1.00%
Level II Performance Margins shall apply in the event that Financial Test II is
satisfied and the other conditions set forth above are met. "Financial Test II"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 4.00 and greater than or equal to 3.00.
LEVEL III PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
Base Rate Option Zero
Euro-Rate Option 0.875%
Level III Performance Margins shall apply in the event that Financial Test III
is satisfied and the other conditions set forth above are met. "Financial Test
III" means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
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ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 3.00 and greater than or equal to 2.50.
LEVEL IV PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
Base Rate Option Zero
Euro-Rate Option 0.75%
Level IV Performance Margins shall apply in the event that Financial Test IV is
satisfied and the other conditions set forth above are met. "Financial Test IV"
means that, as of the end of the relevant fiscal quarter, the Consolidated
Funded Debt Ratio (Adjusted) for the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter, considered as a single accounting
period, is less than 2.50.
(c) FUNDING PERIODS. At any time when the Borrower shall
select, convert to or renew the Euro-Rate Option to apply to any part of the
Letter of Credit Unreimbursed Draws, the Borrower shall specify one or more
periods (the "Funding Periods") during which each such Option shall apply, such
Funding Periods being as set forth below:
Interest Rate Option Available Funding Periods
Euro-Rate Option One, two, three or six months
("Euro-Rate Funding Period");
provided, that:
(i) Each Euro-Rate Funding Period shall begin on a London
Business Day, and the term "month," when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Agent (which determination shall be conclusive);
(ii) The Borrower may not select a Funding Period that would
end after the Reimbursement Target Date; and
(iii) The aggregate number of Funding Segments of the
Euro-Rate Portion at any time shall not exceed two.
(d) TRANSACTIONAL AMOUNTS. Each selection of, conversion from,
conversion to or renewal of an interest rate Option and each payment or
prepayment of any Letter of Credit Unreimbursed Draws shall be in a principal
amount such that after giving effect thereto the aggregate principal amount of
the Base Rate Portion, and the aggregate principal amount of each Funding
Segment of the Euro-Rate Portion, shall be as set forth below:
Portion or Funding Segment Allowable Aggregate Principal Amounts
Base Rate Portion Any
Each Funding Segment $500,000 or an integral
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of the Euro-Rate Portion multiple thereof
(e) EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a Euro-Rate would otherwise be set
the Agent (in the case of clauses (A) or (B) below) or any Lender (in
the case of clause (C) below) shall have determined in good faith
(which determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the Euro-Rate
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the Euro-Rate Portion has been
made impracticable or unlawful by compliance by such Lender or a
Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
Euro-Rate Option shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrower (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive) that the circumstance
giving rise to such previous determination no longer exist. If any Lender
notifies the Borrower of a determination under clause (ii) of this Section
3.09(e), the Euro-Rate Portion of the Letter of Credit Unreimbursed Draws in
which such Lender (the "Affected Lender") has a Letter of Credit Participating
Interest shall automatically be converted to the Base Rate Option as of the date
specified in such notice (and accrued interest thereon shall be due and payable
on such date).
3.10. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS.
(a) CONVERSION OR RENEWAL. Subject to the provisions of
Section 3.16(b) hereof and the other provisions of this Agreement, before the
Reimbursement Target Date the Borrower may convert any part of the Letter of
Credit Unreimbursed Draws from any interest rate Option or Options to one or
more different interest rate Options and may renew the Euro-Rate Option as to
any Funding Segment of the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
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(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
3.09(d) hereof of the Base Rate Portion and each Funding Segment of the
Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 3.09(a) hereof and the principal amounts selected in
accordance with Section 3.09(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 3.09(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the amount of the Letter of
Credit Unreimbursed Draws as so converted or renewed. Interest on any Letter of
Credit Unreimbursed Draws converted or renewed (automatically or otherwise)
shall be due and payable on the conversion or renewal date.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
3.10(a)(ii) hereof, any part of the Euro-Rate Portion for which such notice is
not received shall be converted automatically to the Base Rate Option on the
last day of the expiring Funding Period.
3.11. PREPAYMENTS GENERALLY. Whenever the Borrower desires or
is required to prepay any part of the Letter of Credit Unreimbursed Draws, it
shall provide Standard Notice to the Agent setting forth the following
information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of
this Section 3.11, and which, if a partial prepayment, shall be an
integral multiple of $500,000; and
(c) The principal amounts selected in accordance with Section
3.09(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the Euro-Rate Portion to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the
Euro-Rate Portion specified in such notice, together with interest on each such
principal amount to such date, shall be due and payable.
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3.12. OPTIONAL PREPAYMENTS. The Borrower shall have the right
at its option from time to time to prepay any Letter of Credit Unreimbursed
Draws in whole or part without premium or penalty (subject, however, to Section
3.16(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Funding Period with respect to
prepayment of the Euro-Rate Portion with respect to any part of the
Funding Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 3.11 hereof.
3.13. MANDATORY PREPAYMENT AND CASH COLLATERALIZATION. The
Borrower shall prepay the Letter of Credit Unreimbursed Draws in full, and shall
provide cash collateral for all outstanding Letters of Credit in accordance with
Section 3.07 hereof, in the event that at any time
(i) there shall fail to be in force a Revolving Credit
Agreement (which, so long as the Senior Note Indenture is in force,
shall constitute a "Credit Agreement" as defined therein), under which
the Borrower at such time has the right to borrow from financial
institutions on a revolving basis from time to time an aggregate
principal amount not less than $75,000,000, or the Revolving Credit
Maturity Date thereunder shall have occurred, or the Borrower shall be
required to make any prepayment of principal thereunder or to post cash
collateral thereunder (except prepayments of principal or the posting
of cash collateral which otherwise would be mandatory solely as a
result of the Borrower's provision of notice of prepayment), or
(ii) the Borrower shall not have procured a commitment from a
financial institution to provide a successor Revolving Credit Agreement
complying with the foregoing clause (i) by the 90th day before the
Revolving Credit Maturity Date under the then-current Revolving Credit
Agreement.
If prepayment of the Letter of Credit Unreimbursed Draws and cash
collateralization of outstanding Letters of Credit is required under this
Section 3.13, the Borrower shall give notice of such prepayment in accordance
with Section 3.11 hereof so that such prepayment is made not later than the date
of the applicable event referred to in the foregoing clause (i) or (ii), and
shall make such cash collateralization not later than such date.
3.14. INTEREST PAYMENT DATES. Accrued and unpaid interest on
the Letter of Credit Unreimbursed Draws shall be due and payable on the
following dates (and on such other dates as may be specified elsewhere in this
Agreement and the other Loan Documents): (a) in the case of the Base Rate
Portion, on each Regular Monthly Payment Date, and (b) in the case of each
Funding Segment of the Euro-Rate Portion, on the last day of the corresponding
Euro-Rate Funding Period and, if such Euro-Rate Funding Period is longer than
three months, also on the last day of the third month during such Funding
Period. After maturity of any part of the Letter of Credit Unreimbursed Draws
(by acceleration or otherwise), interest on such part of the Letter of Credit
Unreimbursed Draws shall be due and payable on demand.
3.15. PAYMENTS GENERALLY.
(a) [Reserved].
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(b) PAYMENTS GENERALLY. All payments and prepayments to be
made by the Borrower in respect of Letter of Credit Unreimbursed Draws,
interest, fees, indemnities, expenses or other amounts due from the Borrower
hereunder or under any other Loan Document shall be payable in Dollars at 1:00
p.m., Pittsburgh time, on the day when due without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived, and an action
therefor shall immediately accrue, without setoff, counterclaim, withholding or
other deduction of any kind or nature (except for payments to a Lender subject
to a withholding deduction under Section 3.17(c) hereof). Except for payments
under Sections 3.16 or 10.06 hereof, such payments shall be made to the Agent at
its Office in funds immediately available at such Office, and payments under
Sections 3.16 or 10.06 hereof shall be made to the applicable Lender or Issuing
Bank at such domestic account as it shall specify to the Borrower from time to
time in funds immediately available at such account. Any payment received by the
Agent or such Lender or Issuing Bank after 1:00 p.m., Pittsburgh time, on any
day shall be deemed to have been received on the next succeeding Business Day.
The Agent shall distribute to the Lenders or the Issuing Bank, as the case may
be, all such payments received by the Agent for their respective accounts as
promptly as practicable after receipt by the Agent.
(c) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by
law, after there shall have become due (by acceleration or otherwise) Letter of
Credit Unreimbursed Draws, interest, fees, indemnity, expenses or any other
amounts due from the Borrower hereunder or under any other Loan Document, such
amounts shall bear interest for each day until paid (before and after judgment),
payable on demand, at a rate per annum (in each case based on a year of 365 or
366 days, as the case may be, and actual days elapsed) which for each day shall
be equal to the following:
(i) In the case of any part of the Euro-Rate Portion, (A)
until the end of the applicable then-current Funding Period at a rate
per annum 2.00% above the rate otherwise applicable to such part, and
(B) thereafter in accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, 2.00% above the then-current Base
Rate Option.
To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
3.16. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender Party or any Notional Euro-Rate
Funding Office to any tax or changes the basis of taxation with respect
to this Agreement, the Letter of Credit Unreimbursed Draws, the Letters
of Credit, or the Letter of Credit Participating Interests, or payments
by the Borrower of principal, interest, fees or other amounts due from
the Borrower hereunder (except for taxes on the overall net income or
overall gross receipts of such Lender Party or such Notional Euro-Rate
Funding Office imposed by the jurisdictions (federal, state and local)
in which the Lender Party's principal office or Notional Euro-Rate
Funding Office is located),
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(ii) imposes, modifies or deems applicable any reserve,
special deposit, insurance assessment or any other requirement against
credits or commitments to extend credit extended by, assets (funded or
contingent) of, deposits with or for the account of, other acquisitions
of funds by, such Lender Party or any Notional Euro-Rate Funding Office
(other than requirements expressly included herein in the determination
of the Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent)
of, or credits or commitments to extend credit extended by, any Lender
Party or any Notional Euro-Rate Funding Office, or applicable to the
obligations of any Lender Party or any Notional Euro-Rate Funding
Office under this Agreement, or
(iv) imposes upon any Lender Party or any Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement or its making, maintenance or funding of any Letter of Credit
Unreimbursed Draw, Letter of Credit, or Letter of Credit Participating
Interest,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender Party, any Notional Euro-Rate Funding Office or, in the case of clause
(iii) hereof, any Person controlling a Lender Party, with respect to this
Agreement or the making, maintenance or funding of any Letter of Credit
Unreimbursed Draw, Letter of Credit, or Letter of Credit Participating Interest
(or, in the case of any capital adequacy or similar requirement, to have the
effect of reducing the rate of return on such Lender Party's or controlling
Person's capital, taking into consideration such Lender Party's or controlling
Person's policies with respect to capital adequacy) by an amount which such
Lender Party deems to be material (such Lender Party being deemed for this
purpose to have made, maintained or funded each Funding Segment of the Euro-Rate
Portion from a Corresponding Source of Funds), such Lender Party may from time
to time notify the Borrower of the amount determined in good faith by such
Lender Party (which determination shall be conclusive) to be necessary to
compensate such Lender Party or such Notional Euro-Rate Funding Office for such
increase, reduction or imposition. In making any such determination such Lender
Party may take into account any special, supplemental or other nonrecurring
items, may apply any averaging or attribution methods, and may make such
determination prospectively or retrospectively. Such amount shall be due and
payable by the Borrower to such Lender Party five Business Days after such
notice is given, together with an amount equal to interest on such amount from
the date two Business Days after the date demanded until such due date at the
Base Rate Option. The Borrower shall not be required to make any payment in
respect of clause (a)(i) above to a Lender to the extent that such payment is
attributable to a breach by such Lender of its obligations under Section 3.17(c)
below.
(b) FUNDING BREAKAGE. In the event that for any reason (i) the
Borrower fails to convert or renew any part of the Letter of Credit Unreimbursed
Draws which would, after such conversion or renewal, have a Euro-Rate Portion,
after notice requesting such conversion or renewal has been given by the
Borrower (whether such failure results from failure to satisfy applicable
conditions to such conversion or renewal or otherwise), or (ii) any part of any
Funding Segment of any Euro-Rate Portion becomes due (by acceleration or
otherwise), or is paid, prepaid or converted to another interest rate Option
(whether or not such payment, prepayment or conversion is mandatory or automatic
and whether or not such payment or prepayment is then due), on a day other than
the last day of the corresponding Funding Period, the Borrower shall indemnify
each Lender on demand against any loss, liability, cost or expense of any kind
or nature which such Lender may sustain or incur in connection with or as a
result
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of such event. Such indemnification in any event shall include an amount
equal to the excess, if any, of (x) the aggregate amount of interest which would
have accrued on the amount of the Euro-Rate Portion not so converted or renewed,
or which so becomes due, or which is so paid, prepaid or converted, as the case
may be, from and including the date on which such conversion or renewal would
have been made pursuant to such notice, or on which such part of such Funding
Segment so becomes due, or on which such part of such Funding Segment is so
paid, prepaid or converted, as the case may be, to the last day of the Funding
Period applicable to such amount (or, in the case of a failure to convert or
renew, the Funding Period that would have been applicable to such amount but for
such failure), in each case at the applicable rate of interest for such
Euro-Rate Portion provided for herein (excluding, however, the Applicable Margin
included therein, if any), over (y) the aggregate amount of interest (as
determined in good faith by such Lender) which would have accrued to such Lender
on such amount for such period by placing such amount on deposit for such period
with leading banks in the interbank market. A certificate by the Lender as to
any amount that such Lender is entitled to receive pursuant to this Section
3.16(b) shall be conclusive if made in good faith.
3.17. TAXES.
(a) PAYMENT NET OF TAXES. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of each Lender Party, income or franchise
taxes imposed on such Lender Party by the jurisdiction under the laws
of which such Lender Party is organized or any political subdivision or
taxing authority thereof or therein or as a result of a connection
between such Lender Party and any jurisdiction other than a connection
resulting solely from this Agreement and the transactions contemplated
hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Letter of Credit Unreimbursed Draws are located or
any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to any Lender Party under this
Agreement or any other Loan Document, the Borrower shall pay the relevant amount
of such Taxes and the amounts so payable to such Lender Party shall be increased
to the extent necessary to yield to such Lender Party (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the other Loan Documents. Whenever
any Taxes are paid by the Borrower with respect to payments made in connection
with this Agreement or any other Loan Document, as promptly as possible
thereafter, the Borrower shall send to the Agent for its own account or for the
account of such Lender Party, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof.
(b) INDEMNITY. The Borrower hereby indemnifies each Lender
Party for the full amount of all Taxes attributable to payments by or on behalf
of the Borrower to such Lender Party hereunder or under any of the other Loan
Documents, any Taxes paid by such Lender Party, and any present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any Taxes (including any incremental Taxes, interest or
penalties that may become payable by such Lender
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Party as a result of any failure to pay such Taxes). Such indemnification shall
be made within five Business Days from the date such Lender Party makes written
demand therefor. The Borrower shall not be required to make any payment under
this Section 3.17(b) to a Lender to the extent that such payment is attributable
to a breach by such Lender of its obligations under Section 3.17(c) below.
(c) WITHHOLDING. Each Lender that is incorporated or organized
under the laws of any jurisdiction other than the United States or any state
thereof agrees that, on or prior to the date it becomes party to this Agreement,
it will furnish to the Borrower and the Agent two valid, duly completed copies
of United States Internal Revenue Service Form 4224 or United States Internal
Revenue Service Form 1001 or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or withholding of
any United States federal income taxes. Each Lender which so delivers to the
Borrower and the Agent a Form 1001 or 4224, or a successor applicable form,
agrees to deliver to the Borrower and the Agent two further copies of the said
Form 1001 or 4224 or a successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrower or the Agent, certifying in the case of a Form 1001 or
Form 4224 that such Lender is entitled to receive payments under this Agreement
or any other Loan Document without deduction or withholding of any United States
federal income taxes, unless in any such cases an event (including any changes
in law) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such letter or form
with respect to it and such Lender advises the Borrower and the Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax. In addition, if at any time the Borrower believes
that payments to any Lender (foreign or domestic) may be subject to U.S. backup
withholding tax, such Lender shall, at the Borrower's reasonable request from
time to time, if such Lender is legally able to do so, provide the Borrower with
evidence establishing an exemption from U.S. backup withholding tax.
(d) CREDITS. If any payment by the Borrower is made to or for
the account of the Lender Party after deduction for or on account of any Taxes,
and increased payments are made by the Borrower pursuant to Section 3.17(a),
then, if such Lender Party in its reasonable opinion determines that it has
received or been granted a credit against or remission for such Taxes, such
Lender Party shall, to the extent it can do so without prejudice to the
retention of the amount of such credit or remission, reimburse to the Borrower
such amount as such Lender Party shall, in its reasonable opinion acting in good
faith, have determined to be attributable to the relevant Taxes or deduction or
withholding. Any payment made by a Lender Party under this Section 3.17(d) shall
be prima facie evidence of the amount due to the Borrower hereunder. Nothing
herein contained shall interfere with the right of any Lender Party to arrange
its tax affairs in whatever manner it thinks fit and, in particular, no Lender
Party shall be under any obligation to claim relief from its corporate profits
or similar tax liability in respect of such tax in priority to any other claims,
reliefs, credits or deductions available to it nor oblige any Lender Party to
disclose any information relating to its tax affairs or any computations in
respect thereof.
3.18. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE. Each Lender
shall have the right from time to time, prospectively or retrospectively,
without notice to the Borrower, to deem any branch, subsidiary or affiliate of
such Lender to have made, maintained or funded any part of the Euro-Rate Portion
at any time. Any branch, subsidiary or affiliate so deemed shall be known as a
"Notional Euro-Rate Funding Office." Such Lender shall deem any part of the
Euro-Rate Portion or the funding therefor to have been transferred to a
different Notional Euro-Rate Funding Office if such transfer would avoid or
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cure an event or condition described in Section 3.09(e)(ii) hereof or would
lessen compensation payable by the Borrower under Section 3.16(a) hereof, and if
such Lender determines in its sole discretion that such transfer would be
practicable and would not have a material adverse effect on such part of the
Letter of Credit Unreimbursed Draws, such Lender or any Notional Euro-Rate
Funding Office (it being assumed for purposes of such determination that each
part of the Euro-Rate Portion is actually made or maintained by or funded
through the corresponding Notional Euro-Rate Funding Office). Notional Euro-Rate
Funding Offices may be selected by such Lender without regard to such Lender's
actual methods of making, maintaining or funding Letter of Credit Unreimbursed
Draws or any sources of funding actually used by or available to such Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender
Party as follows:
4.01. CORPORATE STATUS. The Borrower and each Subsidiary of
the Borrower is a Corporation duly organized and validly existing under the laws
of its jurisdiction of organization. The Borrower and each Subsidiary of the
Borrower has corporate power and authority to own its property and to transact
the business in which it is engaged or presently proposes to engage. The
Borrower and each Subsidiary of the Borrower is duly qualified to do business as
a foreign Corporation and, to the extent applicable, is in good standing in all
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary or advisable, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect.
4.02. CORPORATE POWER AND AUTHORIZATION. The Borrower has
corporate power and authority to execute, deliver, perform, and take all actions
contemplated by, each Loan Document to which it is a party, and all such action
has been duly and validly authorized by all necessary corporate proceedings on
its part. Without limitation of the foregoing, the Borrower has the corporate
power and authority to cause the Letters of Credit to become subject to the Loan
Documents and has taken all necessary corporate action to authorize the
foregoing.
4.03. EXECUTION AND BINDING EFFECT. This Agreement, each other
Loan Document to which the Borrower is a party and which is executed and
delivered or required to be executed and delivered on or before the date as of
which this representation and warranty is made, has been duly and validly
executed and delivered by the Borrower. This Agreement and each such Loan
Document constitutes, and each other Loan Document when executed and delivered
by the Borrower will constitute, the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
4.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary or advisable in connection with execution and delivery of
any Loan Document, consummation of the transactions herein or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof or thereof, except for the following: (a)
filings and recordings in respect of the Liens in favor of the Collateral Agent
and the Agent contemplated hereby and thereby, and (b) other matters set forth
in Schedule 4.04 hereof. Each Governmental Action referred to in the foregoing
clauses (a) and (b) has been duly obtained or made, as the case may be, and is
in full force and effect (except, in the case of clause (a), for the filing of
continuation statements and
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like renewal filings and recordings which are not yet required to be made).
There is no action, suit, proceeding or investigation pending or (to the
Borrower's knowledge after due inquiry) threatened which seeks or may result in
the reversal, rescission, termination, modification or suspension of any such
Governmental Action.
4.05. ABSENCE OF CONFLICTS. Neither the execution and delivery
of any Loan Document nor consummation of the transactions herein or therein
contemplated, nor performance of or compliance with the terms and conditions
hereof or thereof, does or will
(a) violate or conflict with any Law, or
(b) violate or conflict with, or constitute a default under,
or result in (or give rise to any right, contingent or other, of any
Person to cause) any termination, cancellation, prepayment or
acceleration of performance of, or result in the creation or imposition
of (or give rise to any obligation, contingent or other, to create or
impose) any Lien upon any property of the Borrower or any Subsidiary of
the Borrower (except for any Lien in favor of the Collateral Agent
securing the Obligations) pursuant to, or otherwise result in (or give
rise to any right, contingent or other, of any Person to cause) any
change in any right, power, privilege, duty or obligation of the
Borrower or any Subsidiary of the Borrower under or in connection with,
(i) the articles of incorporation or by-laws (or other constituent
documents) of the Borrower or any Subsidiary of the Borrower, or (ii)
any agreement or instrument to which the Borrower or any Subsidiary of
the Borrower is a party or by which any of them or any of their
respective properties may be subject or bound,
except, in the case of the foregoing clause (b)(ii), for matters set forth on
Schedule 4.05 hereof.
4.06. AUDITED FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender consolidated balance sheets of
the Borrower and its consolidated Subsidiaries as of December 31, 1994 and
December 31, 1995 and the related consolidated statements of income, cash flows
and changes in stockholders' equity for the fiscal years then ended, as audited
and reported on by Deloitte & Touche, independent certified public accountants
for the Borrower, who delivered an unqualified opinion in respect thereof. Such
financial statements (including the notes thereto) present fairly the financial
position of the Borrower and its consolidated Subsidiaries as of the end of each
such fiscal year and the results of their operations and their cash flows for
the fiscal years then ended, all in conformity with GAAP.
4.07. INTERIM FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Agent and each Lender interim consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as of September 30,
1996, together with the related consolidated statements of income, cash flows
and changes in stockholders' equity for the period from January 1, 1996 to such
date. Such financial statements (including the notes thereto) present fairly the
financial condition of the Borrower and its consolidated Subsidiaries as of
September 30, 1996, and their respective results of operations and cash flows
for the fiscal period then ended, all in conformity with GAAP (except that such
financial statements do not contain all of the footnote disclosures required by
GAAP), subject to normal and recurring year-end audit adjustments.
4.08. ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Borrower
nor any Subsidiary of the Borrower has any liability or obligation of any nature
(whether absolute, accrued, contingent or other, whether or not due, including
but not limited to forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments) that would be required by GAAP to be
reflected on
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a consolidated balance sheet of the Borrower and its Subsidiaries (including the
notes thereto) or that has, or would be likely to have, a Material Adverse
Effect, except (a) matters set forth on Schedule 4.08 hereto, (b) liabilities
and obligations disclosed in the financial statements referred to in Sections
4.05 and 4.06 hereof, (c) liabilities and obligations incurred after December
31, 1995 in the ordinary course of business and consistent with past practices,
and (d) obligations under the Credit Facilities.
4.09. ACCURATE AND COMPLETE DISCLOSURE. All written
information heretofore, contemporaneously or hereafter provided by or on behalf
of the Borrower or any Subsidiary of the Borrower to any Secured Party pursuant
to or in connection with any Loan Document or any transaction contemplated
hereby or thereby is or will be (as the case may be) true and accurate in all
material respects on the date as of which such information is dated (or, if not
dated, when received by such Secured Party) and does not or will not (as the
case may be) omit to state any material fact necessary to make such information
not misleading at such time in light of the circumstances in which it was
provided. Except as disclosed to the Agent and each Lender in writing, the
Borrower is not aware of any event, change or effect (other than political,
social or economic events, changes or effects of general national or global
scope) having or likely to have individually or in the aggregate, a Material
Adverse Effect.
4.10. PROJECTIONS. The Borrower has delivered to the Agent
projections prepared by the Borrower, dated February 5, 1997, for the years 1997
through 2001, demonstrating the projected consolidated financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries, which
projections are accompanied by a written statement of the assumptions and
estimates underlying such projections. Such projections, assumptions and
estimates, as of the Closing Date, are reasonable, consistent with the Loan
Documents, and represent the best judgment of the Borrower on such matters. Such
projections, assumptions and estimates are based upon political, social and
economic assumptions that are believed to be reasonable. Nothing has come to the
attention of the Borrower as of the Closing Date which would lead it to believe
that such projections will not be attained or exceeded. Such projections are not
a guarantee of future performance.
4.11. SOLVENCY. On and as of the date hereof, and on the
Closing Date, the Borrower and each Significant Subsidiary of the Borrower is
and will be Solvent (and for this purpose, each Subsidiary of the Borrower which
is not Solvent shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single entity, they
would constitute a Significant Subsidiary).
4.12. MARGIN REGULATIONS. No part of the proceeds of any
extension of credit hereunder will be used for the purpose of buying or carrying
any "margin stock," as such term is used in Regulations G and U of the Board of
Governors of the Federal Reserve System, as amended from time to time, to extend
credit to others for the purpose of buying or carrying any "margin stock," or to
extend credit to any Subsidiary of the Borrower that is a Broker-Dealer. Neither
the Borrower nor any Subsidiary of the Borrower is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock."
Neither the Borrower nor any Subsidiary of the Borrower owns "margin stock"
sufficient to cause any Loan Obligations to be deemed "indirectly secured" by
"margin stock" within the meaning of such Regulations. Neither any extension of
credit pursuant to this Agreement nor any use of proceeds of any such extension
of credit will violate or conflict with the provisions of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time.
4.13. REGULATORY RESTRICTIONS. Except as set forth in Schedule
4.13 hereof, neither the Borrower nor any Subsidiary of the Borrower is (a) an
"investment company" or a company "controlled"
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by an investment company within the meaning of the Investment Company Act of
1940, as amended, (b) a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of either a "holding company" or a
"subsidiary company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, (c) subject to regulation under the Federal Power Act,
the Interstate Commerce Act, or the Investment Company Act of 1940, as amended,
or (d) subject to any other Law which purports to restrict or regulate its
ability to borrow money or obtain credit as a consequence of the nature of the
business conducted by such Person.
4.14. SUBSIDIARIES. Schedule 4.14 hereof states the authorized
capitalization of each Subsidiary of the Borrower, the number of Shares of
Capital Stock of each class issued and outstanding of each such Subsidiary, and
the number and percentage of outstanding Shares of Capital Stock of each such
class owned by the Borrower and by each Subsidiary of the Borrower. The
outstanding Shares of Capital Stock of each Subsidiary of the Borrower have been
duly authorized and validly issued and are fully paid and nonassessable. The
Borrower and each Subsidiary of the Borrower owns beneficially and of record and
has good title to all of the Shares of Capital Stock it is listed as owning in
such Schedule 4.14, free and clear of any Lien, except for Liens in favor of the
Collateral Agent securing the Obligations. Except as set forth on Schedule 4.14
hereof, there are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or other) which may in any circumstances now or hereafter obligate
any Subsidiary of the Borrower to issue any Shares of its Capital Stock or any
other securities.
4.15. PARTNERSHIPS, ETC. Neither the Borrower nor any
Subsidiary of the Borrower is a partner (general or limited) of any partnership,
is a party to any joint venture, or owns (beneficially or of record) any equity
or similar interest in any Person (including but not limited to any interest
pursuant to which the Borrower or such Subsidiary has or may in any circumstance
have an obligation to make capital contributions to, or be generally liable for
or on account of the liabilities, acts or omissions of such other Person),
except (a) distributorship or similar arrangements that do not involve liability
on the part of the Borrower or any of its Subsidiaries in the nature of the
liability of a general partner, and (b) partnership interests permitted under
Sections 7.05(g) and 7.05(j) hereof.
4.16. LITIGATION. There is no pending or (to the knowledge of
the Borrower after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Borrower or any Subsidiary of the Borrower, except for (x) matters set forth on
Schedule 4.16 hereto, and (y) matters that if adversely decided, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
4.17. ABSENCE OF OTHER CONFLICTS. Neither the Borrower nor any
Subsidiary of the Borrower is in violation of or conflict with, or is subject to
any contingent liability on account of any violation of or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constituent documents), or
(c) any agreement or instrument to which it is party or by
which it or any of its properties may be subject or bound,
except for matters that, individually or in the aggregate, do not, and would
not be likely to, have a Material Adverse Effect.
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4.18. INSURANCE. The Borrower and each Subsidiary of the
Borrower maintains, or causes there to be maintained, with financially sound and
reputable insurers not related to or affiliated with the Borrower insurance with
respect to its properties and business and against at least such liabilities,
casualties and contingencies and in at least such types and amounts as is
customary in the case of Persons engaged in the same or a similar business or
having similar properties similarly situated.
4.19. TITLE TO PROPERTY. The Borrower and each Subsidiary of
the Borrower has good and marketable title in fee simple to all real property
owned or purported to be owned by it and good title to all other property of
whatever nature owned or purported to be owned by it, including but not limited
to all property reflected in the most recent audited balance sheet referred to
in Section 4.06 hereof (except as sold or otherwise disposed of in the ordinary
course of business after the date of such balance sheet), in each case free and
clear of all Liens, other than Permitted Liens.
4.20. INTELLECTUAL PROPERTY. The Borrower and each Subsidiary
of the Borrower owns, or is licensed or otherwise has the right to use, all the
patents, trademarks, service marks, names (trade, service, fictitious or other),
copyrights, technology (including but not limited to computer programs and
software), know-how, processes, data bases and other rights, free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others, except for matters that,
individually or in the aggregate, do not, and would not be likely to, have a
Material Adverse Effect.
4.21. TAXES. All federal income tax returns required to be
filed by or on behalf of the Borrower or any Subsidiary of the Borrower have
been properly prepared, executed and filed. All other tax and information
returns required to be filed by or on behalf of the Borrower or any Subsidiary
of the Borrower have been properly prepared, executed and filed, except for
matters that, individually or in the aggregate, do not, and would not be likely
to, have a Material Adverse Effect. All taxes, assessments, fees and other
governmental charges upon the Borrower or any Subsidiary of the Borrower or upon
any of their respective properties, incomes, sales or franchises which are due
and payable have been paid, other than those not yet delinquent and payable
without premium or penalty, and except for those being diligently contested in
good faith by appropriate proceedings, and in each case such reserves and
provisions for taxes as may be required by GAAP shall have been made on the
books of the Borrower and each Subsidiary of the Borrower. The reserves and
provisions for taxes on the books of the Borrower and each Subsidiary of the
Borrower for all open years and for its current fiscal period are adequate in
accordance with GAAP. As of the Closing Date, neither the Borrower nor any
Subsidiary of the Borrower knows of any proposed additional assessment or basis
for any material assessment for additional taxes (whether or not reserved
against), other than as set forth on Schedule 4.21 hereto.
4.22. EMPLOYEE BENEFITS. Except for matters disclosed to the
Agent before the date as of which this representation and warranty is made or
reaffirmed, neither the Borrower, any Subsidiary of the Borrower or Controlled
Group Member has incurred any liability that has not been fully discharged (or
any contingent or other potential liability that represents a material risk of
becoming an actual liability) exceeding $150,000 in the aggregate for all such
Persons for or in connection with any of the following: (a) any Pension-Related
Event (whether or not any such Pension-Related Event has occurred) or (b) any
complete or partial withdrawal from any Multiemployer Plan (whether or not such
withdrawal has occurred). All employee benefit arrangements covering employees
of the Borrower or any of its Subsidiaries have been administered in substantial
compliance with, and funded in accordance with, applicable Law.
4.23. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule
4.23 hereof, the Borrower and each Subsidiary of the Borrower and each of their
respective Environmental Affiliates is
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and has been in full compliance with all applicable Environmental Laws, except
for matters which, individually or in the aggregate, do not, and would not be
likely to, have a Material Adverse Effect. Except as disclosed in Schedule 4.23
hereof, there is no Environmental Claim pending or to the knowledge of the
Borrower threatened, and there are no past or present acts, omissions, events or
circumstances (including but not limited to any dumping, leaching, deposition,
removal, abandonment, escape, emission, discharge or release of any
Environmental Concern Material at, on or under any facility or property now or
previously owned, operated or leased by the Borrower or any Subsidiary of the
Borrower or any of their respective Environmental Affiliates) that could form
the basis of any Environmental Claim, against the Borrower or any Subsidiary of
the Borrower or any of their respective Environmental Affiliates, except for
matters which do not, and, if adversely decided, individually or in the
aggregate, would not, have a Material Adverse Effect. Except as disclosed in
Schedule 4.23 hereof, no facility or property now or previously owned, operated
or leased by the Borrower or any Subsidiary of the Borrower or any of their
respective Environmental Affiliates is an Environmental Cleanup Site. No Lien
exists, and no condition exists which would be likely to result in the filing of
a Lien, against any property of the Borrower or any Subsidiary of the Borrower
under any Environmental Law.
ARTICLE V
CONDITIONS OF ISSUANCE
5.01. CONDITIONS TO ISSUANCE. The obligation of the Issuing
Bank to cause the Closing Date to occur is subject to performance by the
Borrower of its obligations to be performed hereunder or under the other Loan
Documents, to the satisfaction of the conditions precedent set forth herein and
in the other Loan Documents and to the satisfaction, immediately prior to or
concurrently with such event of the following further conditions precedent:
(a) AGREEMENT; CERTIFICATE OF CLOSING. The Agent shall have
received, with a copy for each Lender, this Agreement, duly executed on
behalf of the Borrower, and the Agent shall have received the
certificate referred to in Section 3.01(a), duly executed on behalf of
the Borrower, satisfactory in form and substance to the Agent.
(b) SHARED SECURITY DOCUMENTS. The Collateral Agent shall have
received the following, each of which shall be in form and substance
satisfactory to the Agent, with a copy for each Lender (except that the
Lenders shall not be entitled to receive duplicate originals of the
stock certificates and other instruments pledged pursuant to the
following Shared Security Documents and the stock powers delivered in
connection therewith):
(i) The Collateral Agency Agreement, duly executed on
behalf of Borrower and the other parties thereto.
(ii) The Borrower Pledge Agreement, duly executed on
behalf of the Borrower.
(iii) Certificates and instruments representing the
stock certificates and other instruments pledged pursuant to
the Borrower Pledge Agreement, accompanied by undated duly
executed instruments of transfer or assignment in blank, in
form and substance satisfactory to the Agent.
(iv) Financing statements executed by the Borrower
and in proper form for filing under the Uniform Commercial
Code in such jurisdictions as may be necessary or, in the
opinion of the Agent, desirable to create, perfect or protect
the Liens created or
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purported to be created by the Borrower Pledge Agreement
(which financing statements shall cover all personal property
of the Borrower, whether or not constituting collateral
security under the Borrower Pledge Agreement).
(v) Evidence that all other actions necessary or, in
the opinion of the Agent, desirable to create, perfect or
protect the Liens created or purported to be created by the
Borrower Pledge Agreement have been taken.
(vi) Evidence of contemporaneous searches of UCC, tax
and other appropriate registers, dockets and records, which
shall have revealed no filings or recordings with respect to
property of the Borrower (other than those relating to
Permitted Liens).
(c) WEFA ACQUISITION. The Borrower or a Wholly Owned
Subsidiary of the Borrower shall have entered into a contract to
acquire good title, free of all Liens, to all of the outstanding Shares
of Capital Stock of WEFA Holdings, Inc. ("WEFA").
(d) ACQUISITION DOCUMENTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on behalf of the Borrower) of the following, each of
which shall be satisfactory in form and substance to the Agent: all
agreements relating to the acquisition of the Shares of Capital Stock
of WEFA (including in each case all exhibits, schedules and disclosure
letters delivered pursuant thereto), all amendments, waivers and
consents relating thereto, and all other side letters or agreements
affecting the terms thereof or other transactions contemplated thereby.
(e) OTHER CREDIT FACILITIES. The Agent shall have received
evidence satisfactory to it that all conditions precedent to funding
under the Revolving Credit Agreement and the Term Loan Agreement shall
have been satisfied, and that, concurrently with the Closing Date, the
Borrower shall have received $225,000,000 gross cash proceeds under the
Term Loan Agreement.
(f) DISCHARGE OF PRIOR CREDIT FACILITIES. With respect to (a)
the Revolving Credit Agreement dated as of June 29, 1995 among the
Borrower, the Issuing Banks referred to therein, the Lenders parties
thereto from time to time, Mellon Bank, N.A., The First National Bank
of Boston, and NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon
Bank, N.A., as Agent, as amended, (b) the Term Loan Agreement dated as
of June 29, 1995 among the Borrower, the Lenders parties thereto from
time to time, Mellon Bank, N.A., The First National Bank of Boston and
NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon Bank, N.A., as
Agent, as amended, and (c) the Credit Agreement dated as of October 23,
1996 among the Borrower, the Issuing Bank referred to therein, and
Mellon Bank, N.A., as Agent, as amended, all principal, interest,
letter of credit draws, fees and other amounts outstanding or otherwise
due and payable shall have been paid in full, all commitments
thereunder shall have terminated, all outstanding letters of credit
thereunder shall have been terminated or assumed under one of the
Credit Facilities, and all collateral security therefor shall have been
released.
(g) GOVERNMENTAL APPROVALS AND FILINGS. The Agent shall have
received, with copies for each Lender, true and correct copies (in each
case certified as to authenticity on such date on behalf of the
Borrower) of all items referred to in clause (b) of Section 4.04 hereof
and such items shall be satisfactory in form and substance to the Agent
and shall be in full force and effect.
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(h) OTHER CONFLICTS. The Agent shall have received, with
copies for each Lender, true and correct copies (in each case certified
as to authenticity on such date on behalf of the Borrower) of each
consent, waiver, amendment or agreement which has been obtained by or
on behalf of the Borrower or any Subsidiary of the Borrower in respect
of any matter which would, absent such consent, waiver, amendment or
agreement, be within the scope of clause (b)(ii) of Section 4.05
hereof, and such items shall be satisfactory in form and substance to
the Agent and shall be in full force and effect.
(i) CORPORATE PROCEEDINGS. The Agent shall have received, with
a counterpart for each Lender, certificates by the Secretary or
Assistant Secretary of the Borrower dated as of the Closing Date as to
(i) true copies of the articles of incorporation and by-laws (or other
constituent documents) of the Borrower in effect on such date, (ii)
true copies of all corporate action taken by the Borrower relative to
this Agreement and the other Loan Documents and (iii) the incumbency
and signature of the respective officers of the Borrower executing this
Agreement and the other Loan Documents to which the Borrower is a
party, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Agent shall have received, with a
copy for each Lender, certificates from the appropriate Secretary of
State or other applicable Governmental Authorities dated not more than
30 days before the Closing Date showing the good standing of the
Borrower in its state of incorporation.
(j) 1996 FINANCIAL STATEMENTS. The Borrower shall have
furnished to the Agent an unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of December 31, 1996, and
unaudited consolidated statements of income and stockholders' equity of
the Borrower and its consolidated Subsidiaries for the fiscal year
ended December 31, 1996. Such financial statements shall have been
certified by a Responsible Officer of the Borrower as presenting fairly
the consolidated financial position of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year and the
consolidated results of their operations and stockholders' equity for
such fiscal year, in conformity with GAAP, subject to normal and
recurring audit adjustments.
(k) FORM U-1. The Agent shall have received, with a
counterpart for each Lender, a Federal Reserve Board Form U-1, duly
executed by the Borrower, satisfactory in form and substance to the
Agent.
(l) LITIGATION. There shall not be pending or (to the
knowledge of the Borrower after due inquiry) threatened) action, suit,
proceeding or investigation by or before any Governmental Authority
seeking to challenge, prevent or declare illegal any of the
transactions contemplated by the Loan Documents.
(m) LEGAL OPINION OF COUNSEL TO THE BORROWER. The Agent shall
have received, with an executed counterpart for each Lender, an opinion
addressed to the Agent and each Lender, dated the Closing Date, of
counsel to the Borrower (who shall be satisfactory to the Agent), as to
such matters as may be requested by the Agent and in form and substance
satisfactory to the Agent.
(n) OFFICERS' CERTIFICATES. The Agent shall have received,
with an executed counterpart for each Lender, certificates from such
officers of the Borrower as to such matters as the Agent may request.
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(o) NO MATERIAL ADVERSE CHANGE. No material adverse change
shall have occurred in the business, operations, assets, condition
(financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole since September 30, 1996.
(p) REPRESENTATIONS AND WARRANTIES, ETC. All representations
and warranties set forth in Article IV hereof shall be true and correct
on and as of the Closing Date as if made on and as of the Closing Date,
after giving effect to the transactions contemplated by the Loan
Documents to occur on or before the Closing Date.
(q) NO DEFAULTS. No Event of Default or Potential Default
shall have occurred and be continuing or exist on the Closing Date or
after giving effect to the transactions contemplated by the Loan
Documents to occur on or before the Closing Date.
(r) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of
the Letters of Credit shall cause any Lender Party to violate any Law.
(s) FEES, EXPENSES, ETC. The Borrower shall have executed and
delivered an origination fee letter (the "Origination Fee Letter") of
even date herewith satisfactory in form and substance to the Agent. All
fees and other compensation required to be paid to the Agent or the
Lenders pursuant hereto or pursuant to such Origination Fee Letter on
or prior to the Closing Date shall have been paid or received.
(t) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other matters in connection with the
transactions contemplated by this Agreement and the other Loan
Documents, shall be satisfactory in form and substance to the Agent.
The Agent shall have received such other documents, instruments and
other items as the Agent may reasonably request.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
6.01. BASIC REPORTING REQUIREMENTS.
(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any
event within 105 days after the close of each fiscal year of the Borrower, the
Borrower shall furnish to the Agent, with a copy for each Lender, audited
consolidated statements of income, cash flows and stockholders' equity of the
Borrower and its consolidated Subsidiaries for such fiscal year, an unaudited
consolidating statement of income of the Borrower and its consolidated
Subsidiaries for such fiscal year, and an audited consolidated balance sheet and
unaudited consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal year, and notes to each, all in
reasonable detail, prepared on a comparative basis in accordance with GAAP. Such
audited financial statements shall be accompanied by an opinion of Deloitte &
Touche or other independent certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Agent. Such
opinion shall be free of any exception, qualification or explanation not
acceptable to the Agent (and in any event shall be free of any exception,
qualification or explanation relating to ability to continue as a going concern,
a limited scope of examination or independence). Such opinion in any event shall
contain a written statement of such accountants substantially to the effect that
(i) such accountants audited such
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consolidated financial statements in accordance with generally accepted auditing
standards and (ii) in the opinion of such accountants such audited financial
statements present fairly the financial position of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year and the results of
their operations and their cash flows and stockholders' equity for such fiscal
year, in conformity with GAAP. Such unaudited financial statements shall be
certified by a Responsible Officer of the Borrower as presenting fairly the
consolidated and consolidating financial position of the Borrower and its
consolidated Subsidiaries as of the end of such fiscal year, and the respective
consolidated and consolidating results of their operations and their cash flows
and stockholders' equity for such fiscal year, in conformity with GAAP.
(b) QUARTERLY REPORTS. As soon as practicable, and in any
event within 60 days after the close of each of the first three fiscal quarters
of each fiscal year of the Borrower, the Borrower shall furnish to the Agent,
with a copy for each Lender, unaudited consolidated statements of income, cash
flows and stockholders' equity of the Borrower and its consolidated Subsidiaries
for such fiscal quarter and for the period from the beginning of such fiscal
year to the end of such fiscal quarter, an unaudited consolidating statement of
income for such fiscal quarter and for the period from the beginning of such
fiscal year to the end of such fiscal quarter, and unaudited consolidated and
consolidating balance sheets of the Borrower and its consolidated Subsidiaries
as of the close of such fiscal quarter, and notes to each, all in reasonable
detail, setting forth in comparative form the corresponding figures for the same
periods or as of the same date during the preceding fiscal year (except for the
consolidated balance sheet, which shall set forth in comparative form the
corresponding balance sheet as of the prior fiscal year end, and cash flow
statements, which shall report only year to date periods). Such financial
statements shall be certified by a Responsible Officer of the Borrower as
presenting fairly the consolidated and consolidating financial position of the
Borrower and its consolidated Subsidiaries as of the end of such fiscal quarter
and the respective consolidated and consolidating results of their operations
and their cash flows and stockholders' equity for such fiscal quarter, in
conformity with GAAP, subject to normal and recurring year-end audit
adjustments.
(c) COMPLIANCE CERTIFICATES. Concurrently with the delivery of
the financial statements referred to in Sections 6.01(a) and 6.01(b), the
Borrower shall deliver, or cause to be delivered, to the Agent, with a copy for
each Lender, a certificate in substantially the form set forth as Exhibit C,
duly completed and signed by a Responsible Officer of the Borrower.
(d) ACCOUNTANTS' CERTIFICATES. Concurrently with the Agent's
receipt from the Borrower of each set of audited financial statements delivered
pursuant to Section 6.01(a), the Borrower shall deliver, or cause to be
delivered, to the Agent, with sufficient copies for each Lender, a report signed
by the independent certified public accountants who opined on such financial
statements and dated the date of such financial statements, stating in substance
that they have reviewed this Agreement and the other Loan Documents and that in
making the examination necessary for their opinion on such financial statements
they did not become aware of any Event of Default or Potential Default pursuant
to Sections 7.01, 7.02(e)(iv), 7.03(e) and 7.03(f) as of the end of such fiscal
year, or, if they did become so aware, such certificate or report shall state
the nature and period of existence thereof.
(e) ANNUAL BUSINESS PLAN. Not later than January 31 of each
year, the Borrower shall furnish to the Agent, with a copy for each Lender, a
business plan for the Borrower and its Subsidiaries for the next five years,
certified as such by a Responsible Officer of the Borrower. Such business plan
shall be not less detailed than the 1997-2001 corporate plan heretofore
delivered to the Agent and each Lender, and shall include or be accompanied by,
among other matters reasonably requested from time to time, projected income,
cash flows and summary balance sheet for the Borrower and its Subsidiaries, on
both a consolidated and a separate unconsolidated basis for each year in such
five year period.
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(f) QUARTERLY PLAN UPDATES. Concurrently with the delivery of
the financial statements referred to in Section 6.01(b), the Borrower shall
furnish to the Agent, with a copy for each Lender, a quarterly update to the
most recent annual business plan, certified as such by a Responsible Officer of
the Borrower. Such business plan shall be not less detailed than the third
quarter update for 1996 heretofore delivered to the Agent and each Lender.
(g) QUARTERLY FINANCIAL INFORMATION. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall provide the Agent, with a copy for each Lender,
summary financial information as to the Borrower and its consolidated
Subsidiaries on a consolidated basis (and separate financial information for
such Subsidiaries as the Agent may reasonably request) as of the end of the
preceding month, all in reasonable detail and in any case including, among other
matters reasonably requested by the Agent from time to time, financial
information on a monthly and year-to-date basis, and separate line-items showing
EBIT, depreciation and amortization, all certified by a Responsible Officer of
the Borrower.
(h) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their
becoming available to the Borrower, the Borrower shall deliver, or cause to be
delivered, to the Agent, with a copy for each Lender, a copy of (i) all regular
or special reports, registration statements and amendments to the foregoing
which the Borrower or any Subsidiary of the Borrower shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) all reports, proxy statements, financial statements and other
information distributed by the Borrower to its security holders or the financial
community generally, and (iii) upon request by any Lender Party, all reports
submitted by outside accountants in connection with any audit of the Borrower or
any Subsidiary of the Borrower, including but not limited to all management
letters commenting on the internal controls of the Borrower or any Subsidiary of
the Borrower submitted in connection with any such audit.
(i) FURTHER INFORMATION. The Borrower will promptly furnish,
or cause to be furnished, to the Agent, with a copy for each Lender, such other
information and in such form as the Agent or any Lender may reasonably request
from time to time.
(j) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of
any of the following, the Borrower shall give the Agent notice thereof, together
with a written statement of a Responsible Officer of the Borrower setting forth
the details thereof and any action with respect thereto taken or proposed to be
taken by the Borrower, and the Agent shall promptly notify each Lender thereof:
(i) Any Event of Default or Potential Default.
(ii) Any material adverse change in the business, operations,
condition (financial or otherwise) or prospects (exclusive, in the case
of prospects, of political, social or economic events, changes or
effects of general national or global scope) of the Borrower and its
Subsidiaries taken as a whole.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting the Borrower or any Subsidiary of the Borrower which, if
adversely decided, individually or in the aggregate, would, or would be
likely to, have a Material Adverse Effect.
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(iv) Any termination for default by the Borrower of any
contract which would reasonably be likely to result in a direct loss of
aggregate revenues in excess of $20,000,000 to which the Borrower or
any Subsidiary of the Borrower is a party.
(v) Any Pension-Related Event, other than (w) any Reportable
Event described in subsection (i) of the definition of such term herein
as to which the 30 day notice requirement to the PBGC is waived under
applicable regulations, and (x) any Pension-Related Event described in
subsection (d) or (f) of the definition thereof which involves a
liability of the Borrower, any Subsidiary of the Borrower or any
Controlled Group Member that has not been fully discharged (or a
contingent or other potential liability that represents a material risk
of becoming an actual liability) of less than $1,000,000 in the
aggregate for all such Persons. Such notice shall be accompanied by the
following: (y) a copy of any notice, request, return, petition or other
document received by the Borrower, any Subsidiary of the Borrower or
any Controlled Group Member from any Person, or which has been or is to
be filed with or provided to any Person (including, without limitation,
the Internal Revenue Service, the Department of Labor, the PBGC or any
Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (z)
in the case of any Pension-Related Event with respect to a Plan, the
most recent Annual Report (5500 Series), with attachments thereto, and
if such Plan is required by applicable Law to have an actuarial
valuation report, the most recent actuarial valuation report, for such
Plan.
(k) VISITATION AND VERIFICATION GENERALLY. The Borrower shall
permit such Persons as the Agent or any Lender may designate from time to time
to visit and inspect any of the properties of the Borrower and any Subsidiary of
the Borrower, to examine their respective books and records and take copies and
extracts therefrom and to discuss their respective affairs with their respective
directors, officers, employees and independent accountants at such times and as
often as the Agent or any Lender may reasonably request, subject to mandatory
national security regulations. The Borrower hereby authorizes such officers,
employees and independent accountants to discuss with the Agent or any Lender
the affairs of the Borrower and its Subsidiaries, subject to mandatory national
security regulations. The Agent and the Lenders shall have the right to examine
and verify accounts, inventory and other properties and liabilities of the
Borrower and its Subsidiaries from time to time, and the Borrower shall
cooperate, and shall cause each of its Subsidiaries to cooperate, with the Agent
and the Lenders in such verification, subject to mandatory national security
regulations.
(l) DUTY TO MAINTAIN INDEPENDENT ACCOUNTANTS WITH SECURITY
CLEARANCES; VERIFICATION OF CLASSIFIED CONTRACTS. The Borrower shall, and shall
cause each such Subsidiary to, retain at all times an independent certified
public accountant of national standing having personnel who at all times have
security clearances sufficient to permit them to examine and verify all such
classified contracts, accounts and other assets which, individually or in the
aggregate, are material to the business, operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
The Borrower shall, from time to time at the reasonable request of the Agent,
cause such independent accountants to examine, verify and report to the Agent on
such classified contracts, accounts and assets as the Agent may request, to the
fullest extent permitted by mandatory national security regulations.
(m) CHANGES IN CORPORATE STRUCTURE. Concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
6.01(b), the Borrower shall deliver to the Agent notice of any change in the
matters set forth in Section 4.14 hereof, together with an amended and restated
Schedule 4.14 which reflects such change.
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6.02. INSURANCE. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types as are reasonably
satisfactory to the Agent from time to time, and in any case as is customary in
the case of Persons engaged in the same or a similar business or having similar
properties similarly situated. The Borrower shall, if so requested by the Agent,
deliver to the Agent original or duplicate policies or certificates of such
insurance and, as often as the Agent may reasonably request, a report of a
reputable insurance broker, or an insurance company representative if an
insurance broker is not involved, with respect to such insurance.
6.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Borrower shall promptly notify the Agent in writing if it
or any of its Subsidiaries learns of any proposed additional assessment or basis
for any assessment for additional taxes (whether or not reserved against) which,
if paid or incurred, would have a Material Adverse Effect. The Borrower shall,
and shall cause each of its Subsidiaries to, pay and discharge, or cause to be
paid and discharged,
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges imposed upon it,
or any of them, or any of its, or any of their, properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in
any bankruptcy, insolvency, receivership or similar proceeding;
provided, that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, the Borrower or such Subsidiary need not
pay or discharge, or cause the payment or discharge, of any such tax,
assessment, charge or claim above so long as (x) the validity thereof is
contested in good faith and by appropriate proceedings diligently conducted, and
(y) such reserves or other appropriate provisions as may be required by GAAP
shall have been made therefor.
6.04. PRESERVATION OF CORPORATE STATUS. The Borrower shall,
and shall cause each of its Subsidiaries to, maintain its status as a
Corporation duly organized, validly existing and, to the extent applicable, in
good standing under the laws of its jurisdiction of organization, except for
Permitted Mergers. The Borrower shall, and shall cause each of its Subsidiaries
to, at all times be duly qualified to do business as a foreign Corporation and,
to the extent applicable, in good standing in all jurisdictions in which the
ownership of its properties or the nature of its business or both make such
qualification necessary or advisable, except for matters that, individually or
in the aggregate, do not, and would not be likely to, have a Material Adverse
Effect.
6.05. GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall,
and shall cause each of its Subsidiaries to, keep and maintain in full force and
effect all Governmental Actions necessary or advisable in connection with
execution and delivery of any Loan Document, consummation of the transactions
herein or therein contemplated, performance of or compliance with the terms and
conditions hereof or thereof, or to ensure the legality, validity, binding
effect, enforceability or admissibility in evidence hereof or thereof.
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6.06. MAINTENANCE OF PROPERTIES, FRANCHISES, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, (a) maintain or cause to be
maintained in good repair, working order and condition the properties now or
hereafter owned, leased or otherwise possessed by it and shall make or cause to
be made all needful and proper repairs, renewals, replacements and improvements
thereto so that the business carried on in connection therewith may be properly
and advantageously conducted at all times, except where failure to do so does
not, and would not be likely to, have a Material Adverse Effect, and (b)
maintain and hold in full force and effect all franchises, licenses, permits,
certificates, authorizations, qualification, accreditations and other rights,
consents and approvals (whether issued, made or given by a Governmental
Authority or otherwise), necessary to own and operate its properties and to
carry on its business as presently conducted and as presently planned to be
conducted, except where failure to do so does not, and would not be likely to,
have a Material Adverse Effect.
6.07. AVOIDANCE OF OTHER CONFLICTS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or other) on account of any violation or conflict with
(a) any Law,
(b) its certificate or articles of incorporation or by-laws
(or other constituent documents), or
(c) any agreement or instrument to which it or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties may be subject or bound,
except for matters of the type referred to in clauses (a) and (c) that could
not, individually or in the aggregate, do not, and would not be likely to, have
a Material Adverse Effect.
6.08. FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and
shall cause each of its Subsidiaries to, make and keep books, records and
accounts which, in reasonable detail, accurately and fairly reflect its
transactions and dispositions of its assets, and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general or specific
authorization, (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with GAAP and (ii) to maintain
accountability for assets, (c) access to assets is permitted only in accordance
with management's general or specific authorization and (d) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
6.09. USE OF PROCEEDS. The Borrower shall not use any Letters
of Credit directly or indirectly for any unlawful purpose, in any manner
inconsistent with Section 4.12, or inconsistent with any other provision of this
Agreement or any other Loan Document.
6.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower
shall, and shall cause each of its Subsidiaries to, engage in the businesses
they have engaged in during the present and preceding fiscal years and the
Borrower shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than the financial information services business, other
information services businesses and matters incidental thereto; provided, that
TIMCO may continue to conduct its business in substantially the manner in which
it conducts such business as of the date hereof. Without limitation of the
foregoing, the Borrower shall continue to operate as a holding company and shall
not conduct any material business other than holding the capital stock of
Subsidiaries and matters incidental thereto.
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6.11. PLANS AND MULTIEMPLOYER PLANS.
(a) REQUIRED CONTRIBUTIONS. The Borrower shall, and shall
cause each Subsidiary of the Borrower and Controlled Group Members to, make
contributions to each Plan when due in accordance with the minimum funding
requirements under ERISA and the Code applicable to such Plan and pay any
required PBGC premiums as and when due for such Plan.
(b) REQUIRED CONTRIBUTIONS TO MULTIEMPLOYER PLANS. The
Borrower shall, and shall cause each Subsidiary of the Borrower and Controlled
Group Members to, make contributions required to be made by it, or any of them,
to each Multiemployer Plan, if any, when due in accordance with its, or any of
their, obligations under any collective bargaining agreement related to such
Multiemployer Plan or participation agreements applicable to such Multiemployer
Plan, except those contributions the requirement of which are reasonably being
contested by a Controlled Group Member provided that failure to make such
contested contributions is not a violation of applicable Law and does not
present a material risk of resulting in liability (contingent or other) to the
Borrower or any Subsidiary of the Borrower.
(c) FUNDING. The Borrower shall, and shall cause each of its
Subsidiaries to, make any required contributions to any arrangements for
providing retirement and/or death benefits when due, in accordance with the
terms of the arrangement and/or any minimum funding requirements which are
applicable to the arrangement from time to time. The Borrower shall not, nor
shall it permit any of its Subsidiaries to, allow any arrangement for providing
retirement and/or death benefits to become underfunded (as determined on the
basis of reasonable actuarial assumptions) by an amount which, in the aggregate
for all such arrangements, exceeds $10,000,000.
6.12. DISASTER RECOVERY PLAN. The Borrower shall cause each of
Datastream International Limited, Disclosure Incorporated and ICV Limited to
maintain in full force and effect at all times disaster recovery plans
consistent with prudent practice for Persons engaged in the same or a similar
business.
6.13. ANNUAL BANK MEETING. The Borrower shall hold meetings of
the Lenders annually at the request of the Agent.
6.14. SEPARATE CORPORATE EXISTENCE. The Borrower acknowledges
that the Lender Parties are entering into the transactions contemplated by this
Agreement and the other Loan Documents in reliance upon the identity of the
Subsidiaries of the Borrower as legal entities separate from the Borrower.
Accordingly, the Borrower shall take, and shall cause its Subsidiaries to take,
all reasonable steps to continue the identities of its Subsidiaries as separate
legal entities, and to make it apparent to third Persons that its Subsidiaries
are entities with assets and liabilities distinct from those of the Borrower.
Without limiting the generality of the foregoing, the Borrower shall take such
actions as shall be required in order that:
(a) For each Subsidiary of the Borrower in which the Borrower
directly owns, beneficially or of record, Shares of Capital Stock, at
least one director or officer of the Borrower shall be a person who is
not a director or officer of such Subsidiary.
(b) The books and records of each Subsidiary of the Borrower
shall be maintained separately from those of the Borrower and each of
its other Subsidiaries.
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(c) The assets of each Subsidiary of the Borrower will be
maintained in a manner that facilitates their identification and
segregation from those of the Borrower and its other Subsidiaries.
(d) The Borrower and each Subsidiary of the Borrower shall
strictly observe corporate formalities. The Borrower and each of its
Subsidiaries will conduct their respective businesses in their own
respective names. The business and affairs of the Borrower and each
Subsidiary shall be managed by or under the direction of the board of
directors of such Person.
(e) Funds or other assets of Subsidiaries of the Borrower will
not be commingled with those of the Borrower and its other Subsidiaries
(it being understood that such restriction shall not be interpreted to
forbid intercompany loans and Advances that have been properly
documented and accounted for on the books and records of each relevant
entity, made in compliance with corporate formalities, and otherwise
made in compliance with this Agreement and the other Loan Documents).
(f) The operating expenses of the Borrower and each Subsidiary
of the Borrower will be paid by such Person. To the extent, if any,
that the Borrower and any of its Subsidiaries share items of expenses,
such expenses will be allocated to the extent practical on the basis of
actual use or the value of services rendered, and otherwise on a basis
reasonably related to actual use or the value of services rendered, and
each such Person shall pay its allocated share of such expenses on a
current basis. To the extent, if any, that the Borrower and any of its
Subsidiaries provides services to one another, the provider shall be
compensated by the recipient on a current basis at fair and reasonable
rates. To the extent, if any, that any consolidated or combined tax
return is filed including any of the Borrower or its Subsidiaries, each
such Person shall pay or be paid, as the case may be, on a current
basis an equitable share of the consolidated tax payment or refund
associated therewith.
(g) Annual financial statements of the Borrower which are
consolidated to include its Subsidiaries will contain notes clearly
stating that each such Subsidiary is a corporate or similar entity
separate from the Borrower and its other Subsidiaries, and that the
stock of each direct Subsidiary of the Borrower has been pledged to
secure the Obligations.
6.15. ADDITIONAL SECURITY.
(a) GENERAL. Promptly upon the request of the Agent from time
to time, the Borrower shall as promptly as practicable (and in any case within
30 days after such request, or such longer period as the Agent may specify in
writing) further secure the Obligations by granting to the Collateral Agent a
valid and perfected Lien, prior to all other Liens except Permitted Liens, on
such of its properties from time to time as the Agent may designate (except for
property subject to a Permitted Lien as to which the Borrower is required to
obtain the consent of the holder of such Permitted Lien before granting such a
Lien to the Collateral Agent and as to which the Borrower is unable, using
reasonable efforts, to obtain such consent). In connection therewith, the
Borrower shall (i) execute and deliver to the Agent such mortgages, security
agreements and other agreements and instruments, and do such other acts and
things as shall be necessary or, in the judgment of the Agent, appropriate to
grant to the Collateral Agent a valid and perfected Lien on such property, prior
to all other Liens except Permitted Liens, and (ii) procure and deliver to the
Agent such other items (including but not limited to lien searches, title
insurance policies, surveys, environmental audits, insurance endorsements and
opinions of counsel), and do such other acts and things, as the Agent may
request in connection with the foregoing. All of the foregoing shall be in form
and substance satisfactory to the Agent. From time to time as requested by
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the Agent, the Borrower shall use reasonable efforts to (w) obtain the consent
of any Person whose consent is necessary or advisable to the creation,
perfection or maintenance of any such Lien, including but not limited to that of
any lessor whose consent may be required in connection with any such Lien on any
leasehold interest, and to obtain nondisturbance and like agreements from
mortgagees and other holders of superior rights in the property subject to any
such leasehold interest, (x) obtain waivers of Liens from such landlords and
mortgagees and from other Persons described in Section 6.03(b) hereof, (y) with
respect to securities accounts, commodity accounts, deposit accounts or similar
interests, obtain consent agreements from each securities intermediary,
commodity intermediary, depository bank or similar person, satisfactory in form
and substance to the Agent, which shall include provisions giving the Collateral
Agent sole dominion and control over such interest upon the giving of notice by
the Collateral Agent (it being understood that the related security agreement
shall provide that the Collateral Agent may exercise such sole dominion and
control upon the occurrence and during the continuance of an Event of Default),
and (z) do such other acts and things as the Agent may deem appropriate to
enhance, preserve or protect the security for the Obligations.
(b) NOTICE OF CERTAIN REALTY TRANSACTIONS. The Borrower shall
promptly give notice to the Agent of any acquisition by the Borrower of any
interest or interests in real property (fee, leasehold or otherwise) or fixtures
having a fair market value, individually or in the aggregate, in excess of
$5,000,000 (except for leasehold interests having a term, including all options
exercisable by the lessee, less than 5 years).
6.16. INTEREST RATE PROTECTION.
(a) REQUIRED HEDGE. The Borrower shall, promptly (and in any
event not later than 60 days) after the first date on or after the Closing Date
on which the three-month Euro-Rate (as determined by the Agent) is at least
8.00% on at least ten of the 30 days immediately preceding such date, enter into
an Interest Rate Hedging Agreement having an effective rate and other terms and
conditions satisfactory to the Agent, for notional principal amounts and tenors
sufficient to hedge at least 65% of the scheduled outstanding principal amount
of the Indebtedness under the Term Loan Agreement for the period from the
effective date of such Interest Rate Hedging Agreement through the fifth
anniversary thereof (or, if earlier, the Term Loan Maturity Date). The Borrower
shall thereafter select interest rate options under the Term Loan Agreement that
match, in time and amount, as closely as may be the terms of the rate hedge
represented by such Interest Rate Hedging Agreement.
(b) SECURING THE REQUIRED HEDGE. If the Borrower so requests,
the Agent shall consent to a Swap Party Supplement to the Collateral Agency
Agreement whereby the Interest Rate Hedging Agreement referred to in Section
6.16(a) hereof shall be deemed a Swap Agreement entitled to the benefits of the
Collateral Agency Agreement, but only if the following conditions are met: (i)
the counterparty to such Interest Rate Hedging Agreement is a Lender, (ii) the
"Swap Shared Security Cap" set forth in such Swap Party Supplement is, in the
good faith judgment of the Agent, not more than 110% of the credit equivalent
exposure represented by such Swap Agreement (calculated in accordance with the
Agent's ordinary methods), and (iii) the Borrower provides the Agent with such
contemporaneous bringdown Lien searches as the Agent may request, the results of
which shall be satisfactory to the Agent.
(c) EXISTING RATE HEDGES, ETC. To the extent otherwise
consistent with this Agreement and the other Loan Documents, the Borrower may
enter into Interest Rate Hedging Agreements in advance of the date on which it
is required to do so under Section 6.16(a), and to the extent that such Interest
Rate Hedging Agreements satisfy the requirements of Sections 6.16(a) and 6.16(b)
the Agent may enter into a Swap Party Supplement to the Collateral Agency
Agreement with respect to such
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Interest Rate Hedging Agreements. In the event that the Borrower becomes
obligated to enter into Interest Rate Hedging Agreements under Section 6.16(a),
any then-existing Interest Rate Hedging Agreements to which Borrower is party
and which otherwise satisfy the requirements of Section 6.16(a) shall be counted
toward satisfaction of the Borrower's obligations under Section 6.16(a), to the
extent of the notional amounts and tenors of such then-existing Interest Rate
Hedging Agreements. Nothing in Section 6.16(b) shall be construed to forbid the
Agent from consenting to a Swap Party Supplement relating to Interest Rate
Hedging Agreements if the conditions set forth in Section 6.16(b) are satisfied,
even if such Interest Rate Hedging Agreements in the aggregate exceed in amount
or time the minimum requirements set forth in Section 6.16(a).
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
7.01. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH (ADJUSTED). As of the end of each
fiscal quarter of the Borrower ending on or after December 31, 1996,
Consolidated Net Worth (Adjusted) shall not be less than the applicable amount
specified below:
<TABLE>
<CAPTION>
Consolidated Net Worth (Adjusted)
From and including To and including shall not be less than
<S> <C> <C>
December 31, 1996 December 30, 1997 $425,000,000
December 31, 1997 December 30, 1998 $450,000,000
December 31, 1998 December 30, 1999 $475,000,000
December 31, 1999 December 30, 2000 $500,000,000
December 31, 2000 December 30, 2001 $525,000,000
Thereafter $550,000,000
</TABLE>
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the end of
each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Fixed Charge Coverage Ratio for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be less than the applicable amount set forth
below.
Fiscal quarter ending on Consolidated Fixed Charge Coverage Ratio
a date in the following for the four fiscal quarters ending on
period (inclusive) such date shall not be less than
- ------------------ --------------------------------
December 31, 1996 through December 31, 1997 1.75
January 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 2.25
Thereafter 2.50
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(c) CONSOLIDATED FUNDED DEBT RATIO (ADJUSTED). As of the end
of each fiscal quarter of the Borrower ending on or after December 31, 1996, the
Consolidated Funded Debt Ratio (Adjusted) for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, considered as a
single accounting period, shall not be greater than the applicable amount set
forth below.
Fiscal quarter ending on Consolidated Funded Debt Ratio (Adjusted)
a date in the following for the four fiscal quarters ending on
period (inclusive) such date shall not be greater than
- ------------------------- -----------------------------------------
December 31, 1996 through December 31, 1997 5.50
December 31, 1997 through December 30, 1998 5.00
December 31, 1998 through December 30, 1999 4.00
Thereafter 3.00
7.02. LIENS. The Borrower shall not, and shall not permit any
Subsidiary of the Borrower to, at any time create, incur, assume or permit to
exist any Lien on any of its property (now owned or hereafter acquired), or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except for the following (referred to herein as "Permitted Liens"):
(a) Liens pursuant to the Shared Security Documents in favor
of the Collateral Agent for the benefit of the Secured Parties to
secure the Obligations;
(b) Liens arising from taxes, assessments, charges or claims
described in Sections 6.03(a) and 6.03(b), to the extent permitted to
remain unpaid under such Section 6.03;
(c) Deposits or pledges of cash or securities in the ordinary
course of business to secure (i) workmen's compensation, unemployment
insurance or other social security obligations, (ii) performance of
bids, tenders, trade contracts (other than for payment of money) or
leases, (iii) stay, surety or appeal bonds, or (iv) other obligations
of a like nature incurred in the ordinary course of business;
(d) Judgment liens fully bonded pending appeal;
(e) Liens by the Borrower or a Subsidiary of the Borrower on
property securing all or part of the purchase price thereof and Liens
(whether or not assumed) existing on property at the time of purchase
thereof by the Borrower or a Subsidiary of the Borrower, provided that:
(i) such Lien is created before or substantially
simultaneously with the purchase of such property in the
ordinary course of business by the Borrower or such Subsidiary
(or is a Lien securing successor obligations incurred to
extend or refinance predecessor obligations allowed under this
Section 7.02(e), provided that in each case the successor
obligation is an obligation of the same Person subject to the
predecessor obligation, is not greater than (and is not
otherwise on terms less advantageous than) the predecessor
obligation, and the Lien securing the successor obligation
does not extend to any property other than that subject to the
Lien securing the predecessor obligation);
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(ii) such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof;
(iii) the aggregate amount secured by all such Liens
on any particular property at the time purchased by the
Borrower or such Subsidiary, as the case may be, shall not
exceed the lesser of the purchase price of such property or
the fair market value of such property at the time of purchase
thereof ("purchase price" for this purpose including the
amount secured by each such Lien thereon whether or not
assumed); and
(iv) the obligation secured by such Lien is
Indebtedness permitted under Section 7.03(e) hereof;
(f) Liens in favor of the United States Government which arise
in the ordinary course of business resulting from progress payments or
partial payments under United States Government contracts or
subcontracts thereunder;
(g) Rights arising or reserved to the lessor under any
Capitalized Lease Obligations permitted by Section 7.03(e) hereof;
(h) Zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other
minor Liens that do not secure the payment of money or the performance
of an obligation and that do not in the aggregate materially detract
from the value of a property or asset to, or materially impair its use
in the business of, the Borrower or such Subsidiary;
(i) Liens existing on the Closing Date and listed on Schedule
7.02 hereof (but not any extension, renewal or replacement Liens); and
(j) Liens on property of TIMCO to secure payment of
reimbursement obligations of TIMCO with respect to the TIMCO Bonds
Letter of Credit, and Liens on property of TIMCO securing Indebtedness
of TIMCO constituting a refinancing of the TIMCO Bonds and the TIMCO
Lease permitted by Section 7.03(j) hereof.
Notwithstanding the foregoing, "Permitted Lien" in respect of the Borrower or
any Subsidiary of the Borrower shall in no event include (x) any Lien imposed
by, or required to be granted pursuant to, ERISA, the Code or any Environmental
Law, (y) except as provided in Section 7.02(a) hereof, any Lien on the Shared
Collateral Account or any other account (custodial, deposit or other) maintained
by or with the Collateral Agent pursuant to the Shared Security Documents, or
any other investment property or deposit account (as such terms are defined in
the Uniform Commercial Code), or (z) except as provided in Section 7.02(a)
hereof, any Lien on Shares of Capital Stock of, or obligations owed by, a
Subsidiary of the Borrower.
7.03. INDEBTEDNESS. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, at any time create, incur, assume or
permit to exist any Indebtedness, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Indebtedness of the Borrower under the Revolving Credit
Agreement, in aggregate principal amount not to exceed $75,000,000
(including any extension, renewal or refinancing thereof made in
compliance with Section 7.11(c) hereof);
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(b) Indebtedness of the Borrower under the Term Loan
Agreement, in aggregate principal amount not to exceed $225,000,000
(but not any extensions, renewals or refinancings of any thereof);
(c) Indebtedness of the Borrower or any of its Subsidiaries
not exceeding $8,250,000 in principal amount, issued in connection with
the acquisition by the Borrower or a Subsidiary of all of the Shares of
Capital Stock of ICV (such Indebtedness being referred to herein as the
"ICV Notes"); and Indebtedness of the Borrower in favor of the Lender
Parties pursuant to this Agreement and the other Loan Documents;
(d) Indebtedness of the Borrower under the Senior Notes, in
aggregate principal amount not to exceed $112,000,000 (but not any
extensions, renewals or refinancings of any thereof);
(e) Indebtedness constituting Capitalized Lease Obligations of
the Borrower and its Subsidiaries incurred in the ordinary course of
business from time to time, and Indebtedness of the Borrower and its
Subsidiaries secured by Liens described in Section 7.02(e) on property
used in the ordinary course of business of the Borrower or such
Subsidiary from time to time; provided, that the aggregate amount of
Indebtedness described in this Section 7.03(e) shall not exceed
$20,000,000 at any time;
(f) Other Indebtedness of the Borrower and its Subsidiaries
not exceeding $30,000,000 aggregate principal amount at any time
outstanding;
(g) Current accounts payable of the Borrower or any of its
Subsidiaries on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of business;
(h) Indebtedness of the Borrower pursuant to any Interest Rate
Hedge Agreement required to be entered into pursuant to Section 6.16(a)
hereof; and Indebtedness of the Borrower or any of its Subsidiaries
under any other interest rate or currency swap, cap, floor, collar,
future, forward or option agreement, or similar interest rate or
currency protection agreement, entered into for the purpose of hedging
and not for purposes of speculation (and not structured to contain an
embedded loan);
(i) Indebtedness constituting intercompany loans and Advances
permitted by Sections 7.05(d), 7.05(e), 7.05(h) and 7.05(i) hereof;
(j) Indebtedness of TIMCO constituting a letter of credit
issued for its account not exceeding $12,600,000 in stated amount,
which letter of credit effectively secures the TIMCO Bonds; any
extension, renewal or refinancing of such letter of credit, provided,
however, that the stated amount thereof is not increased and TIMCO
remains the account party with respect thereto (such letter of credit,
together with any such extension, renewal or refinancing letter of
credit, being referred to herein as the "TIMCO Bonds Letter of
Credit"); and any Indebtedness of TIMCO which amends, renews or
refinances (collectively, "refinances") the TIMCO Bonds, the TIMCO
Lease and the TIMCO Bonds Letter of Credit, provided, however, that
after giving effect to such refinancing, (i) the principal amount of
Indebtedness is not increased, (ii) neither the stated maturity nor the
average life of the Indebtedness is reduced, and (iii) TIMCO remains
the obligor on such refinancing Indebtedness; and
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(k) Indebtedness for borrowed money of Primark Economics or
any of its Subsidiaries not exceeding $6,000,000 in aggregate principal
amount at any time outstanding.
7.04. GUARANTIES, INDEMNITIES, ETC. The Borrower shall not, and shall
not permit any Subsidiary of the Borrower to, be or become subject to or bound
by any Guaranty Equivalent, or agree, become or remain liable (contingently or
otherwise) to do any of the foregoing, except:
(a) Contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar
transactions in the ordinary course of business;
(b) Indemnities by the Borrower or a Subsidiary of the
liabilities of its directors, officers and employees in their
capacities as such as permitted by Law;
(c) Guaranty Equivalents existing on the Closing Date and
listed in Schedule 7.04 hereof (but not extensions, renewals or
refinancings thereof or of any associated Assured Obligation);
provided, that this Section 7.04(c) shall not apply to any Guaranty
Equivalent as to which the Deemed Obligor is, on the Closing Date, a
Subsidiary of the Borrower if such Subsidiary thereafter ceases to be a
Subsidiary of the Borrower;
(d) Guaranty Equivalents by the Borrower or a Subsidiary
constituting usual and customary indemnities with respect to
liabilities (other than Indebtedness) in connection with a disposition
of stock or assets by the Borrower or such Subsidiary;
(e) Other Guaranty Equivalents by the Borrower or a Subsidiary
of the Borrower from time to time of obligations of a Substantially
Owned Subsidiary of the Borrower, provided that the Deemed Obligor in
respect of such Guaranty Equivalent is a Substantially Owned Subsidiary
of the Deemed Guarantor;
(f) Other Guaranty Equivalents by a Borrower or a Subsidiary
of the Borrower from time to time, provided that the sum of (i) the
maximum aggregate potential obligation of the Borrower or any
Subsidiary of the Borrower under Guaranty Equivalents described in this
Section 7.04(f), plus (ii) the aggregate amount of all payments made by
the Borrower and its Subsidiaries after the date hereof under Guaranty
Equivalents described in this Section 7.04(f), shall not exceed
$2,000,000; and
(g) Obligations of a Subsidiary of the Borrower as general
partner of a partnership permitted under Sections 7.05(g) or 7.05(j).
7.05. LOANS, ADVANCES AND INVESTMENTS. The Borrower shall not,
and shall not permit any Subsidiary of the Borrower to, at any time make or
permit to exist or remain outstanding any loan or Advance to, or purchase,
acquire or own (beneficially or of record) any Shares of Capital Stock of, any
stock, bonds, notes or securities of, or any partnership interest (whether
general or limited), membership interest or beneficial interest in, or any other
debt or equity interest in, or make any capital contribution to or other
investment in, any other Person, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except:
(a) Receivables owing to the Borrower or any Subsidiary of the
Borrower arising from performance of services and sales of goods under
usual and customary terms in the ordinary course of business;
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(b) Loans and Advances extended by the Borrower or any
Subsidiary of the Borrower to contractors or suppliers (excluding
contractors or suppliers that are Affiliates of the Borrower) under
usual and customary terms in the ordinary course of business and in
amount at any one time outstanding not exceeding $1,000,000 (or the
equivalent thereof in one or more foreign currencies) in the aggregate;
(c) Advances to officers and employees of the Borrower and its
Subsidiaries in the ordinary course of business, in amounts at any time
outstanding not exceeding $1,000,000 (or the equivalent thereof in one
or more foreign currencies) to any one officer or employee and
$2,000,000 (or the equivalent thereof in one or more foreign
currencies) in the aggregate; provided, however, that for purposes of
this Section 7.05(c) only, the outstanding amount of Advances shall not
be deemed to include amounts secured by perfected liens on shares of
the publicly-traded common stock of the Borrower, to the extent of the
market value of such common stock (as determined at least quarterly,
based on publicly-available quotations);
(d) Loans and Advances by a Subsidiary of the Borrower to the
Borrower;
(e) Ownership of Shares of Capital Stock of, and capital
contributions, loans and Advances to, Corporations that are Wholly
Owned Subsidiaries of the Borrower (other than a Broker-Dealer);
(f) (i) Ownership of Shares of Capital Stock of a Corporation
that is a Wholly Owned Subsidiary of the Borrower that is a
Broker-Dealer, as owned on the Closing Date, and (ii) capital
contributions by the Borrower or its Subsidiaries from time to time to
such Subsidiary, so long as such Subsidiary does not at the time of
such capital contribution, or immediately thereafter and after giving
effect thereto, have net capital (calculated in accordance with
regulatory standards) in excess of 150% of the minimum capital required
by Law;
(g) (i) Ownership of general partnership interests and other
equity interests in the Worldscope Entities representing an 80% or
greater interest in the capital, profits and losses of each of the
Worldscope Entities, as owned on the Closing Date, and (ii) capital
contributions to and acquisition of additional equity interests in the
Worldscope Entities from time to time after the Closing Date, and loans
and Advances to the Worldscope Entities from time to time;
(h) Acquisition and ownership of Shares of Capital Stock of
Corporations that are Subsidiaries of the Borrower other than Wholly
Owned Subsidiaries of the Borrower, and capital contributions, loans
and Advances to Subsidiaries of the Borrower other than Wholly Owned
Subsidiaries of the Borrower, provided, that the aggregate amount of
all such acquisitions and capital contributions made under this Section
7.05(h) after the Closing Date, plus the aggregate outstanding
principal amount of all such loans and Advances made under this Section
7.05(h), shall not at any time exceed $10,000,000;
(i) Acquisition and ownership by the Borrower or its
Subsidiaries of equity interests in Primark Economics representing a
20% or greater interest in the capital, profits and losses of Primark
Economics, and capital contributions, convertible debt and demand loans
by the Borrower or its Subsidiaries to Primark Economics from time to
time; provided, that (i) the sum of the aggregate amount of all
consideration paid for such equity interests and convertible debt plus
the aggregate amount of all such capital contributions (in each case
whether before or after the Closing Date), plus the aggregate
outstanding principal amount of all such demand loans, shall not at any
time exceed $5,000,000, and (ii) no such acquisitions, capital
contributions or
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loans may be made unless the Borrower continues to own (directly or
indirectly) at least a 20% interest (and, assuming full conversion of
convertible loans due to the Borrower or its Subsidiaries, a 51% or
greater interest) in the capital, profits and losses of Primark
Economics;
(j) Partnerships and joint ventures of which all partners,
participants and other Persons having ownership interests therein are
Wholly Owned Subsidiaries of the Borrower;
(k) Other loans, Advances and investments, not to exceed
$3,000,000 in the aggregate; and
(l) Cash Equivalent Investments.
7.06. DIVIDENDS AND RELATED DISTRIBUTIONS. The Borrower shall
not, and shall not permit any Subsidiary to, declare or make any Stock Payment,
or agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except as follows:
(a) The Borrower may from time to time repurchase for cash
shares of its common stock of a series publicly traded, subject to the
following conditions:
(i) Repurchases under this Section 7.06(a) shall not
exceed $25,000,000 from and after the Closing Date;
(ii) No Event of Default or Potential Default shall
exist on the date of such repurchase, or immediately
thereafter and after giving effect to such repurchase;
(iii) The Borrower would have been in compliance with
Sections 7.01(a) and 7.01(c) on the last day of the fiscal
quarter ending most recently before such repurchase, after
giving effect on a pro forma basis to such repurchase and to
any incurrence of Indebtedness after such day, as if such
repurchase and incurrence had occurred on such day; and
(iv) The Agent shall receive, with a copy for each
Lender, not later than the Business Day after the date such
repurchase is made, a certificate signed by a Responsible
Officer of the Borrower, dated such repurchase date,
describing such dividend, certifying that such repurchase is
in compliance with the provisions of this Section 7.06(a), and
including a statement in reasonable detail of the information
and calculations necessary to establish compliance with this
Section 7.06(a);
(b) A Subsidiary of the Borrower may declare and pay dividends
or other distributions with respect to its Shares of Capital Stock,
provided, that such dividend or other distribution is made on a pro
rata basis, consistent with the ownership interests in such Shares of
Capital Stock, to the owners of such shares; and
(c) The Borrower may make Stock Payments if such Stock Payment
is paid solely in Shares of Capital Stock (or warrants, options or
rights therefor) of the Borrower.
The Borrower shall not declare any dividend payable later than 60 days after
declaration, and the Borrower shall not permit any Subsidiary to declare any
dividend payable later than 15 days after declaration.
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7.07. SALE-LEASEBACKS. The Borrower shall not, and shall not
permit any Subsidiary to, at any time enter into or permit to remain in effect
any transaction to which the Borrower or such Subsidiary is a party involving
the sale, transfer or other disposition by the Borrower or any Subsidiary of any
property (now owned or hereafter acquired), with a view directly or indirectly
to the leasing back of any part of the same property or any other property used
for the same or a similar purpose or purposes, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except for transactions
existing on the date hereof and listed in Schedule 7.07 hereof (but not
extensions, renewals or refinancings thereof).
7.08. MERGERS, ETC. The Borrower shall not, and shall not
permit any Subsidiary of the Borrower to, directly or indirectly, (w) merge with
or into or consolidate with any other Person, or (x) liquidate, Wind-Up,
dissolve or divide, (y) acquire all or any substantial portion of the properties
of any going concern or going line of business (whether or not constituting a
distinct legal entity), or (z) acquire all or any substantial portion of the
properties of any other Person, or all or any substantial portion of the Shares
of Capital Stock of any other Person which is organized as a Corporation, or all
or any substantial portion of any equity interest in any other Person which is
not organized as a Corporation, or agree, become or remain liable (contingently
or otherwise) to do any of the foregoing, except for the following (referred to
herein as "Permitted Mergers"):
(a) A Subsidiary of the Borrower may merge with or into or
consolidate with, or acquire all or any substantial portion of the
properties of, or liquidate or dissolve into, any other Subsidiary of
the Borrower, if the acquiring, surviving or new Corporation shall be a
Wholly Owned Subsidiary of the Borrower; and
(b) The Borrower, or a Subsidiary of the Borrower, may make
acquisitions of the types referred to in the foregoing clauses (y) and
(z) of properties of Persons other than a Subsidiary of the Borrower,
consistent with the other provisions of this Agreement and the other
Loan Documents, provided that the aggregate Adjusted Acquisition
Consideration in connection with all such acquisitions made after the
Closing Date (and specifically excluding the acquisition of WEFA, if
made on or before the Closing Date) shall not exceed the sum of
$75,000,000 plus the amount, if any, of aggregate cash proceeds (net of
underwriting discounts, fees and other transaction costs) received by
the Borrower after the Closing Date from issuance of Shares of Capital
Stock of the Borrower (or options or warrants therefor).
7.09. DISPOSITIONS OF PROPERTIES. The Borrower shall not, and
shall not permit any Subsidiary to, sell, convey, assign, lease, transfer,
abandon or otherwise dispose of, voluntarily or involuntarily, directly or
indirectly, any of its properties, now existing or hereafter acquired, or agree,
become or remain liable (contingently or otherwise) to do any of the foregoing,
except:
(a) Sales of inventory, licenses (as licensor) of software or
other intellectual property, all in the ordinary course of business;
(b) Disposition of equipment and other operating assets which
are obsolete or no longer useful in the business of the Borrower or
such Subsidiary, as the case may be;
(c) Lease or sublease of unoccupied office space;
(d) Dispositions in Permitted Mergers, and other dispositions
between Wholly Owned Subsidiaries of the Borrower;
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(e) Disposition outside the ordinary course of business of all
(but not less than all) of the Shares of Capital Stock of TIMCO, or
substantially all the assets of TIMCO (but not less than substantially
all of such assets), subject to the following conditions:
(i) any such disposition of property is for not less
than the Fair Market Value of the property disposed of (as
determined in good faith by the Board of Directors of the
transferor, whose determination shall be evidenced by a
written resolution of such Board), and the consideration
received by the Borrower or the relevant Subsidiary in respect
of such disposition consists entirely of cash or Cash
Equivalent Investments; and
(ii) in the case of disposition of Shares of Capital
Stock of, or assets of, TIMCO, TIMCO shall be conducting
substantially the business conducted by it on the Closing
Date, and shall not be conducting any different or additional
business or have any material assets in addition to those it
had on the Closing Date; and
(f) Other dispositions of property from time to time for not
less than its Fair Market Value, provided that dispositions under this
Section 7.09(f) shall not exceed $5,000,000 in the aggregate in any
fiscal year.
Without limitation of the foregoing, it is understood that the following are
dispositions of property subject to this Section 7.09: any disposition of
accounts, chattel paper or general intangibles, with or without recourse; any
disposition of any leasehold interest; and any disposition of any Shares of
Capital Stock in or Indebtedness of any Subsidiary. The Borrower shall not, and
shall not permit any Subsidiary to sell, convey, assign, transfer or otherwise
dispose of, voluntarily or involuntarily, any of its accounts, chattel paper,
general intangibles or other financial assets with or without recourse, in any
factoring, structured financing, or other transaction having the practical
effect, directly or indirectly, of a financing, whether or not such transaction
is in the form of a "true sale" of such financial assets by the Borrower or such
Subsidiary.
7.10. DEALINGS WITH AFFILIATES. The Borrower shall not, and
shall not permit any Subsidiary of the Borrower to, enter into or carry out any
transaction with (including, without limitation, purchase or lease property or
services from, sell or lease property or services to, loan or advance to, or
enter into, permit to remain in existence or amend any contract, agreement or
arrangement with) any Affiliate of the Borrower, directly or indirectly, or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except:
(a) Transactions between (i) on the one hand, any Affiliate of
the Borrower, and (ii) on the other hand, the Borrower or any of its
Subsidiaries, in good faith and on fair and reasonable terms; and
(b) Compensation of directors, officers, employees and
consultants of the Borrower and its Subsidiaries for services rendered
in such capacity in good faith and on fair and reasonable terms, which
terms (in the case of compensation under employment contracts entered
into after the Closing Date will be approved by a majority of the board
of directors of such Borrower or Subsidiary (including a majority of
the directors having no direct or indirect interest in such
transaction).
7.11. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND
INSTRUMENTS.
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(a) SENIOR NOTES. The Borrower shall not amend, modify or
supplement the terms or provisions contained in, or applicable to, the Senior
Notes, the Senior Note Indenture, or any agreement or instrument evidencing or
applicable to any of the foregoing.
(b) REVOLVING CREDIT AGREEMENT. The Borrower shall not amend,
modify, supplement, renew or refinance the Revolving Credit Agreement or its
obligations thereunder, in any way that would change its nature as a revolving
credit facility, increase or reduce the principal amount available to be
borrowed thereunder, or cause the Revolving Credit Maturity Date or the final
date on which loans may be borrowed thereunder by the Borrower to occur sooner
than the relevant dates applicable under the Revolving Credit Agreement as
constituted on the Closing Date. In the event that the Agent hereunder is not
also the "Agent" under the Revolving Credit Agreement, the Borrower shall
promptly (and in any event within five days) give the Agent, with a copy for
each Lender, a copy of any amendment, modification or supplement to, or renewal
or refinancing of, the Revolving Credit Agreement.
(c) TERM LOAN AGREEMENT. The Borrower shall not amend, modify
or supplement the Term Loan Agreement or its obligations thereunder, in any way
that would (i) increase the principal amount thereof, or require payments on
account of principal to be made (by way of scheduled amortization, mandatory
prepayment or otherwise) earlier or in greater amount than is required under the
terms of the Term Loan Agreement as constituted on the Closing Date, (ii)
increase the rate or shorten the date for payment of interest thereon, or (iii)
require payment of any fee or other amount not provided for under the Term Loan
Agreement as constituted on the Closing Date. In the event that the Agent
hereunder is not also the "Agent" under the Term Loan Agreement, the Borrower
shall promptly (and in any event within five days) give the Agent, with a copy
for each Lender, a copy of any amendment, modification or supplement to the Term
Loan Agreement.
(d) [Reserved]
(e) ICV NOTES. The Borrower shall not amend, modify or
supplement the terms and provisions contained in, or applicable to, the ICV
Notes.
7.12. LIMITATION ON PAYMENTS ON CERTAIN OBLIGATIONS. The
Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, pay, prepay, purchase, redeem, retire, defease or acquire, or
otherwise make any payment (on account of principal, interest, premium or
otherwise) of, any obligation under or evidenced by the Senior Notes, except
that the Borrower may (x) pay principal and interest on the Senior Notes as and
when expressly required to do so by the mandatory terms of the Senior Notes, and
(y) purchase Senior Notes as and when expressly required to do so by the
mandatory terms of Sections 4.12 and 4.13 of the Senior Note Indenture (it being
understood that the foregoing may nevertheless give rise to an Event of
Default).
7.13. LIMITATION ON OTHER RESTRICTIONS ON LIENS, DIVIDEND
RESTRICTIONS ON SUBSIDIARIES, ETC. The Borrower shall not, and shall not permit
any Subsidiary to,
(x) enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by
which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound that would (i) prohibit the
grant of any Lien upon any of its properties (now owned or hereafter
acquired), or (ii) restrict or prohibit the transfer or disposition of
any of its properties (now owned or hereafter acquired), or require it
to dispose of or apply the proceeds of any such disposition in a
specified manner, or
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(y) be or become subject to any restriction of any nature
(whether arising by operation of Law, by agreement, by its certificate
or articles of incorporation, by-laws or other constituent documents,
or otherwise) on the right of the Borrower or such Subsidiary from time
to time (i) in the case of a Subsidiary, to declare and pay Stock
Payments with respect to Shares of Capital Stock owned by the Borrower
or any Subsidiary of the Borrower, (ii) in the case of the Borrower or
any Subsidiary of the Borrower, to pay any obligations from time to
time owed to the Borrower or any Subsidiary of the Borrower, or (iii)
in the case of the Borrower or any Subsidiary of the Borrower, make
loans or advances to the Borrower or any Subsidiary of the Borrower,
except:
(a) the Credit Facilities;
(b) the Senior Notes and the Senior Note Indenture;
(c) with respect to the foregoing clause (x), non-assignment
provisions of any executory contract or software or programs or of any
lease by the Borrower or such Subsidiary as lessee;
(d) with respect to the foregoing clause (x), restrictions on
property subject to a Permitted Lien in favor of the holder of such
Permitted Lien;
(e) restrictions with respect to TIMCO imposed pursuant to an
agreement entered into for sale or disposition (which sale or
disposition is not in violation of this Agreement or any other Loan
Document) of all or substantially all of the Shares of Capital Stock or
assets of such Subsidiary; provided, that such restriction, by its
terms, terminates on the earlier of the termination of such agreement
or the consummation of such agreement, and is agreed to in good faith;
and
(f) in the case of the foregoing clause (y), legal
restrictions of general applicability under the corporation or similar
law under which the Borrower or such Subsidiary is incorporated,
fraudulent conveyance or similar laws or general applicability for the
benefit of creditors generally, and other legal restrictions of general
applicability to similarly situated business corporations; and
(g) in the case of subclause (ii) of the foregoing clause (x),
restrictions on transfer of property arising in the ordinary course of
business; provided, that such restrictions do not directly or
indirectly secure any obligation of the Borrower or such Subsidiary to
pay money or to perform an obligation, and do not in the aggregate
materially detract from the value of a property or asset to, or
materially impair its use in the business of, the Borrower or such
Subsidiary.
7.14. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE
LOAN DOCUMENTS, ETC. The Borrower shall not, and shall not permit any Subsidiary
of the Borrower to, enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by which any
of them or any of their respective properties (now owned or hereafter acquired)
may be subject or bound that would prohibit or require the consent of any Person
to any amendment, modification or supplement to any of the Loan Documents,
except: (a) the Loan Documents, and (b) provisions in each of the other Credit
Facilities no more restrictive than those in such other Credit Facility,
respectively, as constituted on the Closing Date.
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7.15. LIMITATION ON CERTAIN BENEFIT LIABILITIES. The Borrower
shall not, and shall not permit any Subsidiary of the Borrower or any Controlled
Group Member to, become subject to Primark Group Benefits Exposures in excess of
$20,000,000 in the aggregate for all such Persons. As used herein, the term
"Primark Group Benefits Exposures" shall mean the sum of the maximum potential
liabilities (direct, contingent or other) of the Borrower and its Subsidiaries
and the Controlled Group Members in connection with the following: (a)
withdrawal liability (within the meaning of Section 4201 of ERISA) from any
Multiemployer Plan, whether or not such liability has yet been triggered as a
result of a withdrawal; (b) contributions due and unpaid with respect to a
Multiemployer Plan; (c) the "amount of unfunded benefit liabilities" (within the
meaning of Section 4001(a)(18) of ERISA) under any Plan, whether or not such
liability has yet been triggered as a result of a termination of such Plan; (d)
excise taxes assessed in connection with all of the above or otherwise in
connection with any Plan; (e) Postretirement Benefit Obligations of the
Borrower, any Subsidiary of the Borrower or any Controlled Group Member; and (f)
any other liability (contingent or other) in connection with a Plan or
Multiemployer Plan which represent a material risk that it may result in a Lien
attaching to assets of the Borrower or any Subsidiary of the Borrower, without
regard to any minimum amount required by Law to cause such Lien to attach.
7.16. FISCAL YEAR. The Borrower shall maintain a fiscal year
beginning on each January 1 and ending on the following December 31, divided
into fiscal quarters ending on the last day of each March, June, September and
December.
ARTICLE VIII
DEFAULTS
8.01. EVENTS OF DEFAULT. An "Event of Default" shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any
Letter of Credit Reimbursement Obligation, or make when due any
required cash collateralization of outstanding Letters of Credit.
(b) The Borrower shall fail to pay when due interest on any
Letter of Credit Reimbursement Obligation, any fees, indemnity or
expenses, or any other amount due hereunder or under any other Loan
Document, and such failure shall have continued for a period of five
Business Days.
(c) Any representation or warranty made or deemed made by the
Borrower in or pursuant to or in connection with any Loan Document or
any transaction contemplated hereby or thereby, or any statement made
by the Borrower or any Subsidiary of the Borrower or any in any
financial statement, certificate, report, exhibit or document furnished
by the Borrower or any Subsidiary of the Borrower to the Collateral
Agent or any Lender Party pursuant to or in connection with any Loan
Document or any transaction contemplated hereby or thereby, shall prove
to have been false or misleading in any material respect as of the time
when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not
misleading).
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(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VII hereof or any of
the covenants contained in Sections 3.13, 6.01(j)(i), 6.11, 6.12, 6.14,
6.15 or 6.16 hereof, or in Sections 4.02 or 4.06 of the Borrower Pledge
Agreement.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 6.01 hereof (other than as referred to in Sections
6.01(j)(i) hereof) such default shall have continued for a period of 10
days and (ii) in the case of any other default such default shall have
continued for a period of 30 days.
(f) (i) The Borrower or any Subsidiary of the Borrower shall
default in any payment of any amount in respect of any Cross-Default
Triggering Obligation beyond any period of grace with respect thereto
or, if any amount payable in respect of any Cross-Default Triggering
Obligation is payable on demand, shall fail to pay such amount when
demanded, or (ii) the Borrower or any Subsidiary of the Borrower shall
default in the observance of any covenant, term or condition of any
agreement or instrument by which any Cross-Default Triggering
Obligation is created, secured or evidenced, if the effect of such
default referred to in this clause (ii) is to cause, or to permit the
holder or holders of any Cross-Default Triggering Obligation (or a
trustee or agent on behalf of such holder or holders) to cause, all or
part of such Cross-Default Triggering Obligation to become due before
its otherwise stated maturity (by way of acceleration, mandatory
prepayment or otherwise), or, in the case of an interest rate or
currency swap, cap, collar, floor, future, forward or similar
transaction, to terminate before its otherwise scheduled termination.
As used in this Agreement, "Cross-Default Triggering Obligation" shall
mean
(A) any obligation under or in connection with any of
the other Credit Facilities, any Swap Agreement, the Senior
Notes or the Senior Note Indenture,
(B) any obligation, as principal or as guarantor or
other surety, in respect of the TIMCO Bond Order, the TIMCO
Lease, any reimbursement agreement relating to the TIMCO Bonds
Letter of Credit, or any other obligation referred to in
Section 7.03(j) hereof,
(C) any obligation (or set of related obligations),
as principal or as guarantor or other surety, in respect of
Indebtedness in excess of $5,000,000 (or the equivalent
thereof in one or more foreign currencies) in aggregate
amount, and
(D) any obligation (or set of related obligations,
including all obligations under a master agreement), as
principal or as guarantor or other surety, in respect of any
interest rate or currency swap, cap, collar, floor, future,
forward or similar transactions relating to a principal or
notional principal amount in excess of $5,000,000 (or the
equivalent thereof in one or more foreign currencies) in
aggregate amount.
(g) One or more judgments for the payment of money shall have
been entered against the Borrower or any Subsidiary of the Borrower,
which judgment or judgments exceed $2,000,000 in the aggregate, and
such judgment or judgments shall have remained undischarged and
unstayed for a period of 30 consecutive days.
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(h) Any Governmental Action now or hereafter made by or with
any Governmental Authority in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall
have been modified or amended or shall have been held to be illegal or
invalid, and such event or condition has, or would be likely to have, a
Material Adverse Effect.
(i) Any Shared Security Document shall cease to be in full
force and effect; or any Lien created or purported to be created in any
Shared Collateral pursuant to any Shared Security Document shall fail
to be a valid, enforceable and perfected Lien in favor of the
Collateral Agent for the benefit of the Secured Parties securing the
Obligations, prior to all other Liens except Permitted Liens.
(j) Any Loan Document or term or provision thereof shall cease
to be in full force and effect (except in accordance with the express
terms of such Loan Document), or the Borrower or any other party to any
Loan Document shall, or shall purport to, terminate (except in
accordance with the terms of such Loan Document), repudiate, declare
voidable or void or otherwise contest, any Loan Document or term or
provision thereof or any obligation or liability of the Borrower or
such other party thereunder.
(k) Any one or more Pension-Related Events referred to in
subsection (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events
shall have occurred which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(l) The Borrower shall make, or shall be required by the terms
of the Senior Note Indenture to make or to offer to make, any purchase
of Senior Notes under Sections 4.12 or 4.13 of the Senior Note
Indenture; or the Borrower or any of its Subsidiaries otherwise shall
make or offer to make any payment on account of principal of, or any
purchase, redemption, retirement, defeasance or acquisition of, any of
the Senior Notes (except for principal payment in accordance with the
terms thereof at the scheduled maturity thereof).
(m) Any Person or group (as such term is used in Sections 13
and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have
become the direct or indirect beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of 35% or more of any class of
voting securities of the Borrower; or any Person shall have been
elected or shall have become a director of the Borrower who was not
nominated and recommended for such position or elected to such position
by a majority of the then-incumbent Board of Directors of the Borrower;
or a "Change in Control" (as defined in the Senior Note Indenture as
constituted on the Closing Date shall have occurred (without regard to
any subsequent amendment, modification or supplement to, or termination
or expiration of, the Senior Note Indenture).
(n) A Control-Related Event shall have occurred, and the
Required Lenders shall have determined in good faith that such
Control-Related Event has or would be likely to have a Material Adverse
Effect (by reason of suspension, withdrawal or impairment of any
security clearance of the Borrower or any of its Subsidiaries, or
impairment of the business relationship between the Borrower and its
Subsidiaries, on the one hand, and the U.S. Government and its agencies
and departments, on the other hand). "Control-Related Event" shall mean
that any Person or group (as such term is used in Sections 13 and 14 of
the Exchange Act, and the rules and regulations thereunder) shall have
become the direct or indirect beneficial owner (as defined
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in Rules 13d-3 and 13d-5 under the Exchange Act) of 5% or more of any
class of voting securities of the Borrower (except for any such Person
or group existing on the Closing Date, to the extent of the voting
securities then owned by them).
(o) A proceeding shall have been instituted in respect of the
Borrower or any Significant Subsidiary of the Borrower (and for this
purpose, each Subsidiary of the Borrower which is subject to an event
or condition described in this Section 8.01(o) or in Section 8.01(p)
hereof shall be deemed a Significant Subsidiary if, collectively,
together with their respective Subsidiaries, treated as a single
entity, they would constitute a Significant Subsidiary)
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, Winding-up,
administration, charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition or other
similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief
of debtors or protection of creditors, termination of legal
entities or any other similar Law now or hereafter in effect,
or
(ii) seeking appointment of a receiver,
administrative receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
30 consecutive days.
(p) The Borrower or any Significant Subsidiary of the Borrower
(and for this purpose, each Subsidiary of the Borrower which is subject
to an event or condition described in Section 8.01(o) hereof or in this
Section 8.01(p) shall be deemed a Significant Subsidiary if,
collectively, together with their respective Subsidiaries, treated as a
single entity, they would constitute a Significant Subsidiary) shall
not be Solvent; shall fail to pay, become unable to pay, or state that
it is or will be unable to pay, its debts as they become due; shall
voluntarily suspend transaction of its business; shall make a general
assignment for the benefit of creditors; shall institute (or fail to
controvert in a timely and appropriate manner) a proceeding described
in Section 8.01(o)(i) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 8.01(o)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce
in any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his property; shall
dissolve, Wind-up, go into administration or revoke or forfeit its
articles of incorporation (or other constituent documents); or shall
take any action in furtherance of any of the foregoing.
8.02. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) GENERAL. If an Event of Default specified in subsections
(a) through (n) of Section 8.01 hereof shall have occurred and be continuing or
exist, or if an Event of Default specified in subsections (o) or (p) of Section
8.01 hereof shall have occurred and be continuing or exist with respect to a
Person other than the Borrower, then, in addition to all other rights and
remedies which the
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Collateral Agent or any Lender Party may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Agent may, and upon the written
request of the Required Lenders shall, by notice to the Borrower, from time to
time do any or all of the following: (i) declare the Letter of Credit Commitment
terminated, whereupon the Letter of Credit Commitment will terminate; (ii)
declare all Letter of Credit Reimbursement Obligations and all other Loan
Obligations to be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue, and (iii) require the Borrower to
immediately cash collateralize all outstanding Letters of Credit in accordance
with Section 3.07 hereof.
(b) BANKRUPTCY AND CERTAIN OTHER EVENTS. If an Event of
Default specified in subsection (o) or (p) of Section 8.01 hereof shall have
occurred and be continuing or exist with respect to the Borrower, then, in
addition to all other rights and remedies which the Collateral Agent or any
Lender Party may have hereunder or under any other Loan Document, at law, in
equity or otherwise, (i) the Letter of Credit Commitment shall automatically
terminate, (ii) all Letter of Credit Reimbursement Obligations and all other
Loan Obligations shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue, and (iii) the Borrower shall
immediately cash collateralize all outstanding Letters of Credit in accordance
with Section 3.07 hereof.
8.03. APPLICATION OF PROCEEDS. Subject to Section 3.07 hereof,
after the occurrence of an Event of Default and the occurrence of either
acceleration of the Letter of Credit Reimbursement Obligations or a requirement
that the Borrower cash collateralize all outstanding Letters of Credit, any
distributions made on account of Loan Obligations under the Collateral Agency
Agreement and all other payments received on account of Loan Obligations shall
be applied by the Agent to payment of the Loan Obligations in the following
order:
First, to payment of that portion of the Loan Obligations
constituting fees, indemnities and other amounts due to the Agent in
its capacity as such;
Second, to payment of that portion of the Loan Obligations
constituting fees, indemnities and other amounts due to the Issuing
Bank in its capacity as such, other than principal of and interest on
Letter of Credit Reimbursement Obligations and accrued and unpaid
Letter of Credit Fees, to the Issuing Bank;
Third, to payment of that portion of the Loan Obligations
constituting accrued and unpaid interest on Letter of Credit
Unreimbursed Draws, and accrued and unpaid Letter of Credit Fees,
ratably amongst the Lenders and the Issuing Bank in proportion to the
respective amounts described in this clause "Third" due to them;
Fourth, to payment of that portion of the Loan Obligations
constituting Letter of Credit Unreimbursed Draws, to the Issuing Bank;
Fifth, to payment of all other Loan Obligations, ratably
amongst the Lender Parties in proportion to the respective amounts
described in this clause "Fifth" due to them; and
Finally, the balance, if any, after all of the Loan
Obligations have been indefeasibly paid in full in cash, the Letter of
Credit Commitment shall have terminated and all Letters of Credit shall
have terminated, to the Borrower or as otherwise required by law.
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ARTICLE IX
THE AGENT
9.01. APPOINTMENT. Each Lender Party hereby irrevocably
appoints Mellon Bank, N.A. to act as Agent for the Lender Parties under this
Agreement and the other Loan Documents. Each Lender Party hereby irrevocably
authorizes the Agent to take such action on behalf of the Lender Parties under
the provisions of this Agreement and the other Loan Documents, and to exercise
such powers and to perform such duties, as are expressly delegated to or
required of the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto. Mellon Bank, N.A. hereby agrees to act as
Agent on behalf of the Lender Parties on the terms and conditions set forth in
this Agreement and the other Loan Documents, subject to its right to resign as
provided herein. Each Lender Party hereby irrevocably authorizes the Agent to
execute and deliver each of the Loan Documents and to accept delivery of such of
the other Loan Documents as may not require execution by the Agent. Without
limiting the generality of the foregoing, each Lender Party hereby irrevocably
authorizes the Agent to execute and deliver the Collateral Agency Agreement on
behalf of such Lender Party. Each Lender Party hereby agrees that the rights and
remedies granted to the Agent under the Loan Documents shall be exercised
exclusively by the Agent, and that no Lender Party shall have any right
individually to exercise any such right or remedy, except to the extent, if any,
expressly provided herein or therein.
9.02. GENERAL NATURE OF AGENT'S DUTIES.
(a) NO IMPLIED DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Agent shall be read into this Agreement or any Loan Document or shall
otherwise exist.
(b) NOT A FIDUCIARY. The duties and responsibilities of the
Agent under this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Agent shall not have a fiduciary relationship
in respect of any Lender Party.
(c) AGENT OF LENDER PARTIES. The Agent is and shall be solely
the agent of the Lender Parties. The Agent does not assume, and shall not at any
time be deemed to have, any relationship of agency or trust with or for, or any
other duty or responsibility to, the Borrower or any Person other than the
Lender Parties. The provisions of this Article IX are for the benefit of the
Lender Parties (and the other Persons named in Section 9.07 hereof), and the
Borrower shall not have any rights under any of the provisions of this Article
IX.
(d) NO OBLIGATION TO TAKE ACTION. The Agent shall be under no
obligation to take any action hereunder or under any other Loan Document if the
Agent believes in good faith that taking such action may conflict with any Law
or any provision of this Agreement or any other Loan Document, or may require
the Agent to qualify to do business in any jurisdiction where it is not then so
qualified.
9.03. EXERCISE OF POWERS. Subject to the other provisions of
this Agreement and the other Loan Documents, the Agent shall take any action of
the type specified in this Agreement or any other Loan Document as being within
the Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires
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the direction or consent of the Required Lenders (or some other Person or set of
Persons), in which case the Agent shall not take such action absent such
direction or consent. Any action or inaction pursuant to such direction,
discretion or consent shall be binding on all the Lender Parties. The Agent
shall not have any liability to any Person as a result of (x) the Agent acting
or refraining from acting in accordance with the directions of the Required
Lenders (or other applicable Person or set of Persons), (y) the Agent refraining
from acting in the absence of instructions to act from the Required Lenders (or
other applicable Person or set of Persons), whether or not the Agent has
discretionary power to take such action, or (z) the Agent taking discretionary
action it is authorized to take under this Section (subject, in the case of this
clause (z), to the provisions of Section 9.04(a) hereof).
9.04. GENERAL EXCULPATORY PROVISIONS.
(a) GENERAL. The Agent shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or willful
misconduct.
(b) AGENT NOT RESPONSIBLE FOR LOAN DOCUMENTS, ETC. The Agent
shall not be responsible for (i) the execution, delivery, effectiveness,
enforceability, genuineness, validity or adequacy of this Agreement or any other
Loan Document, (ii) any recital, representation, warranty, document,
certificate, report or statement in, provided for in, or received under or in
connection with, this Agreement or any other Loan Document, (iii) any failure of
the Borrower, any Lender or Issuing Bank to perform any of their respective
obligations under this Agreement or any other Loan Document, (iv) the existence,
validity, enforceability, perfection, recordation, priority, adequacy or value,
now or hereafter, of any Lien or other direct or indirect security afforded or
purported to be afforded by any of the Loan Documents or otherwise from time to
time, or (v) caring for, protecting, insuring, or paying any taxes, charges or
assessments with respect to any collateral.
(c) NO DUTY OF INQUIRY. The Agent shall not be under any
obligation to ascertain, inquire or give any notice relating to (i) the
performance or observance of any of the terms or conditions of this Agreement or
any other Loan Document on the part of the Borrower, (ii) the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
any other Person, or (iii) except to the extent set forth in Section 9.05(f)
hereof, the existence of any Event of Default or Potential Default.
(d) NOTICES. The Agent shall not be under any obligation,
either initially or on a continuing basis, to provide any Lender Party with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, except for such notices, reports and other information
expressly required by this Agreement or any other Loan Document to be furnished
by the Agent to such Lender Party.
9.05. ADMINISTRATION BY THE AGENT.
(a) RELIANCE ON NOTICES. The Agent may rely upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Agent
shall not have any duty to verify the identity or authority of any Person giving
such notice or other communication.
(b) CONSULTATION. The Agent may consult with legal counsel
(including, without limitation, in-house counsel for the Agent or in-house or
other counsel for the Borrower), independent public accountants and any other
experts selected by it from time to time, and the Agent shall not be
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liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts.
(c) RELIANCE ON CERTIFICATES, ETC. The Agent may conclusively
rely upon the truth of the statements and the correctness of the opinions
expressed in any certificates or opinions furnished to the Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Agent shall deem it necessary or desirable that a matter be proved or
established with respect to the Borrower or any Lender Party, such matter may be
established by a certificate of the Borrower or such Lender Party, as the case
may be, and the Agent may conclusively rely upon such certificate (unless other
evidence with respect to such matter is specifically prescribed in this
Agreement or another Loan Document).
(d) INDEMNITY. The Agent may fail or refuse to take any action
unless it shall be indemnified to its satisfaction from time to time against any
and all amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Agent by reason of taking
or continuing to take any such action.
(e) PERFORMANCE THROUGH AGENTS. The Agent may perform any of
its duties under this Agreement or any other Loan Document by or through agents
or attorneys-in-fact. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in fact selected by it with reasonable
care.
(f) NOTICE OF DEFAULT. The Agent shall not be deemed to have
any knowledge or notice of the occurrence of any Event of Default or Potential
Default unless the Agent has received notice from a Lender Party or the Borrower
referring to this Agreement, describing such Event of Default or Potential
Default, and stating that such notice is a "notice of default." If the Agent
receives such a notice, the Agent shall give prompt notice thereof to each
Lender.
9.06. LENDERS NOT RELYING ON AGENT OR OTHER LENDERS. Each
Lender Party hereby acknowledges as follows: (a) Neither the Agent nor any other
Lender Party has made any representations or warranties to it, and no act taken
hereafter by the Agent or any other Lender Party shall be deemed to constitute
any representation or warranty by the Agent or such other Lender Party to it.
(b) It has, independently and without reliance upon the Agent or any other
Lender Party, and based upon such documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into
this Agreement and the other Loan Documents. (c) It will, independently and
without reliance upon the Agent or any other Lender Party, and based upon such
documents and information as it shall deem appropriate at the time, make its own
decisions to take or not take action under or in connection with this Agreement
and the other Loan Documents.
9.07. INDEMNIFICATION OF AGENT BY LENDERS. Each Lender hereby
agrees to reimburse and indemnify the Agent and its directors, officers,
employees and agents (to the extent not reimbursed by the Borrower and without
limitation of the obligations of the Borrower to do so), Pro Rata, from and
against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and disbursements of
counsel for the Agent or such other Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
the Agent or such other Person shall be designated a party thereto) that may at
any time be imposed on, incurred by or asserted against the Agent or such other
Person as a result of, or arising out of, or in any way related to or by reason
of, this Agreement, any other Loan Document, any transaction from time to time
contemplated
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hereby or thereby, or any transaction financed in whole or in part or directly
or indirectly with the proceeds of any Letter of Credit; provided, that no
Lender shall be liable for any portion of such amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting from the gross negligence or willful misconduct
of the Agent or such other Person, as finally determined by a court of competent
jurisdiction.
9.08. AGENT IN ITS INDIVIDUAL CAPACITY. With respect to the
Loan Obligations owing to it, the Agent shall have the same rights and powers
under this Agreement and each other Loan Document as any other Lender and may
exercise the same as though it were not the Agent, and the terms "Lender,"
"Issuing Bank," and like terms shall include the Agent in its individual
capacity as such. The Agent and its affiliates may, without liability to
account, make loans to, accept deposits from, acquire debt or equity interests
in, enter into interest rate or currency hedging transactions with, act as
trustee under indentures of, and engage in any other business or transaction
with, the Borrower or any stockholder, subsidiary or affiliate of the Borrower,
as though the Agent were not the Agent hereunder.
9.09. [Reserved]
9.10. SUCCESSOR AGENT. The Agent may resign at any time by
giving 45 days' prior written notice thereof to the Lenders and the Borrower.
The Agent may be removed by the Required Lenders at any time by giving 10 days'
prior written notice thereof to the Agent, the other Lenders and the Borrower.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
and consented to, and shall have accepted such appointment, within 30 days after
such notice of resignation or removal, then the retiring Agent may (but shall
not be required to) appoint a successor Agent. Each successor Agent shall be a
commercial bank or trust company organized under the laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance by a successor Agent of its appointment
as Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the properties, rights, powers, privileges and duties of the
former Agent in its capacity as such, without further act, deed or conveyance.
Upon the effective date of resignation or removal of a retiring Agent, such
Agent shall be discharged from its duties as such under this Agreement and the
other Loan Documents, but the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted by it while it was Agent under this
Agreement. If and so long as no successor Agent shall have been appointed, then
any notice or other communication required or permitted to be given by the Agent
shall be sufficiently given if given by the Required Lenders, all notices or
other communications required or permitted to be given to the Agent shall be
given to each Lender, and all payments to be made to the Agent shall be made
directly to the Borrower or Lender Party for whose account such payment is made.
9.11. CALCULATIONS. The Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender Party to whom payment
was due but not made shall be to recover from the other Lender Parties any
payment in excess of the amount to which they are determined to be entitled or,
if the amount due was not paid by the Borrower, to recover such amount from the
Borrower.
ARTICLE X
MISCELLANEOUS
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10.01. HOLIDAYS. Except as otherwise expressly provided herein
or therein, whenever any payment or action to be made or taken hereunder or
under any other Loan Document shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on the next
following Business Day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
10.02. RECORDS. The unpaid Letter of Credit Reimbursement
Obligations, the unpaid interest accrued thereon, and the interest rate or rates
applicable thereto shall at all times be ascertained from the records of the
Issuing Bank, which shall be conclusive absent manifest error.
10.03. AMENDMENTS AND WAIVERS. The Agent and the Borrower may
from time to time amend, modify or supplement the provisions of this Agreement
or any other Loan Document (other than the Shared Security Documents) for the
purpose of amending, adding to, or waiving any provisions, releasing any
collateral, or changing in any manner the rights and duties of the Borrower or
any Lender Party. Any such amendment, modification or supplement made by the
Borrower and the Agent in accordance with the provisions of this Section 10.03
shall be binding upon the Borrower and each Lender Party. The Agent shall enter
into such amendments, modifications or supplements from time to time as directed
by the Required Lenders, and only as so directed, provided, that no such
amendment, modification or supplement may be made which will:
(a) Increase the Commitment Percentage of any Lender over the
amount thereof then in effect without the written consent of each
Lender, or extend the Note Backup Final Expiration Date without the
written consent of each Lender;
(b) Reduce the rate of interest or extend the time for payment
of interest borne by any Letter of Credit Reimbursement Obligation
(other than as a result of waiving the applicability of any increase in
interest rates applicable to overdue amounts), or extend the time for
payment of or reduce the amount of any Letter of Credit Fee, without
the written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 10.03, without the written consent of each Lender;
(d) Amend or waive any of the provisions of Article IX, or
impose additional duties upon the Agent, or otherwise affect the
rights, interests or obligations of the Agent, without the written
consent of the Agent;
(e) Release all or a major portion of the Shared Collateral
(other than in accordance with the provisions of the Loan Documents),
or subordinate the priority of the Liens in favor of the Collateral
Agent to Liens in favor of another Person with respect to all or a
major portion of the Shared Collateral (other than in accordance with
the provisions of the Loan Documents), without the written consent of
each Lender;
(f) Alter the priority of distributions set forth in Section
8.03 hereof, without the written consent of each Lender affected
thereby;
(g) Amend or waive any of the provisions of Article III, or
impose additional duties upon the Issuing Bank or otherwise affect the
rights, interests or obligations of the Issuing Bank, without the
written consent of the Issuing Bank; or
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(h) Reduce any Letter of Credit Unreimbursed Draw, or extend
the time for repayment by the Borrower of any Letter of Credit
Unreimbursed Draw, without the written consent of each Lender;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing, manually signed by or on behalf of the Borrower
and the Lender Party which is party thereto, and shall be effective only to the
extent set forth in such writing. Any Event of Default or Potential Default
waived or consented to in any such amendment, modification or supplement shall
be deemed to be cured and not continuing to the extent and for the period set
forth in such waiver or consent, but no such waiver or consent shall extend to
any other or subsequent Event of Default or Potential Default or impair any
right consequent thereto. Shared Security Documents may be amended, modified and
supplemented from time to time in accordance with the terms thereof and of the
Collateral Agency Agreement, and any such amendment, modification or supplement
so made shall be binding upon the Borrower and each Lender Party (and to the
extent that any consent, direction or other action is required by the Agent in
connection therewith, the provisions of the third sentence of this Section 10.03
shall apply to the Agent in giving such consent or direction or taking such
action).
10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of the Collateral Agent or any Lender Party in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the
Collateral Agent and the Lender Parties under this Agreement and any other Loan
Document are cumulative and not exclusive of any rights or remedies which any of
them would otherwise have hereunder or thereunder, at law, in equity or
otherwise.
10.05. NOTICES.
(a) GENERAL. Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") to the Borrower or any Lender
Party under this Agreement or any Loan Document shall be in writing (including
telexes and facsimile transmission) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or facsimile transmission
(with confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party at the address stated on the signature pages hereof or in accordance with
the last unrevoked written direction from such party to the other parties
hereto, in all cases with postage or other charges prepaid. Any such properly
given notice to any Lender Party shall be effective when received. Any such
properly given notice to the Borrower shall be effective on the earliest to
occur of receipt, telephone confirmation of receipt of telex or facsimile
transmission, one Business Day after delivery to a nationally-recognized
overnight courier, or three Business Days after deposit in the mail.
(b) COPIES TO AGENT. Any Lender giving any notice to the
Borrower or any other party to a Loan Document shall simultaneously send a copy
thereof to the Agent, and the Agent shall promptly notify the other Lenders of
the receipt by it of any such notice.
(c) RELIANCE. Each Lender Party may rely on any notice
(whether or not such notice is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made
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by or on behalf of the Borrower, and no Lender Party shall have any duty to
verify the identity or authority of any Person giving such notice.
10.06. EXPENSES; TAXES; INDEMNITY.
(a) EXPENSES. The Borrower agrees to pay or cause to be paid
and to save each Lender Party harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of outside counsel, including local counsel,
auditors, and all other professional, accounting, evaluation and consulting
costs) incurred by any Lender Party from time to time arising from or relating
to (i) in the case of the Agent, the negotiation, preparation, execution,
delivery, administration and performance of this Agreement and the other Loan
Documents, (ii) in the case of the Agent, any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, (iii) in the
case of each Lender Party, the enforcement or preservation of rights under this
Agreement or any Loan Document (including but not limited to any such costs or
expenses arising from or relating to (A) the creation, perfection or protection
of any Lien on any collateral, (B) the protection, collection, lease, sale,
taking possession of, preservation of, or realization on, any collateral,
including without limitation advances for taxes, filing fees and the like, (C)
collection or enforcement by any Lender Party of any amount owing hereunder or
thereunder, and (D) any litigation, proceeding, dispute, work-out, restructuring
or rescheduling related in any way to this Agreement or the Loan Documents), and
(iv) in the case of Mellon Bank, N.A., any syndication of this Agreement prior
to the first anniversary of the Closing Date (but amounts payable under this
clause (iv), plus amounts payable under Section 10.06(a)(iv) of the other Credit
Facilities as constituted on the Closing Date, shall in no event exceed an
aggregate of $50,000).
(b) TAXES. The Borrower hereby agrees to pay all stamp,
document, transfer, recording, filing, registration, search, sales and excise
fees and taxes and all similar impositions now or hereafter determined by any
Lender Party to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save each Lender
Party harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) INDEMNITY. The Borrower hereby agrees to reimburse and
indemnify the Lender Parties, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing (the "Lender
Indemnified Parties"), and each of them, and to hold each of them harmless from
and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of outside counsel for such Lender Indemnified Party in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Lender Indemnified Party shall be designated a
party thereto) that may at any time be imposed on, asserted against or incurred
by such Lender Indemnified Party as a result of, or arising out of, or in any
way related to or by reason of this Agreement or any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed or secured in whole or in part, directly or indirectly, by any Letter
of Credit or the proceeds thereof (and without in any way limiting the
generality of the foregoing, including any grant of any Lien on collateral or
any exercise by the Collateral Agent or any Lender Party of any of its rights or
remedies under this Agreement or any other Loan Document); but excluding any
portion of such losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting from the
gross negligence or willful misconduct of such Lender Indemnified Party, as
finally determined
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by a court of competent jurisdiction. If and to the extent that the foregoing
obligations of the Borrower under this Section 10.06(c), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document, are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
10.07. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
10.08. PRIOR UNDERSTANDINGS. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto and thereto relating to the
transactions provided for herein and therein, including the engagement letter
between the Borrower and Mellon Bank, N.A. dated December 13, 1996.
10.09. DURATION; SURVIVAL. All representations and warranties
of the Borrower contained herein or in any other Loan Document or made in
connection herewith or therewith shall survive the making of, and shall not be
waived by the execution and delivery, of this Agreement or any other Loan
Document, any investigation by or knowledge of any Lender Party, the issuance of
any Letter of Credit or any other event or condition whatever. All covenants and
agreements of the Borrower contained herein or in any other Loan Document shall
continue in full force and effect from and after the date hereof (or, in the
case of Section 7.01 hereof, from and after December 31, 1996) until the Letter
of Credit Commitment shall have terminated, all Letters of Credit have expired
or have been terminated, and all Loan Obligations (other than Contingent
Indemnification Obligations) have been indefeasibly paid in full in cash.
Without limitation, all obligations of the Borrower hereunder or under any other
Loan Document to make payments to or indemnify any Lender Party or Lender
Indemnified Party (including but not limited to obligations arising under
Sections 3.16, 3.17, 10.06 and 10.16 hereof) shall survive the payment in full
of all other Loan Obligations, termination of the Borrower's right to borrow
hereunder, and all other events and conditions whatever. In addition, all
obligations of each Lender to make payments to or indemnify the Agent or the
Issuing Bank and Persons related to the Agent or the Issuing Bank (including but
not limited to obligations arising under Sections 3.08(c) and 9.07 hereof) shall
survive the payment in full by the Borrower of all Loan Obligations, termination
of the Borrower's right to borrow hereunder, and all other events and conditions
whatever.
10.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
10.11. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
10.12. SET-OFF. The Borrower hereby agrees that if any Loan
Obligation of the Borrower shall be due and payable (by acceleration or
otherwise), each Lender Party shall have the
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right, without notice to the Borrower, to set-off against and to appropriate and
apply to such Loan Obligation any obligation of any nature owing to the Borrower
by such Lender Party, including but not limited to all deposits (whether time or
demand, general or special, provisionally credited or finally credited, whether
or not evidenced by a certificate of deposit) now or hereafter maintained by the
Borrower with such Lender Party. Such right shall be absolute and unconditional
in all circumstances and, without limitation, shall exist whether or not such
Lender Party or any other Person shall have given notice or made any demand to
the Borrower or any other Person, whether such obligation owed to the Borrower
is contingent, absolute, matured or unmatured (it being agreed that such Lender
Party may deem such obligation to be then due and payable at the time of such
setoff), and regardless of the existence or adequacy of any collateral, guaranty
or any other security, right or remedy available to any Lender Party or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by law, any Participant and any branch, subsidiary or affiliate of any Lender
Party or any Participant shall have the same rights of set-off as a Lender as
provided in this Section 10.12 (regardless of whether such Participant, branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of the Borrower). The rights provided by this Section 10.12 are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender Party (or any such Participant, branch, subsidiary
or affiliate) may otherwise have under this Agreement, any other Loan Document,
at law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the rights
of set-off or bankers' lien of any such Person.
10.13. SHARING OF COLLECTIONS. Subject to Section 2.06 of the
Collateral Agency Agreement, the Lenders hereby agree among themselves that if
any Lender shall receive (by voluntary payment, realization upon security,
set-off or from any other source) any amount on account of any Loan Obligation
contemplated by this Agreement or the other Loan Documents to be made by the
Borrower ratably to all Lenders in greater proportion than any such amount
received by any other Lender, then the Lender receiving such proportionately
greater payment shall notify each other Lender and the Agent of such receipt,
and equitable adjustment will be made in the manner stated in this Section so
that, in effect, all such excess amounts will be shared ratably among all of the
Lenders. The Lender receiving such excess amount shall purchase (which it shall
be deemed to have done simultaneously upon the receipt of such excess amount)
for cash from the other Lenders a participation in the applicable Loan
Obligations owed to such other Lenders in such amount as shall result in a
ratable sharing by all Lenders of such excess amount (and to such extent the
receiving Lender shall be a Participant). If all or any portion of such excess
amount is thereafter recovered from the Lender making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by Law
to be paid by the Lender making such purchase. The Borrower hereby consents to
and confirms the foregoing arrangements. Each Participant shall be bound by this
Section as fully as if it were a Lender hereunder.
10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lender Parties, and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder without the prior written consent of all
the Lenders and the Agent, and any purported assignment without such consent
shall be void, and except that, to the fullest extent permitted by law, a Lender
may not voluntarily assign or transfer any of its rights hereunder except in
accordance with the other provisions of this Section 10.14, and any other
purported voluntary assignment or transfer shall be void; provided, that this
Agreement shall inure to the benefit of successors of Lenders by operation of
law or resulting from an involuntary assignment or transfer (including but not
limited to receivers, conservators, trustees and like Persons, and successors by
merger or consolidation).
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(b) PARTICIPATIONS. Any Lender may, in the ordinary course of
its business and in accordance with applicable Law, at any time sell
participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents; provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
and
(iv) such Participant shall, by accepting such Participation,
be bound by the provisions of Section 10.13 hereof, and
(v) if such Participant is not already a Participant or a
Lender, and if such Participation gives such Participant any voting
rights (other than on matters described in clauses (a) through (h),
inclusive, of Section 10.03 hereof), such Participation shall be
subject to consent of the Agent, the Issuing Bank and the Borrower
pursuant to clause (i) of Section 10.14(c) hereof as if such
Participation were an assignment described therein.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 3.16, 3.17, 10.06 and 10.12 hereof with respect to its participation
from time to time; provided, that no such Participant shall be entitled to
receive any greater amount pursuant to such Sections than the transferor Lender
would have been entitled to receive in respect of the amount of the
participation transferred to such Participant had no such transfer occurred.
(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable Law, at any time assign all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents to any Lender or to one or more additional commercial banks or other
Person (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender shall be made
only with the consent of the Agent and the Issuing Bank (which each of
them may grant or withhold in their absolute discretion) and of the
Borrower (which consent may not be unreasonably withheld or delayed);
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents and under the Term Loan Agreement, such transferor
Lender shall retain, after such assignment (and any concurrent
assignment under the Term Loan Agreement), a minimum principal amount
of $10,000,000 under this Agreement and the Term Loan Agreement in the
aggregate, and after giving effect to such assignment (and any
concurrent assignment under the Term Loan Agreement) the transferee
Lender shall have a minimum principal amount of $10,000,000 under this
Agreement and the Term Loan Agreement in the aggregate,
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(iii) each such assignment shall be of a constant, and not a
varying, percentage of the Commitment Percentage of the transferor
Lender, and of all of the transferor Lender's related rights and
obligations under this Agreement and the other Loan Documents,
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit B to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, and a processing and recording fee of
$3,500; and, upon receipt thereof, the Agent shall accept such Transfer
Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant to such
Transfer Supplement, the Agent shall record such acceptance in the Register.
Upon such execution, delivery, acceptance and recording, from and after the
close of business at the Agent's Office on the Transfer Effective Date specified
in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
Accrued interest and accrued fees shall be paid to the Purchasing Lender at the
same time or times provided in this Agreement.
(d) REGISTER. The Agent shall maintain at its office a copy of
each Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment
Percentages of, each Lender from time to time. The entries in the Register shall
be conclusive absent manifest error and the Borrower and each Lender Party may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of the Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) FINANCIAL AND OTHER INFORMATION. Subject to Section
10.14(g) hereof, the Borrower authorizes the Agent and each Lender to disclose
to any Participant or Purchasing Lender, or prospective Participant or
Purchasing Lender, any and all financial and other information delivered to,
received by, or otherwise in the possession of, such Person from time to time
relating to the Borrower, its Subsidiaries and affiliates, or the matters
contemplated by the Loan Documents. At the request of any Lender, the Borrower,
at the Borrower's expense, shall provide to each prospective transferee the
conformed copies of documents referred to in Section 4 of the form of Transfer
Supplement.
(f) SYNDICATION. The Borrower shall, at the reasonable request
of Mellon Bank, N.A. from time to time, at the Borrower's expense, use all
reasonable efforts to cooperate with its syndication effort, including, without
limitation, (i) assisting it from time to time in preparing information packages
for delivery to prospective Participants and Purchasing Lenders, and (ii)
causing appropriate officers, representative and experts to meet with
prospective Participants and Purchasing Lenders from time to
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time. Mellon Bank, N.A. agrees to make such information packages available to
the Borrower for reasonable review before initial dissemination of the same in
primary syndication, and to consult with the Borrower as to the content thereof.
(g) CONFIDENTIALITY. Each Lender Party agrees to take
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower or any Subsidiary
in connection with this Agreement; provided, however, that any Lender Party may
disclose such information (i) at the request of any bank regulatory authority or
other Governmental Authority or in connection with an examination of such Lender
Party by any such Governmental Authority, (ii) pursuant to subpoena or other
court process, (iii) to the extent such Lender Party is required (or believes in
good faith that it is required) to do so in accordance with any applicable Law,
(iv) to such Lender Party's independent auditors and other professional
advisors, (v) in connection with the enforcement of any of its rights under or
in connection with any Loan Document, (vi) to any other Lender Party, and (vii)
to any actual or potential Participant or Purchasing Lender, or to any other
actual or potential creditor of or participant in a credit to the Borrower or
any of its Subsidiaries or Affiliates, so long as, in the case of this clause
(vii), such Person agrees to comply with the provisions of this Section
10.14(g).
(h) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any
time assign all or any portion of its rights under this Agreement, to a Federal
Reserve Bank. No such assignment shall relieve the transferor Lender from any of
its obligations hereunder.
10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER PARTY TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES
THAT SUCH
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SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE
(BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF
PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER AGAINST ANY LENDER PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY). THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT
TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS
OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
10.16. WITHHOLDING TAXES, ETC.
(a) INDEMNITY. Without limiting the generality of any other
provision of this Agreement or any other Loan Document, the Borrower hereby
agrees to reimburse and indemnify the Lender Indemnified Parties, and each of
them, and to hold each of them harmless from and against, any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, (x) the fees and disbursements of outside
counsel for such Lender Indemnified Party in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
such Lender Indemnified Party shall be designated a party thereto, and (y) any
present or future taxes, levies, imposts, deductions, charges or withholdings,
and any liability arising therefrom or with respect thereto, including without
limitation penalties, interest and expenses) that may at any time be imposed on,
asserted against or incurred by such Lender Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, payments by the
Issuing Bank on any Letter of Credit or the obligation of the Issuing Bank to
make any such payments.
(b) WITHHOLDING TAX FORMS, ETC. Without limiting the
generality of Section 10.16(a), the Borrower assumes full responsibility for
assuring that payments on any Letter of Credit, and the obligation of the
Issuing Bank to make such payments, comply with all present and future Laws
relating to taxation, including all withholding obligations under such Laws.
Without limiting the generality of the foregoing, the Borrower shall (i) procure
from each of the initial beneficiaries of the Letters of Credit (who will also
be the initial holders of the ICV Notes) U.S. Internal Revenue Service Forms
1001 and W-8 demonstrating exemption from United States withholding taxes with
respect to payments under the ICV Notes, and provide copies of such forms to the
Issuing Bank, and (ii) use its best efforts to procure from any successor
beneficiaries of any Letter of Credit from time to time such forms (and any
other or successor forms prescribed by applicable Law from time to time relating
to potential withholding obligations with respect to payments under the ICV
Notes) demonstrating exemption from United States withholding taxes with respect
to payments under the ICV Notes, and provide copies of the such forms to the
Issuing Bank.
10.17. DEFEASANCE OF CERTAIN COVENANTS. In the event that any
of the events described in clause (i) or (ii) of Section 3.13 hereof shall
occur, and the Borrower prepays the Letter of Credit Unreimbursed Draws in full
and provides cash collateral for all outstanding Letters of Credit in accordance
with Section 3.07 hereof, then, notwithstanding any other provision of this
Agreement to the contrary, from and after the date the foregoing conditions are
satisfied and so long as Section 4.15 of the Senior Note Indenture shall be in
force, the Defeased Covenants shall not restrict any Subsidiary of the
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Borrower from taking any action referred to in clause (a), (b), (c) or (d) of
Section 4.15 of the Senior Note Indenture, to the extent that application of the
Defeased Covenants to restrict such action would violate Section 4.15 of the
Senior Note Indenture. As used herein, "Defeased Covenants" shall mean the
covenants set forth in Article VII hereof, other than Section 7.01 hereof.
[Remainder of page intentionally left blank]
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<PAGE> 329
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
PRIMARK CORPORATION
By /s/ STEPHEN H. CURRAN
-------------------------------------------------
Stephen H. Curran
Senior Vice President and Chief Financial Officer
Address for Notices:
Primark Corporation
1000 Winter Street, Suite 4300N
Waltham, MA 02154
Attn: Stephen H. Curran,
Senior Vice President and Chief Financial
Officer
Telephone: 617-487-2140
Facsimile: 617-890-6129
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MELLON BANK, N.A.,
individually and as Agent
By /s/ R. JANE WESTRICH
--------------------------------------
R. Jane Westrich
Vice President
Commitment Percentage: 100%
Address for Notices:
Mellon Bank, N.A.
Trade Banking Operations
Three Mellon Bank Center,
Room 2329
Pittsburgh, PA 15259-0110
Attn: Standby Letter of Credit
Unit
Telephone: 412-234-9495
Facsimile: 412-234-2733
With copies to:
Mellon Bank, N.A.
Loan Administration
Three Mellon Bank Center
Room 153-2332
Pittsburgh, PA 15259-0003
Attn: Terpsie Katsafanas
Telephone: 412-234-4769
Facsimile: 412-236-2028
and to:
Mellon Bank, N.A.
One Boston Place, 6th Floor
Boston, MA 02108
Attn: R. Jane Westrich,
Vice President
Telephone: 617-722-7969
Facsimile: 617-722-3516
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ANNEX A
TO
NOTE BACKUP AGREEMENT
DEFINITIONS; CONSTRUCTION
1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used in this Agreement the
following words and terms defined have the meanings given them below, unless the
context of this Agreement otherwise clearly requires.
"Adjusted Acquisition Consideration" in connection with an
acquisition of a type referred to in clause (y) or (z) of Section 7.08
hereof by the Borrower or a Subsidiary of the Borrower means the
amount, not less than zero, equal to, without duplication, the sum of:
(a) the gross consideration paid or payable by the
Borrower and its Subsidiaries in connection with such
acquisition (including, without limitation, the purchase price
therefor and transaction expenses), with non-cash
consideration valued at its Fair Market Value on the closing
date of the acquisition; provided, that for purposes of this
clause (a) (i) the value of consideration in the form of
Shares of Capital Stock of the Borrower or options or warrants
therefor shall be deemed zero, and (ii) the value of
consideration in the form of Indebtedness or other deferred
payment obligations of the Borrower or its Subsidiaries
(exclusive of Indebtedness or other deferred payment
obligations payable and paid exclusively in Shares of Capital
Stock of the Borrower or options or warrants therefor) shall
be deemed the maximum aggregate amount of all payments which
in any circumstances may be required thereunder, as determined
at the time such Indebtedness or other deferred payment
obligation is incurred (except that, for purposes of this
clause (ii), interest on Indebtedness accruing after such
determination date at a market rate shall be excluded from
such maximum aggregate amount), plus
(b) the aggregate Indebtedness and Guarantee
Equivalents assumed or incurred, directly or indirectly, by
the Borrower or any Subsidiary of the Borrower in connection
with such acquisition (including, in the case of an
acquisition of any or all of the Shares of Capital Stock or
other equity interests of a Person, the aggregate Indebtedness
and Guarantee Equivalents of such Person), exclusive of
Indebtedness and Guarantee Equivalents of the Person being
acquired constituting current accounts payable of such Person
on normal trade terms to trade creditors arising out of
purchases of goods or services in the ordinary course of
business and not incurred in contemplation of such
acquisition, minus
(c) the aggregate cash and Cash Equivalent
Investments (valued at the lower of cost or market) acquired
by the Borrower and its Subsidiaries in such acquisition
(including, in the case of an acquisition of all, but not less
than all, of the Shares of Capital Stock or other equity
interests of a Person, the aggregate cash and Cash Equivalent
Investments of such Person, it being understood that in the
event that the Borrower and its Subsidiaries acquire less than
all of the Shares of Capital Stock or other equity interests
of a Person, no part of the cash or Cash Equivalent
Investments of such Person shall be deemed within the scope of
this clause (c)); provided, that in the event that the
Borrower and its Subsidiaries acquire all of the Shares of
Capital Stock or other equity interests of a Person, the cash
and Cash Equivalent Investments of such Person shall be deemed
within the scope of this clause (c) only in the event that the
relevant
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acquisition agreement requires the amount of cash and Cash
Equivalent Investments of such Person to be determined at the
closing date of the acquisition and provides for an adjustment
to the purchase price based on such amount.
"Advance" shall mean any loan, advance or other extension of
credit, direct or indirect.
"Affected Lender" shall have the meaning set forth in Section
3.09(e) hereof.
"Affiliate" of a Person shall mean any Person which directly
or indirectly controls, or is controlled by, or is under common control
with, such Person. For purposes of the preceding sentence, "control" of
a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise, and in any case shall include, without
limitation, (a) being a director or officer (or a Person having powers
analogous to those of a corporate director or officer) of such Person,
or of a Person that directly or indirectly controls such Person, (b)
having direct or indirect ownership (beneficially or of record) of, or
direct or indirect power to vote, 30% or more of the outstanding Shares
of Capital Stock of any class of such Person having ordinary voting
power for the election of directors (or in the case of a Person that is
not a Corporation, 30% or more of any class of equity interest having
voting or control power analogous to corporate common stock), and (b)
being a general partner of such Person, or of a Person having direct or
indirect control over a general partner of such Person.
"Applicable Margin" shall have the meaning set forth in
Section 3.09(b) hereof.
"Assured Obligation" shall have the meaning given that term in
the definition of "Guaranty Equivalent."
"Base Rate" for any day shall mean the greater of (a) the
Prime Rate for such day or (b) 0.50% plus the Federal Funds Effective
Rate for such day, such interest rate to change automatically from time
to time effective as of the effective date of each change in the Prime
Rate or the Federal Funds Effective Rate.
"Base Rate Option" shall have the meaning set forth in Section
3.09(a) hereof.
"Base Rate Portion" of any part of the Letter of Credit
Unreimbursed Draws shall mean at any time the portion, including the
whole, of such part of the Letter of Credit Unreimbursed Draws bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 3.15(c)(ii) hereof. If no part of the Letter of
Credit Unreimbursed Draws is specified, "Base Rate Portion" shall refer
to the Base Rate Portion of all Letter of Credit Unreimbursed Draws
outstanding at such time.
"Borrower Pledge Agreement" shall mean the Pledge Agreement of
approximately even date herewith between the Borrower and the
Collateral Agent, as amended, modified or supplemented from time to
time.
"Broker-Dealer" shall mean a Person who is, or is registered
as, a broker, dealer, municipal securities dealer, government
securities broker or government securities dealer under the Securities
Exchange Act of 1934, as amended, or under any state securities law, or
who has a comparable status under any securities law of any other
Governmental Authority.
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"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania or other day on which banking institutions are authorized
or obligated to close in the city in which is located the Agent's
Office.
"Capital Expenditures" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person during such period which
would be classified as capital expenditures in accordance with GAAP
(including, without limitation, expenditures for maintenance and
repairs which are capitalized, and Capitalized Leases to the extent an
asset is recorded in connection therewith in accordance with GAAP).
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of
the lessee at such time, and "Capitalized Lease Obligation" of any
Person at any time shall mean the aggregate amount which is, or is
required under GAAP to be, reported as a liability on the balance sheet
of such Person at such time as lessee under a Capitalized Lease.
"Capitalized Software" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as
liabilities during such period) of such Person which would be
classified as capitalized software in accordance with GAAP.
"Cash Equivalent Investments" shall have the meaning given
that term in the Collateral Agency Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute
of similar import, and regulations thereunder, in each case as in
effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be
amended from time to time.
"Closing Date" shall have the meaning given that term in
Section 3.01(a) hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement of approximately even date herewith between the Borrower,
certain "Revolving Credit Parties," by Mellon Bank, N.A., as Revolving
Credit Agent, certain "Term Loan Parties," by Mellon Bank, N.A., as
Term Loan Agent, certain "Note Backup Parties," by Mellon Bank, N.A.,
as Note Backup Agent, and Mellon Bank, N.A., as Collateral Agent, as
amended, modified or supplemented from time to time.
"Collateral Agent" shall have the meaning given that term in
the Collateral Agency Agreement.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the
signature page hereof, subject to transfer to another Lender as
provided in Section 10.14 hereof.
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"Consolidated Cash Interest Expense" for any period shall mean
the total cash interest expense payable by the Borrower and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" for any period shall mean the sum of (a)
Consolidated Net Income for such period, (b) Consolidated Interest
Expense for such period, (c) Consolidated Income Tax Expense for such
period, (d) depreciation expense of the Borrower and its Subsidiaries
for such period, and (e) amortization expense of the Borrower and its
Subsidiaries for such period, minus the sum of (x) extraordinary gains
(but not any losses) to the extent included in determining such
Consolidated Net Income, and (y) equity earnings (but not any losses)
of Affiliates of the Borrower to the extent included in determining
Consolidated Net Income for such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA Less Capital Expenditures" for any period
shall mean Consolidated EBITDA for such period, minus the sum of
Capital Expenditures of the Borrower and its Subsidiaries for such
period and, without duplication of amounts included in Capital
Expenditures, Capitalized Software of the Borrower and its Subsidiaries
for such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" for any period
shall mean the ratio of the Consolidated EBITDA Less Capital
Expenditures for such period to the Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges" for any period shall mean the sum
of (a) Consolidated Cash Interest Expense for such period, (b)
principal payments made by the Borrower and its Subsidiaries during
such period with respect to any outstanding Indebtedness (excluding (i)
payments of Indebtedness under the Revolving Credit Agreement, (ii)
prepayments made at the option of the Borrower of Indebtedness under
the Term Loan Agreement, to the extent the amounts so prepaid are not
otherwise due during such period, and (iii) payments of the Senior
Notes at the scheduled maturity thereof), (c) the amount of Stock
Payments made by the Borrower and its Subsidiaries during such period
(excluding (i) Stock Payments made to the Borrower or its Subsidiaries,
and (ii) Stock Payments made solely in Shares of Capital Stock (or
warrants, options or rights therefor) of the Borrower) all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt Ratio (Adjusted)" for any period
shall mean the following ratio: (a) the amount, not less than zero,
determined as of the last day of such period, equal to (i) Consolidated
Funded Indebtedness, minus (ii) the amount, not less than zero, equal
to (A) the amount of cash and Cash Equivalent Investments owned by the
Borrower and its Subsidiaries, valued at the lower of cost or market,
minus (B) $10,000,000, divided by (b) Consolidated EBITDA Less Capital
Expenditures for such period.
"Consolidated Funded Indebtedness" at any time shall mean
Indebtedness (including the current portion thereof) of the Borrower
and its Subsidiaries which as of such date would be classified in whole
or in part as a long-term liability in accordance with GAAP, and in any
event includes (a) Indebtedness under the Credit Facilities and the
Senior Notes, (b) any Indebtedness of the Borrower and its Subsidiaries
having a final maturity later than one year after the date of
incurrence of such Indebtedness, (c) any Indebtedness, regardless of
its term, of the Borrower and its Subsidiaries which is renewable or
extendable by the obligor to a date later than one year
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after the date of incurrence of such Indebtedness, and (d) Indebtedness
of TIMCO described in Section 7.03(j) hereof.
"Consolidated Income Tax Expense" for any period shall mean
the charges against income of the Borrower and its Subsidiaries for
foreign, federal, state and local income taxes for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" for any period shall mean the
total interest expense of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" for any period shall mean the net
earnings (or loss) after taxes of the Borrower and its Subsidiaries for
such period, determined on a consolidated basis in accordance with
GAAP; provided, that there shall be deducted therefrom (a) the income
(but not any deficit) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with or is
otherwise acquired by or combined with the Borrower or any Subsidiary
in a business combination accounted for as a pooling of interests,
including, in the case of a successor to the Borrower or any Subsidiary
by consolidation or merger or transfer of assets, any earnings of the
successor Corporation prior to such consolidation, merger or transfer
of assets, (b) income (but not any loss) accounted for by the Borrower
on the equity method resulting from an ownership interest in any
Person, but the deduction for such equity income shall be reversed to
the extent that during such period an amount not in excess of such
income has been actually received by the Borrower or such Subsidiary in
the form of cash dividends or similar cash distributions, (c) the
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is restricted (whether such restriction arises by operation
of Law, by agreement, by its certificate or articles of incorporation
or by-laws (or other constituent documents), or otherwise), (d) any
gain arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of the Borrower or any
Subsidiary, and (e) income (but not any loss) from discontinued
operations of the Borrower or any Subsidiary.
"Consolidated Net Worth" at any time shall mean the total
amount of common stockholders' equity and preferred stock of the
Borrower and its consolidated Subsidiaries at such time, determined on
a consolidated basis in accordance with GAAP; provided, that each item
of the following types shall be deducted, to the extent such item is
positive and is otherwise included therein: (a) any write-ups or other
revaluation after the Closing Date in the book value of any asset owned
by the Borrower or any of its consolidated Subsidiaries (other than
write-ups resulting from the acquisition of assets of a business made
within one year after such acquisition and accounted for by purchase
accounting, and write-ups resulting from the valuation in the ordinary
course of business of investment securities and inventory at the lower
of cost or market), (b) all investments in and loans and Advances to
(i) unconsolidated Subsidiaries of the Borrower, and (ii) Persons that
are not Subsidiaries of the Borrower (other than Cash Equivalent
Investments), (c) treasury stock, (d) assets attributable to interests
held by Persons other than the Borrower and its Subsidiaries that are
Wholly Owned Subsidiaries of the Borrower, (e) Disqualified Capital
Stock of the Borrower or of any Subsidiary of the Borrower, and (f) the
amount, whether positive or negative, of foreign currency translation
adjustments to stockholders' equity of the Borrower and its
Subsidiaries, all of the foregoing as determined in accordance with
GAAP.
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"Consolidated Net Worth (Adjusted)" at any time shall mean
Consolidated Net Worth at such time plus the lesser of (a) $50,000,000,
or (b) the sum of (i) aggregate writeoffs of goodwill on or after
January 1, 1997 resulting from an impairment loss pursuant to Statement
of Financial Accounting Standards No. 121, made by the Borrower in
accordance with GAAP, and (ii) aggregate writeoffs of the cost of
computer software purchased in an acquisition of the Person which
developed such software (or by acquisition of assets comprising a line
of business of such Person which includes such software) on or after
January 1, 1997, made pursuant to Statement of Financial Accounting
Standards No. 86, provided that such writeoffs are made at the time of
the related acquisition and are made by the Borrower in accordance with
GAAP.
"Contingent Indemnification Obligations" shall have the
meaning given that term in the Collateral Agency Agreement.
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with the Borrower or any
Subsidiary of the Borrower is treated as a controlled group or single
employer under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections
414(b), (c), (m) or (o) of the Code.
"Corporation" shall mean a corporation, limited liability
company or business trust organized under the Laws of any state of the
United States, a company limited by shares incorporated under the Laws
of England and Wales, or any similar entity organized under the Laws of
any other jurisdiction, the owners of which are not by operation of Law
generally liable for the obligations of such entity.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through
a Notional Euro-Rate Funding Office of one or more Dollar deposits in
the interbank eurodollar market at the beginning of the Euro-Rate
Funding Period corresponding to such Funding Segment having maturities
approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Credit Facilities" shall mean the Revolving Credit Agreement,
the Term Loan Agreement and the Note Backup Agreement.
"Datastream" shall mean Datastream International Limited, a
corporation incorporated under the Laws of England and Wales.
"Disqualified Capital Stock" shall mean any Shares of Capital
Stock that, other than solely at the option of the issuer thereof, by
their terms (or by the terms of any security into which they are
convertible or exchangeable) are, or upon the happening of an event or
the passage of time would be, required to be redeemed or repurchased,
in whole or in part, or have, or upon the happening of an event or the
passage of time would have, a redemption or similar payment due on or
prior to the Facilities Termination Date.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
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"Environmental Affiliate": a Person ("Y") shall be an
"Environmental Affiliate" of another Person ("X"), if X has retained or
assumed, or is otherwise liable (contingently or otherwise) for, any
liability (contingent or other) of Y with respect to any Environmental
Claim, whether such retention, assumption or liability on the part of X
arises by agreement, by Law or otherwise.
"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person
(the "specified Person"), any action, suit, proceeding, investigation,
notice, claim, complaint, demand, request for information or other
communication (written or oral) by any other Person (including but not
limited to any Governmental Authority, citizens' group or present or
former employee of the specified Person) alleging, asserting or
claiming any actual or potential liability on the part of the specified
Person for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries,
fines or penalties, arising out of, based on or resulting from (a) the
presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person, or (b)
circumstances forming the basis of any violation or alleged violation
of any Environmental Law.
"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on
CERCLIS or on any similar state list of sites requiring investigation
or cleanup, or which is the subject of any pending or threatened
action, suit, proceeding or investigation related to or arising from
any alleged violation of any Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, solid waste, pollutant, contaminant
or any related material, raw material, substance, product or by-product
of any substance, as the foregoing terms are defined in, or any other
substance regulated by, any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any
similar state Law), (b) any toxic chemical from or related to
industrial, commercial or institutional activities, and (c) asbestos,
gasoline, diesel fuel, motor oil, waste and used oil, heating oil and
other petroleum products or compounds, polychlorinated biphenyls, radon
and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture,
formulation, packaging, labeling, distribution, transportation,
handling, storage or disposal. Without limitation, "Environmental Law"
shall also include any Environmental Approval and the terms and
conditions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
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"Euro-Rate" for any day, as used herein, shall mean for each
Funding Segment of the Euro-Rate Portion corresponding to a proposed or
existing Euro-Rate Funding Period the rate per annum determined by the
Agent by dividing (the resulting quotient to be rounded upward to the
nearest 1/100 of 1%) (a) the rate of interest (which shall be the same
for each day in such Euro-Rate Funding Period) determined in good faith
by the Agent in accordance with its usual procedures (which
determination shall be conclusive) to be the average of the rates per
annum for deposits in Dollars offered to major money center banks in
the London interbank market at approximately 11:00 a.m., London time,
two London Business Days prior to the first day of such Euro-Rate
Funding Period for delivery on the first day of such Euro-Rate Funding
Period in amounts comparable to such Funding Segment and having
maturities comparable to such Funding Period by (b) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 3.09(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
3.09(a) hereof.
"Euro-Rate Portion" of any part of the Letter of Credit
Unreimbursed Draws shall mean at any time the portion, including the
whole, of such part of the Letter of Credit Unreimbursed Draws bearing
interest at any time under the Euro-Rate Option or at a rate calculated
by reference to the Euro-Rate under Section 3.15(c)(i) hereof. If no
part of the Letter of Credit Unreimbursed Draws is specified,
"Euro-Rate Portion" shall refer to the Euro-Rate Portion of all Letter
of Credit Unreimbursed Draws outstanding at such time.
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100
of 1%), as determined in good faith by the Agent (which determination
shall be conclusive), which is in effect on such day as prescribed by
the Board of Governors of the Federal Reserve System (or any successor)
representing the maximum reserve requirement (including, without
limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System. The
Euro-Rate shall be adjusted automatically as of the effective date of
each change in the Euro-Rate Reserve Percentage. The Euro-Rate Option
shall be calculated in accordance with the foregoing whether or not any
Lender is actually required to hold reserves in connection with its
eurocurrency funding or, if required to hold such reserves, is required
to hold reserves at the "Euro-Rate Reserve Percentage" as herein
defined.
"Event of Default" shall mean any of the Events of Default
described in Section 8.01 hereof.
"Facilities Termination Date" shall mean the later to occur of
the Revolving Credit Maturity Date, the Term Loan Maturity Date and the
Note Backup Final Expiration Date.
"Fair Market Value" shall mean, with respect to any asset, the
sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and
an informed and willing buyer.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the
Agent (which determination shall be conclusive) to be the rate per
annum announced by the Federal Reserve Bank of New York (or
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any successor) as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not so announce such rate for such previous trading
day, the "Federal Funds Effective Rate" shall be the average rate
charged to Mellon Bank, N.A. on such previous trading day on such
transactions as determined by the Agent.
"Funding Periods" shall have the meaning set forth in Section
3.09(c) hereof.
"Funding Segment" of the Euro-Rate Portion at any time shall
mean the entire principal amount of such Portion to which at the time
in question there is applicable a particular Funding Period beginning
on a particular day and ending on a particular day. (By definition,
each such Portion is at all times composed of an integral number of
discrete Funding Segments and the sum of the principal amounts of all
Funding Segments of any such Portion at any time equals the principal
amount of such Portion at such time.)
"GAAP" shall have the meaning given that term in Section 1.03
of this Annex A.
"Governmental Action" shall have the meaning set forth in
Section 4.04 hereof.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to subject to a Guaranty Equivalent in respect of any
obligation (the "Assured Obligation") of another Person (the "Deemed
Obligor") if the Deemed Guarantor directly or indirectly guarantees,
becomes surety for, endorses, assumes, agrees to indemnify the Deemed
Obligor against, or otherwise agrees, becomes or remains liable
(contingently or otherwise) for, such Assured Obligation, in whole or
in part. Without limitation, a Guaranty Equivalent shall be deemed to
exist if a Deemed Guarantor agrees, becomes or remains liable
(contingently or otherwise), directly or indirectly, to do any of the
following: (a) to purchase or assume, or to supply funds for the
payment, purchase or satisfaction of, an Assured Obligation, (b) to
make any loan, advance, capital contribution or other investment in, or
to purchase or lease any property or services from, a Deemed Obligor
(i) to maintain the solvency of the Deemed Obligor, (ii) to enable the
Deemed Obligor to meet any other financial condition, (iii) to enable
the Deemed Obligor to satisfy any Assured Obligation or to make any
Stock Payment or any other payment, or (iv) to assure the holder of
such Assured Obligation against loss, (c) to purchase or lease property
or services from the Deemed Obligor regardless of the non-delivery of
or failure to furnish of such property or services, (d) in a
transaction having the characteristics of a take-or-pay or throughput
contract or as described in paragraph 6 of FASB Statement of Financial
Accounting Standards No. 47, or (e) in respect of any other transaction
the effect of which is to assure the payment or performance (or payment
of damages or other remedy in the event of nonpayment or
nonperformance) in whole or in part of any Assured Obligation.
"ICV" shall mean ICV Limited, a Corporation incorporated under
the Laws of England and Wales.
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"ICV Notes" shall have the meaning given that term in Section
7.03(c) hereof.
"Indebtedness" of a Person shall mean the following: (a) all
obligations on account of money borrowed by, or credit extended to or
on behalf of, or for or on account of deposits with or advances to,
such Person; (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such
Person for the deferred purchase price of property or services; (d) all
obligations secured by a Lien on property owned by such Person (whether
or not assumed), and all obligations of such Person under Capitalized
Leases (without regard to any limitation of the rights and remedies of
the holder of such Lien or the lessor under such Capitalized Lease to
repossession or sale of such property); (e) the stated amount of all
letters of credit issued for the account of such Person and, without
duplication, the unreimbursed amount of all drafts drawn thereunder,
and all other obligations of such Person associated with such letters
of credit or draws thereon; (f) all obligations of such Person in
respect of acceptances or similar obligations issued for the account of
such Person; (g) all obligations of such Person under a product
financing or similar arrangement described in paragraph 8 of FASB
Statement of Accounting Standards No. 49 or any similar requirement of
GAAP; (h) all obligations of such Person under any interest rate or
currency swap, cap, floor, collar, future, forward or option agreement,
or other interest rate or currency protection agreement; and (i) the
maximum fixed repurchase price of any Disqualified Capital Stock of
such Person.
"Interest Rate Hedging Agreement" shall mean an interest rate
swap, cap or collar agreement.
"Issuing Bank" shall mean Mellon Bank, N.A.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 10.14 hereof
pertaining to Persons becoming or ceasing to be Lenders. "Lender" shall
in any event include the Issuing Bank.
"Lender Indemnified Parties" shall have the meaning given that
term in Section 10.06(c) hereof.
"Lender Parties" shall mean the Lenders, the Issuing Bank and
the Agent.
"Letter of Credit" shall mean any letter of credit outstanding
under this Agreement from time to time (and is synonymous with the term
"Note Backup LOC" defined in the Collateral Agency Agreement).
"Letter of Credit Collateral Account" shall mean the "Note
Backup LOC Collateral Account" as defined in the Collateral Agency
Agreement.
"Letter of Credit Commitment" shall have the meaning given
that term in Section 3.01(a) hereof.
"Letter of Credit Commitment Termination Date" shall have the
meaning given that term in Section 3.01(a) hereof.
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"Letter of Credit Exposure" shall mean the "Note Backup LOC
Exposure" as defined in the Collateral Agency Agreement.
"Letter of Credit Facing Fee" shall have the meaning given
that term in Section 3.01(d) hereof.
"Letter of Credit Fee" shall have the meaning given that term
in Section 3.01(c) hereof.
"Letter of Credit Fee Rate" shall have the meaning given that
term in Section 3.01(c) hereof.
"Letter of Credit Participating Interest" shall have the
meaning given that term in Section 3.03(a) hereof.
"Letter of Credit Reimbursement Obligation" with respect to a
Letter of Credit means the obligation of the Borrower to reimburse the
Issuing Bank for Letter of Credit Unreimbursed Draws, together with
interest thereon.
"Letter of Credit Undrawn Availability" shall mean the "Note
Backup LOC Undrawn Availability" as defined in the Collateral Agency
Agreement.
"Letter of Credit Unreimbursed Draws" shall mean "Note Backup
LOC Unreimbursed Draws" as defined in the Collateral Agency Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Loan Documents" shall mean this Agreement, the Transfer
Supplements, the Letters of Credit, the Shared Security Documents and
the Origination Fee Letter.
"Loan Obligations" shall mean the "Note Backup Obligations" as
defined in the Collateral Agency Agreement.
"London Business Day" shall mean a day for dealing in deposits
in Dollars by and among banks in the London interbank market and which
is a Business Day.
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) a material adverse effect on the ability of the Borrower to perform
or comply with any of the terms and conditions of any Loan Document, or
(c) an adverse effect on the legality, validity, binding effect,
enforceability or admissibility into evidence of any Loan Document, or
the ability of the Collateral Agent or any Lender Party to enforce any
rights or remedies under or in connection with any Loan Document.
"Multiemployer Plan" shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA and to which the Borrower, any
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Subsidiary of the Borrower or any other Controlled Group Member has or
had an obligation to contribute.
"Note Backup Agreement" shall mean this Note Backup Agreement
as amended, modified or supplemented from time to time (and is
synonymous with references to "this Agreement" herein).
"Note Backup Final Expiration Date" shall mean November 8,
2002.
"Notional Euro-Rate Funding Office" shall have the meaning
given to that term in Section 3.18(a) hereof.
"Obligations" shall have the meaning given that term in the
Collateral Agency Agreement.
"Office," when used in connection with the Agent, shall mean
its office located at One Mellon Bank Center, Pittsburgh, Pennsylvania
15258, or at such other office or offices of the Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from
time to time by the Agent to the Borrower.
"Option" shall mean the Base Rate Option or the Euro-Rate
Option.
"Origination Fee Letter" shall have the meaning given that
term in Section 5.01(s) hereof.
"Participants" shall have the meaning set forth in Section
10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency,
department or instrumentality succeeding to the functions of said
corporation.
"Pension-Related Event" shall mean any of the following events
or conditions:
(a) Any action is taken by any Person (i) to
terminate, or which would result in the termination of, a Plan
pursuant to the distress termination provisions of Section
4041(c) of ERISA or (ii) to have a trustee appointed for a
Plan pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination
that an event described in Section 4042 of ERISA has occurred
with respect to a Plan, that a Plan should be terminated, or
that a trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a
Plan;
(d) Any action (other than becoming obligated to
contribute to a Multiemployer Plan) occurs or is taken which
could result in the Borrower, any Subsidiary of the Borrower
or any Controlled Group Member becoming subject to liability
for a complete or partial withdrawal by any Person from a
Multiemployer Plan (including, without limitation, seller
liability incurred under Section 4204(a)(2) of ERISA), or the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member receives from any
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Multiemployer Plan a notice or demand for payment on account
of any such alleged or asserted liability;
(e) (i) There occurs any failure to meet the minimum
funding standard under Section 302 of ERISA or Section 412 of
the Code with respect to a Plan, or any tax return is filed
showing any tax payable under Section 4971(a) of the Code with
respect to any such failure, or the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member receives a
notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, (ii) any
request is made by any Person for a variance from the minimum
funding standard, or an extension of the period for amortizing
unfunded liabilities, with respect to a Plan, or (iii) the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member fails to pay the PBGC premium with respect to a
Plan when due and it remains unpaid for more than 30 days
thereafter; or
(f) There occurs any "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the
Code involving a Plan.
"Permitted Liens" shall have the meaning given that term in
Section 7.02 hereof.
"Permitted Mergers" shall have the meaning given that term in
Section 7.08 hereof.
"Person" shall mean an individual, Corporation, partnership,
trust, limited liability company, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other
entity.
"Plan" shall mean (a) any employee pension benefit plan within
the meaning of Section 3(2) of ERISA covered by Title IV of ERISA by
reason of Section 4021 of ERISA, of which the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member is or has been within
the preceding five years a "contributing sponsor" within the meaning of
Section 4001(a)(13) of ERISA, or which is or has been within the
preceding five years maintained for employees of the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member and (b) any
employee pension benefit plan within the meaning of Section 3(2) of
ERISA which is subject to Title I of ERISA by reason of Section 4 of
ERISA and is subject to the minimum funding requirements of Section 302
of ERISA or Section 412 of the Code, of which the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member is or has
been within the preceding five years an employer liable for
contributions within the meaning of Section 302(c)(11) of ERISA or
Section 412(c)(11) of the Code, or which is or has been within the
preceding five years maintained for employees of the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member.
"Portion" shall mean the Prime Rate Portion or the Euro-Rate
Portion.
"Postretirement Benefits" of a Person shall mean any benefits,
other than retirement income, provided by such Person to retired
employees, or to their spouses, dependents or beneficiaries, including,
without limitation, group medical insurance or benefits, or group life
insurance or death benefits.
"Postretirement Benefit Obligation" of a Person shall mean
that portion of the actuarial present value of all Postretirement
Benefits expected to be provided by such Person which is
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attributable to employees' service rendered to the date of
determination (assuming that such liability accrues ratably over an
employee's working life to the earlier of his date of retirement or the
date on which the employee would first become eligible for full
benefits), reduced by the fair market value as of the date of
determination of any assets which are segregated from the assets of
such Person and which have been restricted so that they cannot be used
for any purpose other than to provide Postretirement Benefits or to
defray related expenses.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Agent or the
Lenders, or any combination of the foregoing, would constitute an Event
of Default.
"Primark Economics" shall mean Primark Decision Economics,
Inc.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by Mellon Bank, N.A. as its prime
rate, such rate to change automatically effective as of the
effectiveness of each announced change in such prime rate.
"Pro Rata" shall mean from or to each Lender in proportion to
such Lender's applicable Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in
Section 10.14(c) hereof.
"Register" shall have the meaning set forth in Section
10.14(d) hereof.
"Regular Monthly Payment Date" shall mean the last Business
Day of each month after the Closing Date.
"Reimbursement Target Date" shall have the meaning given that
term in Section 3.04(a) hereof.
"Regular Quarterly Payment Date" shall mean the last Business
Day of each September, December, March and June after the Closing Date.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by
a substantial employer from a Plan to which more than one employer
contributes, as referred to in Section 4063(b) of ERISA, (iii) a
cessation of operations at a facility causing more than twenty percent
(20%) of Plan participants to be separated from employment, as referred
to in Section 4062(e) of ERISA, or (iv) a failure to make a required
installment or other payment with respect to a Plan when due in
accordance with Section 412 of the Code or Section 302 of ERISA which
causes the total unpaid balance of missed installments and payments
(including unpaid interest) to exceed $250,000.
"Required Lenders" shall mean Lenders holding in the aggregate
51% of the Commitment Percentages.
"Responsible Officer" of a Person shall mean its Chairman of
the Board, President, Chief Financial Officer or Treasurer.
"Revolving Credit Agreement" shall mean the Revolving Credit
Agreement of even date herewith by and among the Borrower, the lenders
parties thereto from time to time, the issuing
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banks referred to therein, and Mellon Bank, N.A., as Agent, as the same
may be amended, modified, supplemented, renewed or refinanced from time
to time in accordance with this Agreement.
"Revolving Credit Maturity Date" shall mean the final
scheduled maturity of Indebtedness under the Revolving Credit
Agreement.
"Secured Parties" shall have the meaning given that term in
the Collateral Agency Agreement.
"Senior Note Indenture" shall mean the Indenture dated as of
October 18, 1993 between the Borrower and The First National Bank of
Boston, as Trustee, relating to the Senior Notes, as constituted on the
Closing Date.
"Senior Notes" shall mean the Borrower's 8 3/4% Senior Notes
Due 2000.
"Shared Collateral" shall have the meaning given that term in
the Collateral Agency Agreement.
"Shared Collateral Account" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shared Security Documents" shall have the meaning given that
term in the Collateral Agency Agreement.
"Shares of Capital Stock" shall mean shares of capital stock
of, membership interest in, beneficial interest in, or similar
ownership interest in, a Corporation organized under the Laws of any
state of the United States or any other jurisdiction, including,
without limitation, in the case of Corporations incorporated under the
Laws of England and Wales, equity share capital, ordinary shares and
loan stock.
"Significant Subsidiary" of Borrower shall mean any Subsidiary
of the Borrower (a) which is TASC, Datastream, Disclosure Incorporated,
or a Subsidiary of any of the foregoing, (b) which, together with its
Subsidiaries, has assets (determined on a consolidated basis) greater
than or equal to 5% of the total assets of the Borrower and its
Subsidiaries (determined on a consolidated basis) as of the end of the
most recently completed fiscal year for which financial information is
available, or (c) which, together with its Subsidiaries, has revenues
(determined on a consolidated basis) greater than or equal to 5% of the
total revenues of the Borrower and its Subsidiaries (determined on a
consolidated basis) for the most recent four fiscal quarters for which
financial information is available.
"Solvent" means:
(a) with respect to any Person organized under the
Laws of any state of the United States or subject to the U.S.
Bankruptcy Code of 1978, as amended, the Uniform Fraudulent
Conveyance Act as enacted by any state, the Uniform Fraudulent
Transfer Act as enacted by any state or any other applicable
U.S. Law pertaining to fraudulent conveyances, fraudulent
transfers or preferences at any time, that at such time (i)
the sum of the debts and liabilities (including, without
limitation, contingent liabilities) of such Person is not
greater than all of the assets of such Person at a fair
valuation, (ii) the
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present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute
and matured, (iii) such Person has not incurred, will not
incur, does not intend to incur, and does not believe that it
will incur, debts or liabilities (including, without
limitation, contingent liabilities) beyond such person's
ability to pay as such debts and liabilities mature, (iv) such
Person is not engaged in, and is not about to engage in, a
business or a transaction for which such person's property
constitutes or would constitute unreasonably small capital (as
such term is used in any Law referred to in the following
clause (v)), and (v) such Person is not otherwise insolvent as
defined in, or otherwise in a condition which could in any
circumstances then or subsequently render any transfer,
conveyance, obligation or act then made, incurred or performed
by it avoidable or fraudulent pursuant to, any Law that may be
applicable to such Person pertaining to bankruptcy, insolvency
or creditors' rights (including but not limited to the
Bankruptcy Code of 1978, as amended, and, to the extent
applicable to such Person, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act, or any other
applicable Law pertaining to fraudulent conveyances or
fraudulent transfers or preferences);
(b) With respect to any Person organized under the
Laws of England and Wales or subject to any English insolvency
law at any time, that at such time such Person is not
insolvent, or unable to pay its debts and is not deemed by an
English court to be unable to pay its debts within the meaning
of Section 123 of the United Kingdom Insolvency Act of 1986;
and
(c) With respect to any other Person, that at such
time such Person is not insolvent or unable to pay its debts
as they come due as contemplated by any applicable insolvency,
bankruptcy or similar Law.
"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is
(a) At least one Business Day in advance in the case
of selection of, conversion to or renewal of the Base Rate
Option or prepayment of any Base Rate Portion; and
(b) At least three London Business Days in advance in
the case of selection of the Euro-Rate Option or prepayment of
any Euro-Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or
other property) on account of or in respect of any Shares of the
Capital Stock (or warrants, options or rights therefor) of such Person,
including but not limited to any payment on account of the purchase,
redemption, retirement, defeasance or acquisition of any Shares of the
Capital Stock (or warrants, options or rights therefor) of such Person,
in each case regardless of whether required by the terms of such
capital stock (or warrants, options or rights) or any other agreement
or instrument.
"Subsidiary" of a Person at any time shall mean any
Corporation of which a majority (by number of shares or number of
votes) of the outstanding Shares of Capital Stock of any class is
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at such time owned directly or indirectly, beneficially or of record,
by such Person or one or more Subsidiaries of such Person, and any
partnership, trust or other Person of which a majority of any class of
outstanding equity interest is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person. For the avoidance of doubt, as used in the
preceding sentence "majority" means more than half (and not precisely
half).
"Substantially Owned Subsidiary" of a Person at any time shall
mean any Corporation of which 80% or more of the outstanding Shares of
Capital Stock of each class are at such time beneficially owned
directly or indirectly by such Person (both on the basis of outstanding
shares and on a fully diluted basis).
"Swap Agreement" shall have the meaning given that term in the
Collateral Agency Agreement.
"TASC" shall mean TASC, Inc., a Massachusetts Corporation.
"Taxes" shall have the meaning set forth in Section 3.17
hereof.
"Term Loan Agreement" shall mean the Term Loan Agreement of
even date herewith by and among the Borrower, the lenders parties
thereto from time to time, and Mellon Bank, N.A., as Agent, as the same
may be amended, modified or supplemented from time to time in
accordance with this Agreement (but not any refinancing or renewal
thereof).
"Term Loan Maturity Date" shall mean the final scheduled
maturity of Indebtedness under the Term Loan Agreement.
"TIMCO" shall mean Triad International Maintenance
Corporation, a Delaware Corporation.
"TIMCO Bond Order" means the Bond Order adopted by the
Piedmont Triad Airport Authority on October 31, 1989 with respect to
the TIMCO Bonds, as such Bond Order may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"TIMCO Bonds" means the $13,800,000 original aggregate
principal amount of Special Facility Revenue Bonds (Triad International
Maintenance Corporation Project), Series 1989 issued by the Piedmont
Triad Airport Authority pursuant to the TIMCO Bond Order.
"TIMCO Bonds Letter of Credit" has the meaning given that term
in Section 7.03(j) hereof.
"TIMCO Lease" shall mean the Lease Agreement, dated as of
November 1, 1989, between the Piedmont Triad Airport Authority, as
lessor, and TIMCO, as lessee, covering certain property situate at the
Piedmont Triad International Airport in Guilford County, North
Carolina, as such Lease Agreement may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
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"Transfer Supplement" shall have the meaning set forth in
Section 10.14(c) hereof.
"Wholly Owned Subsidiary" of any Person means a Corporation
that is a Subsidiary of such Person as to which all of the Shares of
Capital Stock of each class (other than directors' qualifying shares
that are required under applicable law) are at such time beneficially
owned directly or indirectly by such Person (both on the basis of
outstanding shares and on a fully diluted basis).
"Wind-up" or "Winding-up" of a Person shall include the
liquidation, administration, amalgamation, reconstruction,
reorganization or dissolution of such Person and any equivalent or
analogous procedure under the laws of any jurisdiction in which such
Person is incorporated, domiciled, resident or carries on a business or
has assets.
"Worldscope Entities" shall mean Worldscope/Disclosure
Partners, a Connecticut general partnership, Worldscope/Disclosure
International Partners, an partnership organized under the laws of
Ireland, Worldscope/Disclosure Incorporated LLC, a Connecticut limited
liability company, and Worldscope/Disclosure India Pvt. Ltd., a
Corporation organized under the laws of India, and each of their
respective Subsidiaries from time to time.
1.02. CONSTRUCTION. In this Agreement and each other Loan
Document, unless the context otherwise clearly requires, references to the
plural include the singular, the singular the plural and the part the whole;
"or" has the inclusive meaning represented by the phrase "and/or;" and the terms
"property" and "assets" each includes all properties and assets of any kind or
nature, tangible or intangible, real, personal or mixed, now existing or
hereafter acquired. The words "hereof," "herein" and "hereunder" (and similar
terms) in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Loan Document. The words
"includes" and "including" (and similar terms) in this Agreement or any other
Loan Document mean "includes without limitation" and "including without
limitation," respectively (and similarly for similar terms). References in this
Agreement or any other Loan Document to "determination" (and similar terms) by
the Agent or by any Lender include good faith estimates by the Agent or by such
Lender (in the case of quantitative determinations) and good faith beliefs by
the Agent or by such Lender (in the case of qualitative determinations). No
doctrine of construction of ambiguities in agreements or instruments against the
interests of the party controlling the drafting thereof shall apply to this
Agreement or any other Loan Document. The section and other headings contained
in this Agreement and in each other Loan Document, and any tables of contents
contained herein or therein, are for reference purposes only and shall not
affect the construction or interpretation of this Agreement or such other Loan
Document in any respect. Section, subsection, annex, exhibit and schedule
references in this Agreement and in each other Loan Document are to this
Agreement or such other Loan Document, as the case may be, unless otherwise
specified. Each annex, exhibit and schedule to this Agreement or any other Loan
Document constitutes part of this Agreement or such Loan Document, as the case
may be. Each of the covenants, terms and provisions of this Agreement and the
other Loan Documents is intended to have, and shall have, independent effect,
and compliance with any particular covenant, term or provision shall not
constitute compliance with any other covenant, term or provision.
1.03. ACCOUNTING PRINCIPLES.
(a) GAAP. As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing the
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Borrower's financial statements as of December 31, 1995, and for the fiscal year
then ended, as referred to in Section 4.06 hereof.
(b) ACCOUNTING AND FINANCIAL DETERMINATIONS, ETC. Except as
otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters shall be made, and all financial statements to
be delivered pursuant to this Agreement shall be prepared, in accordance with
GAAP (including principles of consolidation where appropriate), and all
accounting or financial terms shall have the meanings ascribed to such terms by
GAAP.
(c) CHANGES. If and to the extent that the financial
statements generally prepared by the Borrower apply accounting principles other
than GAAP, all financial statements referred to in this Agreement or any other
Loan Document shall be delivered in duplicate, one set based on the accounting
principles then generally applied by the Borrower and one set based on GAAP. To
the extent this Agreement or such other Loan Document requires financial
statements to be accompanied by an opinion of independent accountants, each such
set of financial statements shall be accompanied by such an opinion.
1.04. CERTAIN TERMINOLOGY AND PROVISIONS. This Agreement uses
the defined terms "Lender," "Lender Indemnified Parties," "Lender Parties,"
"Loan Documents" and "Loan Obligations," even though extensions of credit to the
Borrower hereunder take the form of issuance of Letters of Credit only, rather
than loans. Such defined terms are used as a convenience to facilitate
comparison of this Agreement with the Revolving Credit Agreement and the Term
Loan Agreement. Such defined terms shall have the respective meanings given them
in this Agreement, and the use of such defined terms shall not be construed to
imply that any loans are contemplated under this Agreement.
[End of Annex A]
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