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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the quarterly period ended JUNE 30, 1995
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 1-10442
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FIRST FINANCIAL MANAGEMENT CORPORATION
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(Exact name of registrant as specified in its charter)
GEORGIA 58-1107864
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3 CORPORATE SQUARE, SUITE 700, ATLANTA, GEORGIA 30329
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 321-0120
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NOT APPLICABLE
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(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
Number of Shares Outstanding
Title of each class as of August 1, 1995
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Common Stock, $.10 par value 63,868,916
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FIRST FINANCIAL MANAGEMENT CORPORATION
INDEX
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PAGE
PART I. FINANCIAL INFORMATION NUMBER
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Item 1 Consolidated Financial Statements:
Consolidated Balance Sheets at June 30, 1995
and December 31, 1994 . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Statements of Income for the
three and six months ended June 30, 1995 and 1994 . . . . . . . 4
Consolidated Statements of Cash Flows for the
six months ended June 30, 1995 and 1994 . . . . . . . . . . . . 6
Notes to Consolidated Financial Statements . . . . . . . . . . . 7
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations . . . . . . . . . 10
PART II. OTHER INFORMATION
Item 6 Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . 15
2
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PART I. FINANCIAL INFORMATION
FIRST FINANCIAL MANAGEMENT CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
June 30, 1995 December 31, 1994
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(Dollars in millions)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 298.3 $ 326.1
Accounts receivable, net of allowance for doubtful
accounts of $7.5 (1995) and $7.7 (1994) 414.0 473.8
Prepaid expenses and other current assets 108.3 103.3
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Total Current Assets 820.6 903.2
Property and equipment, net 160.4 163.6
Goodwill, less accumulated amortization
of $95.8 (1995) and $73.4 (1994) 1,747.5 1,740.6
Customer portfolios, less accumulated amortization
of $52.4 (1995) and $44.5 (1994) 219.1 160.5
Other assets 164.0 167.8
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$3,111.6 $3,135.7
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued expenses $644.3 $678.9
Income taxes payable 18.3 5.6
Current portion of long-term debt 30.1 9.2
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Total Current Liabilities 692.7 693.7
Long-term debt, less current portion 202.5 53.1
Pension obligations assumed 149.6 266.0
Senior convertible debentures 447.1 447.1
Other liabilities 65.7 246.0
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Total Liabilities 1,557.6 1,705.9
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Commitments and contingencies
Shareholders' Equity:
Common stock, $.10 par value; authorized
150,000,000 shares, issued 63,883,017
shares (1995) and 61,575,046 shares (1994) 6.4 6.2
Additional paid-in capital 905.4 858.2
Retained earnings 642.2 565.4
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Total Shareholders' Equity 1,554.0 1,429.8
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$3,111.6 $3,135.7
======== ========
</TABLE>
See notes to consolidated financial statements.
3
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FIRST FINANCIAL MANAGEMENT CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
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1995 1994
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(In millions, except per share amounts)
<S> <C> <C>
REVENUES
Service revenues $768.1 $498.3
Product sales 12.2 18.0
Other 1.7 1.2
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782.0 517.5
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EXPENSES
Operating 589.8 388.9
Selling, general and administrative 64.5 36.1
Cost of products sold 8.3 11.4
Depreciation and amortization 34.0 23.7
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696.6 460.1
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Operating income 85.4 57.4
Interest, net 6.5 (1.5)
Pension cost 3.4 ---
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Income before income taxes 75.5 58.9
Income taxes 31.0 24.7
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Net income $ 44.5 $ 34.2
====== ======
Earnings per common share $ 0.69 $ 0.55
====== ======
</TABLE>
See notes to consolidated financial statements.
4
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FIRST FINANCIAL MANAGEMENT CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-------------------------
1995 1994
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(In millions, except per share amounts)
<S> <C> <C>
REVENUES
Service revenues $1,439.1 $940.4
Product sales 25.1 36.8
Other 2.1 1.6
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1,466.3 978.8
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EXPENSES
Operating 1,097.0 737.6
Selling, general and administrative 126.9 66.5
Cost of products sold 17.0 22.9
Depreciation and amortization 66.5 46.0
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1,307.4 873.0
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Operating income 158.9 105.8
Interest, net 14.7 (2.7)
Pension cost 8.7 ---
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Income before income taxes 135.5 108.5
Income taxes 55.6 44.8
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Net income $ 79.9 $ 63.7
======== ======
Earnings per common share $ 1.25 $ 1.02
======== ======
</TABLE>
See notes to consolidated financial statements.
5
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FIRST FINANCIAL MANAGEMENT CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
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1995 1994
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(In millions)
<S> <C> <C>
Cash and cash equivalents at January 1 $ 326.1 $ 190.0
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CASH FLOWS FROM OPERATING ACTIVITIES
Net income 79.9 63.7
Adjustments to reconcile to net cash provided by
operating activities:
Depreciation and amortization 66.5 46.0
Other non-cash items 8.6 3.0
Increase (decrease) in cash, excluding the effects of
acquisitions, resulting from changes in:
Accounts receivable 56.6 (27.4)
Prepaid expenses and other assets (12.2) (6.5)
Accounts payable and accrued expenses 75.2 46.5
Income tax accounts 85.4 9.2
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Net cash provided by operating activities 360.0 134.5
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CASH FLOWS FROM FINANCING ACTIVITIES
Borrowings under revolving credit facility, net 168.4
Fundings of pension obligations assumed (154.1)
Principal payments on long-term debt (4.8) (2.0)
Proceeds from exercise of stock warrants 35.0 8.1
Cash dividends and other payments (3.1) (3.1)
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Net cash provided by financing activities 41.4 3.0
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CASH FLOWS FROM INVESTING ACTIVITIES
Current year acquisitions, net of cash received (57.4) (47.0)
Payments related to businesses previously acquired (327.4) (35.0)
Proceeds from sale of business, net of payments
related to businesses previously sold 6.8 (3.0)
Additions to property and equipment, net (23.1) (14.6)
Software development and customer conversions (28.1) (23.5)
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Net cash used in investing activities (429.2) (123.1)
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Change in cash and cash equivalents (27.8) 14.4
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Cash and cash equivalents at June 30 $ 298.3 $ 204.4
======= =======
</TABLE>
See notes to consolidated financial statements.
6
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FIRST FINANCIAL MANAGEMENT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. The consolidated financial statements include the accounts of First
Financial Management Corporation and its wholly-owned subsidiaries
(the "Company" or "FFMC"). All material intercompany profits,
transactions, and balances have been eliminated. Certain prior year
amounts have been reclassified to conform to the current year's
presentation.
The Company operates in a single business segment, providing
information services to commercial establishments, government agencies
and consumers. The largest category of services, merchant services,
involves information processing and transfer related to financial
transactions. These services include the authorization, processing and
settlement of credit and debit card transactions, verification or
guarantee of check transactions, debt collection and accounts
receivable management, and worldwide nonbank money transfers and bill
payments. A second category includes data processing and information
management services related to health care and workers' compensation
claims and the resulting payments. The final service category
comprises a full array of information management services, including
data capture, data imaging, micrographics, electronic database
management, and output printing and distribution.
The financial information presented should be read with the Company's
annual consolidated financial statements and notes included in its
Annual Report on Form 10-K for the year ended December 31, 1994. The
foregoing unaudited consolidated financial statements reflect all
adjustments (all of which are of a normal recurring nature) which are,
in the opinion of management, necessary for a fair presentation of the
results of the interim periods. The results for the interim periods
are not necessarily indicative of results to be expected for the year.
2. In 1995, the Company has completed several acquisitions, including a
company specializing in grocery store check approval and debit card
processing, two merchant credit card processing portfolios, and a
check verification and guarantee company. Through June 30, 1995 the
Company paid $57.4 million in cash (net of cash acquired) and issued
notes payable totaling $8.0 million in connection with such
acquisitions. All current year acquisitions have been accounted for as
purchases, and their results are included with the Company's results
from the effective date of each acquisition. No pro forma financial
information with respect to the above acquisitions is presented as the
aggregate impact is not anticipated to be material.
3. In March 1995, the Company awarded Patrick H. Thomas, its Chairman,
President and Chief Executive Officer, 500,000 restricted shares as
incentive compensation for the years 1995 through 1999. The vesting of
the shares is contingent upon FFMC's attainment of a performance goal
for 1995 and continued employment through 1999, unless specified
conditions occur. The Company also awarded 94,500 restricted shares to
Mr. Thomas as incentive compensation, which are subject to forfeiture,
in part or in whole, based on a formula related to the pretax income
of the Company for 1995 and the market price of the Company's common
stock at the end of 1995. All of these restricted shares will vest
free of restrictions in the event of approval by the FFMC shareholders
of the merger described in Note 8.
7
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FIRST FINANCIAL MANAGEMENT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
The value of the award is adjusted using the closing price of the
Company's common stock on balance sheet dates through the date of
measurement for the FFMC performance goal. The Company has assumed the
maximum number of shares will be earned and is amortizing the value
from the date of grant (March 1994 for the 94,500 share award, as it
replaced a similar previously issued but subsequently canceled award)
over the restriction period.
4. All outstanding FFMC common stock warrants were exercised during the
final exercise period in the second quarter of 1995. As a result of
these exercises, the Company issued 1.3 million new shares of FFMC
common stock in return for $35.0 million in cash.
5. On May 2, 1995 the Company amended its $1.0 billion unsecured
Revolving Credit Facility, which has a term through November 1997, by
reducing the amount available to $500 million. Simultaneously the
Company entered into an additional $500 million revolving credit
facility with a one year term. The amended facility and the new
revolving credit facility contain the same covenants and restrictions
as the original $1.0 billion revolving credit facility.
During 1995, FFMC also added a short term uncommitted borrowing
arrangement (for unsecured borrowings of up to $100 million) to
supplement its existing committed revolving credit facilities in
providing for the Company's financing needs. Borrowings under this
short term uncommitted borrowing arrangement bear interest at
prevailing money market rates (6.45% at June 30, 1995) and are subject
to terms that are no more restrictive than the terms of the revolving
credit agreements. The Company's current portion of long-term debt on
the accompanying balance sheet at June 30, 1995 includes amounts
outstanding under this arrangement totaling $18.4 million.
6. During the second quarter of 1995, the Company completed its actuarial
review of the suspended pension plan assumed in November 1994 in
connection with the acquisition of Western Union. The assumptions used
in the actuarial review included a 8.25% discount rate and a 9.50%
expected long term rate of return on assets. This review resulted in
an increase to the net underfunded pension obligation of $37.7 million
with a corresponding adjustment to goodwill. During the second
quarter, the Company made advance fundings of its pension obligations
totaling $154.1 million in cash.
The following table sets forth the funded status and amounts
recognized in the Consolidated Balance Sheet at June 30, 1995 (amounts
in millions):
<TABLE>
<S> <C>
Actuarial present value of projected benefit
obligation as of January 1, 1995 $550.0
Less: Plan assets at January 1, 1995 (246.3)
Year to date 1995 Plan fundings (154.1)
------
Pension Obligations Assumed $149.6
======
</TABLE>
Based on the current status of the pension plan there is no difference
between accumulated and vested pension obligations. Additionally,
pension costs of $8.7 million for the first six months of 1995 have
been recorded in accrued expenses. In July 1995, FFMC made an
additional $44 million cash funding of its pension obligations.
8
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FIRST FINANCIAL MANAGEMENT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
7. Earnings per common share amounts are computed by dividing income
amounts by the weighted average number of common and common equivalent
shares (when dilutive) outstanding during the period. Common stock
equivalents consist of shares issuable under the Company's stock
option plans, shares issuable in connection with outstanding warrants
and an assumed conversion into common stock of FFMC's senior
convertible debentures issued in December 1994. The after tax interest
expense and amortization on these debentures ($3.6 million and $7.1
million for the three and six months ended June 30, 1995,
respectively) are added back to net income in computing earnings per
common share. Weighted average shares for all periods reflect the
shares issued in July 1994 to effect FFMC's merger with GENEX
Services, Inc., which was accounted for as a pooling of interests.
Weighted average shares used to compute earnings per common share were
as follows:
<TABLE>
<CAPTION>
(In millions)
1995 1994
---- ----
<S> <C> <C>
Three months ended June 30, 69.8 62.6
Six months ended June 30, 69.6 62.5
</TABLE>
8. On May 12, 1995 the Company entered into an Agreement and Plan of
Merger with Employee Benefits Plan, Inc. ("EBP"). Pursuant to the
merger agreement, EBP will ultimately become a wholly owned subsidiary
of FFMC. The merger requires various regulatory approvals and approval
of a majority of the shareholders of EBP. Upon consummation of the
merger, each EBP shareholder will receive .1975 shares of FFMC common
stock for each common share of EBP, resulting in the issuance by FFMC
of approximately 1.8 million common shares.
On June 12, 1995, the Company entered into an Agreement and Plan of
Merger with First Data Corporation ("First Data"). Pursuant to the
merger agreement, the Company will ultimately become a wholly owned
subsidiary of First Data. The merger requires various regulatory
approvals and approval of the shareholders of both companies. Upon
consummation of the merger, each FFMC shareholder will receive 1.5859
shares of First Data common stock for each common share of FFMC.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
First Data Merger
First Financial Management Corporation ("FFMC" or "the Company") entered into
an Agreement and Plan of Merger (the "FDC Merger Agreement"), dated as of June
12, 1995, among the Company, First Data Corporation ("First Data") and FDC
Merger Corp., a wholly owned subsidiary of First Data. The FDC Merger Agreement
provides for the merger of FDC Merger Corp. with and into FFMC, with FFMC
remaining as the surviving corporation in the merger and thus becoming a wholly
owned subsidiary of First Data. Pursuant to the FDC Merger Agreement, and
subject to the terms and conditions thereof, each share of FFMC common stock
will be converted into 1.5859 shares of First Data common stock. First Data
will account for the merger as a pooling of interests under generally accepted
accounting principles. The Company's merger with First Data requires various
regulatory approvals and the approvals of a majority of the shareholders of
both companies. While there can be no assurance as to when or if these
approvals will be obtained, the Company currently estimates that the merger
will be consummated in late 1995 or early 1996.
First Data provides high-quality, high-volume information processing and
related services to specific client groups: the transaction card, payment
instruments, teleservices, mutual fund, receivables and information management
industries. First Data's information processing facilities are comprised of
integrated networks of computer hardware, proprietary software and other
telecommunications and operations systems. First Data has data centers which
are capable of servicing a wide range of client groups, enabling it to process
transactions of hundreds of clients in a rapid and cost effective manner and
take advantage of economies-of-scale when adding new clients.
Strategic Transactions
FFMC entered into an Agreement and Plan of Merger (the "EBP Merger Agreement"),
dated May 12, 1995, among the Company, Employee Benefit Plans, Inc. ("EBP"),
and Gemini Acquisition Corp., a wholly owned subsidiary of FFMC. The EBP Merger
Agreement provides for the merger of Gemini Acquisition Corp. with and into
EBP, with EBP remaining as the surviving corporation in the merger and thus
becoming a wholly owned subsidiary of FFMC. The acquisition requires various
regulatory approvals and the approval of a majority of EBP shareholders. While
there can be no assurance as to when or if these approvals will be obtained,
the Company expects the merger with EBP to be consummated late in the third
quarter or early in the fourth quarter of 1995. Pursuant to the EBP Merger
Agreement, and subject to the terms and conditions thereof, each share of EBP
common stock will be converted into 0.1975 shares of FFMC common stock, which
translates into the Company's issuance, at the consummation of the merger, of
approximately 1.8 million new shares of FFMC common stock. FFMC will account
for the acquisition of EBP as a purchase transaction under generally accepted
accounting principles.
EBP provides benefit plan design and consulting, administrative services,
underwriting of group health and accident insurance, and managed care programs
to companies throughout the United States. The
10
<PAGE> 11
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Company believes that the addition of EBP's claims processing business and
customers to its existing third party claims administration business will give
FFMC's health care services business greater strength and operating
efficiencies. The insurance aspect of EBP's business, though ancillary to the
claims processing business, affords FFMC the flexibility to offer a broader
range of products to its health care clients, thereby providing opportunities
for growth in the health care industry.
In November 1994, FFMC completed its acquisition of Western Union Financial
Services, Inc. and related assets ("Western Union"). This business combination
was accounted for as a purchase, and the results of Western Union have been
included in the Company's results from the effective date of the acquisition.
FFMC completed its merger with GENEX Services, Inc. ("GENEX") in July 1994.
This business combination was accounted for as a pooling of interests and,
accordingly, the results of GENEX are included in the Company's results for all
periods in 1994.
Results of Operations
FFMC reported net income of $44.5 million in the second quarter of 1995, up 30%
over 1994's second quarter. Earnings per common share for the quarter increased
25% to $.69 per share from $.55 per share in the prior year. Revenues were
$782.0 million for the quarter, or 51% over the $517.5 million in revenues for
the prior year's second quarter, including a 54% increase in service revenues.
For the six months ended June 30, 1995, the Company reported net income of
$79.9 million compared with $63.7 million in 1994's first six months, an
increase of 25%. Revenues in 1995's first half rose 50% to $1.5 billion over
$978.8 million in the prior year period, including a 53% increase in service
revenues. Earnings per share increased to $1.25 per share for the six months
ended June 30, 1995 from the $1.02 per share reported in 1994's first six
months.
The revenue increases were due primarily to continued strong growth in the
Company's merchant services area, led by the acquisition of Western Union in
November 1994 and expanding internal growth. Merchant services revenues
increased 79% during 1995's second quarter compared with the year earlier
period (27% excluding the impact of Western Union in 1995). For the first six
months of 1995, merchant services revenues were up 78% compared with 1994's
first six months (26% excluding Western Union). The Company's overall internal
growth rate was 18% in 1995's second quarter, increasing the year-to-date rate
to 17% .
The Company continues to emphasize growth in its service revenues. The declines
in product sales reflect the Company efforts (that began in early 1994) to
decrease the significance of one-time product sales and focus its product
development effort on data capture platforms that link customers to FFMC's
information services. As a result, product sales declined in the second quarter
and first six months of 1995 compared with the comparable prior year periods.
11
<PAGE> 12
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
FFMC continues to place important emphasis on expense controls. Operating
expenses increased 52% and 49%, respectively, during the three and six month
periods ended June 30, 1995, compared with relatively higher increases in
service revenues during these periods.
The impact of Western Union's marketing costs in 1995 was the primary factor in
the increase in selling, general and administrative expenses during the second
quarter and first six months of 1995 compared with the year earlier periods.
Depreciation and amortization expense increased 43% during the second quarter
of 1995 and 45% in 1995's first six months over comparable 1994 periods,
primarily due to higher goodwill amortization in 1995 resulting from the
Western Union acquisition.
The combination of these revenue and expense changes resulted in operating
income margins of 10.8% for the first six months of both 1995 and 1994. The
relative increases in selling, general and administrative expenses during
1995's second quarter led to the slight decline in the Company's operating
margins to 10.9% compared with 11.1% in the second quarter of 1994.
Increases in interest expense and pension cost for the 1995 periods reflect
borrowings and obligations assumed related to the Western Union acquisition.
Higher levels of interest expense arose from FFMC's senior convertible
debentures and borrowings under its revolving credit facility. Pension cost in
1995's second quarter and first six months represents primarily interest
expense on the unfunded obligations of the Western Union suspended defined
benefit plan. Since benefits under this plan have been suspended for several
years and its assumption was principally a financing for the Western Union
acquisition, the Company has classified the related costs as nonoperating.
The higher level of interest and pension expenses in 1995, as contrasted with
FFMC's net interest income amounts (with no pension expense) during the prior
year periods, resulted in a pre-tax margin of 9.7% in the second quarter of
1995 compared with a pre-tax margin of 11.4% in 1994's second quarter. For
1995's first six months, the Company's pre-tax margin was 9.2% compared with
11.1% in the prior year period.
The Company's effective tax rate was down slightly to 41.1% in 1995's second
quarter compared with a 41.9% rate for the second quarter of 1994. For the
first six months of 1995, FFMC's effective tax rate was 41.0%, comparable to a
41.3% effective rate for 1994's first six months.
Portions of FFMC's business are seasonal. The Company's revenues and earnings
are favorably affected by increased credit card and check volume during the
holiday shopping period in the fourth quarter and, to a lesser extent, during
the back to school buying period in the third quarter. The Company's revenues
and earnings are also favorably affected by higher Western Union money transfer
volume during the summer months.
12
<PAGE> 13
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Capital Resources and Liquidity
Cash generated from operating activities during 1995's first six months was
$360.0 million, up from the $134.5 million generated during the six months
ended June 30, 1994. The increase is due to FFMC's higher levels of earnings
and non-cash amortization expenses, the refund of $68 million of estimated
income taxes for 1994, and the Company's efforts to reduce its working capital
requirements.
FFMC reinvested cash in its businesses (principally for property and equipment
additions, software development and customer conversions) totaling $51.2
million in the first six months of 1995, compared with $38.1 million in the
first half of 1994. The Company estimates that business reinvestment amounts
will increase moderately for the year ending December 31, 1995, primarily from
outlays anticipated for software development activities. Cash from operating
activities exceeded non-acquisition investing activities by $308.8 million in
1995's first six months, compared with $96.4 million in the comparable prior
year period.
In May 1995, FFMC issued 1.3 million shares of the Company's common stock and
received $35 million in cash from the exercise (during the final exercise
period) of all remaining publicly held common stock warrants. FFMC continued
its pattern of paying semi-annual cash dividends of $.05 per share. Payments
were made on January 3, 1995 (to shareholders of record at December 1, 1994)
and on July 3, 1995 (to shareholders of record at June 1, 1995).
During 1995, FFMC utilized the cash sources described above, together with
existing cash balances and $168.4 million in net additional borrowings,
primarily to fund obligations related to its acquisition of Western Union
Financial Services and related assets ("Western Union"). In January 1995, the
Company paid $300 million in cash as the final purchase consideration for the
Western Union acquisition. During the second quarter, FFMC paid $154.1 million
in cash to fund pension obligations assumed as a part of the Western Union
acquisition. In July 1995, the Company made the final anticipated advance
funding of pension obligations for 1995 of $44 million in cash. The Company
also paid $84.8 million in cash (net of cash received) during the first six
months of 1995 to fund other business acquisition activities.
Cash equivalents of $102.4 million relate to required investments of cash in
connection with the Company's merchant credit card and money transfer
settlements. FFMC's remaining cash and cash equivalents and available credit
facilities ($805 million at June 30, 1995) are available for acquisitions and
general corporate purposes. The Company believes that its current level of cash
and future cash flows from operations are sufficient to meet the needs of its
existing businesses.
In the event of consummation of the merger with First Data, FFMC will
incur investment banking, legal and miscellaneous other transaction costs of
approximately $32 million. Additionally, the Company will incur costs
associated with change of control and termination benefits of certain employees
of FFMC currently estimated at approximately $143.1 million on an after-tax
basis, including tax obligations payable by FFMC due to the vesting of
restricted shares upon approval of the merger by FFMC shareholders. Such tax
obligations are the result of tax reimbursements pursuant to change of control
agreements and the possibility that certain holders of restricted stock awards
may elect to surrender shares of common stock for the purposes of satisfying
withholding tax obligations. The estimate of costs associated with change of
control and termination benefits assumes a December 31, 1995 effective
13
<PAGE> 14
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
date for the merger and a market value for FFMC Common Stock of $90 per share,
which approximates the market value on June 12, 1995, the date the Merger
Agreement was signed, of the 1.5859 shares of First Data Common Stock to be
issued for each share of FFMC Common Stock.
14
<PAGE> 15
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Amendment No. 1 to the Amended and Restated Credit Agreement
Dated as of June 25, 1992, Amended and Restated as of November
8, 1994.
10.2 Revolving Credit Agreement Dated as of May 2, 1995.
27.1 Financial Data Schedule (for SEC use only).
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K on June 9, 1995 to
report certain additional material contracts.
The Company filed a Current Report on Form 8-K on June 22, 1995 to
report that it had entered into an agreement (dated June 12, 1995) to
merge with First Data Corporation ("FDC"), whereby each share of the
Registrant's common stock will be converted into 1.5859 shares of FDC
common stock.
The Company filed a Current Report on Form 8-K on July 25, 1995 to
report Pro Forma Financial Statements giving effect to the proposed
merger with First Data Corporation along with supplemental historical
financial statements and supplemental pro forma financial information
previously filed by First Data Corporation.
15
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FIRST FINANCIAL MANAGEMENT CORPORATION
--------------------------------------
(Registrant)
Date: August 14, 1995 By /s/ M. Tarlton Pittard
------------------- --------------------------------------
M. Tarlton Pittard
Vice Chairman, Chief Financial Officer
and Treasurer
Date: August 14, 1995 By /s/ Richard Macchia
------------------- --------------------------------------
Richard Macchia
Executive Vice President
and Principal Accounting Officer
16
<PAGE> 1
EXHIBIT 10.1
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of May 2, 1995 between FIRST
FINANCIAL MANAGEMENT CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Georgia (the "Company"); FIRST
FINANCIAL BANK, a banking corporation duly organized and validly existing under
the laws of the State of Georgia and an indirect Wholly-Owned Subsidiary of
the Company (together with its successors and assigns "FFB"); each of the
lenders that is a signatory hereto (individually, a "Bank" and, collectively,
the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
The Company, FFB, the Banks and the Agent are parties to a
Credit Agreement dated as of June 25, 1992 and amended and restated as of
November 8, 1994 (as heretofore modified and supplemented and in effect on the
date hereof, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made by said Banks to the Company and FFB
in an aggregate principal amount not exceeding $1,000,000,000 at any one time
outstanding as to both of them combined. The Company, FFB, the Banks and the
Agent wish to amend the Credit Agreement in certain respects, and accordingly,
the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendment. Subject to the satisfaction of the
conditions precedent specified in Section 3 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement shall be amended
by amending the definition of "Specified Company Indebtedness" to read in its
entirety as follows:
"Specified Company Indebtedness" shall mean unsecured
Indebtedness (which may include Subordinated Indebtedness of the type referred
to in clause (b) of the definition thereof):
Amendment No. 1
<PAGE> 2
(a) for which the Company is directly and primarily liable,
(b) in respect of which none of the Subsidiaries of the
Company is obligated, whether as a direct obligor or under any
Guarantee, and
(c) contains covenants and events of default no more onerous
on the Company and its Subsidiaries than the covenants and events of
default contained in this Agreement.
2.03. Section 8.07 of the Credit Agreement is hereby amended
by deleting the word "and" at the end of subsection (o), adding the word "and"
to the end of subsection (p), and adding a new subsection (q) immediately after
subsection (p), to read as follows:
"(q) Indebtedness under the Revolving Credit Agreement dated
as of May 2, 1995 (the "Revolving Credit Agreement"), between the
Company, FFB, the banks (other than FFB) named therein, and Chase as
agent to the banks;"
Section 3. Conditions Precedent. As provided in Section 2
above, the amendment to the Credit Agreement set forth in said Section 2 shall
become effective, as of the date hereof, upon the execution and delivery by
each of the parties hereto.
Section 4. Commitments. The parties hereto hereby
acknowledge and agree, with reference to Section 11.13 of the Revolving Credit
Agreement, that the aggregate amount of the Commitments under the Credit
Agreement (whether or not utilized) has been reduced as of the date hereof to
$500,000,000, and such reduction has been effected pro-rata among the Banks.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1
<PAGE> 3
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By_____________________________
Title: Senior Executive Vice
President, Chief
Financial Officer
FIRST FINANCIAL BANK
By____________________________
Title: Executive Vice
President
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Agent, as the Swingline
Bank and as a Bank
By______________________________
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By______________________________
Title:
NATIONSBANK OF GEORGIA, N.A.
By______________________________
Title:
Amendment No. 1
<PAGE> 4
- 4 -
THE BANK OF TOKYO, LTD.,
ATLANTA AGENCY
By______________________________
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By______________________________
Title:
THE BANK OF NEW YORK
By______________________________
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By______________________________
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By_______________________________
Title:
COMMERZBANK AKTIENGESELLSCHAFT
ATLANTA AGENCY
By______________________________
Title:
By______________________________
Title:
Amendment No. 1
<PAGE> 5
- 5 -
BANK OF AMERICA ILLINOIS
By_______________________________
Title:
BANK OF MONTREAL
By_______________________________
Title:
ABN AMRO BANK N.V.
By_______________________________
Title:
By_______________________________
Title:
THE BANK OF NOVA SCOTIA
By_______________________________
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By_______________________________
Title:
CREDITANSTALT CORPORATE FINANCE,
INC.
By______________________________
Title:
By______________________________
Title:
Amendment No. 1
<PAGE> 6
- 6 -
THE DAIWA BANK, LIMITED
By______________________________
Title:
By______________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON
By_______________________________
Title:
BANK SOUTH, N.A.
By_______________________________
Title:
FIRST UNION NATIONAL BANK
OF GEORGIA
By_______________________________
Title:
Amendment No. 1
<PAGE> 1
EXHIBIT 10.2
================================================================================
FIRST FINANCIAL MANAGEMENT CORPORATION
FIRST FINANCIAL BANK
______________________
REVOLVING CREDIT AGREEMENT
Dated as of May 2, 1995
______________________
$500,000,000
______________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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----
<S> <C>
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2. Commitments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.03 Changes of Commitments; Extension of Commitment Termination Date . . . . . . . . . . . . . . . . . . . 24
2.04 Money Market Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.05 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.09 Optional Prepayments and Conversions or Continuation of Loans . . . . . . . . . . . . . . . . . . . . 34
2.10 Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3. Payments of Principal and Interest; Mandatory
Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.03 Mandatory Commitment Reductions and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.06 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5. Yield Protection and Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.02 Limitation on Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.04 Treatment of Affected Loans under Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . 48
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.06 Withholding Tax Exemption; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
Credit Agreement
<PAGE> 3
(ii)
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.01 Initial Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.02 Initial and Subsequent Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.05 Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.07 Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.10 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.11 Credit Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.12 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.13 Subsidiaries, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.14 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.15 Accuracy and Completeness of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.16 Compliance with Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.17 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.01 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.03 Corporate Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.05 Prohibition of Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.06 Limitation on Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.07 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.08 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.09 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.10 Debt to Cash Flow Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.11 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.12 [Intentionally omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.13 [Intentionally omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.14 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.15 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.16 Modifications of Certain Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
8.17 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 9. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
Credit Agreement
<PAGE> 4
(iii)
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 10. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.02 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.06 Non-Reliance on Agent and other Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.08 Resignation or Removal of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.09 Consents Under Basic Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.06 Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.10 Governing Law; Submission to Jurisdiction; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.12 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.13 Commitments under Existing Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SCHEDULE I - Credit Agreements
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Litigation and Approvals
SCHEDULE V - Liens
EXHIBIT A-1 - Form of Note for Syndicated Loans
EXHIBIT A-2 - Form of Note for Money Market Loans
EXHIBIT A-3 - Form of Note for Swingline Loans
EXHIBIT B - Form of Company Guarantee
EXHIBIT C-1 - Form of Opinion of Special Georgia Counsel to
the Borrowers
EXHIBIT C-2 - Form of Opinion of General Counsel of the
Borrowers
EXHIBIT D - Form of Opinion of Special New York Counsel
to the Banks
EXHIBIT E-1 - Form of Compliance Certificate
EXHIBIT E-2 - Form of Facility Fee and Margin Determination
Certificate
EXHIBIT F - Form of Confidentiality Agreement
EXHIBIT G - Form of Money Market Quote Request
EXHIBIT H - Form of Money Market Quote
</TABLE>
Credit Agreement
<PAGE> 5
REVOLVING CREDIT AGREEMENT dated as of May 2, 1995, between:
FIRST FINANCIAL MANAGEMENT CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Georgia (together with its
successors and assigns, the "Company"); FIRST FINANCIAL BANK, a banking
corporation duly organized and validly existing under the laws of the State of
Georgia and an indirect Wholly-Owned Subsidiary of the Company (together with
its successors and assigns, "FFB"); each of the banks (other than FFB) that is
a signatory hereto (together with its successors and assigns, individually, a
"Bank" and, collectively, the "Banks"); THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as the swingline bank pursuant to Section 2.10 hereof (in such
capacity, together with its successors in such capacity, the "Swingline Bank";
and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for the Banks (in
such capacity, together with its successors in such capacity, the "Agent").
The Company and FFB have requested that the Banks make loans
to each of them in an aggregate principal amount not exceeding $500,000,000 at
any one time outstanding as to both of them combined and the Banks are prepared
to make such loans upon the terms and conditions hereof. Accordingly, the
parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Acquisition" shall mean any transaction, or any series of
related transactions, consummated after the date of this Agreement, by which
the Company and/or one or more of its Subsidiaries (in one transaction or as
the most recent transaction in a series of related transactions) (i) acquires
any going business or all or substantially all of the assets of any firm or
corporation (or division or operating unit thereof), whether through purchase
of assets, merger or otherwise, (ii) directly or indirectly acquires control of
at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors or (iii)
directly or indirectly acquires control of an ownership interest in any
partnership or joint venture (including a joint venture in corporate form).
"Additional Commitment Bank" shall have the meaning assigned
to such term in Section 2.03(c) hereof.
"Additional Costs" shall have the meaning assigned to such
term in Section 5.01 hereof.
Credit Agreement
<PAGE> 6
- 2 -
"Affected Bank" shall have the meaning assigned to such term
in Section 5.01(e) hereof.
"Affiliate" shall mean, as to any Person, any other Person
which directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member of
the immediate family (including parents, spouse and children) of such
individual and any trust whose principal beneficiary is such individual or one
or more members of such immediate family and any Person who is controlled by
any such member or trust. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other Person.
Notwithstanding the foregoing, (a) no individual shall be deemed to be an
Affiliate of a corporation solely by reason of his or her being an officer or
director of such corporation, (b) the Company and its Subsidiaries shall not be
Affiliates of each other and (c) neither the Agent nor any Bank shall be an
Affiliate of the Company or any of its Subsidiaries.
"Applicable Facility Fee Percentage" shall mean 0.225%;
provided that the Applicable Facility Fee Percentage, for any Quarterly Period
following the date on which the Company shall deliver to the Agent a Facility
Fee and Margin Determination Certificate demonstrating that the Debt to Cash
Flow Ratio, as of the last day of the most recent Computation Period, is within
one of the ranges set forth below, shall be reduced to the percentage set forth
below opposite such range:
<TABLE>
<CAPTION>
Applicable Facility
Range Fee Percentage
----- -------------------
<S> <C>
Less than 2.00 to 1 0.065%
Less than 2.50 to 1
but greater than or 0.080%
equal to 2.00 to 1
Less than 3.25 to 1
but greater than or 0.125%
equal to 2.50 to 1
</TABLE>
Credit Agreement
<PAGE> 7
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<TABLE>
<S> <C>
Less than 3.75 to 1 0.175%
but greater than or
equal to 3.25 to 1
</TABLE>
Notwithstanding the foregoing, the Applicable Facility Fee Percentage, for any
period during which any Event of Default shall have occurred and be continuing,
shall equal 0.225%.
"Applicable Lending Office" shall mean, for each Bank
and for each type of Loan, the Lending Office of such Bank (or of an affiliate
of such Bank) designated for such type of Loan on the signature pages hereof or
such other office of such Bank (or of an affiliate of such Bank) as such Bank
may from time to time specify to the Agent and the Company as the office by
which its Loans of such type is to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to
Base Rate Loans, 0%; and (b) with respect to Eurodollar Loans, 0.525%; provided
that the Applicable Margin for Eurodollar Loans, for any Quarterly Period
following the date on which the Company shall deliver to the Agent a Facility
Fee and Margin Determination Certificate demonstrating that the Debt to Cash
Flow Ratio, as of the last day of the most recent Computation Period, is within
one of the ranges set forth below, shall be reduced to the percentage set forth
below opposite such range:
<TABLE>
<CAPTION>
Eurodollar
Range Loans
----- ----------
<S> <C>
Less than 2.00 to 1 0.210%
Less than 2.50 to 1 0.270%
but greater than or
equal to 2.00 to 1
Less than 3.25 to 1 0.325%
but greater than or
equal to 2.50 to 1
Less than 3.75 to 1 0.450%
but greater than or
equal to 3.25 to 1
</TABLE>
Notwithstanding the foregoing, the Applicable Margin for Eurodollar Loans, for
any period during which any Event of Default shall have occurred and be
continuing, shall equal 0.525%.
"Assenting Bank" shall have the meaning assigned to that term
in Section 5.01(e) hereof.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
Credit Agreement
<PAGE> 8
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"Base Rate" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal Funds Rate for such day plus 0.50%
per annum and (b) the Prime Rate for such day. Each change in any interest
rate provided for herein based upon the Base Rate resulting from a change in
the Base Rate shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans the interest
rates on which are determined on the basis of the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement,
the Notes and the Company Guarantee.
"Basle Accord" shall mean the proposals for a risk-based
capital framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as at any time
amended or otherwise modified or replaced.
"Borrowers" shall mean the Company and FFB.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in New York City and, if such day
relates to the giving of notices or quotes in connection with a LIBOR Auction
or to a borrowing of, a payment or prepayment of principal of or interest on,
or a Conversion of or into, or an Interest Period for, a Eurodollar Loan or a
LIBOR Market Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Conversion or Interest Period, which is also a
day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Expenditures" shall mean, for any period, with
respect to any Person, expenditures (including the aggregate amount of Capital
Lease Obligations incurred during such period) made by such Person to acquire
or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP. For purposes of this Agreement, (a) other
than as described in clause (b) below, additions to capitalized software
computed in accordance with GAAP shall be deemed to be Capital Expenditures and
(b) acquisitions (including, without limitation, Acquisitions) of fixed assets,
plant, equipment and capitalized software expressly permitted by Section 8.05
hereof (other than expenditures referred to in Section 8.05(b)(ii) hereof)
shall be deemed not to be Capital Expenditures.
Credit Agreement
<PAGE> 9
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"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital or
financing lease on a balance sheet of such Person under GAAP (including
Statement of Financial Accounting Standards No. 13 of the Financial Accounting
Standards Board and amendments thereto and interpretations thereof) and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13 and amendments thereto and interpretations thereof).
"Cash Flow" shall mean, for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of (a) EBIT for such period plus (b)
depreciation, amortization and other non-cash charges (to the extent deducted
in determining EBIT) for such period minus (c) Net Capital Expenditures made
(other than the aggregate amount of Capital Lease Obligations incurred) during
such period minus (d) the aggregate amount of Interest Expense during such
period accrued or capitalized in respect of Qualified Subordinated Indebtedness
plus (e) the aggregate amount of dividends or other distributions received in
cash during such period by the Company and its Subsidiaries in respect of
common stock issued by or other ownership interests in any Person that is not a
Subsidiary of the Company; provided that:
(i) with respect to each Subsidiary of the Company that is
not a Wholly-Owned Subsidiary of the Company, there shall be excluded
from "Cash Flow" for such period the Minority Share of the amounts set
forth in the foregoing clauses (a), (b) and (c) for such period which
are properly attributable to such Subsidiary; and
(ii) in connection with any acquisition or disposition of any
shares of capital stock or other ownership interests resulting in any
of the Subsidiaries of the Company becoming or ceasing to be a
Subsidiary of the Company, there shall (in connection with any such
acquisition) be included in or (in connection with any such
disposition) be excluded from Cash Flow, for the period (the
"Designated Period") from and including the first day of the
Computation Period ending on or immediately prior to the date of such
acquisition or disposition to and including the date of such
acquisition or disposition, the portion of Cash Flow properly
attributable to such Person had such Person (in connection with any
acquisition) been a Subsidiary of the Company or (in connection with
any disposition) not been a Subsidiary of
Credit Agreement
<PAGE> 10
- 6 -
the Company on the first day of the Designated Period; provided that,
in connection with any acquisition resulting in any Person becoming a
Subsidiary of the Company, the portion of Cash Flow properly
attributable to such Person had such Person been a Subsidiary of the
Company on the first day of the Designated Period shall only be
included in Cash Flow for the Designated Period (or any portion of
such Designated Period) for which the Company shall have provided the
Agent and the Banks a copy of financial statements (including a
statement of cash flows) for such Person, accompanied by a certificate
of a senior financial officer of the Company, or a report thereon of
independent certified public accountants, stating that such financial
statements present fairly in all material respects the financial
position and results of operations of such Person in accordance with
generally accepted accounting principles; and provided further that
Cash Flow attributable to such acquired Person may only be included in
Cash Flow for any period if Debt used to finance in whole or in part
such acquisition, together with Debt of such acquired Person
outstanding when it became a Subsidiary of the Company, is treated as
having been outstanding Debt as at the last day of such period.
"Change in Control" shall be deemed to have occurred if any
Person or related group of Persons shall possess, directly or indirectly, the
power to direct or cause the direction of or the power to veto (or shall in
fact exercise any such power) the management and policies of the Company
through the ownership or control of more than 50% of the voting securities of
the Company (whether through ownership of said securities or partnership or
other ownership interests, by contract or otherwise).
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Syndicated Loans in an aggregate amount up to but not
exceeding the amount set opposite such Bank's name on the signature pages
hereof under the caption "Commitment" (as the same may be reduced at any time
or from time to time pursuant to Section 2.03 hereof). The original aggregate
amount of the Commitments as of the date hereof is $500,000,000.
"Commitment Termination Date" shall mean the date 364 days
after the date hereof (as such date may be extended in accordance with Section
2.03(c) hereof); provided that if such
Credit Agreement
<PAGE> 11
- 7 -
date is not a Business Day, the "Commitment Termination Date" shall mean the
Business Day immediately preceding such date.
"Committed Swingline Loan" shall have the meaning assigned to
such term in Section 2.10(a) hereof.
"Company Business" shall mean (a) the information and
transactions processing business; (b) any other businesses in which the Company
or any of its Subsidiaries is engaged as of November 8, 1994; (c) any business
in which a "credit card bank", as defined in the Bank Holding Company Act of
1956, as amended, may engage; (d) businesses and activities associated with the
provision of health care management services; and (e) any business reasonably
incidental to any such business or businesses.
"Company Guarantee" shall mean the guarantee agreement
executed and delivered by the Company, in substantially the form of Exhibit B
hereto and as at any time amended or otherwise modified.
"Compliance Certificate" shall have the meaning assigned to
that term in the last paragraph of Section 8.01 hereof.
"Computation Period" shall mean any period of four consecutive
fiscal quarters of the Company for which financial statements have been
delivered pursuant to Section 8.01(a) or (b) hereof.
"Consent Date" shall have the meaning assigned to such term in
Section 2.03(c) hereof.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.09 hereof of Base Rate Loans into Eurodollar
Loans, or of Eurodollar Loans into Base Rate Loans, which may be accompanied by
the transfer by a Bank (at its sole discretion) of a Loan from one Applicable
Lending Office to another.
"Current Termination Date" shall have the meaning assigned to
such term in Section 2.03(c) hereof.
Credit Agreement
<PAGE> 12
- 8 -
"Debt" shall mean, at any time, the aggregate principal amount
of all Indebtedness of the Company and its Subsidiaries at such time that is,
or would be, reflected on a consolidated balance sheet of the Company and its
Subsidiaries as at such time (determined on a consolidated basis without
duplication in accordance with GAAP).
"Debt to Cash Flow Ratio" shall mean, on any date, the ratio
of (a) Debt on such date to (b) Cash Flow for the Computation Period ending on,
or most recently ended prior to, such date.
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Disposition" shall have the meaning assigned to that term in
Section 8.05(c) hereof. The terms "Dispose" and "Disposed" used as a verb
shall have a correlative meaning.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"EBIT" shall mean, for any period, the sum of the following
for the Company and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP): (a) Net Income for such period
plus (b) amounts deducted from revenues in determining such Net Income on
account of (i) Interest Expense, (ii) Federal, state or foreign income taxes
and (iii) non-recurring losses minus (c) amounts added to revenues in
determining such Net Income on account of (i) interest income (other than such
interest income that is deemed to be part of operating income) and (ii)
non-recurring gains.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
Credit Agreement
<PAGE> 13
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"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as the Company or is under common
control (within the meaning of Section 414(c) of the Code) with the Company.
"Eurodollar Loans" shall mean Syndicated Loans the interest
rates on which are at the time determined on the basis of the Fixed Base Rate.
"Event of Default" shall have the meaning assigned to such
term in Section 9 hereof.
"Existing Credit Agreement" shall mean the Amended and
Restated Credit Agreement dated as of June 25, 1992, amended and restated as of
November 8, 1994, and amended by Amendment No. 1 dated as of May 2, 1995,
between the Company, FFB, Chase as agent and the banks (other than FFB) named
therein, as the same shall be modified and supplemented and in effect from time
to time.
"Facility Fee and Margin Determination Certificate" shall mean
a certificate signed by a senior financial officer of the Company,
substantially in the form of Exhibit E-2 hereto, demonstrating the Debt to Cash
Flow Ratio for the most recent Computation Period for the purposes of
determining the Applicable Facility Fee Percentage and the Applicable Margin.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is
to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if such rate is not
so published for any day, the Federal Funds Rate for such day shall be the
average rate charged to Chase on such day on such transactions as determined by
the Agent.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate
Loan, the arithmetic mean (rounded upwards, if necessary, to the nearest 1/16
of 1%), as determined by the Agent, of the rate per annum quoted by each
Reference Bank at approximately 11:00 a.m. London time (or as soon thereafter
as practicable) on
Credit Agreement
<PAGE> 14
- 10 -
the date two Business Days prior to the first day of the Interest Period for
such Loan for the offering by such Reference Bank to leading banks in the
London interbank market of Dollar deposits having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the
Eurodollar Loan or LIBOR Market Loan to be made by such Reference Bank for such
Interest Period. If any Reference Bank is not participating in any Fixed Rate
Loan during any Interest Period therefor, the Fixed Base Rate for such Loan for
such Interest Period shall be determined by reference to the amount of the
Fixed Rate Loan which such Reference Bank would have made or had outstanding
had it been participating in such Fixed Rate Loan during such Interest Period.
If any Reference Bank does not timely furnish such information for
determination of any Fixed Base Rate, the Agent shall determine such Fixed Base
Rate on the basis of information timely furnished by the remaining Reference
Banks.
"Fixed Rate" shall mean, for any Fixed Rate Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Agent to be equal to the Fixed Base
Rate for such Loan for such Interest Period divided by (1 minus the Reserve
Requirement for such Loan for such Interest Period).
"Fixed Rate Loans" shall mean Eurodollar Loans and, for the
purposes of the definition of "Fixed Base Rate" herein and Section 5 hereof,
LIBOR Market Loans.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with (and to the
extent provided by) the second sentence of Section 1.02(a) hereof, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock of any corporation, or an agreement to purchase,
sell or lease (as lessee or lessor) property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of his,
her or its obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank to open a letter of credit for
the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of
Credit Agreement
<PAGE> 15
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business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Indebtedness" shall mean, as to any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan
or the issuance and sale of debt securities); (b) obligations of such Person to
pay the deferred purchase or acquisition price of property or services (to the
extent required to be accrued as a liability on the balance sheet of such
Person in accordance with GAAP), other than trade accounts payable (other than
for borrowed money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are payable within 90
days of the date the respective goods are delivered or the respective services
are rendered; (c) Indebtedness of others secured by a Lien on the property of
such Person, whether or not the respective indebtedness so secured has been
assumed by such Person; (d) obligations (contingent or otherwise) of such
Person in respect of letters of credit, bankers' acceptances or similar
instruments issued or accepted by banks and other financial institutions for
account of such Person; (e) Capital Lease Obligations of such Person; and (f)
Indebtedness of others Guaranteed by such Person.
"Interest Coverage Ratio" shall mean, for any Computation
Period, the ratio of (a) EBIT for such Computation Period to (b) Interest
Expense for such Computation Period.
"Interest Expense" shall mean, for any period, the sum of the
following for the Company and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP): (a) all interest accrued
or capitalized in respect of Indebtedness during such period (whether or not
actually paid during such period) plus (b) the net amounts payable (or minus
the net amounts receivable) under Interest Rate Protection Agreements accrued
during such period (whether or not actually paid or received during such
period).
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from
a Base Rate Loan or the last day of the next preceding Interest Period
for such Loan and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the
Company may select as provided in Section 4.05 hereof, except that
each such Interest Period which commences on the last Business Day of
a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent
Credit Agreement
<PAGE> 16
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calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month;
(b) with respect to any Set Rate Loan, the period commencing
on the date such Set Rate Loan is made and ending on any Business Day
up to 180 days thereafter, as the Company may select as provided in
Section 2.04(b) hereof; and
(c) with respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and ending on
the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company may select as provided in
Section 2.04(b) hereof, except that each such Interest Period which
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan would
otherwise commence before and end after the Commitment Termination Date, such
Interest Period shall not be available; (ii) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (iii)
notwithstanding clause (i), no Interest Period for Eurodollar Loans or LIBOR
Market Loans shall have a duration of less than one month (and, if any
Eurodollar Loan or LIBOR Market Loan would otherwise have an Interest Period of
a shorter duration, such Loan shall not be available hereunder).
"Interest Rate Protection Agreement" shall mean an interest
rate swap, cap or collar agreement or similar arrangement between any Person
and one or more financial institutions providing for the transfer or mitigation
of interest risks either generally or under specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person; (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (other than any
such advance, loan or extension of credit having a term not exceeding 90 days
representing the purchase price of inventory or supplies purchased in the
ordinary course of business) or Guarantee of, or other contingent obligation
with
Credit Agreement
<PAGE> 17
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respect to, Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to any other
Person; (c) the making of acquisitions of the type referred to in clause (i) or
(iii) of the definition of "Acquisition" in this Section 1.01; and (d) the
entering into of any Interest Rate Protection Agreement.
"LIBO Rate" shall mean, for any LIBOR Market Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Agent to be equal to the rate of interest specified in the definition of
"Fixed Base Rate" in this Section 1.01 for the Interest Period for such Loan
divided by (1 minus the Reserve Requirement for such Loan for such Interest
Period).
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Margins based on the LIBO Rate pursuant to
Section 2.04 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates pursuant to a
LIBOR Auction.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For purposes of this Agreement and the other Basic Documents, a
Person shall be deemed to own subject to a Lien any asset which it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such asset.
"Litigation" shall have the meaning assigned to that term in
Section 7.03 hereof.
"Loans" shall mean the Money Market Loans, Syndicated Loans
and Swingline Loans.
"Majority Banks" shall mean Banks holding more than 50% of the
aggregate amount of the Commitments or, if no Commitments are then outstanding,
Banks holding more than 50% of the aggregate unpaid principal amount of the
Loans.
"Margin Stock" shall mean margin stock within the meaning of
Regulations U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the consolidated financial condition, operations or business of the
Company and its Subsidiaries taken as a whole, (b) the ability of any Obligor
to perform its obligations under
Credit Agreement
<PAGE> 18
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any of the Basic Documents to which it is a party, (c) the validity or
enforceability of any of the Basic Documents, (d) the rights and remedies of
the Banks and the Agent under any of the Basic Documents or (e) the timely
payment of the principal of or interest on the Loans or other amounts payable
in connection therewith.
"Material Subsidiary" shall mean (i) any Subsidiary of the
Company listed on Schedule III hereto under the heading "Material
Subsidiaries", (ii) any Subsidiary of the Company acquired after November 8,
1994 for a purchase price (computed in accordance with GAAP) in excess of
$80,000,000 or (iii) any Subsidiary of the Company having annual net revenues,
or having total assets with an aggregate book value, in excess of $80,000,000.
"Minority Share" shall mean, with respect to any Subsidiary of
the Company that is not a Wholly-Owned Subsidiary of the Company, the aggregate
percentage of ownership interests in such Subsidiary not owned by the Company
and/or one or more of its Subsidiaries.
"Money Market Borrowing" shall have the meaning assigned to
such term in Section 2.04(b) hereof.
"Money Market Loans" shall mean the loans provided for by
Section 2.04 hereof.
"Money Market Margin" shall have the meaning assigned to such
term in Section 2.04(c)(ii)(C) hereof.
"Money Market Quote" shall mean an offer in accordance with
Section 2.04(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"Money Market Quote Request" shall have the meaning assigned
to such term in Section 2.04(b) hereof.
"Money Market Rate" shall have the meaning assigned to such
term in Section 2.04(c)(ii)(D) hereof.
"Moody's" shall mean Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and which is covered by Title IV of ERISA.
Credit Agreement
<PAGE> 19
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"Net Capital Expenditures" shall mean, for any period for any
Person, the excess (if any) of (a) aggregate amount of Capital Expenditures for
such period over (b) the sum of (i) the value of all consideration received in
connection with the disposition by such Person of fixed assets, plant,
equipment and capitalized software disposed in the same or a related
transaction during such period whether giving rise to an offset to or credit
against the cost of the fixed assets, plant and equipment being acquired or
otherwise plus (ii) casualty insurance proceeds received by such Person during
such period with respect to fixed assets, plant and equipment of a similar
type.
"Net Carrying Value" shall mean, with respect to any asset,
the historical cost (less accumulated depreciation, amortization and other
valuation allowances) of such asset determined in accordance with GAAP.
"Net Income" shall mean, for any period, consolidated net
income (or loss) of the Company and its Subsidiaries for such period
(determined on a consolidated basis without duplication in accordance with
GAAP).
"Net Worth" shall mean, on any date, the shareholders' equity
of the Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP).
"Non-Consenting Bank" shall have the meaning assigned to that
term in Section 2.03(c) hereof.
"Notes" shall mean the promissory notes provided for by
Section 2.08 hereof.
"Obligors" shall mean the Company and FFB.
"Participation Agreement" shall have the meaning assigned to
that term in Section 11.06(c) hereof.
"Payor" shall have the meaning assigned to that term in
Section 4.06 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted FFB Investments" shall mean (i) Permitted
Investments and (ii) transactions in Federal funds with members of the Federal
Reserve System.
Credit Agreement
<PAGE> 20
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"Permitted Investments" of any Person shall mean: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or of any agency thereof; (b) direct obligations of any state of the
United States of America, or any political subdivision of any such state or any
public instrumentality thereof having an investment grade rating from either
S&P or Moody's; (c) certificates of deposit and bankers' acceptances issued by
any bank, thrift institution or trust company organized under the laws of the
United States of America or any state thereof and having capital, surplus and
undivided profits of at least $500,000,000; (d) time deposits with any
commercial bank (whether domestic or foreign) whose short-term commercial
paper (or that of its bank holding company) is rated A-1 or better or P-1 or
better by S&P or Moody's, respectively, (e) commercial paper rated A-1 or
better or P-1 or better by S&P or Moody's, respectively; (f) repurchase and
reverse repurchase arrangements with respect to underlying securities of the
types described in clauses (a) through (e) above; and (g) shares of any
open-end mutual fund substantially all of whose investments are of the type
described in clauses (a) through (f) above.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of
any Loan or any other amount payable by any Borrower under any Basic Document
that is not paid when due (whether at stated maturity, by acceleration or
otherwise), a rate per annum during the period from and including the due date
to but excluding the date on which such amount is paid in full equal to 2% plus
the Base Rate as in effect from time to time plus the Applicable Margin
(provided that, if the amount so in default is principal of a Eurodollar Loan
or a Money Market Loan and the due date thereof is a day other than the last
day of an Interest Period therefor, the "Post-Default Rate" for such principal
shall be, for the period from and including the due date and to but excluding
the last day of such Interest Period, 2% plus the interest rate for such Loan
as provided in Section 3.02 hereof and, thereafter, the rate provided for above
in this definition).
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"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending
rate.
"Principal Office" shall mean the principal office of the
Agent and Chase, presently located at 1 Chase Manhattan Plaza, New York, New
York 10081.
"Qualified Subordinated Indebtedness" shall mean unsecured
Indebtedness issued after June 25, 1992:
(a) for which the Company is directly and primarily liable,
(b) in respect of which none of the Subsidiaries of the
Company is obligated, whether as a direct obligor or under any
Guarantee,
(c) which is subordinated in right of payment to the
obligations of the Company hereunder, under the Notes and the Company
Guarantee,
(d) which is convertible into shares of common stock of the
Company, and
(e) in respect of which no payment of principal, or sinking
fund or similar payment, is scheduled to occur (whether at stated
maturity, by mandatory prepayment or otherwise) on or prior to the
date six months after the Commitment Termination Date in effect at the
date of issuance of such Indebtedness.
"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December in each year, the first of which shall be
the first such Business Day after the date of this Agreement.
"Quarterly Period" shall mean (a) the period from and
including the date hereof to but excluding the Quarterly Date next succeeding
the first date on which the Company is required to deliver financial statements
pursuant to Section 8.01(a), (b), (c) or (d) hereof and (b) each period,
following the period referred to in clause (a), from and including a Quarterly
Date to but excluding the next succeeding Quarterly Date.
"Reference Banks" shall mean, subject to Sections 2.03(c) and
5.01(e) hereof, Chase, The Bank of New York and Wachovia Bank of Georgia, N.A.
(or their Applicable Lending Offices, as the case may be).
Credit Agreement
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"Regulations A, D, U and X" shall mean, respectively,
Regulations A, D, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be amended or supplemented from time
to time.
"Regulatory Change" shall mean, with respect to any Bank, any
change after the date of this Agreement in United States Federal, state or
foreign law or regulations (including, without limitation, Regulation D) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks including such Bank of or under any United States
Federal, state or foreign law or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Replacement Bank" shall have the meaning assigned to that
term in Section 5.01(e) hereof.
"Required Payment" shall have the meaning assigned to that
term in Section 4.06 hereof.
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan or LIBOR Market Loan, the average maximum rate at which
reserves (including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall include any other reserves required to be maintained
by such member banks by reason of any Regulatory Change against (a) any
category of liabilities which includes deposits by reference to which the Fixed
Base Rate for Eurodollar Loans or LIBOR Market Loans (as the case may be) is to
be determined as provided in the definition of "Fixed Base Rate" or "LIBO Rate"
in this Section 1.01 or (b) any category of extensions of credit or other
assets which include Eurodollar Loans or LIBOR Market Loans. Each Bank
confirms that, on the date of this Agreement, no reserves are required to be
maintained under Regulation D by member banks of the Federal Reserve System in
New York City with deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D).
"S&P" shall mean Standard & Poor's Ratings Group and its
successors.
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<PAGE> 23
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"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Money Market Rates pursuant to Section 2.04 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Money Market Rates pursuant to a
Set Rate Auction.
"Specified Company Indebtedness" shall mean unsecured
Indebtedness (which may include Subordinated Indebtedness of the type referred
to in clause (b) of the definition thereof):
(a) for which the Company is directly and primarily liable,
(b) in respect of which none of the Subsidiaries of the
Company is obligated, whether as a direct obligor or under any
Guarantee, and
(c) contains covenants and events of default no more onerous
on the Company and its Subsidiaries than the covenants and events of
default contained in this Agreement.
"Subordinated Indebtedness" shall mean, collectively, (a)
Qualified Subordinated Indebtedness and (b) all other Indebtedness of the
Company which is subordinated in right of payment to the obligations of the
Company hereunder and under the Notes.
"Subsidiary" shall mean, with respect to any Person, any
corporation (whether now existing or hereafter created or acquired) of which at
least a majority of the outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person and/or one or more Subsidiaries
of such Person. "Wholly-Owned Subsidiary" shall mean, with respect to any
Person, any such corporation of which all of such shares, other than directors'
qualifying shares, are owned or controlled by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person.
"Swingline Amount" shall mean $0 as the same may be (i)
increased at any time or from time to time with the consent of the Banks by
notice from the Swingline Bank to FFB (provided that, in no event shall the
Swingline Amount hereunder, together with the "Swingline Amount" under the
Existing Credit Agreement,
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<PAGE> 24
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exceed $450,000,000 in the aggregate) or (ii) reduced at any time or from time
to time by not less than 30 days' notice from the Swingline Bank to FFB.
"Swingline Bank" shall mean Chase, together with its
successors and assigns in such capacity.
"Swingline Borrowing" shall have the meaning assigned to such
term in Section 2.10(b) hereof.
"Swingline Borrowing Date" shall have the meaning assigned to
such term in Section 2.10(b) hereof.
"Swingline Loans" shall mean the loans provided for by Section
2.10 hereof.
"Swingline Margin" shall have the meaning assigned to such
term in Section 2.10(c) hereof.
"Swingline Maturity Date" shall have the meaning assigned to
such term in Section 3.01(c) hereof.
"Swingline Note" shall mean the promissory note provided for
by Section 2.08(d) hereof.
"Swingline Quote" shall mean an offer in accordance with
Section 2.10(c) hereof by the Swingline Bank to make an Uncommitted Swingline
Loan with a specified Swingline Margin.
"Swingline Request" shall have the meaning assigned to such
term in Section 2.10(b) hereof.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof.
"Total Assets" shall mean, on any date, the aggregate book
value of all of the assets of the Company and its Subsidiaries at such date
(determined on a consolidated basis without duplication in accordance with
GAAP).
"Uncommitted Swingline Loan" shall have the meaning assigned
to such term in Section 2.10(a) hereof.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered
to the Banks hereunder shall (unless otherwise disclosed to the Banks at the
time of delivery
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<PAGE> 25
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thereof in the manner described in subsection (b) below) be prepared, in
accordance with generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest financial
statements furnished to the Banks hereunder after the date hereof (or, if no
such financial statements have yet been delivered under Section 8.01 hereof,
with those used in the preparation of the relevant financial statements
referred to in Section 7.02 hereof). All calculations made for the purposes of
determining compliance with the terms of this Agreement shall (except as
otherwise expressly provided herein) be made by application of generally
accepted accounting principles applied on a basis consistent with those used in
the preparation of the annual or quarterly financial statements furnished to
the Banks pursuant to Section 8.01 hereof unless (i) the Company shall have
objected, on the grounds stated in the next succeeding sentence, to determining
such compliance on such basis at the time of delivery of such financial
statements or (ii) the Majority Banks shall so object in a notice to the
Company given within 30 days after delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
shall mean the relevant financial statements referred to in Section 7.02
hereof); provided that any certification required of the Company or any other
Person regarding calculations made on such basis may be qualified to reflect
the failure to apply generally accepted accounting principles then in effect.
Either the Company or the Majority Banks shall have the right to object as
stated in clauses (i) and (ii) of the preceding sentence only if generally
accepted accounting principles as applied in the preparation of the financial
statements as to which such objection has been made have changed from generally
accepted accounting principles as applied in the preparation of the last
financial statements furnished to the Banks in accordance with Section 8.01
hereof as to which an objection shall not have been made (which, if objection
is made in respect of the first financial statements delivered under Section
8.01 hereof, shall mean the relevant financial statements referred to in
Section 7.02 hereof) and as a result of that change the basis of such
calculations has been altered or changed in a material way.
(b) The Company shall deliver to the Banks at the same time
as the delivery of any annual or quarterly financial statement under Section
8.01 hereof a description in reasonable detail of any material variation (as
determined by the Company and its auditors) between the application of
accounting principles employed in the preparation of such statement and the
application of accounting principles employed in the preparation
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<PAGE> 26
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of the next preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the penultimate sentence of
subsection (a) above, and reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the Company will
not, and will not permit any of its Subsidiaries to, change the last day of its
fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
Section 2. Commitments and Loans.
2.01 Syndicated Loans. Each Bank severally agrees, on the
terms of this Agreement, to make loans (each a "Syndicated Loan") to the
Company in Dollars during the period from and including the date hereof to but
not including the Commitment Termination Date in an aggregate principal amount
at any one time outstanding up to but not exceeding the amount of such Bank's
Commitment as then in effect. Subject to the terms of this Agreement, during
such period the Company may borrow, repay and reborrow the amount of the
Commitments; provided that the aggregate principal amount of all Syndicated
Loans, together with the aggregate principal amount of all Money Market Loans
and Swingline Loans, at any one time outstanding shall not exceed the aggregate
amount of the Commitments at such time. Syndicated Loans may be Base Rate
Loans and/or Eurodollar Loans (each a "type" of Syndicated Loan). The Company
may Convert Syndicated Loans of one type into Syndicated Loans of the other
type (as provided in Section 2.09 hereof) or Continue Syndicated Loans of one
type as Syndicated Loans of the same type (as provided in Section 2.09 hereof).
There may be no more than fifteen different Interest Periods for both
Syndicated Loans and Money Market Loans outstanding at the same time (for which
purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous).
2.02 Borrowings of Syndicated Loans.
(a) The Company shall give the Agent (which shall promptly
notify the Banks) notice of each borrowing hereunder as provided in Section
4.05 hereof. Not later than 1:00 p.m. New York time on the date of each
borrowing of Syndicated Loans, each Bank shall, subject to the terms and
conditions of this Agreement, make available the amount of each Syndicated Loan
to be made by it on such date to the Agent, at account number NYAO-
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DI-900-9-000002 maintained by the Agent with Chase at the Principal Office, in
immediately available funds, for account of the Company. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the same on the date
received, in immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the Company.
(b) At any time from the date on which a Swingline Loan is
made until such Swingline Loan shall have been paid in full, the Swingline Bank
may, and the Company hereby irrevocably authorizes and empowers (which power is
coupled with an interest) the Swingline Bank to, deliver, on behalf of the
Company, to the Agent a notice of borrowing of Syndicated Loans that are Base
Rate Loans in an amount equal to the then unpaid principal amount of such
Swingline Loan. The proceeds of such Syndicated Loans shall be applied solely
to refinance such Swingline Loan and the Company shall be deemed to have
advanced the proceeds of such Syndicated Loans to FFB. In the event that the
power of the Swingline Bank to give such notice of borrowing on behalf of the
Company is terminated for any reason whatsoever (including, without limitation,
a termination resulting from the occurrence of an event specified in clause (g)
or (h) of Section 9 hereof with respect to the Company), or the Swingline Bank
is otherwise precluded for any reason whatsoever from giving a notice of
borrowing on behalf of the Company as provided in the preceding sentence, each
Bank shall, upon notice from the Swingline Bank, promptly purchase from the
Swingline Bank a participation in (or, if and to the extent specified by the
Swingline Bank, a direct interest in) such Swingline Loan in the amount of the
Base Rate Loan it would have been obligated to make pursuant to such notice of
borrowing. Anything in Sections 2.02(a) or 4.05 hereof to the contrary
notwithstanding, each Bank shall, not later than 4:00 p.m. New York time on the
Business Day on which such notice is given (if such notice is given by 2:15
p.m. New York time) or 9:00 a.m. New York time on the next succeeding Business
Day (if such notice is given after 2:15 p.m. New York time), make available the
amount of the Base Rate Loan to be made by it (or the amount of the
participation or direct interest to be purchased by it, as the case may be) to
the Agent at the account specified in Section 2.02(a) hereof and the amount so
received by the Agent shall be made available to the Swingline Bank by
depositing the same, in immediately available funds, in an account of the
Swingline Bank maintained with Chase at the Principal Office designated by the
Swingline Bank. Promptly following its receipt of any payment in respect of a
Swingline Loan, the Swingline Bank shall pay to each Bank that has acquired a
participation in such Loan such Bank's proportionate share of such payment.
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Anything in this Agreement to the contrary notwithstanding
(including, without limitation, in Section 6.02 hereof), the obligation of each
Bank to make its Base Rate Loan (or purchase its participation or direct
interest in the Swingline Loan, as the case may be) pursuant to this Section
2.02(b) is unconditional under any and all circumstances whatsoever and shall
not be subject to set-off, counterclaim or defense to payment that such Bank
may have or have had against the Company, FFB, the Agent, the Swingline Bank or
any other Bank and, without limiting any of the foregoing, shall be
unconditional irrespective of (i) the occurrence of any Default, (ii) the
financial condition of the Company, any Subsidiary or Affiliate of the Company,
the Agent, the Swingline Bank or any other Bank or (iii) the termination or
cancellation of the Commitments; provided that no Bank shall be obligated to
make such Base Rate Loan (or to purchase its participation or direct interest
in the Swingline Loan) if, at the time of the making of such Swingline Loan,
the Swingline Bank had actual knowledge that a Default had occurred and was
continuing. The Company and FFB agree that any Bank so purchasing a
participation (or direct interest) in such Swingline Loan may exercise all
rights of set-off, bankers' lien, counterclaim or similar rights with respect
to such participation as fully as if such Bank were a direct holder of a
Swingline Loan in the amount of such participation.
If any Bank shall default in its obligation to make its Base
Rate Loan to refinance any Swingline Loan (or purchase its participation or
direct interest in such Swingline Loan, as the case may be) pursuant to the
first paragraph of this Section 2.02(b), then for so long as such default shall
continue, the Agent shall at the request of the Swingline Bank, withhold from
any payments received by the Agent under this Agreement or any Note for account
of such Bank the amount so in default and the Agent shall pay the same to the
Swingline Bank up to the amount and in satisfaction of such defaulted
obligation, which amount the Swingline Bank will apply to the repayment of the
principal of such Swingline Loan (if such Bank defaulted in its obligation to
make its Base Rate Loan) or otherwise to the purchase of the participation or
direct interest to be purchased by such Bank.
2.03 Changes of Commitments; Extension of Commitment
Termination Date.
(a) Optional. (1) The Company shall have the right to
terminate or reduce the aggregate unused amount of the Commitments (for which
purpose the amount of any Money Market Loans or Swingline Loans shall be deemed
to be a pro rata (based on the Commitments) utilization of each Bank's
Commitment) at any time or from time to time in accordance with the provisions
of Sections 4.04 and 4.05 hereof.
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(2) The Company shall have the right to terminate the
Commitment of any Bank ("Terminated Bank") in whole but not in part at any time
upon not less than five Business Days' notice to the Terminated Bank and the
Agent; provided that (i) the aggregate amount of the Commitments of all
Terminated Banks pursuant to this provision shall not exceed $50,000,000; (ii)
after giving effect to such termination the aggregate outstanding principal
amount of Loans shall not exceed the aggregate amount of the Commitments; (iii)
no Default shall have occurred and be continuing at the time of any such
termination; (iv) (A) no Loan shall be outstanding hereunder at the time of
such termination or (B) if any Loan is outstanding hereunder at such time, then
the consent of the Majority Banks to such termination shall have been obtained;
and (v) all principal of, and interest on, the Loans made by the Terminated
Bank, and all other amounts then owing to such Terminated Bank hereunder
(including, without limitation, any amounts payable under Section 5.05 hereof),
shall be paid at the time of such termination.
(b) Mandatory. The aggregate amount of the Commitments shall
be automatically reduced to zero on the Commitment Termination Date.
(c) Extension of Commitment Termination Date. The Company
may, by notice to the Agent (which shall promptly deliver a copy thereof to
each of the Banks) not less than 60 days and not more than 90 days prior to the
Commitment Termination Date then in effect (the "Current Termination Date"),
request that the Banks extend the Commitment Termination Date for an additional
364 days from the Consent Date (as defined below). If the Company shall so
request such an extension, each Bank, acting in its sole discretion, may, by
notice to the Company and the Agent not less than 30 days prior to the Current
Termination Date (the "Consent Date" with respect to such requested extension),
advise whether or not such Bank agrees to such extension; provided that any
Bank that agrees to such requested extension before the Consent Date may revoke
such agreement prior to the Consent Date; and provided further, that each Bank
that determines not to extend the Commitment Termination Date (a
"Non-Consenting Bank") shall notify the Company and the Agent (which shall
notify the Banks) of such fact promptly after such determination (but in any
event not later than the Consent Date) and any Bank that does not advise the
Agent and the Company on or before the Consent Date shall be deemed to be a
Non-Consenting Bank. The election of any Bank to agree to such extension shall
not obligate any other Bank to agree.
The Company shall have the right on or before the Current
Termination Date, to replace each Non-Consenting Bank with one or more other
banks (which may include any Bank, each an
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"Additional Commitment Bank"), each of which Additional Commitment Banks shall
have entered into an agreement in form and substance satisfactory to the
Company and the Agent pursuant to which such Additional Commitment Bank shall
undertake all or any portion of the Commitment(s) of one or more Non-Consenting
Banks (if any such Additional Commitment Bank is a Bank, its Commitment shall
be in addition to such Bank's Commitment hereunder on such date). Each
Additional Commitment Bank shall thereupon become a "Bank" for all purposes of
this Agreement.
If Banks holding Commitments (not including the Commitments of
the Additional Commitment Banks) that aggregate more than 66-2/3% of the
aggregate amount of the Commitments (not including the Commitments of the
Additional Commitment Banks) shall, by the Consent Date, have agreed (or be
deemed to have agreed as provided above) to extend the Current Termination
Date, then, effective as of the Current Termination Date, the Commitment
Termination Date shall be extended to the date falling 364 days after the
Consent Date (provided, if such date is not a Business Day, then such
Commitment Termination Date as so extended shall be the next preceding Business
Day).
Notwithstanding the foregoing, the extension of the Current
Termination Date shall not be effective unless (i) no Default shall have
occurred and be continuing either on the date of the notice requesting such
extension, on the Consent Date or on the Current Termination Date, and (ii)
each of the representations and warranties of the Company in Section 7 hereof
shall be true and complete in all material respects on and as of each of the
date of such notice, the Consent Date and the Current Termination Date with the
same force and effect as if made on and as each such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date as of such specific date).
Even if the Current Termination Date is extended as aforesaid,
the Commitment of each Non-Consenting Bank shall terminate on the Current
Termination Date and all principal of and interest on the Loans made by each
such Non-Consenting Bank, and all other amounts then owing to such
Non-Consenting Bank hereunder (including, without limitation, any amounts
payable under Section 5.05 hereof), shall be paid on the then Current
Termination Date.
Without affecting the rights or obligations of the Company or
any Bank under this Section 2.03(c) (and without liability to the Company or
any Bank for any failure to do so), the Agent will endeavor to remind the
Company, not less than 90 days prior to the Current Termination Date, of any
right the
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Company may have under this Section 2.03(c) to extend the Current Termination
Date.
If any Non-Consenting Bank is a Reference Bank (or whose
Applicable Lending Office is a Reference Bank, as the case may be), such
Reference Bank shall cease to be a Reference Bank at the close of business on
the date five (5) Business Days prior to the then Current Termination Date and,
if as a result of the foregoing, there shall be less than three Reference Banks
remaining, then the Agent (with the consent of the Company) shall, by notice to
the Company and the Banks, designate additional Bank(s) as Reference Bank(s),
so that there shall at all times be at least three Reference Banks.
If the Swingline Bank is a Non-Consenting Bank the provisions
of Section 2.10 hereof shall cease being available on the then Current
Termination Date unless another Bank shall have agreed to be the Swingline
Bank.
(d) No Reinstatement. The Commitments once terminated or
reduced may not be reinstated.
2.04 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, at any
time prior to the Commitment Termination Date, the Company may, as set
forth in this Section 2.04, request the Banks to make offers to make
Money Market Loans to the Company in Dollars. The Banks may, but
shall have no obligation to, make such offers and the Company may, but
shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.04. Money Market Loans may be LIBOR Market
Loans or Set Rate Loans (each a " type" of Money Market Loan),
provided that:
(i) there may be no more than fifteen different
Interest Periods for both Syndicated Loans and Money Market
Loans outstanding at the same time (for which purpose Interest
Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous);
(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal amount of
all Syndicated Loans and Swingline Loans, at any one time
outstanding shall not exceed the aggregate amount of the
Commitments at such time; and
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(iii) the Interest Period for any Money Market Loan shall
end on a date no later than the Commitment Termination Date.
(b) When the Company wishes to request offers to make Money
Market Loans, it shall give the Agent (which shall promptly notify the
Banks) notice (a "Money Market Quote Request") so as to be received no
later than 11:00 a.m. New York time on (x) the fourth Business Day
prior to the date of borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Business Day next preceding the date of
borrowing proposed therein, in the case of a Set Rate Auction (or, in
any such case, such other time and date as the Company and the Agent,
with the consent of the Majority Banks, may agree). The Company may
request offers to make Money Market Loans for up to three different
Interest Periods in a single notice (for which purpose Interest
Periods in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous); provided that the request for each
separate Interest Period shall be deemed to be a separate Money Market
Quote Request for a separate borrowing (a "Money Market Borrowing").
Each such notice shall be substantially in the form of Exhibit G
hereto and shall specify as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which shall be
a Business Day;
(ii) the aggregate amount of such Money Market Borrowing,
which shall be at least $25,000,000 (or in larger multiples of
$500,000) but shall not cause the limits specified in Section
2.04(a) hereof to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are to be quotes for LIBOR Market
Loans or Set Rate Loans; and
(v) if the Money Market Quotes requested are to set
forth a Money Market Rate, the date on which the Money Market
Quotes are to be submitted if it is before the proposed date
of borrowing (the date on which such Money Market Quotes are
to be submitted is called the "Quotation Date").
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Except as otherwise provided in this Section 2.04(b), no Money Market
Quote Request shall be given within five Business Days (or such other
number of days as the Company and the Agent, with the consent of the
Majority Banks, may agree) of any other Money Market Quote Request.
(c) (i) Each Bank may submit one or more Money Market
Quotes, each containing an offer to make a Money Market Loan in
response to any Money Market Quote Request; provided that, if the
Company's request under Section 2.04(b) hereof specified more than one
Interest Period, such Bank may make a single submission containing one
or more Money Market Quotes for each such Interest Period. Each Money
Market Quote must be submitted to the Agent not later than (x) 2:00
p.m. New York time on the fourth Business Day prior to the proposed
date of borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m.
New York time on the Quotation Date, in the case of a Set Rate Auction
(or, in any such case, such other time and date as the Company and the
Agent, with the consent of the Majority Banks, may agree); provided
that any Money Market Quote submitted by Chase (or its Applicable
Lending Office) may be submitted, and may only be submitted, if Chase
(or such Applicable Lending Office) notifies the Company of the terms
of the offer contained therein not later than (x) 1:00 p.m. New York
time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 9:45 a.m. New York
time on the Quotation Date, in the case of a Set Rate Auction.
Subject to Sections 5.02(b), 5.03, 7.02 and 10 hereof, any Money
Market Quote so made shall be irrevocable except with the consent of
the Agent given on the instructions of the Company. Except for
submissions to the Agent as provided above, no Bank shall, directly or
indirectly, communicate with any other Bank regarding the terms
contained in, or under consideration for, any Money Market Quote.
Chase shall not consider the terms of any other Bank's Money Market
Quote in deciding the terms of any Money Market Quote it may decide to
submit to the Company.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit H hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
shall be at least $5,000,000 or a larger multiple of $500,000;
provided that the aggregate principal amount of all Money
Market Loans
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for which a Bank submits Money Market Quotes (x) may be
greater or less than the Commitment of such Bank but (y) may
not exceed the principal amount of the Money Market Borrowing
for a particular Interest Period for which offers were
requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a
percentage (expressed to the nearest 1/10,000 of 1%) to be
added to or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (expressed to the nearest 1/10,000 of 1%)
offered for each such Money Market Loan (the "Money Market
Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Company, no Money Market
Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request and, in particular, no Money
Market Quote may be conditioned upon acceptance by the Company of all
(or some specified minimum) of the principal amount of the Money
Market Loan for which such Money Market Quote is being made.
(d) The Agent shall (x) in the case of a Set Rate Auction, as
promptly as practicable after the Money Market Quote is submitted (but
in any event not later than 10:15 a.m. New York time on the Quotation
Date) or (y) in the case of a LIBOR Auction, by 4:00 p.m. New York
time on the day a Money Market Quote is submitted, notify the Company
of the terms (i) of any Money Market Quote submitted by a Bank that is
in accordance with Section 2.04(c) hereof and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the
same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent and the Company unless such
subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Agent's notice
to the Company shall specify (A) the aggregate principal amount of the
Money Market Borrowing for which offers have been received and (B) the
respective principal amounts and Money Market Margins or Money Market
Rates, as the case may be, so offered by each Bank (identifying the
Bank that made each Money Market Quote).
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(e) Not later than 11:00 a.m. New York time on (x) the third
Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) the Quotation Date, in the case of a Set Rate
Auction (or, in any such case, such other time and date as the Company
and the Agent, with the consent of the Majority Banks, may agree), the
Company shall notify the Agent of its acceptance or nonacceptance of
the offers so notified to it pursuant to Section 2.04(d) hereof (and
the failure of the Company to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify each
affected Bank. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers for each Interest Period that
are accepted. The Company may accept any Money Market Quote in whole
or in part (provided that, except for acceptances in part contemplated
by the penultimate sentence of this Section 2.04(e), any Money Market
Quote accepted in part shall be at least $5,000,000 or in larger
multiples of $100,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in
the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $25,000,000 (or in larger
multiples of $500,000) but shall not cause the limits
specified in Section 2.04(a) hereof to be violated;
(iii) acceptance of offers may be made only in ascending
order of Money Market Margins or Money Market Rates, as the
case may be, in each case beginning with the lowest rate so
offered; and
(iv) the Company may not accept any offer where the Agent
has advised the Company that such offer fails to comply with
Section 2.04(c)(ii) hereof or otherwise fails to comply with
the requirements of this Agreement (including, without
limitation, Section 2.04(a) hereof).
If offers are made by two or more Banks with the same Money Market
Margins or Money Market Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall
be allocated by the Company among such Banks as nearly as possible (in
amounts of at least $5,000,000 or larger
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multiples of $100,000) in proportion to the aggregate principal amount
of such offers. Determinations by the Company of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 1:00 p.m. New York time on the
date specified for the making of such Loan, make the amount of such
Loan available to the Agent at account number NYAO-DI-900-9-000002
maintained by the Agent with Chase at the Principal Office in
immediately available funds, for account of the Company. The amount
so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Company by depositing the
same on the date received by the Agent, in immediately available
funds, in an account of the Company maintained with Chase at the
Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly stated
in Sections 2.03(a) and 2.05(a) hereof, the amount of any Money Market
Loan made by any Bank shall not constitute a utilization of such
Bank's Commitment.
2.05 Fees.
(a) Facility Fee. The Company shall pay to the Agent for
account of each Bank a facility fee on the amount of such Bank's Commitment
(whether or not utilized) for the period from and including the date hereof to
but not including the earlier of the date such Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to the Applicable
Facility Fee Percentage. Accrued facility fee shall be payable on each
Quarterly Date and on the earlier of the date such Commitment is terminated and
the Commitment Termination Date.
(b) Money Market Quote Request Fee. The Company shall pay to
the Agent a solicitation fee equal to $2,000 for each Money Market Quote
Request made by the Company. Accrued solicitation fees shall be payable on
each Quarterly Date and on the earlier of the date the Commitments are
terminated and the Commitment Termination Date.
2.06 Lending Offices. The Loans of each type made by each
Bank shall be made and maintained at such Bank's Applicable Lending Office for
Loans of such type.
2.07 Several Obligations; Remedies Independent. The failure
of any Bank to make any Loan to be made by it on the date specified therefor
shall not relieve any other Bank of its
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obligation to make its Loan on such date, but neither any Bank nor the Agent
shall be responsible for the failure of any other Bank to make a Loan to be
made by such other Bank. The amounts payable by the Company at any time
hereunder and under the Notes to each Bank shall be a separate and independent
debt and each Bank shall be entitled to protect and enforce its rights arising
out of this Agreement and the Notes, and it shall not be necessary for any
other Bank or the Agent to consent to, or be joined as an additional party in,
any proceedings for such purposes. The provisions of the preceding sentence
shall apply mutatis mutandis to the Swingline Loans made by the Swingline Bank
to FFB.
2.08 Notes.
(a) The Syndicated Loans made by each Bank shall be evidenced
by a single promissory note of the Company in substantially the form of Exhibit
A-1 hereto, dated the date hereof, payable to such Bank in a principal amount
equal to the amount of its Commitment as originally in effect and otherwise
duly completed. The date, amount, type and interest rate of each Syndicated
Loan made by each Bank to the Company, and each payment made on account of the
principal thereof, shall be recorded by such Bank on its books and, prior to
any transfer of such Note held by it, endorsed by such Bank on the schedule
attached to such Note or any continuation thereof; provided that any failure by
any Bank to make such endorsements on the schedule attached to the Note held by
it shall not affect the validity of the Company's obligation to repay the
unpaid principal amount of the Loans made by such Bank with interest thereon in
accordance with the terms of this Agreement.
(b) The Money Market Loans made by any Bank shall be
evidenced by a single promissory note of the Company in substantially the form
of Exhibit A-2 hereto, dated the date hereof, payable to such Bank and
otherwise duly completed. The date, amount, type, interest rate and maturity
date of each Money Market Loan made by each Bank to the Company, and each
payment made on account of the principal thereof, shall be recorded by such
Bank on its books and, prior to any transfer of such Note held by it, endorsed
by such Bank on the schedule attached to such Note or any continuation thereof;
provided that any failure by any Bank to make such endorsements on the schedule
attached to the Note held by it shall not affect the validity of the Company's
obligation to repay the unpaid principal amount of the Loans made by such Bank
with interest thereon in accordance with the terms of this Agreement.
(c) The Swingline Loans made by the Swingline Bank shall be
evidenced by a single promissory note of FFB in
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substantially the form of Exhibit A-3 hereto, dated the date hereof, payable to
the Swingline Bank and otherwise duly completed. The date, amount and interest
rate of each Swingline Loan made to FFB, and each payment made on account of
the principal thereof, shall be recorded by the Swingline Bank on its books
and, prior to any transfer of such Note held by it, endorsed by the Swingline
Bank on the schedule attached to such Note or any continuation thereof;
provided that any failure by the Swingline Bank to make such endorsements on
the schedule attached to the Note held by it shall not affect the validity of
FFB's obligation to repay the unpaid principal amount of the Swingline Loans
with interest thereon in accordance with the terms of this Agreement.
(d) Neither the Swingline Bank nor any Bank shall be entitled
to have its Notes subdivided, by exchange for promissory notes of lesser
denominations or otherwise, except in connection with a permitted assignment of
all or any portion of such Bank's Commitment, Loans and Notes pursuant to
Section 5.01(e) or Sections 11.06(b), (e) or (g) hereof.
2.09 Optional Prepayments and Conversions or Continuation of
Loans. Subject to Section 4.04 hereof, the Company shall have the right to
prepay Syndicated Loans and subject to the terms thereof, Money Market Loans
(without premium or penalty but subject to the provisions of Section 5 hereof),
in such order as it may select as between Syndicated Loans, and subject to the
terms thereof, Money Market Loans or to Convert Syndicated Loans of one type
into Syndicated Loans of another type or Continue Syndicated Loans of one type
as Syndicated Loans of the same type, at any time or from time to time,
provided that: (i) the Company shall give the Agent notice of each such
prepayment, Conversion or Continuation as provided in Section 4.05 hereof; and
(ii) Eurodollar Loans may be prepaid or Converted only on the last day of an
Interest Period for such Loans.
2.10 Swingline Loans.
(a) FFB may, on any Business Day prior to the Commitment
Termination Date, request the Swingline Bank (i) to make an offer on such
Business Day to make a Swingline Loan (an "Uncommitted Swingline Loan"), or
(ii) to make a Swingline Loan (a "Committed Swingline Loan"), to FFB on such
Business Day in Dollars in the manner set forth in this Section 2.10; provided
that the aggregate unpaid principal amount of all Swingline Loans may not, at
any one time outstanding, exceed (i) the Swingline Amount or (ii) together with
the aggregate unpaid principal amount of all Syndicated Loans and Money Market
Loans, the aggregate amount of the Commitments at such time; provided
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further, that Swingline Loans may not be outstanding for more than five (5)
consecutive Business Days. The Swingline Bank may, but shall have no
obligation to, make any such offer to make an Uncommitted Swingline Loan and
FFB may, but shall have no obligation to, accept any such offer to make an
Uncommitted Swingline Loan.
(b) When FFB wishes to request an offer from the Swingline
Bank to make an Uncommitted Swingline Loan, or a Committed Swingline Loan, on
the date (a "Swingline Borrowing Date") on which it proposes to borrow a
Swingline Loan (a "Swingline Borrowing"), it shall give the Swingline Bank
notice (a "Swingline Request"), which notice shall be effective only if
received by the Swingline Bank (unless the Swingline Bank shall otherwise
consent) no later than (i) 3:00 p.m. New York time, in the case of a Swingline
Borrowing in a principal amount up to but not exceeding $50,000,000, (ii) 2:00
p.m. New York time, in the case of a Swingline Borrowing in a principal amount
greater than $50,000,000 and up to but not exceeding $200,000,000, (iii) 1:00
p.m. New York time, in the case of a Swingline Borrowing in a principal amount
greater than $200,000,000 and up to but not exceeding $250,000,000 and (iv)
noon New York time, in the case of a Swingline Borrowing in a principal amount
greater than $250,000,000. Each such Swingline Request shall specify the
principal amount of the Swingline Borrowing (which shall be at least $5,000,000
and in larger multiples of $1,000,000).
(c) Upon receipt of a Swingline Request for an Uncommitted
Swingline Loan, the Swingline Bank may, but shall not be obligated to, submit a
Swingline Quote to FFB, which Swingline Quote shall contain an offer to make an
Uncommitted Swingline Loan in response to such Swingline Request. Each
Swingline Quote must specify (i) the principal amount of the Swingline
Borrowing for which such offer is being made (which principal amount shall be
at least $5,000,000 or a larger multiple of $1,000,000) and (ii) a quote of a
margin (the "Swingline Margin") above the Federal Funds Rate which, when added
to the Federal Funds Rate, will be the interest rate per annum applicable to
the Uncommitted Swingline Loan to be borrowed.
(d) Upon receipt of a Swingline Quote in response to its
Swingline Request for an Uncommitted Swingline Loan, FFB shall within five
minutes of receipt of such Swingline Quote notify the Swingline Bank of its
acceptance or nonacceptance of such Swingline Quote; provided that a failure of
FFB so to notify the Swingline Bank shall be nonacceptance of such Swingline
Quote.
(e) Promptly upon FFB's acceptance of a Swingline Quote, and
within an hour of a Swingline Request for a Committed
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Swingline Loan, the Swingline Bank shall make the amount of the Swingline Loan
to be made by it on such date available to FFB on such date by depositing the
same, in immediately available funds, in an account of FFB maintained with
Chase at the Principal Office designated by FFB. The Swingline Bank shall
thereupon promptly notify the Agent (which shall promptly notify the Banks)
that a Swingline Loan has been made and the amount thereof.
(f) Anything in this Section 2.10 to the contrary
notwithstanding, the Swingline Bank's obligation to make Committed Swingline
Loans may be terminated or reduced by the Swingline Bank by not less than 30
days' notice and may be terminated under Section 9 hereof.
Section 3. Payments of Principal and Interest; Mandatory
Prepayments.
3.01 Repayment of Loans.
(a) Syndicated Loans. The Company will pay to the Agent for
account of each Bank the aggregate unpaid principal amount of such Bank's
Syndicated Loans outstanding, and each Syndicated Loan shall mature, on the
Commitment Termination Date.
(b) Money Market Loans. The Company will pay to the Agent
for account of each Bank holding a Money Market Loan the unpaid principal
amount of each Money Market Loan held by such Bank, and each Money Market Loan
shall mature, on the last day of the Interest Period therefor.
(c) Swingline Loans. FFB will pay (or cause to be paid) to
the Agent for account of the Swingline Bank the principal amount of each
Swingline Loan at or prior to, and each Swingline Loan shall mature at, 1:00
p.m. New York time on the Business Day immediately following the Swingline
Borrowing Date (the "Swingline Maturity Date").
3.02 Interest. (a) The Company will pay to the Agent for
account of each Bank interest on the unpaid principal amount of each Loan made
by such Bank for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(i) during such period such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable
Margin;
(ii) during such period such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Fixed
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Rate for such Loan for such Interest Period plus the Applicable Margin;
(iii) during such period such Loan is a LIBOR Market Loan,
the LIBO Rate for such Loan for the Interest Period therefor plus (or
minus) the Money Market Margin quoted by the Bank making such Loan in
accordance with Section 2.04 hereof; and
(iv) during such period such Loan is a Set Rate Loan, the
Money Market Rate for such Loan for the Interest Period therefor
quoted by the Bank making such Loan in accordance with Section 2.04
hereof.
(b) FFB will pay to the Agent for account of the Swingline
Bank interest on the unpaid principal amount of each Swingline Loan made by the
Swingline Bank, for the period from and including the date on which such
Swingline Loan is made to but excluding the Swingline Maturity Date applicable
thereto, at (i) in the case of an Uncommitted Swingline Loan, the Federal Funds
Rate (as in effect on the Swingline Borrowing Date) plus the applicable
Swingline Margin; provided that, upon any Bank acquiring a participation or a
direct interest in such Uncommitted Swingline Loan pursuant to the third
sentence of Section 2.02(b) hereof, the Base Rate; and (ii) in the case of a
Committed Swingline Loan, the Base Rate.
(c) Notwithstanding the foregoing provisions of this Section
3.02, the relevant Borrower will pay to the Agent for account of each Bank
(including for these purposes, the Swingline Bank) interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank or the
Swingline Bank, and on any other amount payable by the Borrowers under any
other Basic Document to or for account of such Bank, which shall not be paid in
full when due (whether at stated maturity, by acceleration or otherwise), for
the period from and including the due date thereof to but excluding the date
the same is paid in full.
(d) Accrued interest on each Loan shall be payable (i) in the
case of a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case of
a Eurodollar Loan or LIBOR Market Loan, on the last day of each Interest Period
therefor and, if such Interest Period is longer than three months at
three-month intervals following the first day of such Interest Period, (iii) in
the case of a Set Rate Loan, on the last day of each Interest Period therefor
and, if such Interest Period is longer than 90 days at 90-day intervals
following the first day of such Interest Period, (iv) in the case of a
Swingline Loan, on the Swingline Maturity Date therefor, and (v) in the case of
any
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Loan, upon the payment or prepayment thereof or the Conversion of such Loan to
a Loan of another type (but only on the principal amount so paid, prepaid or
Converted), except that interest payable at the Post-Default Rate shall be
payable from time to time on demand and interest on any Eurodollar Loan or
LIBOR Market Loan that is Converted into a Base Rate Loan (pursuant to Section
5.04 hereof) shall be payable on the date of Conversion. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Agent shall give notice thereof to the Banks and the Swingline Bank to
which such interest is payable and the Company and FFB.
3.03 Mandatory Commitment Reductions and Prepayments. Upon
the occurrence of a Change in Control, the Majority Banks may, by notice
(through the Agent) to the Company, terminate the Commitments, whereupon the
Commitments shall automatically terminate, and the Borrowers shall, on the date
such notice is given (or if such day is not a Business Day, on the next
succeeding Business Day), prepay all Loans outstanding and pay all other
obligations of the Borrowers hereunder and under any other Basic Document then
due. The Company shall give the Agent and the Banks prompt notice of the
occurrence of any Change in Control.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by any Borrower
under this Agreement and the Notes shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at
account number NYAO-DI-900-9-000002 maintained by the Agent with Chase at the
Principal Office, not later than 1:00 p.m. New York time on the date on which
such payment shall become due (each such payment made after such time on such
due date to be deemed to have been made (except for purposes of Section 9
hereof) on the next succeeding Business Day).
(b) Any Bank (including, for these purposes, the Swingline
Bank) for whose account any such payment is to be made may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any ordinary deposit account of the relevant Borrower with such Bank
(with notice to such Borrower and the Agent; provided that such Bank's failure
to give such notice shall not affect the validity thereof).
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(c) The Borrowers shall, at the time of making each payment
under this Agreement or any Note, specify to the Agent whether such payment is
to be applied to the Loans or to other amounts payable by the Borrowers
hereunder (and in the event that any Borrower fails to so specify, or if an
Event of Default specified in Section 9(a) hereof has occurred and is
continuing, the Agent may distribute such payment to the Banks in such manner
as the Majority Banks may determine to be appropriate, subject to Section 4.02
hereof).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.02(b) hereof, each payment received by the Agent under
this Agreement or any Note for account of a Bank (including for these purposes,
the Swingline Bank) shall be paid promptly to such Bank, in immediately
available funds, for account of such Bank's Applicable Lending Office for the
Loan in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day, such date
shall be extended to the next succeeding Business Day and interest shall be
payable on any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing from the Banks under Section 2.01 hereof
shall be made from the Banks and each payment of facility fee under Section
2.05 hereof shall be made for account of the Banks, and each termination or
reduction of the amount of the Commitments under Sections 2.03(a)(1) and 3.03
hereof shall be applied to the Commitments of the Banks, pro rata according to
the amounts of their respective Commitments; (b) the making, Conversion and
Continuation of Loans of a particular type (other than Conversions provided for
by Section 5.04 hereof) shall be made pro rata among the Banks according to the
amounts of their respective Commitments, and Eurodollar Loans having the same
Interest Period shall be allocated pro rata among the Banks according to the
amounts of their respective Eurodollar Loans; (c) each payment or prepayment of
principal of Syndicated Loans by the Company shall be made for account of the
Banks pro rata in accordance with the respective unpaid principal amounts of
the Syndicated Loans held by the Banks; and (d) each payment of interest on
Syndicated Loans by the Company shall be made for account of the Banks pro rata
in accordance with the respective amounts of interest due on Syndicated Loans
and payable to the Banks.
4.03 Computations. Interest on Eurodollar Loans, Money
Market Loans and Swingline Loans, and facility fee payable under Section 2.05
hereof, shall be computed on the basis of a
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year of 360 days and actual days elapsed (including the first day but excluding
the last day) occurring in the period for which payable, and interest on Base
Rate Loans shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable.
4.04 Minimum Amounts. Except for Conversions or prepayments
made pursuant to Sections 3.03 or 5.04 hereof, each borrowing, Conversion and
prepayment of principal of Syndicated Loans shall be in an aggregate amount at
least equal to $5,000,000 (borrowings, prepayments or Conversions of or into
Syndicated Loans of different types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder to be deemed separate
borrowings, Conversions and prepayments for purposes of the foregoing, one for
each type or Interest Period). Each reduction of Commitments in accordance
with Section 2.03(a)(1) hereof shall be in an aggregate amount at least equal
to $1,000,000. Anything in this Agreement to the contrary notwithstanding, the
aggregate principal amount of Eurodollar Loans having the same Interest Period
shall be at least equal to $10,000,000 and, if the aggregate amount of
Eurodollar Loans having the same Interest Period would otherwise be in a lesser
aggregate principal amount for any period, such Loans shall be Base Rate Loans
during such period.
4.05 Certain Notices. Except as otherwise expressly provided
herein, notices by the Company to the Agent of terminations or reductions of
Commitments, of borrowings, Conversions, Continuations and prepayments of
Syndicated Loans, of type of Syndicated Loans and of the duration of Interest
Periods shall be irrevocable and shall be effective only if received by the
Agent not later than 10:00 a.m. New York time on the number of Business Days
prior to the date of the relevant termination, reduction, borrowing,
Conversion, Continuation or prepayment or the first day of such Interest Period
specified below:
<TABLE>
<CAPTION>
Number of
Business
Notice Days Prior
------ ----------
<S> <C>
Termination or
reduction of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
</TABLE>
Credit Agreement
<PAGE> 45
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<TABLE>
<CAPTION>
Number of
Business
Notice Days Prior
------ ----------
<S> <C>
Borrowing or prepayment of,
Conversions into, Continuations as,
or duration of Interest Period
for, Eurodollar Loans 3
</TABLE>
Each such notice of termination or reduction shall specify the aggregate amount
of the Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or prepayment shall specify the Syndicated Loans to be
borrowed, Converted, Continued or prepaid and the aggregate amount (subject to
Section 4.04 hereof) and type of the Syndicated Loans to be borrowed,
Converted, Continued or prepaid (and, in the case of a Conversion, the type of
Syndicated Loans to result from such Conversion) and the date of borrowing,
Conversion, Continuation or prepayment (which shall be a Business Day) and, if
such Loans are Eurodollar Loans, the duration of the Interest Period therefor.
The Agent shall promptly notify the Banks of the contents of each such notice.
In the event that the Company fails to select the type of Syndicated Loan, or
the duration of any Interest Period for any Eurodollar Loan, within the time
period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for such Loan or
(if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Agent. Unless the Agent
shall have been notified by a Bank or the Company (the "Payor") prior to the
date on which the Payor is scheduled to make payment to the Agent of (in the
case of a Bank) the proceeds of a Loan to be made by it hereunder or (in the
case of the Company) a payment to the Agent for account of one or more of the
Banks hereunder (such payment being herein called the "Required Payment") which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to) make the amount thereof available to the intended recipient(s)
on such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as aforesaid.
Credit Agreement
<PAGE> 46
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4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option, to offset balances
held by it for account of the Company at any of its offices, in Dollars or in
any other currency, against any principal of or interest on such Bank's Loans,
or any other amount payable to such Bank hereunder, which is not paid when due
(regardless of whether such balances are then due to the Company), in which
case it shall promptly notify the Company and the Agent thereof, provided that
such Bank's failure to give such notice shall not affect the validity thereof.
(b) If any Bank shall obtain payment of any principal of or
interest on any Syndicated Loan made by it to the Company under this Agreement
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right, debit pursuant to Section 4.01(b) hereof, or otherwise (other
than pursuant to Sections 2.03(a)(2), 2.03(c), 5.01(e) or 11.06 hereof), and,
as a result of such payment, such Bank shall have received a greater percentage
of the principal or interest then due hereunder by the Company to such Bank in
respect of Syndicated Loans than the percentage received by any other Bank, it
shall promptly purchase from the other Banks participations in (or, if and to
the extent specified by any such other Bank, direct interests in) the
Syndicated Loans made by such other Banks (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Banks shall share the benefit of
such excess payment (net of any expenses which may be incurred by such Bank in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Syndicated Loans held by each Bank. To
such end all the Banks shall make appropriate adjustments among themselves (by
the resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
(c) The Company agrees that any Bank purchasing a
participation (or direct interest) in the Syndicated Loans made by other Banks
(or in interest due thereon, as the case may be) in accordance with Section
4.07(b) hereof may exercise all rights of set-off, bankers' lien, counterclaim
or similar rights with respect to such participation as fully as if such Bank
were a direct holder of Loans in the amount of such participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right
Credit Agreement
<PAGE> 47
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with respect to any other indebtedness or obligation of the Company. If, under
any applicable bankruptcy, insolvency or other similar law, any Bank receives a
secured claim in lieu of a set-off to which this Section 4.07 applies, such
Bank shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Banks entitled
under this Section 4.07 to share in the benefits of any recovery on such
secured claim.
Section 5. Yield Protection and Illegality.
5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to
time such amounts as such Bank may determine to be necessary to compensate it
for any costs which such Bank determines are attributable to its making or
maintaining of any Fixed Rate Loans or its obligation to make any Fixed Rate
Loans hereunder, or any reduction in any amount receivable by such Bank
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Note in respect of any of such
Loans (other than taxes imposed on or measured by the overall net
income of such Bank or of its Applicable Lending Office for any of
such Loans); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Fixed Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Bank (including such Loan or any deposits
referred to in the definition of "Fixed Base Rate" in Section 1.01
hereof), or any commitment of such Bank (including the Commitment of
such Bank hereunder); or
(iii) imposes any other condition affecting this Agreement or
any of its Notes (or any of such extensions of credit or liabilities)
or its Commitments.
If any Bank requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Bank (with a copy to the Agent), suspend the
obligation of such Bank to make or Continue its Loans of the type with respect
to which such compensation is requested, or to Convert its Base Rate Loan into
a Loan of such type, until the Regulatory Change giving rise to
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<PAGE> 48
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such request ceases to be in effect (in which case the provisions of Section
5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of Section
5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to the Company (with a copy to the Agent), the obligation of such Bank
to make or Continue, or to Convert any Base Rate Loan into, a Eurodollar Loan
hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay directly
to each Bank from time to time on request such amounts as such Bank may
determine to be necessary to compensate such Bank for any costs which it
determines are attributable to the maintenance by such Bank (or any Applicable
Lending Office), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law) of any court or
governmental or monetary authority (i) following any Regulatory Change or (ii)
implementing any risk-based capital guideline or requirement (whether or not
having the force of law and whether or not the failure to comply, therewith
would be unlawful) heretofore or hereafter issued by any government or
governmental or supervisory authority implementing at the national level the
Basle Accord, of capital in respect of its Commitment or any of its Loans (such
compensation to include, without limitation, an amount equal to any reduction
of the rate of return on assets or equity of such Bank (or any Applicable
Lending Office) to a level below that which such Bank (or any Applicable
Lending Office) could have achieved but for such law, regulation,
interpretation, directive or request).
(d) Each Bank will notify the Company of any event occurring
after the date of this Agreement that will entitle such Bank to compensation
under paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but
in any event within 45 days, after such Bank obtains actual knowledge thereof;
provided that (i) if any Bank fails to give such notice within
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<PAGE> 49
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45 days after it obtains actual knowledge of such an event, such Bank shall,
with respect to compensation payable pursuant to this Section 5.01 in respect
of any costs (including, without limitation, Additional Costs) resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Bank does
give such notice and (ii) each Bank will designate a different Applicable
Lending Office for the Loan of such Bank affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Bank, be disadvantageous to such
Bank, except that such Bank shall have no obligation to designate an Applicable
Lending Office located in the United States of America. Each Bank will furnish
to the Company a certificate setting forth the basis and amount of each request
by such Bank for compensation under paragraph (a) or (c) of this Section 5.01.
Determinations and allocations by any Bank for purposes of this Section 5.01 of
the effect of any Regulatory Change pursuant to Section 5.01(a) or (b) hereof,
or of the effect of capital maintained pursuant to Section 5.01(c) hereof, on
its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Bank under this Section 5.01, shall be prima facie
evidence thereof, provided that such determinations and allocations are made on
a reasonable basis.
(e) If any Bank (an "Affected Bank") claims compensation from
the Company under Section 5.01(a) or 5.01(c) hereof (without prejudice to any
amounts then due to such Bank under said Sections), or makes an election under
Section 5.01(b) hereof, the Company may exercise any one of the following
options:
(i) The Company may request one or more of the non-Affected
Banks to take over all (but not part) of such Affected Bank's then
outstanding Syndicated Loans and to assume all (but not part) of such
Affected Bank's Commitment and obligations hereunder. If one or more
Banks (each, an "Assenting Bank") shall so agree, pursuant to such
documentation as is satisfactory in form and substance to the Company,
such Affected Bank, each Assenting Bank and the Agent (x) the
Commitment to make Syndicated Loans of each Assenting Bank and the
obligations of such Assenting Bank with respect to Syndicated Loans
under this Agreement shall be increased by its respective share of the
Commitment to make such Loans and of the obligations of such Affected
Bank with respect to Syndicated Loans under this Agreement taken over
by such Assenting Bank and (y) each Assenting Bank shall make
Syndicated Loans to the Company, pro rata
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<PAGE> 50
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according to such Assenting Bank's respective share of the Commitment
of such Affected Bank to make such Loans taken over by such Assenting
Bank, in an aggregate principal amount equal to such share of the
outstanding principal amount of such Loans of such Affected Bank and
otherwise on the same terms as such Loans, on a date mutually
acceptable to the Assenting Banks, such Affected Bank and the Company.
The proceeds of such Loans, together with funds of the Company, shall
be used to prepay such Loans of such Affected Bank, together with all
interest accrued thereon, and all other amounts owing to such Affected
Bank hereunder in respect of the Syndicated Loans and, upon such
assumption by the Assenting Banks and prepayment by the Company, such
Affected Bank shall cease to be a "Bank" for purposes of this
Agreement in respect of the Syndicated Loans and shall no longer have
any obligations hereunder in respect of the Syndicated Loans.
(ii) The Company may designate a bank acceptable to the Agent
to assume all (but not part of) the Commitment and the obligations of
each such Affected Bank hereunder, and to purchase the outstanding
Notes of such Affected Bank and such Affected Bank's rights hereunder
and with respect thereto (a "Replacement Bank"), in each case on a
date mutually acceptable to the Replacement Bank, such Affected Bank,
and the Company, without recourse upon, or warranty by, or expense to,
such Affected Bank, for a purchase price equal to the outstanding
principal amount of the Loans of such Affected Bank plus all interest
accrued thereon and all other amounts owing to such Affected Bank
hereunder, and upon such assumption and purchase by such Replacement
Bank, such Replacement Bank shall be deemed to be a "Bank" for
purposes of this Agreement and such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and such Affected Bank shall no
longer have any obligations hereunder.
(iii) So long as no Default shall have occurred and be
continuing, the Company may terminate such Affected Bank's Commitment
and prepay all of such Affected Bank's Loans, together with all
interest accrued thereon, and all other amounts owing to such Affected
Bank hereunder (including, without limitation, all amounts payable
under Sections 5.01 and 5.05 hereof).
If any Affected Bank that ceases being a "Bank" for purposes of this Agreement
is a Reference Bank (or whose Applicable Lending Office is a Reference Bank, as
the case may be), such Reference Bank shall cease to be a Reference Bank and,
if as a result of the foregoing, there shall be less than three Reference Banks
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<PAGE> 51
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remaining, then the Agent (with the consent of the Company) shall, by notice to
the Company and the Banks, designate additional Bank(s) as Reference Bank(s),
so that there shall at all times be at least three Reference Banks.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Fixed
Base Rate for any Interest Period:
(a) the Agent determines (or any Bank that has outstanding a
Money Market Quote with respect to a LIBOR Market Loan determines),
which determination shall be conclusive, that quotations of interest
rates for the relevant deposits referred to in the definition of
"Fixed Base Rate" in Section 1.01 hereof are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for any type of Fixed Rate Loans as
provided herein; or
(b) the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market Loan
determines), which determination shall be conclusive, and notify (or
notifies, as the case may be), the Agent that the relevant rates of
interest referred to in the definition of "Fixed Base Rate" in Section
1.01 hereof upon the basis of which the rate of interest for
Eurodollar Loans (or LIBOR Market Loans, as the case may be), for such
Interest Period is to be determined are not likely to cover adequately
the cost to such Banks (or such quoting Bank) of making or maintaining
such type of Loans for such Interest Period;
then the Agent shall give the Company and each Bank prompt notice thereof, and
so long as such condition remains in effect, the Banks (or such quoting Bank)
shall be under no obligation to make additional Eurodollar Loans (or a LIBOR
Market Loan, as the case may be), to Continue Eurodollar Loans or to Convert
Base Rate Loans into Eurodollar Loans and the Company shall, on the last day(s)
of the then current Interest Period(s) for the outstanding Eurodollar Loans (or
LIBOR Market Loans), either prepay such Loans or Convert such Loans into Base
Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans or
LIBOR Market Loans hereunder, then such Bank shall promptly notify the Company
thereof (with a copy to the Agent) and such Bank's obligation to make or
Continue, or to Convert a Base Rate Loan into, a
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Eurodollar Loan shall be suspended until such time as such Bank may again make
and maintain a Eurodollar Loan (in which case the provisions of Section 5.04
hereof shall be applicable), and such Bank shall no longer be obligated to make
any LIBOR Market Loan that it has offered to make.
5.04 Treatment of Affected Loans under Certain Circumstances.
If the obligation of any Bank to make or Continue, or to Convert a Base Rate
Loan into, a Eurodollar Loan or LIBOR Market Loan is suspended pursuant to
Section 5.01 or 5.03 hereof, such Bank's Eurodollar Loan or LIBOR Market Loan
shall be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for its Eurodollar Loan or LIBOR Market Loan (or,
in the case of a Conversion required by Section 5.01(b) or 5.03 hereof, on such
earlier date as such Bank may specify to the Company with a copy to the Agent)
and, unless and until such Bank gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to such
Conversion no longer exist:
(a) to the extent that such Bank's Eurodollar Loan or LIBOR
Market Loan has been so Converted, all payments and prepayments of
principal which would otherwise be applied to such Bank's Eurodollar
Loan or LIBOR Market Loan shall be applied instead to its Base Rate
Loan; and
(b) a Loan which would otherwise be made or Continued by such
Bank as a Eurodollar Loan shall be made or Continued instead as a Base
Rate Loan and the Base Rate Loan of such Bank which would otherwise be
Converted into a Eurodollar Loan shall remain as a Base Rate Loan.
If such Bank gives notice to the Company (with a copy to the Agent) that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to the
Conversion of such Bank's Eurodollar Loan or LIBOR Market Loan pursuant to this
Section 5.04 no longer exist (which such Bank agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans are then
outstanding, such Bank's Base Rate Loans shall be automatically Converted, on
the first day of the next succeeding Interest Period for such Eurodollar Loans
so that, after giving effect thereto, to the extent possible all Syndicated
Loans held by the Banks are Eurodollar Loans.
5.05 Compensation. The Company shall pay to the Agent for
account of each Bank, upon the request of such Bank through the Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, cost or expense which such Bank reasonably
determines are attributable to:
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(a) any payment, prepayment or Conversion (other than
pursuant to Section 5.01(b) or 5.03 hereof) of a Fixed Rate Loan or a
Set Rate Loan made by such Bank for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9
hereof) on a date other than the last day of the Interest Period for
such Loan; or
(b) any failure by the Company for any reason (other than as
a consequence of the delivery by such Bank of the notice referred to
in Sections 5.01(a), 5.01(b), 5.02 or 5.03 hereof but including,
without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to borrow a Fixed Rate
Loan or a Set Rate Loan (with respect to which, in the case of a Money
Market Loan, the Company has accepted a Money Market Quote) from such
Bank on the date for such borrowing specified in the relevant notice
of borrowing given pursuant to Section 2.02 or 2.04(b) hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the interest component of the amount such Bank would have
bid in the London interbank market (if such Loan is a Eurodollar Loan or a
LIBOR Market Loan) or the United States secondary certificate of deposit market
(if such Loan is a Set Rate Loan) for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities comparable to
such period (as reasonably determined by such Bank).
5.06 Withholding Tax Exemption; Etc. Each Bank which is
organized outside of the United States of America shall deliver to the Company
(with a copy to the Agent) such certificates, documents or other evidence as
may be required from time to time, including, without limitation, any
certificate or statement of exemption required by Treasury Regulation Section
1.1441-4(a) or Section 1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by such Bank, to establish that such Bank is not
subject to withholding under Section 1441 or 1442 of the Code, or comparable
successor provisions, because payments to such Bank are effectively connected
with the conduct by such Bank of a trade or business in
Credit Agreement
<PAGE> 54
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the United States of America or exempt from United States tax under a provision
of an applicable tax treaty. Notwithstanding any provision herein to the
contrary, the Company shall not have any obligation to pay to such Bank any
amount which the Company is liable to withhold due to failure of such Bank to
timely file with the Company such certificate or statement of exemption by such
time or times as set forth in such Regulations or otherwise.
Section 6. Conditions Precedent.
6.01 Initial Extension of Credit. The obligation of any Bank
to make its initial extension of credit hereunder is subject to the receipt by
the Agent on behalf of the Banks or the Swingline Bank, as the case may be, of
the following documents, each of which shall be satisfactory to the Agent in
form and substance:
(a) Principal Documents.
(i) Notes. The Syndicated Notes and the Money Market Notes,
duly completed and executed by the Company, dated the date hereof.
(ii) Company Guarantee. The Company Guarantee, duly executed
and delivered by the Company.
(b) Corporate Documents and Regulatory Certificates.
(i) Charter, By-Laws and Corporate Action. Certified copies
of the charter and by-laws of each of the Obligors and all corporate
action taken by each of the Obligors (including, without limitation,
the resolutions of the Board of Directors of each Obligor authorizing
the transactions contemplated hereby).
(ii) Incumbency. Certificates of each of the Obligors in
respect of the incumbency and specimen signature of each of the
officers (x) who is authorized to sign on its behalf each of the Basic
Documents to which it is a party and (y) who will, until replaced by
another officer or officers duly authorized for that purpose, act as
its representative for the purposes of signing documents and giving
notices and other communications in connection with the Basic
Documents and the transactions contemplated thereby (and the Agent and
each Bank may conclusively rely on such certificate until it receives
notice from any Borrower to the contrary).
(iii) Existence Certificate. A true, correct and complete
copy of a certificate of existence for each Obligor, in each case
issued by the Secretary of State (or
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equivalent official) of the State in which such Person is organized.
(c) Certificates.
(i) Opening Compliance Certificate. A Compliance
Certificate of the Company signed by a senior officer of the Company
setting forth the calculations therein as of December 31, 1994.
(ii) Closing Certificate. A certificate of the Company
signed by a senior officer of the Company to the effect set forth in
the first sentence of Section 6.02 hereof.
(d) Opinions.
(i) Opinion of Special Georgia Counsel to the Borrowers.
An opinion of Sutherland, Asbill & Brennan, special Georgia counsel to
the Borrowers, substantially in the form of Exhibit C-1 hereto. The
Borrowers hereby instruct such counsel to deliver such opinion to the
Agent and the Banks.
(ii) Opinion of General Counsel of the Borrowers. An
opinion of Randolph L.M. Hutto, Esq., General Counsel of each of the
Borrowers, substantially in the form of Exhibit C-2 hereto. The
Borrowers hereby instruct such counsel to deliver such opinion to the
Agent and the Banks.
(iii) Opinion of Special New York Counsel to the Banks. An
opinion of Milbank, Tweed, Hadley & McCloy, special New York counsel
to the Banks, substantially in the form of Exhibit D hereto.
(e) Other Requested Documents. Such other documents
relating to the transactions contemplated hereby as the Agent or any Bank or
special New York counsel to the Banks may reasonably request.
The obligation of any Bank to make its initial extension of credit hereunder is
also subject to the payment by the Company of such fees as the Company shall
have agreed to pay or deliver to any Bank or the Agent in connection herewith,
including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy, special New York counsel to the Banks in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Basic Documents (to the extent that statements for such fees and
expenses have been delivered to the Company).
Credit Agreement
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6.02 Initial and Subsequent Loans. The obligation of any
Bank (including, for these purposes, the Swingline Bank) to make any Loan
(including any Money Market Loan and its initial Syndicated Loan, and, in the
case of the Swingline Bank, any Swingline Loan) is subject to the further
conditions precedent that, both immediately prior to making such Loan and also
after giving effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 7 hereof, and by the Company and the other Obligors in the
other Basic Documents, shall be true and complete in all material
respects on and as of the date of such Loan with the same force and
effect as if made on such date (or, if expressly stated to have been
made on and as of a specific date, on and as of such specific date).
Each notice of borrowing by the Company hereunder (including, without
limitation, a notice to borrow a Committed Swingline Loan), each Money Market
Loan Request and each acceptance by the Company of any Money Market Quote, and
each Swingline Quote Request and each acceptance by FFB of any Swingline Quote,
shall constitute a certification by the Company to the effect set forth in the
preceding sentence (both as of the date of such notice, request or acceptance
(as the case may be) and, unless the Company otherwise notifies the Agent prior
to the date of such borrowing, as of the date of such borrowing).
Section 7. Representations and Warranties. The Company
represents and warrants to the Banks that:
7.01 Corporate Existence. Each of the Company and its
Subsidiaries (other than inactive Subsidiaries): (a) is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all material
governmental licenses, authorizations, consents and approvals, necessary to own
its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure so to qualify would have a Material Adverse Effect.
7.02 Financial Condition. The consolidated balance sheet of
the Company and its Subsidiaries as at December 31, 1994 and the related
consolidated statements of income, shareholders' equity and cash flows of the
Company and its Subsidiaries for the fiscal year ended on said date, with the
opinion thereon of
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Deloitte & Touche, heretofore furnished to each of the Banks, present fairly in
all material respects the consolidated financial condition of the Company and
its Subsidiaries as at said date and the consolidated results of the operations
of the Company and its Subsidiaries for the fiscal year ended on said date, all
in accordance with generally accepted accounting principles consistently
applied. Neither the Company nor any of its Subsidiaries had on said date any
material contingent liabilities, liabilities for taxes, unusual forward or long
term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
consolidated balance sheet or the notes thereto as at said date. Since
December 31, 1994, there has been no material adverse change in the financial
condition, operations or business of the Company and its Subsidiaries taken as
a whole from that set forth in said financial statements as at said date.
7.03 Litigation. Except as disclosed on Schedule IV hereto,
there are no legal or arbitral proceedings or any proceedings by or before any
governmental or regulatory authority or agency (each a "Litigation"), pending
or (to the knowledge of the Company) threatened against the Company or any of
its Subsidiaries which individually or in the aggregate are reasonably likely,
in the reasonable judgment of the Company, to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of the
Basic Documents, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of the
Company or any of its Subsidiaries, or any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument relating to Indebtedness of the Company
or any of its Subsidiaries (or any other material agreement or instrument) to
which the Company or any of its Subsidiaries is a party or by which any of them
is bound or to which any of them is subject, or constitute a default under any
such agreement or instrument, or result in the creation or imposition of any
Lien upon any of the revenues or assets of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument.
7.05 Corporate Action. Each Obligor has all necessary
corporate power and authority to execute, deliver, and perform its obligations
under each of the Basic Documents to which it is a party; the execution,
delivery and performance by each Obligor of each of the Basic Documents to
which it is a party have been duly authorized by all necessary corporate action
on its part; and this Agreement has been duly and validly executed and
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delivered by the Company and constitutes, and each of the Notes and the other
Basic Documents when executed and delivered by each Obligor party thereto (in
the case of the Notes, for value) will constitute, a legal, valid and binding
obligation of each Obligor party thereto, enforceable against each such Obligor
in accordance with its terms.
7.06 Approvals. Except as set forth on Schedule IV hereto,
no authorizations, approvals or consents of, and no filings or registrations
with, any governmental or regulatory authority or agency (including, without
limitation, the Georgia Department of Banking and Finance (and any successor
thereto)) are necessary for the execution, delivery or performance by any of
the Obligors of any of the Basic Documents to which it is a party or for the
legality, validity, binding effect or enforceability thereof against such
Obligor.
7.07 Margin Stock. Not more than 25% of the value of the
properties of the Company and its Subsidiaries subject to the restrictions
contained in Sections 8.05(c) and/or 8.06 hereof is represented by properties
constituting Margin Stock.
7.08 ERISA. The Company and the ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability in excess of $1,000,000 to the PBGC
or any Plan or Multiemployer Plan (other than to make contributions or premium
payments in the ordinary course of business).
7.09 Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year of the Company ended December 31, 1987. The Company and its Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Company, adequate.
7.10 Investment Company Act. The Company is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
7.11 Credit Agreements. Schedule I hereto is a complete and
correct list, as of the date of this Agreement, of
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each credit agreement, loan agreement, indenture, purchase agreement, Guarantee
or other arrangement providing for or otherwise relating to any Indebtedness or
any extension of credit (or commitment for any extension of credit) to, or
Guarantee by, the Company or any of its Subsidiaries, the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $5,000,000,
expressly identifying the relevant obligor in respect thereof. The aggregate
principal or face amount outstanding or which may become outstanding under each
arrangement required to be listed pursuant to the preceding sentence hereof is
correctly described in said Schedule I.
7.12 Hazardous Materials. Except as set forth on Schedule II
hereto, (a) the Company and each of its Subsidiaries have obtained all permits,
licenses and other authorizations which are required under all Environmental
Laws, except to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect and (b) the Company and
each of its Subsidiaries are in compliance with the terms and conditions of all
such permits, licenses and authorizations, and are also in compliance with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a Material
Adverse Effect.
7.13 Subsidiaries, Etc. Set forth in Schedule III hereto is
a complete and correct list, as of the date of this Agreement, of all
Subsidiaries of the Company (and the respective jurisdiction of incorporation
of each such Subsidiary) and of all Investments held by the Company and its
Subsidiaries in any joint venture or partnership. Except as disclosed in
Schedule III hereto the Company owns, directly or indirectly, free and clear of
Liens, all outstanding shares of its Subsidiaries, and all such shares are
validly issued, fully paid and non-assessable and the Company (or the
respective Subsidiary) also owns, free and clear of Liens, all such
Investments.
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7.14 Material Agreements.
(a) Neither the Company nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any corporate restriction
that has or is likely to have a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is in
default in any manner that could have a Material Adverse Effect.
7.15 Accuracy and Completeness of Information. Except for
projections and pro forma financial information, no information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Company to the Agent and the Banks in connection with the negotiation of this
Agreement or included therein or delivered pursuant thereto contains any untrue
statement of material fact or omitted or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading which untrue statement or omission (i) has
not been corrected in a certificate of the Company furnished to the Agent and
the Banks at least one Business Day prior to the date hereof or (ii) if not so
corrected, does not relate to matters that would have (or have had) a Material
Adverse Effect. All information furnished after the date hereof by or on
behalf of the Company to the Agent and the Banks in connection with this
Agreement and the transactions contemplated hereby will be true and accurate in
every material respect on the date as of which such information is stated or
certified unless (i) such information has been corrected in a certificate of
the Company furnished to the Agent and the Banks at least five (5) Business
Days prior to any requested borrowing or (ii) if not so corrected, such untrue
or inaccurate information does not relate to matters that would have (or have
had) a Material Adverse Effect. The projections and pro forma financial
information delivered by the Company to the Agent and the Banks prior to the
date of this Agreement are based upon assumptions of the Company believed by
the Company to be reasonable and fair in light of conditions as at the time
made, have been prepared on the basis of assumptions stated therein, and
reflect the reasonable estimate of the Company of the information projected
therein. To the best knowledge of the Company no facts exist which would
result in any material adverse change in any such projections or in any
estimate reflected therein. The parties hereto acknowledge that projections as
to future events are not to be viewed as facts and that actual results during
the period or periods covered by such projections may differ from the projected
results.
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7.16 Compliance with Applicable Laws. Each of the Company
and its Subsidiaries is in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its respective
business and the ownership of its property (including, without limitation,
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), except such noncompliance as would not,
in the aggregate, have a Material Adverse Effect.
7.17 Assets. Each of the Company and its Subsidiaries owns
and has good title to (or, if subject to a lease, has valid leasehold interests
in) all of its properties and assets, free and clear of all Liens or other
encumbrances of any nature other than Liens expressly permitted by Section 8.06
hereof.
Section 8. Covenants of the Company. The Company agrees
that, so long as any of the Commitments are in effect and until payment in full
of all Loans hereunder, all interest thereon and all other amounts payable by
the Borrowers hereunder:
8.01 Financial Statements. The Company will deliver to each
of the Banks:
(a) as soon as available and in any event within 45 days
after the end of each of the first three quarterly fiscal periods of
each fiscal year of the Company, consolidated statements of income and
cash flows of the Company and its Subsidiaries for such period and for
the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated balance sheet of the
Company and its Subsidiaries as at the end of such period, setting
forth in comparative form the corresponding consolidated figures as at
the end of, and for, the corresponding period in the preceding fiscal
year, accompanied by a certificate of a senior financial officer of
the Company, which certificate shall state that said consolidated
financial statements present fairly in all material respects the
consolidated financial condition and results of operations of the
Company and its Subsidiaries taken as a whole in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such period (with accruals being subject to
year-end adjustments);
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, consolidated
statements of income, shareholders' equity and cash flows of the
Company and its Subsidiaries for such
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fiscal year and the related consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal year, setting forth
in comparative form the corresponding consolidated figures as at the
end of, and for, the preceding fiscal year, and accompanied by an
opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that said
consolidated financial statements present fairly in all material
respects the consolidated financial condition and results of
operations of the Company and its Subsidiaries taken as a whole as at
the end of, and for, such fiscal year in accordance with generally
accepted accounting principles, and a certificate of such accountants
stating that, in making the examination necessary for their opinion,
they obtained no knowledge, except as specifically stated, of any
Default under any of Sections 8.07, 8.08, 8.09, 8.10 and 8.11 hereof;
(c) promptly after the filing thereof, the relevant quarterly
"Consolidated Reports of Condition and Income" of FFB (if any) that
FFB shall have filed with the Federal Deposit Insurance Corporation
(or any governmental agency substituted therefor);
(d) promptly after the filing thereof, the annual audited
statements of income, shareholders' equity and cash flows of FFB and
the related balance sheet of FFB (if any) that FFB shall have filed
with the Federal Deposit Insurance Corporation (or any governmental
agency substituted therefor);
(e) promptly upon their becoming available, copies of all
registration statements (in the form in which declared effective) and
regular periodic reports (other than Forms S-8), if any, which the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) as soon as possible, and in any event within ten days
after the Company knows that any of the events or conditions specified
below with respect to any Plan or Multiemployer Plan has occurred or
exists, a statement signed by a senior financial officer of the
Company setting forth details respecting such event or condition and
the
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action, if any, which the Company or its ERISA Affiliate proposes to
take with respect thereto (and a copy of any report or notice required
to be filed with or given to PBGC by the Company or an ERISA Affiliate
with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan
(other than any such termination that is a "standard
termination" within the meaning of Section 4041(b) of ERISA);
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company
or any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or
any ERISA Affiliate under Section 4201 or 4204 of ERISA from a
Multiemployer Plan, or the receipt by the Company or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA; and
(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days;
(h) promptly after the Company knows that any Default has
occurred, a notice of such Default describing the same in reasonable
detail and stating that such notice is a "Notice of Default" and,
together with such notice or as soon thereafter as possible, a
description of the action
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that the Company has taken and proposes to take with respect thereto;
and
(i) from time to time such other information regarding
the business, affairs or financial condition of the Company or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Bank or the Agent may reasonably request.
At the time it furnishes each set of financial statements pursuant to paragraph
(a) or (b) above, the Company will furnish to each Bank: (A) a certificate (a
"Compliance Certificate") substantially in the form of Exhibit E-1 hereto
signed by a senior financial officer of the Company (i) to the effect that no
Default has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the action
that the Company has taken and proposes to take with respect thereto) and (ii)
setting forth in reasonable detail (x) the computations necessary to determine
whether the Company is in compliance with each of the Sections of the Credit
Agreement identified in Annex 1 to the form of Compliance Certificate as of the
end of the respective quarterly fiscal period or fiscal year and (y) to the
extent any computations referred to in clause (x) above use numbers which are
not directly obtainable from the financial statements delivered pursuant to
Section 8.01 hereof, a reconciliation to numbers in such financial statements;
and (B) a Facility Fee and Margin Determination Certificate.
8.02 Litigation. The Company will promptly give to each Bank
notice of any Litigation affecting the Company or any of its Subsidiaries,
except proceedings which individually or in the aggregate are not likely, in
the reasonable judgment of the Company, to have a Material Adverse Effect.
8.03 Corporate Existence, Etc. The Company will, and will
cause each of its Subsidiaries to:
(a) preserve and maintain its corporate existence and all of
its material rights, privileges and franchises (provided that nothing in this
Section 8.03 shall prohibit any transaction expressly permitted by Section 8.05
hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements would have a Material Adverse Effect;
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(c) pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained;
(d) maintain all of its properties used or useful in its
business in good working order and condition, ordinary wear and tear excepted;
and
(e) permit, to the extent permitted by applicable law or
regulation, representatives of any Bank or the Agent, during normal business
hours after reasonable notice, to examine, copy and make extracts from its
books and records, to inspect its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by such Bank
or the Agent (as the case may be).
8.04 Insurance. The Company will, and will cause each of
its Subsidiaries to, keep insured by financially sound and reputable insurers
all property of a character usually insured by corporations engaged in the same
or similar business similarly situated against loss or damage of the kinds and
in the amounts customarily insured against by such corporations (subject to
deductibles in reasonable amounts) and carry such other insurance (subject to
such deductibles) as is usually carried by such corporations.
8.05 Prohibition of Fundamental Changes.
(a) The Company will not, and will not permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), except:
(i) any of the Company's Subsidiaries may be merged or
consolidated with or into: (A) the Company, if the Company shall be
the continuing or surviving corporation, or (B) any other Subsidiary
of the Company; provided that if any such transaction shall be between
a Subsidiary of the Company and a Wholly-Owned Subsidiary of the
Company, the continuing or surviving corporation shall be a
Wholly-Owned Subsidiary of the Company;
(ii) any of the Company's Subsidiaries may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Company or a Wholly-Owned
Subsidiary of the Company;
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(iii) the Company or any of the Company's Subsidiaries may
merge or consolidate with any other Person if (A) in the case of a
merger or consolidation of the Company, the Company is the continuing
or surviving corporation and, in any other case, the continuing or
surviving corporation shall be a Wholly-Owned Subsidiary of the
Company (provided that the continuing or surviving corporation may be
a non-Wholly-Owned Subsidiary of the Company if a Disposition by the
Company of the portion of the capital stock of such continuing or
surviving corporation not owned by the Company and/or one or more of
its Wholly-Owned Subsidiaries would at the time of such merger or
consolidation have been permitted pursuant to Section 8.05(c) hereof)
and (B) before and after giving effect thereto no Default would exist
hereunder.
(b) Except to the extent otherwise expressly permitted by
Section 8.05(a) hereof, the Company will not, and will not permit any of its
Subsidiaries to, acquire any business or assets from, or capital stock of, or
be a party to any acquisition of, any Person except:
(i) the Company and its Subsidiaries may make purchases
of inventory and other assets to be sold or used in the ordinary
course of business (including, without limitation, asset purchases of
merchant credit card portfolios and ancillary assets);
(ii) the Company and its Subsidiaries may make Capital
Expenditures; and
(iii) the Company and its Subsidiaries may make Investments
expressly permitted by Section 8.08 hereof.
(c) The Company will not convey, sell, transfer or
otherwise dispose of, directly or indirectly (each a "Disposition"), any shares
of capital stock of National Bancard Corporation ("Nabanco") or Telecheck
International, Inc. ("Telecheck"), nor will the Company permit either of
Nabanco or Telecheck to make any Disposition, in one or a series of
transactions, of all or any substantial part of its assets or business. In
addition, the Company will not make a Disposition of any shares of capital
stock of any other Subsidiary of the Company that results in such Subsidiary
ceasing to be a Subsidiary of the Company if, after giving effect to such
Disposition and the provisions of paragraph (ii) of the proviso to the
definition of the term "Cash Flow" and assuming that the net cash proceeds of
such Disposition had been used to prepay Debt on the last day of the
Computation Period ending on or immediately prior to the date of such
Disposition, the Company would have been in default of the provisions of
Section 8.10
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hereof as of the last day of the Computation Period ending on or immediately
prior to the date of such Disposition.
(d) The Company will not, and will not permit any of its
Subsidiaries to, lease any of its assets (as lessor) except: (i) in accordance
with Section 8.05(a)(ii) hereof; or (ii) leases of assets in the ordinary
course of business.
8.06 Limitation on Liens, Etc.
(a) The Company will not, and will not permit any of its
Subsidiaries, to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
except:
(i) Liens imposed by any governmental authority for
taxes, assessments or charges not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or any of
its Subsidiaries, as the case may be, in accordance with GAAP;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith by appropriate proceedings;
(iii) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(iv) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business (including, without limitation, performance obligations under
merchant credit card contracts);
(v) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries;
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(vi) Liens on assets of corporations which become (or are
consolidated with or merged into) Subsidiaries of the Company after
the date of this Agreement, provided that such Liens are in existence
at the time the respective corporations become (or are consolidated
with or merged into) Subsidiaries of the Company and were not created
in anticipation thereof;
(vii) Liens upon real and/or tangible personal property
acquired after November 8, 1994 (by purchase, construction or
otherwise) by the Company or any of its Subsidiaries, each of which
Liens either (A) existed on such property before the time of its
acquisition and was not created in anticipation thereof or (B) was
created solely for the purpose of securing Indebtedness incurred to
finance, refinance or refund the cost (including the cost of
construction) of the respective property; provided that (x) no such
Lien shall extend to or cover any property of the Company or such
Subsidiary other than the respective property so acquired and
improvements thereon and (y) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed the fair market value
(determined in good faith by the Company in accordance with accepted
market practice) of the respective property at the time it was
acquired (by purchase, construction or otherwise);
(viii) Liens in existence (or granted pursuant to an
agreement in existence) on November 8, 1994 and described in Schedule
V hereto;
(ix) Liens arising out of or resulting from any judgment
or award, the time for the appeal or petition for rehearing of which
shall not have expired, or in respect of which the Company and its
Subsidiaries are fully covered by insurance (where the insurer has
admitted liability in respect of such judgment) or in respect of which
the Company or any affected Subsidiary of the Company shall at any
time in good faith be prosecuting an appeal or proceeding for a review
and in respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured, and as to which the
Company or such Subsidiary has established appropriate reserves or
security;
(x) Liens created after June 25, 1992 covering the land,
buildings and improvements located at 2610 Decker Lake, Salt Lake
City, Utah and securing Indebtedness in an amount not to exceed
$20,000,000;
(xi) statutory or contractual bankers liens on monies held
in bank accounts;
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(xii) Liens securing Indebtedness permitted by Section
8.07(l) hereof, provided that (x) such Liens are in existence at the
time the related assets were acquired and were not created in
anticipation of such acquisition and (y) such Liens cover only the
assets so acquired;
(xiii) Liens upon the assets of FFB of the type described in
the definition of "Permitted FFB Investments" in Section 1.01 hereof,
which Liens secure Indebtedness permitted by Section 8.07(o) hereof;
and
(xiv) any extension, renewal or replacement of the
foregoing; provided that the Liens permitted by this paragraph shall
not be spread to cover any additional Indebtedness or property (other
than a substitution of like property).
(b) The Company will not, and will not permit any of its
Subsidiaries to, enter into any transaction, or become party to any agreement
or instrument, that would prohibit (i) the making by any Subsidiary of the
Company of any dividend payment or distribution to the Company or any other
Subsidiary of the Company or (ii) the granting of a Lien upon any of its
property, assets or revenues (other than (A) leases or leasehold estates, (B)
licenses or license estates, where the Company or one of its Subsidiaries is
lessee or licensee, as the case may be or (C) prohibitions on the granting of
Liens agreed to in connection with the granting of Liens permitted by clauses
(vi), (vii) and (xii) of Section 8.06(a) hereof on the property subject to such
Liens), whether now owned or hereafter acquired, in favor of the Agent for the
benefit of the Agent and the Banks as collateral security for the obligations
of the Company hereunder and under the other Basic Documents.
8.07 Indebtedness. The Company will not, and will not
permit any of its Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Banks hereunder;
(b) Indebtedness outstanding on November 8, 1994 and, if
required pursuant to Section 7.11 hereof, listed in Schedule I hereto;
(c) Qualified Subordinated Indebtedness;
(d) Capital Lease Obligations;
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(e) Indebtedness of newly-acquired Subsidiaries
outstanding at the time of the acquisition thereof (but not incurred
in contemplation of the acquisition thereof);
(f) unsecured Indebtedness of the Company under lines of
credit which (i) are maintained by the Company in an aggregate
principal amount outstanding (including amounts outstanding on
November 8, 1994) not exceeding $100,000,000 and (ii) contain terms
that are no more restrictive than the terms contained in this
Agreement;
(g) letters of credit supporting obligations of the type
described in Section 8.06(a)(iii) or 8.06(a)(iv) hereof;
(h) letters of credit in addition to letters of credit
contemplated by clause (g) above opened in the ordinary course of
business in an aggregate undrawn amount (including the undrawn amount
of such letters of credit outstanding on June 25, 1992) not to exceed
$50,000,000 at any one time outstanding;
(i) Indebtedness of the Company and its Subsidiaries
(other than FFB) arising as a consequence of Investments permitted by
Sections 8.08(b) and 8.08(g) hereof;
(j) Indebtedness of the type described in clause (b) of
the definition of "Indebtedness" in Section 1.01 hereof arising as a
consequence of an acquisition (including, without limitation, an
Acquisition) consisting of consideration payable to the related seller
or sellers that is required to be accrued as a liability on the
balance sheet of the Company and its Subsidiaries in accordance with
GAAP on the date of such acquisition;
(k) Indebtedness of the type described in clause (b) of
the definition of "Indebtedness" in Section 1.01 hereof arising as a
consequence of an acquisition (including, without limitation, an
Acquisition) consisting of additional contingent consideration to the
related seller or sellers that is required to be accrued as a
liability on the balance sheet of the Company and its Subsidiaries in
accordance with GAAP subsequent to the date of such acquisition;
(l) Indebtedness of the Company or a Subsidiary of the
Company assumed in connection with an Acquisition of the type
described in clause (i) of the definition thereof, provided that such
Indebtedness was not created in anticipation of such Acquisition;
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(m) Indebtedness for which the Company or one of its
Subsidiaries becomes liable as a result of a transaction permitted by
Section 8.05(a)(i) hereof;
(n) Indebtedness in addition to those contemplated by
clauses (a) through (m) above (other than Capital Lease Obligations)
secured by Liens permitted by Section 8.06(a)(vii) hereof up to but
not exceeding $50,000,000 at any one time outstanding;
(o) Indebtedness of FFB (i) that is of the type described
in clause (a) of the definition of "Indebtedness" in Section 1.01
hereof and secured by Liens permitted by Section 8.06(a)(xiii) hereof,
provided that FFB shall use the proceeds of such Indebtedness to fund
VISA and Mastercard settlements, (ii) that are short-term advances
made by the Company to fund VISA and Mastercard settlements, which
short-term advances are repaid within five (5) Business Days, and
(iii) arising as a consequence of Investments permitted by Section
8.08(h) hereof;
(p) additional Indebtedness constituting Specified
Company Indebtedness so long as, both immediately before and
immediately after the creation or incurrence of such Indebtedness, no
Default shall have occurred and be continuing; and
(q) Indebtedness under the Existing Credit Agreement;
provided that anything in this Section 8.07 to the contrary notwithstanding,
the aggregate unpaid principal amount of the Indebtedness of the Subsidiaries
of the Company (not including Indebtedness of FFB under this Agreement) shall
not exceed 20% of Net Worth at any one time outstanding.
8.08 Investments. The Company will not, and will not
permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) operating deposit accounts with bank, thrift
institutions or trust companies;
(b) Permitted Investments;
(c) Investments in the capital stock of Subsidiaries of
the Company on November 8, 1994 or subsequently acquired in accordance
with clause (d) below or formed in accordance with clause (e) below;
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(d) Investments consisting of the acquisition of the capital
stock of any Person; provided that (i) if such acquisition is an
Acquisition, after giving effect to such acquisition, such Person is a
Subsidiary of the Company; (ii) no Default shall have occurred and be
continuing or would result therefrom; and (iii) if such acquisition is
not an Acquisition, the aggregate purchase price of all such
Investments held from time to time by the Company and its
Subsidiaries, together with Investments described in clause (f)(iii)
below, is less than 25% of Total Assets;
(e) Investments in newly-formed Wholly-Owned Subsidiaries of
the Company; provided that no Default shall have occurred and be
continuing or would result therefrom;
(f) Investments consisting of acquisitions of the type
referred to in clause (i) or (iii) of the definition of "Acquisition"
in Section 1.01 hereof from or in any Person; provided that (i) after
giving effect to such acquisition, the Company or any of its
Subsidiaries shall own the assets or interests so acquired; (ii) no
Default shall have occurred and be continuing or would result
therefrom; and (iii) in connection with the acquisition of any
ownership interest in any partnership or joint venture, such
partnership or joint venture will not engage in any transaction in
which the Company or any of its Subsidiaries would not be permitted to
engage hereunder and the aggregate purchase price of such ownership
interest, together with Investments described in clause (d)(iii)
above, is less than 25% of Total Assets;
(g) Investments by (i) the Company or any of its Subsidiaries
(other than FFB) consisting of advances to, or Guarantees of, or other
contingent obligations with respect to, Indebtedness or other
liabilities of (other than FFB), in the case of the Company, any of
its Subsidiaries (other than FFB), and in the case of any Subsidiary
of the Company, the Company or any other Subsidiary of the Company
(other than FFB) and (ii) the Company or any of its Subsidiaries
(other than FFB) consisting of Guarantees of, or other contingent
obligations with respect to, Indebtedness or other liabilities of a
Person incurred or assumed by the Company or such Subsidiary (as the
case may be) in connection with an Acquisition of the type described
in clause (i) of the definition thereof, provided that such
Indebtedness or other liability was not created in contemplation of
such Acquisition;
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(h) in the case of FFB, Permitted FFB Investments and
Investments in receivables from VISA and Mastercard associations;
(i) Investments outstanding on November 8, 1994 and
identified in Schedule III hereto and Investments constituting Liens
permitted by Section 8.06(a)(iv) hereof;
(j) Investments resulting from transactions expressly
permitted by Section 8.05(a) hereof;
(k) Investments by the Company or any of its Subsidiaries
consisting of Guarantees of, or other contingent obligations with
respect to, obligations and other liabilities pertaining to merchant
credit card transactions;
(l) Investments resulting from the acquisition by the Company
of shares of its outstanding common stock; provided that no Default
shall have occurred and be continuing or would result therefrom;
(m) Investments by the Company under Interest Rate Protection
Agreements; and
(n) (i) Investments by the Company in FFB in an aggregate
amount not to exceed 15% of Net Worth and (ii) short-term advances
made by the Company to FFB to fund VISA and Mastercard settlements,
which short-term advances shall be repaid within five (5) Business
Days.
8.09 Net Worth. The Company will not permit Net Worth on any
date occurring on or after November 8, 1994 to be less than $1,100,000,000.
8.10 Debt to Cash Flow Ratio. The Company will not permit
the Debt to Cash Flow Ratio on any date occurring on or after the date of this
Agreement to be greater than 3.75 to 1.
8.11 Interest Coverage Ratio. The Company will not permit
the Interest Coverage Ratio for any Computation Period ending on or after March
31, 1992 to be less than or equal to 3.00 to 1.
8.12 [Intentionally omitted.]
8.13 [Intentionally omitted.]
8.14 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Company will not, nor
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will it permit any of its Subsidiaries to, directly or indirectly:
(a) make any Investment in any Affiliate of the Company or
any of its Subsidiaries;
(b) transfer, sell, lease, assign or otherwise dispose of any
assets to any such Affiliate;
(c) merge into or consolidate with or purchase or acquire
assets from any such Affiliate; or
(d) enter into any other transaction directly or indirectly
with or for the benefit of any such Affiliate (including, without
limitation, Guarantees and assumptions of obligations of any such
Affiliate);
provided that (x) any Affiliate who is an individual may serve as a director,
officer or employee of the Company or its Subsidiaries and receive reasonable
compensation for his or her services in such capacity and (y) the Company and
its Subsidiaries may enter into transactions (other than Investments by the
Company or any of its Subsidiaries in any such Affiliate) providing for the
leasing of property, the rendering or receipt of services or the purchase or
sale of inventory and other assets in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to the Company and its Subsidiaries as the monetary or business
consideration which would obtain in a comparable transaction with a Person not
an Affiliate of the Company or any of its Subsidiaries.
8.15 Use of Proceeds. The Company will use the proceeds of
the Loans hereunder for its general corporate purposes (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations thereunder);
provided that, without the consent of each Bank, the Company may not use the
proceeds of any of the Loans hereunder to finance or refinance, directly or
indirectly, an Acquisition of any Person (or the acquisition of (i) more than
50% of the publicly traded stock (of any class) of any Person or (ii) any of
the publicly traded stock (of any class) of any Person after the Company or any
of its Subsidiaries shall have been required to file a Schedule 13D under the
Securities Exchange Act of 1934, as amended, with respect to such stock) unless
such Acquisition (or acquisition) has been approved by the board of directors
of such Person or officers thereof duly authorized to do so (provided that,
with respect to any Bank that does not so consent, the
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Company may exercise any of the options specified in Section 5.01(e) hereof as
though such Bank were an Affected Bank); and provided that neither the Agent
nor any Bank shall have any responsibility as to the use of any of such
proceeds. FFB will use the proceeds of the Swingline Loans hereunder solely to
fund VISA and Mastercard settlements.
8.16 Modifications of Certain Documents. The Company will
not consent to any modification, supplement or waiver of any of the provisions
of any of the agreements or instruments evidencing or relating to any Qualified
Subordinated Indebtedness without the prior consent of the Agent (with the
approval of the Majority Banks).
8.17 Lines of Business. The Company and its Subsidiaries
will not, to any significant extent, engage in any business other than Company
Business.
Section 9. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur and be
continuing:
(a) Any Borrower shall default in the payment when due of any
principal of any Loan; or any Borrower shall default in the payment
when due of interest on any Loan and such default shall continue
unremedied for two Business Days; or any Borrower shall default in the
payment when due of any other amount payable by it hereunder and such
default shall continue unremedied for five (5) Business Days; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness in the aggregate principal or face amount of
$15,000,000 or more; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such
Indebtedness (other than Indebtedness which by its terms is payable on
demand in any event) shall occur if the effect of such event is to
cause or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase or otherwise), prior to its stated maturity; provided that in
the event that the Indebtedness involved is purchase money
Indebtedness or a Capital Lease Obligation, the nonpayment or other
event shall not constitute an Event of Default so long as the Company
or such Subsidiary is disputing in good faith its obligation to so pay
or perform; or
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(c) Any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by
the Company or in any of the other Basic Documents (or in any
modification or supplement thereto) by any Obligor, or any certificate
furnished to any Bank or the Agent pursuant to the provisions hereof
or thereof (other than a representation, warranty or certification
relating solely to a Subsidiary of the Company other than a Material
Subsidiary (as determined solely by reference to clauses (ii) and
(iii) of the definition thereof)), shall prove to have been false or
misleading as of the time made or furnished in any material respect;
or any representation, warranty or certification relating solely to a
Subsidiary of the Company other than a Material Subsidiary (as
determined solely by reference to clauses (ii) and (iii) of the
definition thereof) made or deemed made herein (or in any modification
or supplement hereto) by the Company or in any of the other Basic
Documents (or in any modification or supplement thereto) by any
Obligor, or any certificate furnished to any Bank or the Agent
pursuant to the provisions hereof or thereof relating to the same,
shall prove to have been false or misleading as of the time made or
furnished in any material respect and as a result thereof (or as a
result of the matter of the false or misleading representation,
warranty or certification) there shall have occurred a Material
Adverse Effect;
(d) Any Borrower shall default in the performance of any of
its obligations under Section 8.01(h) and 8.05 through 8.17
(inclusive) hereof; or any Borrower shall default in the performance
of any of its other obligations in this Agreement or any other Basic
Document and such default shall continue unremedied for a period of 10
Business Days after notice thereof to the Company by the Agent or any
Bank (through the Agent); or
(e) [Intentionally omitted]
(f) The Company or any of its Subsidiaries shall admit in
writing its failure or inability to, or fail or be unable generally
to, pay its debts as such debts become due; or
(g) The Company or any of its Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under
the Bankruptcy Code, (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy,
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insolvency, reorganization, winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Company or such
Subsidiary or of all or any substantial part of its assets or (iii)
similar relief in respect of the Company or such Subsidiary under any
law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against the Company or such Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code; or
(i) A final judgment or judgments for the payment of money in
excess of $10,000,000 in the aggregate (exclusive of the portion of
judgment amounts fully covered by insurance where the insurer has
admitted liability in respect of such judgment) shall be rendered by a
court or courts against the Company and/or any of its Subsidiaries and
the same shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof and the Company or the
relevant Subsidiary shall not, within said period of 30 days, or such
longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(j) An event or condition specified in Section 8.01(g) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Company or any ERISA Affiliate shall
incur or shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing) which
is material in relation to the
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consolidated financial condition, operations or business, taken as a
whole, of the Company and its Subsidiaries; or
(k) The Company Guarantee shall for any reason cease to be in
full force and effect or shall be declared null and void or the
validity or enforceability thereof shall be contested by the Company,
or the Company shall deny or disaffirm its obligations under the
Company Guarantee;
THEREUPON: (i) in the case of an Event of Default other than one referred to
in clause (g) or (h) of this Section 9 with respect to the Company, the Agent,
upon request of the Majority Banks shall, by notice to the Company, terminate
the Commitments (whereupon the obligation of the Swingline Bank to make
Committed Swingline Loans shall automatically terminate) and/or the Swingline
Bank may, by notice to the Company, terminate the obligation of the Swingline
Bank to make Committed Swingline Loans, and/or the Agent, upon the request of
the Majority Banks, shall, by notice to the Company declare the principal
amount then outstanding of, and the accrued interest on, the Loans and all
other amounts payable by the Borrowers hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05 hereof)
to be forthwith due and payable whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrowers; and (ii) in
the case of the occurrence of an Event of Default referred to in clause (g) or
(h) of this Section 9 with respect to the Company, the Commitments and the
obligation of the Swingline Bank to make Committed Swingline Loans shall
automatically be terminated and the principal amount then outstanding of, and
the accrued interest on, the Loans (if any) and all other amounts payable by
the Company hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company.
Section 10. The Agent.
10.01 Appointment, Powers and Immunities. Each Bank and the
Swingline Bank hereby irrevocably appoint and authorize the Agent to act as its
agent hereunder and under the other Basic Documents with such powers as are
specifically delegated to the Agent by the terms of this Agreement and of the
other Basic Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence and in
Section 10.05 and the first sentence of Section 10.06 hereof shall include
reference to its affiliates
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and its own and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly set forth)
in this Agreement and in the other Basic Documents, and shall not by reason of
this Agreement or any other Basic Document be a trustee for any Bank or the
Swingline Bank; (b) shall not be responsible to the Banks or the Swingline Bank
for any recitals, statements, representations or warranties contained in
recitals or in any other Basic Document, or in any certificate or other
document referred to or provided for in, or received by any of them under, this
Agreement or any other Basic Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Basic Document or any other document referred to or provided for
herein or therein or for any failure by the Company or any other Person to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Basic Document, except for enforcement of the
Company Guarantee at the request of the Majority Banks; and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
under any other Basic Document or under any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct. The
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected
by it in good faith. The Agent may deem and treat the payee of any Note as the
holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Agent, together
with the consent of the Company to such assignment or transfer and the Agent
shall have consented to such assignment or transfer.
10.02 Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Agent. As to any matters not expressly provided for by this Agreement
or any other Basic Document, the Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the Majority Banks, and such instructions of the
Majority Banks and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks and the Swingline Bank.
10.03 Defaults. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the
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Agent has received notice from a Bank, the Swingline Bank or any Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Agent receives such a notice of the occurrence of a
Default, the Agent shall give prompt notice thereof to the Banks and the
Swingline Bank. The Agent shall (subject to Sections 10.01, 10.07 and 11.04
hereof) take such action with respect to such Default as shall be directed by
the Majority Banks, provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable in the best interest of the Banks and the Swingline
Bank.
10.04 Rights as a Bank. With respect to its Commitments and
the Loans made by it, Chase (and any successor acting as Agent) in its capacity
as a Bank (including, for these purposes, the Swingline Bank) hereunder shall
have the same rights and powers hereunder as any other Bank and may exercise
the same as though it were not acting as the Agent, and the term "Bank" or
"Banks" or "Swingline Bank" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Chase (and any successor acting
as Agent) and its affiliates may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Company (and any of their affiliates)
as if it were not acting as the Agent, and Chase and its affiliates may accept
fees and other consideration from, the Company for services in connection with
this Agreement or otherwise without having to account for the same to the
Banks.
10.05 Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed under Section 11.03 hereof, but without
limiting the obligations of the Company under said Section 11.03) ratably in
accordance with the Commitments of the Banks (or, if the Commitments have been
terminated), ratably in accordance with the aggregate principal amount of the
Loans made by the Banks for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any other Basic Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the Company is
obligated to pay under Section 11.03 hereof, but excluding, unless a Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder and excluding all
out-
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of-pocket expenses and costs of the Agent referred to in Section 11.03(a)(i)
except to the extent that the Company is obligated to reimburse the Agent for
such expenses and costs) or the enforcement of any of the terms hereof or
thereof or of any such other documents, provided that no Bank shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Agent and other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or any of the other Basic Documents. The Agent shall not be required to keep
itself informed as to the performance or observance by the Company of this
Agreement or any of the other Basic Documents or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Company or any of its Subsidiaries (or
any of their affiliates) which may come into the possession of the Agent or any
of its affiliates.
10.07 Failure to Act. Except for action expressly required
of the Agent hereunder and under the other Basic Documents, the Agent shall in
all cases be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its satisfaction from
the Banks of their indemnification obligations under Section 10.05 hereof
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent
may resign at any time by giving notice thereof to the Banks and the Company,
and the Agent may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent which shall be a Bank or, with the prior
consent of the Company (which consent shall not be
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unreasonably withheld), any other bank. If no successor Agent shall have been
so appointed by the Majority Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
the Majority Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks and the Swingline Bank, appoint a successor Agent, which
shall be a Bank or, with the prior consent of the Company (which consent shall
not be unreasonably withheld) any other bank which has an office in New York,
New York with a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
10.09 Consents Under Basic Documents. Without the prior
consent of the Majority Banks, the Agent will not consent to any modification,
supplement or waiver under the Company Guarantee, provided that without the
prior consent of each Bank and the Swingline Bank, the Agent will not release
the Company from any of its obligations under the Company Guarantee.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Agent, any Bank
or the Swingline Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
11.02 Notices. All notices and other communications provided
for herein (including, without limitation, any modifications of, or waivers,
consents, requests or instructions under, this Agreement) shall be given or
made by telecopy or in writing and telecopied, mailed or delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party; provided that
telephonic notices (promptly confirmed by a method of communication hereinabove
set forth) may be given
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to the intended recipient at the "Address for Notices" (or other address)
hereinabove referred to. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier, personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
11.03 Expenses, Etc. The Company agrees to pay or reimburse
the Banks (including, for these purposes, the Swingline Bank) and the Agent for
paying: (a) all reasonable out-of-pocket costs and expenses of the Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy, special New York counsel to the Banks), in connection
with (i) the negotiation, preparation, execution and delivery of this Agreement
and the other Basic Documents and the making of the Loans hereunder and (ii)
any amendment, modification or waiver of any of the terms of this Agreement or
any of the other Basic Documents; (b) all reasonable costs and expenses of the
Agent and the Banks (including reasonable counsels' fees actually incurred) in
connection with any Default and any enforcement or collection proceedings
resulting therefrom; and (c) all transfer, stamp, documentary or other similar
taxes, assessments or charges levied by any governmental or revenue authority
in respect of this Agreement or any of the other Basic Documents or any other
document referred to herein or therein.
The Company hereby agrees to indemnify the Agent and each Bank
(including, for these purposes, the Swingline Bank) and their respective
directors, officers, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them arising out of or by reason of any investigation or litigation
or other proceedings (including any threatened investigation or litigation or
other proceedings) relating to any actual or proposed use by the Company or any
of its Subsidiaries of the proceeds of any of the Loans, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
11.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be amended or
modified only by an instrument in writing signed by the Company, the Agent and
the Majority Banks, or by the Company and the Agent acting with the consent of
the Majority Banks, and any provision of this Agreement may be waived by the
Majority Banks or by the Agent acting with the consent of the Majority Banks;
provided that (a) no amendment, modification or waiver
Credit Agreement
<PAGE> 84
- 80 -
shall, unless by an instrument signed by all of the Banks or by the Agent
acting with the consent of all of the Banks: (i) increase the amount or extend
the term, or extend the time or waive any requirement for the reduction or
termination, of the Commitments, (ii) extend any date fixed for the payment of
principal of or interest on any Loan or any commitment fee or facility fee
payable hereunder, (iii) reduce the amount of any payment of principal thereof
or the rate at which interest is payable thereon or any fee is payable
hereunder, (iv) alter the terms of Sections 2.03(a)(2) or 8.15 hereof or this
Section 11.04 or (v) amend the definition of the term "Majority Banks", or
modify in any other manner the number or percentage of the Banks required to
make any determinations or waive any rights hereunder or to modify any
provision hereof; (b) any modification or supplement of any provision hereof
relating to the rights or obligations of the Swingline Bank shall require the
consent of the Swingline Bank; and (c) any amendment that affects the rights or
obligations of the Agent hereunder shall require the consent of the Agent.
11.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
11.06 Assignments and Participations.
(a) A Borrower may not assign any of its rights or
obligations hereunder or under the Notes without the prior consent of all of
the Banks, the Swingline Bank and the Agent.
(b) Any Bank may assign any of its Loans, its Notes or its
Commitment (which Commitment assignment shall include such Bank's corresponding
obligations to the Swingline Bank under Section 2.02(b) hereof) with the prior
consent (which consent shall not be unreasonably withheld) of the Company and
the Agent; provided that (i) without the consent of the Company or the Agent,
any Bank may assign to another Bank all or (subject to clauses (iii) and (iv)
below) any portion of its Commitment, Notes or Loans; (ii) no such assignment
shall be made to any Person that is not a Bank until 10 Business Days after the
assigning Bank shall have transmitted to each other Bank notice of its proposal
to effect such assignment (which notice shall specify the amount of the
Commitment and Loans proposed to be assigned); (iii) the amount of any such
partial assignment of its Commitment shall be in a minimum amount of
$15,000,000 (or, in the case of an assignment to another Bank, $5,000,000); and
(iv) each such assignment by a Bank of its Commitment, its Note evidencing
Syndicated Loans and its Syndicated Loans shall be made in such manner so that
the same portion of its Commitment, such Note and its Syndicated Loans is
assigned to the respective
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<PAGE> 85
- 81 -
assignee. Upon notice to the Company and the Agent of an assignment by any
Bank to any other Bank permitted by the preceding sentence (which notice shall
identify the assignee Bank and the amount of the assigning Bank's Commitment or
Loans assigned in detail reasonably satisfactory to the Agent) and upon the
effectiveness of any assignment consented to by the Company and the Agent, the
assignee shall have, to the extent of such assignment (unless otherwise
provided such assignment with the consent of the Company and the Agent), the
obligations, rights and benefits of a Bank hereunder holding the Commitment (or
portion thereof) as the case may be, assigned to it (in addition to the
Commitment or Loans, as the case may be, theretofore held by such assignee) and
in the event that an assignment of a Bank's Commitment (or portions thereof) is
made, the assigning Bank shall, to the extent of such assignment, be released
from the Commitment (or portions thereof) so assigned. Upon each such
assignment (other than an assignment pursuant to Sections 2.03(c) or 5.01(e)
hereof), the assigning Bank shall pay the Agent an assignment fee of $2,500.
(c) A Bank may sell or agree to sell to one or more other
Persons a participation in all or any part of its Commitment, Syndicated Loans
or its Money Market Loans held by it or the Syndicated Loans or its Money
Market Loans made or to be made by it, in which event each such participant
shall not, except (in the case of a participant that is a Bank) to the extent
provided by Section 4.07(c) hereof, have any rights or benefits under this
Agreement or any Note (the participant's rights against such Bank in respect of
such participation to be those set forth in the agreement (the "Participation
Agreement") executed by such Bank in favor of the participant). All amounts
payable by the Company to any Bank under Section 5 hereof shall be determined
as if such Bank had not sold or agreed to sell any participations in such Loan
and as if such Bank were funding all of such Loan in the same way that it is
funding the portion of such Loan in which no participations have been sold. In
no event shall a Bank that sells a participation be obligated to the
participant under the Participation Agreement to take or refrain from taking
any action hereunder or under such Bank's Note except that such Bank may agree
in the Participation Agreement that it will not, without the consent of the
participant, agree to (i) the increase in the amount or extension of the term,
or the extension of the time or waiver of any requirement for the reduction or
termination, of such Bank's Commitment, (ii) the extension of any date fixed
for the payment of principal of or interest on the related Loan or any portion
of any fees payable to the participant, (iii) the reduction of any payment of
principal thereof, (iv) the reduction of the rate at which either interest is
payable thereon or (if the participant is entitled to any part thereof)
facility fee is payable hereunder to a level
Credit Agreement
<PAGE> 86
- 82 -
below the rate at which the participant is entitled to receive interest or
facility fee (as the case may be) in respect of such participation, or (v)
except as contemplated by Section 10.09 hereof, release the Company from any of
its obligations under the Company Guarantee.
(d) A Bank may furnish any information concerning the Company
or any of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12 hereof.
(e) In addition to the assignments and participations
permitted by the foregoing provisions of this Section 11.06, any Bank may
assign and pledge all or any portion of its Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Bank from its obligations hereunder. The provisions of this
Section 11.06(e) shall apply mutatis mutandis to the Swingline Loans made by
the Swingline Bank to FFB.
(f) Anything in this Section 11.06 to the contrary
notwithstanding, the Company shall not, and shall not permit any of its
Subsidiaries or Affiliates to, acquire (by assignment, participation or
otherwise), and no Bank may assign or participate to the Company or any of its
Subsidiaries or Affiliates, any interest in any Commitment or Loan.
(g) The Swingline Bank may not (except as provided in
Sections 2.02(b) and 11.06(e) hereof) assign or sell participations in all or
any part of its Swingline Loans or the Swingline Note; provided that, with the
prior consent of the Agent and the Company, which consent shall not be
unreasonably withheld or delayed, the Swingline Bank may assign to another Bank
all of its obligations, rights and benefits in respect of the Swingline Loans
and the Swingline Note. Upon the effectiveness of any such assignment, the
assignee shall have the obligations, rights and benefits of the Swingline Bank
hereunder holding the Swingline Loans and Swingline Note assigned to it.
11.07 Survival. The obligations of the Company under
Sections 5.01, 5.05 and 11.03 hereof, and the obligations of the Banks under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments and, in the case of any Bank that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Bank may cease to be a "Bank"
hereunder.
Credit Agreement
<PAGE> 87
- 83 -
11.08 Captions. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
11.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.10 Governing Law; Submission to Jurisdiction; Etc. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. The Borrowers hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York County
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.
11.11 Waiver of Jury Trial. EACH OF THE BORROWERS, THE
AGENT, THE SWINGLINE BANK AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.12 Confidentiality. Each Bank and the Agent agrees (on
behalf of itself and each of its directors, officers and employees) to use (and
to cause its affiliates and representatives to use) reasonable precautions to
keep confidential, in accordance with customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, any non-public information supplied to it by each Borrower
pursuant to this Agreement which is identified by the Company as being
confidential at the time the same is delivered to the Banks or the Agent,
provided that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process, or
after such information shall have become public (other than through a violation
of this Section 11.12), (ii) to counsel for any of the Banks or the Agent,
(iii) to bank examiners and regulators, auditors, accountants or other
professional advisors, (iv) to the
Credit Agreement
<PAGE> 88
- 84 -
Agent or any other Bank, (v) in connection with any litigation to which any one
or more of the Banks is a party or (vi) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first executes and delivers to the
respective Bank and each Borrower a Confidentiality Agreement in substantially
the form of Exhibit F hereto; and provided finally that in no event shall any
Bank or the Agent be obligated or required to return any materials furnished by
each Borrower. The obligations of each Bank under this Section 11.12 shall
supplement (and shall not supersede and replace) the obligations of such Bank
under the confidentiality letter in respect of this financing (x) initially
signed and delivered by such Bank to the Company prior to the date hereof or
(y) signed and delivered by any prospective assignee to the assignor Bank and
the Company on or after the date of this Agreement.
11.13 Commitments under Existing Credit Agreement. Each Bank
and each Obligor hereby agree that as of the date of this Agreement, the
aggregate amount of the commitments (whether or not utilized) under the
Existing Credit Agreement shall be reduced to $500,000,000 in the aggregate and
such reduction shall be effected pro rata among the Banks.
Credit Agreement
<PAGE> 89
- 85 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By
-----------------------------
Title: Senior Executive Vice
President, Chief
Financial Officer
Address for Notices:
First Financial Management
Corporation
3 Corporate Square
Suite 700
Atlanta, Georgia 30329
Telecopier No.: 404-634-6352
Telephone No.: 404-321-0120
Attention: Chief Financial Officer
FIRST FINANCIAL BANK
By
----------------------------
Title: Executive Vice President
Address for Notices:
First Financial Bank
3 Corporate Square, Suite 700
Atlanta, Georgia 30329
Telecopier No.: 404-636-7632
Telephone No.: 404-321-2264
Attention: General Counsel
Credit Agreement
<PAGE> 90
- 86 -
THE BANKS
---------
Commitment THE CHASE MANHATTAN BANK
---------- (NATIONAL ASSOCIATION)
$50,000,000
By
-----------------------
Title:
Address for Notices:
-------------------
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telecopier: 212-552-7879
Telephone: 212-552-5574
Attention: Donna Brown
Lending Office
for all Loans:
-------------
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
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<PAGE> 91
- 87 -
Commitment WACHOVIA BANK OF GEORGIA, N.A.
----------
$47,500,000
By
----------------------------
Title:
Address for Notices:
-------------------
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
29th Floor
M.C. 3940
Atlanta, Georgia 30303-1757
Telecopier: 404-332-5016
Telephone: 404-332-6878
Attention: Gay Buxton
Lending Office
for all Loans:
-------------
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
29th Floor
Atlanta, Georgia 30303-1757
Credit Agreement
<PAGE> 92
- 88 -
Commitment NATIONSBANK OF GEORGIA, N.A.
----------
$45,000,000
By
---------------------------
Title:
Address for Notices:
-------------------
NationsBank of Georgia, N.A.
600 Peachtree Street, N.E.
21st Floor
Atlanta, Georgia 30308
Telecopier: 404-607-6467
Telephone: 404-607-5524
Attention: Douglas E. Coltharp
Lending Office
for all Loans:
-------------
NationsBank of Georgia, N.A.
600 Peachtree Street, N.E.
21st Floor
Atlanta, Georgia 30308
Credit Agreement
<PAGE> 93
- 89 -
Commitment THE BANK OF TOKYO, LTD.,
---------- ATLANTA AGENCY
$35,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Bank of Tokyo, Ltd.,
Atlanta Agency
133 Peachtree Street, N.E.
Suite 5050
Atlanta, Georgia 30303
Telecopier: 404-577-1155
Telephone: 404-577-2960
Attention: Gary England
Lending Office
for all Loans:
-------------
The Bank of Tokyo, Ltd.,
Atlanta Agency
133 Peachtree Street, N.E.
Suite 5050
Atlanta, Georgia 30303
Credit Agreement
<PAGE> 94
- 90 -
Commitment THE INDUSTRIAL BANK OF JAPAN,
---------- LIMITED, ATLANTA AGENCY
$35,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Industrial Bank of Japan,
Limited, Atlanta Agency
One Ninety One Peachtree Tower
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303
Telecopier: 404-524-8509
Telephone: 404-420-3326
Attention: Chip McCollum
Lending Office
for all Loans:
-------------
The Industrial Bank of Japan,
Limited, Atlanta Agency
One Ninety One Peachtree Tower
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303
Credit Agreement
<PAGE> 95
- 91 -
Commitment THE BANK OF NEW YORK
----------
$32,500,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Bank of New York
1 Wall Street
22nd Floor
New York, New York 10286
Telecopier: 212-635-6434
Telephone: 212-635-6898
Attention: Gregory L. Batson
Lending Office
for all Loans:
-------------
The Bank of New York
1 Wall Street
New York, New York 10286
Credit Agreement
<PAGE> 96
- 92 -
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
Commitment
----------
$32,500,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Long-Term Credit Bank of
Japan, Limited
245 Peachtree Center Avenue, N.E.
Suite 2801, Marquis One Tower
Atlanta, Georgia 30303
Telecopier: 404-658-9751
Telephone: 404-659-7210
Attention: Tom Meyer
Copy to:
-------
The Long-Term Credit Bank of
Japan, Limited
165 Broadway
New York, New York 10006
Attention: Kathleen Dorsch
Telecopier: 212-608-2371
Telephone: 212-335-4578
Lending Office
for all Loans:
-------------
The Long-Term Credit Bank of
Japan, Limited
165 Broadway
New York, New York 10006
Credit Agreement
<PAGE> 97
- 93 -
Commitment THE DAI-ICHI KANGYO BANK, LIMITED
---------- ATLANTA AGENCY
$30,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Dai-Ichi Kangyo Bank, Limited
Atlanta Agency
Marquis Two Tower
Suite 2400
Atlanta, Georgia 30303
Telecopier: 404-581-9657
Telephone: 404-581-0200
Attention: Guenter Kittel
Lending Office
for all Loans:
-------------
The Dai-Ichi Kangyo Bank, Limited
Atlanta Agency
Marquis Two Tower
Suite 2400
Atlanta, Georgia 30303
Credit Agreement
<PAGE> 98
- 94 -
COMMERZBANK AKTIENGESELLSCHAFT
ATLANTA AGENCY
Commitment
----------
$27,500,000
By
----------------------------
Title:
By
----------------------------
Title:
Address for Notices:
-------------------
Commerzbank Aktiengesellschaft
Atlanta Agency
Promenade Two
Suite 3500
1230 Peachtree Street
Atlanta, Georgia 30309
Telecopier: 404-888-6539
Telephone: 404-888-6500
Attention: Andreas K. Bremer
Lending Office
for all Loans:
-------------
Commerzbank Aktiengesellschaft
Atlanta Agency
Promenade Two
Suite 3500
1230 Peachtree Street
Atlanta, Georgia 30309
Credit Agreement
<PAGE> 99
- 95 -
Commitment BANK OF AMERICA ILLINOIS
----------
$25,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
Bank of America Illinois
950 East Paces Ferry
Suite 3375
Atlanta, Georgia 30326
Telecopier: 404-364-3303
Telephone: 404-262-6112
Attention: Wayne H. Riess
Lending Office
for all Loans:
-------------
Bank of America Illinois
231 South LaSalle
Suite 200-9
Chicago, Illinois 60697
Credit Agreement
<PAGE> 100
- 96 -
Commitment BANK OF MONTREAL
----------
$25,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
Bank of Montreal
430 Park Avenue
New York, New York 10022
Telecopier: 212-605-1454
Telephone: 212-605-1431
Attention: Jack Darrow
with a copy to:
Bank of Montreal
430 Park Avenue
New York, New York 10022
Telecopier: 212-605-1525
Telephone: 212-605-1458
Attention: Neelam Dass
Lending Office
for all Loans:
-------------
Bank of Montreal
430 Park Avenue
New York, New York 10022
Credit Agreement
<PAGE> 101
- 97 -
Commitment ABN AMRO BANK N.V.
----------
$15,000,000
By
----------------------------
Title:
By
----------------------------
Title:
Address for Notices:
-------------------
ABN AMRO Bank N.V.
One Ravinia Drive
Suite 1200
Atlanta, Georgia 30342
Telecopier: 404-395-9188
Telephone: 404-399-7373
Attention: Bruce W. Swords
Lending Office
for all Loans:
-------------
ABN AMRO Bank N.V.
One Ravinia Drive
Suite 1200
Atlanta, Georgia 30346
Credit Agreement
<PAGE> 102
- 98 -
Commitment THE BANK OF NOVA SCOTIA
----------
$15,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Telecopier: 404-888-8998
Telephone: 404-877-1504
Attention: William E. Zarrett
Lending Office
for all Loans:
-------------
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Credit Agreement
<PAGE> 103
- 99 -
Commitment CREDIT LYONNAIS CAYMAN ISLAND
---------- BRANCH
$15,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
Credit Lyonnais Cayman Island
Branch
235 Peachtree Street, N.E.
Suite 1700
Atlanta, Georgia 30303
Telecopier: 404-584-5249
Telephone: 404-524-3700
Attention: Pascal Seris
Lending Office
for all Loans:
-------------
Credit Lyonnais Cayman Island
Branch
235 Peachtree Street, N.E.
Suite 1700
Atlanta, Georgia 30303
Credit Agreement
<PAGE> 104
- 100 -
Commitment CREDITANSTALT CORPORATE FINANCE,
---------- INC.
$15,000,000
By
----------------------------
Title:
By
----------------------------
Title:
Address for Notices:
-------------------
Creditanstalt Corporate Finance,
Inc.
Two Ravinia Drive
Suite 1680
Atlanta, Georgia 30346
Telecopier: 404-390-1851
Telephone: 404-390-1850
Attention: R. Scott Newth
Lending Office
for all Loans:
-------------
Creditanstalt Corporate Finance,
Inc.
245 Park Avenue
27th Floor
New York, New York 10167
Credit Agreement
<PAGE> 105
- 101 -
Commitment THE DAIWA BANK, LIMITED
----------
$15,000,000
By
----------------------------
Title:
By
----------------------------
Title:
Address for Notices:
-------------------
The Daiwa Bank, Limited
75 Rockefeller Plaza
New York, New York 10019
Telecopier: 212-554-7152
Telephone: 212-554-7053
Attention: Joel Limjap
Lending Office
for all Loans:
-------------
The Daiwa Bank, Limited
75 Rockefeller Plaza
New York, New York 10019
Credit Agreement
<PAGE> 106
- 102 -
Commitment THE FIRST NATIONAL BANK OF BOSTON
----------
$15,000,000
By
----------------------------
Title:
Address for Notices:
-------------------
The First National Bank of Boston
100 Federal Street
MS01-08-04
Boston, MA 02110
Telecopier: 617-434-0819
Telephone: 617-434-7824
Attention: Jay L. Massimo
Lending Office
for all Loans:
-------------
The First National Bank of Boston
100 Rust Craft Road
Admin. 50 MS 74-02-04I
Dedham, MA 02026
Credit Agreement
<PAGE> 107
- 103 -
Commitment BANK SOUTH, N.A.
----------
$12,500,000
By
----------------------------
Title:
Address for Notices:
-------------------
Bank South, N.A.
P.O. Box 4387
Mail Code 71
Atlanta, Georgia 30302
Telecopier: 404-521-7309
Telephone: 404-529-4273
Attention: William W. Tucker
Lending Office
for all Loans:
-------------
Bank South, N.A.
P.O. Box 4387
Mail Code 71
Atlanta, Georgia 30302
Credit Agreement
<PAGE> 108
- 104 -
Commitment FIRST UNION NATIONAL BANK
---------- OF GEORGIA
$12,500,000
By
----------------------------
Title:
Address for Notices:
-------------------
First Union National Bank
of Georgia
999 Peachtree Street, N.E.
Atlanta, Georgia 30305
Telecopier: 404-225-4255
Telephone: 404-827-7343
Attention: Katherine K. Decker
Lending Office
for all Loans:
-------------
First Union National Bank
of Georgia
999 Peachtree Street, N.E.
Atlanta, Georgia 30305
Credit Agreement
<PAGE> 109
- 105 -
THE SWINGLINE BANK
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
---------------------------
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telecopier: 212-552-7879
Telephone: 212-552-5574
Attention: Donna Brown
Lending Office for Swingline Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Credit Agreement
<PAGE> 110
- 106 -
THE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
----------------------------
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association)
as Agent
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopier: 718-242-6910
Telephone: 718-242-7979
Attention: New York Agency
Credit Agreement
<PAGE> 111
SCHEDULE I
CREDIT AGREEMENTS
[TO BE SUPPLIED BY THE COMPANY]
Schedule I to Credit Agreement
<PAGE> 112
SCHEDULE II
ENVIRONMENTAL MATTERS
[TO BE SUPPLIED BY THE COMPANY]
Schedule II to Credit Agreement
<PAGE> 113
SCHEDULE III
SUBSIDIARIES AND INVESTMENTS
[TO BE SUPPLIED BY THE COMPANY]
Schedule III to Credit Agreement
<PAGE> 114
SCHEDULE IV
LITIGATION AND APPROVALS
[TO BE SUPPLIED BY THE COMPANY]
Schedule IV to Credit Agreement
<PAGE> 115
SCHEDULE V
LIENS
[TO BE SUPPLIED BY THE COMPANY]
Schedule V to Credit Agreement
<PAGE> 116
EXHIBIT A-1
[FORM OF NOTE FOR SYNDICATED LOANS]
PROMISSORY NOTE
$____________ May 2, 1995
New York, New York
FOR VALUE RECEIVED, FIRST FINANCIAL MANAGEMENT CORPORATION, a
Georgia corporation (the "Company"), hereby promises to pay to
_______________________________ (the "Bank"), for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to
below, at the principal office of The Chase Manhattan Bank (National
Association) at 1 Chase Manhattan Plaza, New York, New York 10081, the
principal sum of _______________ DOLLARS (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Syndicated Loans made by the Bank
to the Company under the Credit Agreement), in lawful money of the United
States of America and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Syndicated Loan, at such office, in like
money and funds, for the period commencing on the date of such Syndicated Loan
until such Syndicated Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
The date, amount, type, interest rate and duration of Interest
Period (if applicable) of each Syndicated Loan made by the Bank to the Company,
and each payment made on account of the principal thereof, shall be recorded by
the Bank on its books and, prior to any transfer of this Note, endorsed by the
Bank on the schedule attached hereto or any continuation thereof.
This Note is one of the Notes referred to in the Revolving
Credit Agreement dated as of May 2, 1995 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), between the Company, the
banks named therein (including the Bank) and The Chase Manhattan Bank (National
Association), as Agent, evidences Syndicated Loans made by the Bank thereunder
and is subject to the provisions thereof. Capitalized terms used in this Note
have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Syndicated Loans upon the terms and conditions specified therein.
Syndicated Loan Note
<PAGE> 117
- 2 -
Except as permitted by Sections 5.01(e), 11.06(b) and 11.06(e)
of the Credit Agreement, this Note may not be assigned by the Bank to any other
Person. This Note is not a "negotiable instrument" within the meaning given to
such term in Article 3 of the Uniform Commercial Code of the State of New York
as in effect on the date of the Credit Agreement.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By______________________
Title:
Syndicated Loan Note
<PAGE> 118
SCHEDULE OF LOANS
This Note evidences Syndicated Loans made under the
within-described Credit Agreement to the Company, on the dates, in the
principal amounts, of the types, bearing interest at the rates and having
Interest Periods (if applicable) of the duration set forth below, subject to
the payments, prepayments, Continuations and Conversions of principal set forth
below:
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made By
--------- -------- ---- -------- -------- --------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Syndicated Loan Note
<PAGE> 119
EXHIBIT A-2
[FORM OF NOTE FOR MONEY MARKET LOANS]
PROMISSORY NOTE
May 2, 1995
New York, New York
FOR VALUE RECEIVED, FIRST FINANCIAL MANAGEMENT CORPORATION, a
Georgia corporation (the "Company"), hereby promises to pay to________________
_______________________________ (the "Bank"), for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to
below, at the principal office of The Chase Manhattan Bank (National
Association) at 1 Chase Manhattan Plaza, New York, New York 10081, the
aggregate unpaid principal amount of the Money Market Loans made by the Bank to
the Company under the Credit Agreement, in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Money Market Loan, at such office, in like money
and funds, for the period commencing on the date of such Money Market Loan
until such Money Market Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The date, amount, type, interest rate and maturity date of
each Money Market Loan made by the Bank to the Company, and each payment made
on account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof.
This Note is one of the Notes referred to in the Revolving
Credit Agreement dated as of May 2, 1995 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), between the Company, the
banks named therein (including the Bank) and The Chase Manhattan Bank (National
Association), as Agent, and evidences Money Market Loans made by the Bank
thereunder and is subject to the provisions thereof. Capitalized terms used in
this Note have the respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Money Market Loans upon the terms and conditions specified therein.
Money Market Note
<PAGE> 120
- 2 -
Except as permitted by Sections 5.01(e), 11.06(b) and 11.06(e)
of the Credit Agreement, this Note may not be assigned by the Bank to any other
Person. This Note is not a "negotiable instrument" within the meaning given to
such term in Article 3 of the Uniform Commercial Code of the State of New York
as in effect on the date of the Credit Agreement.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By______________________
Title:
Money Market Note
<PAGE> 121
SCHEDULE OF LOANS
This Note evidences Money Market Loans made under the
within-described Credit Agreement to the Company, on the dates, in the
principal amounts, of the types, bearing interest at the rates and maturing on
the dates set forth below, subject to the payments and prepayments of principal
set forth below:
<TABLE>
<CAPTION>
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made By
---- --------- ---- -------- ---------- ------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Money Market Note
<PAGE> 122
EXHIBIT A-3
[FORM OF SWINGLINE NOTE]
PROMISSORY NOTE
May 2, 1995
New York, New York
FOR VALUE RECEIVED, FIRST FINANCIAL BANK, a Georgia banking
corporation (the "Company"), hereby promises to pay to THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) (the "Swingline Bank"), for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to
below, at the principal office of The Chase Manhattan Bank (National
Association) at 1 Chase Manhattan Plaza, New York, New York 10081, the
aggregate unpaid principal amount of the Swingline Loans made to the Company
under the Credit Agreement, in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of each such Swingline Loan, at such office, in like money and funds,
for the period commencing on the date of such Swingline Loan until such
Swingline Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount and interest rate of each Swingline Loan made
to the Company, and each payment made on account of the principal thereof,
shall be recorded by the Swingline Bank on its books and, prior to any transfer
of this Note, endorsed by the Swingline Bank on the schedule attached hereto or
any continuation thereof.
This Note is one of the Notes referred to in the Revolving
Credit Agreement dated as of May 2, 1995 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), between the Company, the
banks named therein (including the Swingline Bank) and The Chase Manhattan Bank
(National Association), as Agent, evidences Swingline Loans made thereunder and
is subject to the provisions thereof. Capitalized terms used in this Note have
the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events.
Except as permitted by Sections 11.06(e) and 11.06(g) of the
Credit Agreement, this Note may not be assigned by the Swingline Bank to any
other Person. This Note is not a
Swingline Note
<PAGE> 123
- 2 -
"negotiable instrument" within the meaning given to such term in Article 3 of
the Uniform Commercial Code of the State of New York as in effect on the date
of the Credit Agreement.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
FIRST FINANCIAL BANK
By______________________
Title:
Swingline Note
<PAGE> 124
SCHEDULE OF LOANS
This Note evidences Swingline Loans made under the
within-described Credit Agreement to the Company, on the dates, in the
principal amounts, bearing interest at the rates set forth below, subject to
the payments and prepayments of principal set forth below:
<TABLE>
<CAPTION>
Principal
Date Amount Amount Unpaid
of of Interest Paid or Principal Notation
Loan Loan Rate Prepaid Amount Made By
---- --------- -------- ------- --------- --------
<S> <C> <C> <C> <C> <C>
</TABLE>
Swingline Note
<PAGE> 125
EXHIBIT B
[FORM OF COMPANY GUARANTEE]
COMPANY GUARANTEE
COMPANY GUARANTEE dated as of May 2, 1995 between FIRST
FINANCIAL MANAGEMENT CORPORATION, a Georgia corporation, (together with its
successors and assigns, the "Guarantor") and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as agent for the banks party to the Credit Agreement referred to
below (in such capacity, together with its successors in such capacity, the
"Agent").
The Guarantor, First Financial Bank, a Georgia banking
corporation ("FFB" and together with the Guarantor, the "Borrowers"), certain
banks (including the Swingline Bank) and the Agent are parties to a Revolving
Credit Agreement dated as of May 2, 1995 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit to be made by said banks
to the Borrowers in an aggregate principal amount not exceeding $500,000,000 at
any one time outstanding.
To induce said banks to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor has
agreed (to the extent hereinafter provided) to guarantee the Guaranteed
Obligations (as hereinafter defined). Accordingly, the parties hereto agree as
follows:
Section 1. Definitions. Terms defined in the Credit
Agreement are used herein as defined therein.
Section 2. The Guarantee.
2.01 Guarantee.
(a) The Guarantor hereby guarantees to the Swingline Bank,
the Agent and each Bank (to the extent that it is a participant in any
Swingline Loan pursuant to Section 2.02(b) of the Credit Agreement) and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration, by mandatory or optional prepayment or
otherwise) of the principal of and interest on the Swingline Loans made by the
Swingline Bank to, and the Swingline Note held by the Swingline Bank of, FFB
and all other amounts from time to time owing to the Swingline Bank or the
Agent by FFB under the Credit Agreement, the Swingline Note and each other
Basic
Company Guarantee
<PAGE> 126
- 2 -
Document, in each case, strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations").
(b) The Guarantor hereby further agrees that if FFB shall
fail to pay in full when due (whether at stated maturity, by acceleration, by
mandatory or optional prepayment or otherwise) any of the Guaranteed
Obligations, the Guarantor will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration, by mandatory or
optional prepayment or otherwise) in accordance with the terms of such
extension or renewal.
(c) All payments required to be made by the Guarantor under
this Agreement shall be made without deduction, set-off or counterclaim.
2.02 Obligations Unconditional. The obligations of the
Guarantor under Section 2.01 hereof are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of FFB under the Credit Agreement, the Swingline Note, any
other Basic Document or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 2.02 that the
obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not affect the liability of the Guarantor hereunder:
(i) at any time or from time to time, without notice to, or
consent of, the Guarantor, the time for any performance of or
compliance with any of the Guaranteed Obligations shall be extended,
or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Credit Agreement or the Swingline Note or any other Basic Document
or any other agreement or instrument referred to herein or therein
shall be done or omitted;
Company Guarantee
<PAGE> 127
- 3 -
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
the Credit Agreement or the Swingline Note or any other Basic Document
or any other agreement or instrument referred to herein or therein
shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor
of, the Agent or the Swingline Bank as security for any of the
Guaranteed Obligations shall fail to be perfected;
(v) any of the Guaranteed Obligations shall be determined
to be void or voidable or shall be subordinated to the claims of any
Person; or
(vi) the occurrence of any Event of Default referred to in
clause (f), (g) or (h) of Section 9 of the Credit Agreement with
respect to FFB.
With respect to its obligations hereunder, the Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or the Swingline Bank exhaust
any right, power or remedy or proceed against FFB under the Credit Agreement,
the Swingline Note, any other Basic Document or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
2.03 Reinstatement. The obligations of the Guarantor
under this Section 2 shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of FFB in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantor agrees that it
will indemnify the Agent and the Swingline Bank on demand for all reasonable
costs and expenses (including, without limitation, fees and disbursements of
counsel) incurred by the Agent or such Swingline Bank in connection with the
rescission or restoration.
2.04 Subrogation. The Guarantor hereby waives all rights
of subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any
Company Guarantee
<PAGE> 128
- 4 -
such right arising under the Federal Bankruptcy Code) or otherwise by reason of
any payment by it pursuant to the provisions of this Section 2 and further
agrees with FFB for the benefit of each of its creditors (including, without
limitation, the Swingline Bank and the Agent) that any such payment by it shall
constitute a contribution of capital by the Guarantor to FFB.
2.05 Remedies. The Guarantor agrees that, as between the
Guarantor on the one hand and the Agent and the Swingline Bank on the other
hand, the obligations of FFB under the Credit Agreement and the Swingline Note
may be declared to be forthwith due and payable as provided in Section 9 of the
Credit Agreement (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 9) for purposes of
Section 2.01 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such Guaranteed Obligations from becoming
automatically due and payable) as against FFB and that, in the event of such
declaration (or such Guaranteed Obligations being deemed to have become
automatically due and payable), such Guaranteed Obligations (whether or not due
and payable by FFB) shall forthwith become due and payable by the Guarantor for
purposes of said Section 2.01.
2.06 Continuing Guarantee. The guarantee in this Section 2
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
Section 3. Miscellaneous.
3.01 No Waiver. No failure on the part of the Agent or any
of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Agent or any of
its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
3.02 Governing Law; Submission to Jurisdiction; Etc. This
Agreement shall be governed by, and construed in accordance with, the law of
the State of New York. The Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York County for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Guarantor
Company Guarantee
<PAGE> 129
- 5 -
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
3.03 Waiver of Jury Trial. EACH OF THE GUARANTOR AND THE
AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
3.04 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its or their address specified beneath its or their signature
hereto or, at such other address as shall be designated by either party in a
notice to the other party, and shall be deemed to have been given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, seven Business Days after the date deposited in the mails, postage
prepaid, in each case given or addressed as aforesaid.
3.05 Waivers, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
the Guarantor and the Agent (with the consent of the Banks as specified in
Section 10.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon the Agent and the Swingline Bank, each holder of any of the
Guaranteed Obligations and the Guarantor.
3.06 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Guarantor, the Agent, the Swingline Bank and each holder of any of the
Guaranteed Obligations (provided that, except in a transaction expressly
permitted by Section 8.05 of the Credit Agreement, the Guarantor shall not
assign or transfer its rights hereunder without the prior consent of the Agent
and the Swingline Bank).
3.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
3.08 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest
Company Guarantee
<PAGE> 130
- 6 -
extent permitted by law, (a) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in favor
of the Agent and the Swingline Bank in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
Company Guarantee
<PAGE> 131
- 7 -
IN WITNESS WHEREOF, the parties hereto have caused this
Guarantee to be duly executed as of the day and year first above
written.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By_____________________________
Title:
Address for Notices:
First Financial Management
Corporation
3 Corporate Square
Suite 700
Atlanta, Georgia 30329
Telecopier No.: 404-634-6352
Telephone No.: 404-321-0120
Attention: Chief Financial Officer
Company Guarantee
<PAGE> 132
- 8 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By_____________________________
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association),
as Agent
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopier No.: 718-242-6910
Telephone No.: 718-242-7979
Attention: New York Agency Office
Company Guarantee
<PAGE> 133
EXHIBIT C-1
May __, 1995
To the Banks party to the Credit
Agreement referred to below and
The Chase Manhattan Bank
(National Association), as Agent
Ladies and Gentlemen:
We have acted as counsel to First Financial Management
Corporation (the "Company") and First Financial Bank ("FFB", and together with
the Company, the "Borrowers") in connection with the Revolving Credit Agreement
(the "Credit Agreement") dated as of May 2, 1995, between the Company, FFB, the
banks named therein (including the Swingline Bank, the "Banks") and The Chase
Manhattan Bank (National Association), as agent (in such capacity, the
"Agent"), providing for loans to be made by the Banks to the Borrowers in an
aggregate principal amount not exceeding $500,000,000. This opinion is being
furnished to the Banks at the request of the Borrowers pursuant to Section
6.01(d)(i) of the Credit Agreement. Capitalized terms used but not defined
herein shall have the respective meanings ascribed to such terms in the Credit
Agreement.
In rendering the opinions expressed below, we have examined
the following documents (hereinafter collectively referred to as the "Loan
Documents"):
(i) the Credit Agreement;
(ii) the Notes; and
(iii) the Company Guarantee.
In addition, we have examined (i) such corporate records of
the Borrowers as we considered appropriate, (ii) certified copies of official
records of various state authorities with respect to the incorporation,
qualification and good standing or subsistence of each of the Borrowers and
(iii) such laws, regulations or cases as we deemed necessary or appropriate.
We have also reviewed such other documents as we deemed appropriate in order to
render the opinions hereinafter set forth.
In making such examinations we have assumed:
(i) the genuineness of all signatures;
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 134
- 2 -
(ii) the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents
submitted to us as copies;
(iii) that the Agent and each Bank has the power to enter
into and perform each of its obligations under the Loan Documents;
(iv) the due authorization, execution, and delivery of
each of the Loan Documents by each of the parties thereto other than
the Borrowers;
(v) that the Loan Documents to which the Agent and the
Banks are respective parties constitute legal, valid, binding and
enforceable obligations of such parties;
(vi) that the servicing of all of the contractual debt
obligations of the Company is not now, and will not become, dependent
on all or any of the revenues of FFB and/or any other bank subsidiary
acquired or organized by the Company after the date hereof; and
(vii) solely in connection with our opinion in clause
(b)(i) of paragraph 2 below, that the Borrowers will at all times be
in compliance with all capital ratio and adequacy requirements of the
State of Georgia Department of Banking and Finance and of the Federal
Deposit Insurance Corporation.
Except as expressly set forth herein, we have made no other
factual investigation, and to the extent that the opinions expressed below
involve matters of fact, we have relied upon the representations and warranties
of the Borrowers made in the Loan Documents and certificates of the Borrowers
and their officers or representatives delivered pursuant thereto.
As to factual matters forming the basis of our opinions,
whenever an opinion with respect to the existence or absence of facts or an
opinion that is based in whole or in part on the existence or absence of facts
is qualified by the phrases "insofar as is known to us" or "known to us," it is
intended to qualify such opinion to those facts within the actual knowledge on
the date of this opinion letter of the attorneys within this firm who are, on
the date of this opinion letter, regularly performing services on behalf of one
or more of the Borrowers.
The opinions expressed below are subject to the following
qualifications:
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 135
- 3 -
(i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
of creditors generally;
(ii) the effect of general principles of equity
(regardless of whether enforcement is considered in proceedings at law
or in equity);
(iii) that provisions of the Loan Documents which permit
the Agent or any Bank to take action or make determinations, or to
benefit from indemnities and similar undertakings of any of the
Borrowers, may be subject to a requirement that such action be taken
or such determinations be made, and that any action or inaction by the
Agent or a Bank which may give rise to a request for payment under
such an undertaking be taken or not taken, on a reasonable basis and
in good faith;
(iv) that the enforceability of indemnities and
limitations on liability in the Loan Documents (including, without
limitation, in Section 11.03 of the Credit Agreement and Section 2.03
of the Company Guarantee) may be subject to limitations based upon
public policy considerations;
(v) we express no opinion herein as to whether interest
(as such term is defined under applicable law) required to be paid
under the Loan Documents, or otherwise in connection with the
transactions described therein, exceeds the maximum amount of interest
allowable under applicable Georgia law or as to the effect, if any, of
charging or collecting interest in excess of such maximum amount;
(vi) we express no opinion on laws, ordinances,
regulations or rules of any county, city or political subdivision of
the State of Georgia; and
(vii) in connection with our opinion in clause (b)(i) of
paragraph 2 below with respect to FFB, we note that Georgia law
provides that a bank may not have aggregate outstanding liabilities
for money borrowed, subject to certain limited exceptions, in excess
of twice the bank's unimpaired capital stock plus the amount of its
unimpaired paid-in capital, appropriated retained earnings and
retained earnings (O.C.G.A. Section 7-1-291).
Based upon the foregoing, we are of the opinion that:
1. Each of the Borrowers (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Georgia; and (b) has all requisite
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 136
- 4 -
corporate power necessary to execute, deliver and perform each of the
Loan Documents to which it is a party and to borrow under the Credit
Agreement. As used in this paragraph, "in good standing" as to each
of the Borrowers means that such Borrower (i) is in compliance with
the applicable filing and annual registration provisions of the
corporation laws of the State of Georgia, (ii) has, where the
applicable certificate of existence or good standing so provides, paid
all fees and taxes required to be paid in such jurisdiction, and (iii)
has not filed articles of dissolution with the Secretary of State of
the State of Georgia.
2. The execution, delivery and performance by each of the
Borrowers of the Loan Documents to which it is a party and the
borrowings by the Borrowers under the Credit Agreement (a) have been
duly authorized by all necessary corporate action of each of the
Borrowers, and (b) do not and will not (i) violate any provision of
any law or regulation currently in effect, (ii) violate any provision
of any order, writ, judgment, injunction, decree, determination or
award applicable to or binding upon it and known to us, (iii) violate
any provision of the articles or certificates of incorporation or
by-laws of any of the Borrowers or (iv) result in a breach of, or
constitute a default or require any consent under, or result in the
creation of any Lien upon any of the properties of any Borrower
pursuant to, any Material Agreement (as hereinafter defined) to which
any of the Borrowers is a party or by which any of the Borrowers or
its properties may be bound. As used in this paragraph, "Material
Agreement" means each of the agreements and instruments listed as an
exhibit to the annual report on Form 10-K filed by the Company with
the Securities and Exchange Commission (the "SEC") for its fiscal year
ended December 31, 1994.
3. The Credit Agreement has been duly executed and delivered
by each of the Borrowers; and the Company Guarantee has been duly
executed and delivered by the Company.
4. We note that the Loan Documents are expressly stated to be
governed by the laws of the State of New York, and we express no
opinion on whether a Federal or state court would give effect to the
choice of New York law provided for therein. However, if a Georgia
court were to apply Georgia law to the Loan Documents, each of the
Loan Documents (assuming in the case of the Notes, execution and
delivery thereof for value) would otherwise constitute the legal,
valid and binding obligation of each of the Borrowers
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 137
- 5 -
party thereto, enforceable in accordance with its terms, except that
no opinion is expressed as to (i) the second sentence in the second
paragraph of Section 2.02(b) of the Credit Agreement, (ii) Section
4.07(c) of the Credit Agreement, (iii) the second sentence of Section
11.10 of the Credit Agreement and the second sentence of Section 3.02
of the Company Guarantee, insofar as such sentences relate to the
subject matter jurisdiction of the United States District Court for
the Southern District of New York to adjudicate any controversy
related to any Loan Document or (iv) Section 11.11 of the Credit
Agreement and Section 3.03 of the Company Guarantee.
In addition, no opinion is expressed herein as to the
enforceability, validity or legality of provisions, if any, contained
in the Loan Documents that (i) relate to the effect of laws that may
be enacted in the future, (ii) require waivers or amendments to be
made only in writing, or (iii) purport to permit the Agent or any of
the Banks to exercise remedies without notice to the Borrowers or
other adverse parties.
5. Except as set forth on Schedule IV to the Credit
Agreement, insofar as is known to us, there are no legal or arbitral
proceedings, or any proceedings by or before any governmental or
regulatory authority or agency, pending or threatened against any of
the Borrowers, or any of their properties, which, if adversely
determined, would have a material adverse effect on the validity or
the enforceability of any Loan Document or the rights and remedies of
the Agent or any Bank thereunder.
6. Except as set forth on Schedule IV to the Credit
Agreement, no authorizations, consents, approvals, licenses, filings
or registrations with any governmental or regulatory authority or
agency of the United States of America or the State of Georgia are
required in connection with the execution, delivery or performance by
any of the Borrowers of the Loan Documents to which it is a party.
We are members of the bar of the State of Georgia and we do
not herein intend to express any opinion as to any matters governed by any laws
other than the law of the State of Georgia and the Federal laws of the United
States of America. As noted above, the Loan Documents are expressly stated to
be governed by the laws of the State of New York.
As to the matters stated in paragraphs 2(b)(ii) and 5 above,
we have relied in part on the opinion of Randolph L.M. Hutto, Esq., general
counsel to the Borrowers, delivered to you
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 138
- 6 -
and to us concurrently herewith. Such opinion is in form and substance
satisfactory to us, and we believe that we and you are justified in relying
thereon.
This opinion is delivered to you solely in connection with the
execution and delivery to you of the Credit Agreement and the transactions as
therein provided, and is to be relied upon by you only in such connection and
by no one else for any purpose.
Very truly yours,
Opinion of Special Georgia Counsel of the Borrowers
<PAGE> 139
EXHIBIT C-2
May __, 1995
To the Banks party to the Credit
Agreement referred to below and
The Chase Manhattan Bank (National
Association), as Agent
Ladies and Gentlemen:
I am general counsel to First Financial Management Corporation
(the "Company") and First Financial Bank ("FFB", and together with the Company,
the "Obligors") and have acted in such capacity in connection with the
Revolving Credit Agreement (the "Credit Agreement") dated as of May 2, 1995,
between the Company, FFB, the banks named therein (including the Swingline
Bank, the "Banks") and The Chase Manhattan Bank (National Association), as
agent (in such capacity, the "Agent"), providing for loans to be made by the
Banks to the Obligors in an aggregate principal amount not exceeding
$500,000,000. This opinion is being furnished to the Banks at the request of
the Obligors pursuant to Section 6.01(d)(ii) of the Credit Agreement.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Credit Agreement.
In rendering the opinions expressed below, I have examined the
following documents (hereinafter collectively referred to as the "Loan
Documents"):
(i) the Credit Agreement;
(ii) the Notes; and
(iii) the Company Guarantee.
I also have made such other inquiries and examinations as I
have deemed appropriate in order to render the opinions hereinafter set forth.
In making such examinations I have assumed:
(i) the genuineness of all signatures; and
(ii) the authenticity of all documents submitted to me as
originals and the conformity with the originals of all documents
submitted to me as copies.
Except as expressly set forth above, I have made no other
factual investigation, and to the extent that the opinions expressed below
involve matters of fact, I have relied upon the
Opinion of General Counsel of the Company
<PAGE> 140
- 2 -
representations and warranties of the Obligors made in the Loan Documents and
certificates of the Obligors and their officers or representatives delivered
pursuant thereto.
Based upon the foregoing, I am of the opinion that:
1. Except as set forth on Schedule IV to the Credit
Agreement, each of the Obligors has all material authorizations,
consents, approvals and licenses of, and has made all filings and
registrations with, all governmental and regulatory authorities and
agencies necessary to execute, deliver and perform the Loan Documents
to which it is a party.
2. The execution, delivery and performance by each of the
Obligors of the Loan Documents to which it is a party and the
borrowings by any Obligor under the Credit Agreement do not and will
not violate any provision of any order, writ, judgment, injunction,
decree, determination or award applicable to or binding upon it, the
violation of which would have a Material Adverse Effect.
3. Except as set forth on Schedule IV to the Credit
Agreement, there are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or
agency, pending or, insofar as is known to me, threatened against or
affecting any of the Obligors, or any of their properties or rights,
which, if adversely determined, would have a material adverse effect
on the consolidated financial condition or business taken as a whole
of the Company and its Subsidiaries, or the validity or the
enforceability of any Loan Document or the rights and remedies of the
Agent or any Bank thereunder.
I do not herein intend to express any opinion as to any
matters governed by any laws other than the law of the State of Georgia and the
Federal laws of the United States of America.
I understand that Sutherland, Asbill & Brennan, who has acted
as counsel to the Obligors in connection with the Credit Agreement and the
Loans contemplated thereby, in rendering its opinion to the Banks and the Agent
pursuant to the Credit Agreement, wishes to rely on this opinion in rendering
those portions of its opinion relating to certain of the matters set forth
herein, and I consent to such reliance. This opinion is delivered to you
solely in connection with the execution and delivery to you of the Credit
Agreement and the transactions as therein provided, and, except as stated in
the immediately
Opinion of General Counsel of the Company
<PAGE> 141
- 3 -
preceding sentence, is to be relied upon by you only in such connection and by
no one else for any purpose.
Sincerely yours,
Opinion of General Counsel of the Company
<PAGE> 142
EXHIBIT D
[FORM OF OPINION OF SPECIAL NEW YORK COUNSEL TO THE BANKS]
May __, 1995
Each of the Banks party
to the Credit Agreement
referred to below
The Chase Manhattan Bank
(National Association),
as Agent for said Banks
4 Metrotech Center
13th Floor
Brooklyn, New York 11245
Ladies and Gentlemen:
We have acted as special New York counsel to the Banks
referred to below in connection with the Revolving Credit Agreement dated as of
May 2, 1995 (the "Credit Agreement"), between First Financial Management
Corporation, a corporation organized under the laws of Georgia (the
"Obligors"), First Financial Bank, a banking corporation organized under the
laws of Georgia ("FFB" and together with the Company, the "Borrowers"), the
banks party thereto (including the Swingline Bank, the "Banks") and The Chase
Manhattan Bank (National Association), in its capacity as agent for said Banks
(the "Agent"), providing for, among other things, the making of loans by the
Banks in an aggregate principal amount not to exceed $500,000,000. All
capitalized terms used but not defined herein have the respective meanings
given to such terms in the Credit Agreement.
In rendering the opinion expressed below, we have examined:
(i) the Credit Agreement;
(ii) the Notes; and
(iii) the Company Guarantee.
The agreement, instruments and other documents referred to in the foregoing
clauses (i) through (iii) are collectively referred to as the "Credit
Documents". In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as
Opinion of Special New York Counsel to the Banks
<PAGE> 143
- 2 -
copies. When relevant facts were not independently established, we have relied
upon representations made in or pursuant to the Credit Documents.
In rendering the opinion expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth
in the opinions below as to the Obligors) constitute legal,
valid, binding and enforceable obligations of, all of the
parties to such documents;
(ii) all signatories to such documents have been duly authorized;
and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that each Credit Document constitutes
the legal, valid and binding obligation of each Obligor party thereto,
enforceable against such Obligor in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally and except as
the enforceability of the Credit Documents is subject to the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith
and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
A. The enforceability of Section 11.03 of the Credit
Agreement may be limited by laws (i) rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) limiting
Opinion of Special New York Counsel to the Banks
<PAGE> 144
- 3 -
the enforceability of provisions requiring indemnification of a party
for liability for its own action or inaction to the extent the action
or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct.
B. The enforceability of provisions in the Credit
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
C. We express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other than New
York) that limit the interest, fees or other charges such Bank may
impose, (ii) the second sentence in the second paragraph of Section
2.02(b) of the Credit Agreement, (iii) Section 4.07(c) of the Credit
Agreement and (iv) the second sentence of Section 11.10 of the Credit
Agreement and the second sentence of Section 3.02 of the Company
Guarantee, insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the
Credit Documents.
The foregoing opinion is limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
This opinion letter is, pursuant to Section 6.01(d)(iii) of
the Credit Agreement, provided to you by us in our capacity as special New York
counsel to the Banks and may not be relied upon by any Person for any purpose
other than in connection with the transactions contemplated by the Credit
Agreement without, in each instance, our prior written consent.
Very truly yours,
CDP/BDR
Opinion of Special New York Counsel to the Banks
<PAGE> 145
EXHIBIT E-1
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
[DATE]
Re: Revolving Credit Agreement dated as of May 2, 1995 (as
modified and supplemented and in effect from time to time, the
"Credit Agreement"), between First Financial Management
Corporation (the "Company"), First Financial Bank, the lenders
named therein, and The Chase Manhattan Bank (National
Association), as Agent
This Certificate is delivered pursuant to Section 8.01 of the
Credit Agreement. Terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement. This Certificate is
delivered with respect to the fiscal period of the Company ended
______________, 199__ (the "Reference Date").
The undersigned senior financial officer of the Company has
read and reviewed the Credit Agreement, has examined the financial position of
the Company and its Subsidiaries and has made appropriate examinations and
inquiries of appropriate officers of the Company and its Subsidiaries in order
to express an informed opinion as to the matters covered by this Certificate.
Annex 1 hereto sets forth calculations necessary to determine
whether the Company is in compliance with Sections 8.07 through 8.11
(inclusive) of the Credit Agreement as at, or for the relevant period ended on,
the Reference Date. Except as expressly identified on said Annex, the Company
is in compliance with said Sections. All references to Sections in said Annex
are to Sections of the Credit Agreement.
On the Reference Date, no Default has occurred and is
continuing.(1) [IN ADDITION, THE CONSOLIDATED FINANCIAL STATEMENTS OF THE
COMPANY AND ITS SUBSIDIARIES FOR THE FISCAL
__________________________________
(1) Or, if any Default has occurred and is continuing, this Certificate
should describe such Default in reasonable detail and the action that
the Company has taken and proposes to take with respect to such
Default.
Compliance Certificate
<PAGE> 146
- 2 -
QUARTER OF THE COMPANY ENDED ON THE REFERENCE DATE FAIRLY PRESENT THE
CONSOLIDATED FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF THE COMPANY AND
ITS SUBSIDIARIES IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
CONSISTENTLY APPLIED, AS AT THE END OF, AND FOR, SUCH PERIOD (WITH ACCRUALS
BEING SUBJECT TO YEAR-END ADJUSTMENTS).](2)
IN WITNESS WHEREOF, I have delivered this Certificate to the
Agent and the Banks in my capacity as _________________ of the Company on this
______ day of ____________, 199__.
______________________________
Name:
__________________________________
(2) This sentence should be included if the Compliance Certificate is
being delivered in connection with the delivery of financial
statements under Section 8.01(a) of the Credit Agreement.
Compliance Certificate
<PAGE> 147
ANNEX 1
FIRST FINANCIAL MANAGEMENT CORPORATION
COMPLIANCE CERTIFICATE
Fiscal Period Ended __________, 199__
(the "Reference Date")
<TABLE>
<S> <C>
SECTION 8.07(f)
(A) Aggregate principal amount of $__________
Indebtedness outstanding under
Section 8.07(f) on the Reference
Date
(B) Compliance if (A) is less than YES / NO
$100,000,000
SECTION 8.07(n)
(A) Aggregate amount of Indebtedness $__________
outstanding under Section 8.07(n)
on the Reference Date
(B) Compliance if (A) is less than YES / NO
$50,000,000
SECTION 8.07(p)
(A) Aggregate amount of Indebtedness $__________
outstanding under Section 8.07(p)
on the Reference Date
</TABLE>
Annex 1 to Compliance Certificate
<PAGE> 148
- 2 -
<TABLE>
<S> <C>
SUBSIDIARY INDEBTEDNESS
UNDER SECTION 8.07
(A) Aggregate amount of Indebtedness
of Subsidiaries outstanding on $__________
the Reference Date (other than
Indebtedness of FFB under the
Credit Agreement)
(B) Net Worth on the Reference Date $__________
(C) 20% of Net Worth $__________
(D) Compliance if (A) is less than or YES / NO
equal to (C)
SECTION 8.08(n)(i)
(A) Aggregate amount of Investments $__________
by FFMC in FFB on the Reference
Date
(B) Net Worth on the Reference Date $__________
(C) 15% of (B) $__________
(D) Compliance if (A) is less than or YES / NO
equal to (C)
SECTION 8.09
(A) Net Worth on the Reference Date $__________
(B) Compliance if (A) is greater than YES / NO
$1,100,000,000
</TABLE>
Annex 1 to Compliance Certificate
<PAGE> 149
- 3 -
<TABLE>
<S> <C>
SECTION 8.10
(A) Aggregate amount of Debt on the $__________
Reference Date
(B) Cash Flow for the Computation $__________
Period ended on the Reference
Date*
(C) Ratio of (A) to (B) $__________
(D) Compliance if (C) is not greater YES / NO
than 3.75 to 1
SECTION 8.11
(A) EBIT for the Computation Period $__________
ended on the Reference Date*
(B) Interest Expense for the $__________
Computation Period ended on the
Reference Date
(C) Ratio of (A) to (B) $__________
(D) Compliance if (C) is greater than YES / NO
3.00 to 1
</TABLE>
_______________
* Please complete the appropriate worksheet attached hereto to show
calculations.
Annex 1 to Compliance Certificate
<PAGE> 150
EBIT FOR COMPUTATION PERIOD
<TABLE>
<CAPTION>
1st 2nd 3rd 4th Total
Quarter Quarter Quarter Quarter -----
------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
(a) Net Income $_____ $_____ $_____ $_____ $_____
(b) Interest $_____ $_____ $_____ $_____ $_____
Expense
(c) Federal, $_____ $_____ $_____ $_____ $_____
state or foreign
income taxes
(d) Non-recurring losses $_____ $_____ $_____ $_____ $_____
(e) Interest $_____ $_____ $_____ $_____ $_____
income
(f) Interest income $_____ $_____ $_____ $_____ $_____
deemed to be
operating income
(g) Non- $_____ $_____ $_____ $_____ $_____
recurring
gains
(A) Add (a), (b),(c), (d) $_____
and (f)
(B) Add (e) and (g) $_____
(C) (A) minus (B) $_____
</TABLE>
Annex 1 to Compliance Certificate
<PAGE> 151
CASH FLOW FOR COMPUTATION PERIOD
<TABLE>
<CAPTION>
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter Total
----------- ----------- ----------- ----------- -----
<S> <C> <C> <C> <C> <C>
(a) EBIT $_____ $_____ $_____ $_____ $_____
(b) Depreciation, $_____ $_____ $_____ $_____ $_____
amortization
and other
non-cash
charges
(c) Aggregate $_____ $_____ $_____ $_____ $_____
amount of
dividends or other
distributions
received in cash
by Company and its
Subsidiaries in
respect of common
stock or other
ownership interest
of non-Subsidiary
(d) Net Capital $_____ $_____ $_____ $_____ $_____
Expenditures
(e) Accrued or $_____ $_____ $_____ $_____ $_____
capitalized Interest
Expense in respect of
Qualified
Subordinated
Indebtedness
(f) Minority
Share of the amounts $_____ $_____ $_____ $_____ $_____
in items (a)
and (b) attributable
to each non wholly-
owned Subsidiary of
the Company
</TABLE>
Annex 1 to Compliance Certificate
<PAGE> 152
<TABLE>
<CAPTION>
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter Total
----------- ----------- ----------- ----------- -----
<S> <C> <C> <C> <C> <C>
(g) Minority $_____ $_____ $_____ $_____ $_____
Share of the
amount in item (d)
attributable to each
non wholly-owned
subsidiary of the
Company
(h) Pro-forma $_____ $_____ $_____ $_____ $_____
Cash Flow of any
acquired Subsidiary
for the Designated
Period (or any
portion thereof) for
which financial
statements have been
provided
(i) Pro-forma Cash Flow $_____ $_____ $_____ $_____ $_____
of any disposed
Subsidiary for the
Designated Period (or
any portion thereof)
(A) Add (a), (b), (c), $_____
(g) and (h)
(B) Add (d), (e), (f) and $_____
(i)
(C) A minus B $_____
</TABLE>
Annex 1 to Compliance Certificate
<PAGE> 153
EXHIBIT E-2
[FORM OF FACILITY FEE AND MARGIN DETERMINATION CERTIFICATE]
FACILITY FEE AND MARGIN DETERMINATION CERTIFICATE
[DATE]
Re: Revolving Credit Agreement dated as of May 2, 1995 (as
modified and supplemented and in effect from time to time, the
"Credit Agreement"), between First Financial Management
Corporation (the "Company"), First Financial Bank, the lenders
named therein, and The Chase Manhattan Bank (National
Association), as Agent
This Certificate is delivered pursuant to Section 8.01 of the
Credit Agreement. Terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement. This Certificate is
delivered with respect to the fiscal period of the Company ended __________,
199_ (the "Reference Date").
Annex 1 hereto sets forth calculations necessary to determine
the Applicable Facility Fee Percentage and the Applicable Margin, respectively,
under the Credit Agreement as at, or for the relevant period ended on, the
Reference Date.
The undersigned senior financial officer of the Company has
read and reviewed the Credit Agreement, has examined the financial position of
the Company and its Subsidiaries and has made appropriate examinations and
inquiries of appropriate officers of the Company and its Subsidiaries
(including the newly-acquired Subsidiary) in order to made the calculations set
forth in Annex 1 hereto.
IN WITNESS WHEREOF, I have delivered this Certificate to the
Agent and the Banks in my capacity as _________________ of the Company on this
______ day of ____________, 199__.
______________________
Name:
Facility Fee and Margin Determination Certificate
<PAGE> 154
ANNEX 1
FIRST FINANCIAL MANAGEMENT CORPORATION
FACILITY FEE AND MARGIN DETERMINATION
CERTIFICATE
Fiscal Period Ended _________, 199_
(the "Computation Period")
<TABLE>
<S> <C> <C>
(A) Cash Flow Calculation
(i) Cash Flow of Company for Computation
Period $_______
(ii) Cash Flow of any newly-acquired
Subsidiary for Computation Period
certified by the Company
$_______
Add (i) and (ii) $_______
(B) Debt Calculation
(i) Debt as shown on Balance Sheet as at end
of Computation Period
$_______
(ii) Debt as shown on Balance Sheet of any
newly-acquired Subsidiary as at end of
Computation Period
$_______
(iii) Additional Debt incurred after the end of
Computation Period in connection with any
acquisition
$_______
Add (i) through (iii) $_______
(C) Ratio of B over A _______
Applicable Margin _______%
Applicable Facility Fee
Percentage _______%
</TABLE>
Facility Fee and Margin Determination Certificate
<PAGE> 155
EXHIBIT F
[FORM OF CONFIDENTIALITY AGREEMENT]
CONFIDENTIALITY AGREEMENT
[DATE]
[INSERT NAME AND
ADDRESS OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
Re: Revolving Credit Agreement dated as of May 2, 1995 (as
modified and supplemented and in effect from time to time, the
"Credit Agreement") between First Financial Management
Corporation (the "Company"), First Financial Bank, ("FFB" and
together with the Company, the "Borrowers") the banking
institutions party thereto, and The Chase Manhattan Bank
(National Association), as Agent.
Ladies and Gentlemen:
As a [BANK] [SWINGLINE BANK] party to the Credit Agreement, we
have agreed with the Borrowers pursuant to Section 11.12 of the Credit
Agreement to use reasonable precautions to keep confidential, except as
otherwise provided therein, all non-public information identified by the
Borrowers as being confidential at the time the same is delivered to us
pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide
you, as a [PROSPECTIVE HOLDER OF A PARTICIPATION IN THE LOANS (AS DEFINED IN
THE CREDIT AGREEMENT)] [PROSPECTIVE ASSIGNEE BANK], with certain of such non-
public information subject to the execution and delivery by you, prior to
receiving such non-public information, of a Confidentiality Agreement in this
form. Such information will not be made available to you until your execution
and return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your directors, officers and employees) that (A)
such information will not be used by you except in connection with the proposed
[PARTICIPATION] [ASSIGNMENT] mentioned above and (B) you shall use (and you
shall cause your affiliates and representatives to use) reasonable precautions,
in accordance with your customary procedures for handling confidential
information and in accordance with safe and sound banking practices, to keep
such information confidential, provided that nothing herein shall limit the
disclosure of any
Confidentiality Agreement
<PAGE> 156
- 2 -
such information (i) to the extent required by statute, rule, regulation or
judicial process, or after such information shall have become public (other
than through a violation of Section 11.12 of the Credit Agreement), (ii) to
your counsel or to counsel for any of the Banks (including, for these purposes,
the Swingline Bank) or the Agent, (iii) to bank examiners and regulators,
auditors, accountants or other professional advisors, (iv) to the Agent or any
other Bank or (v) in connection with any litigation to which you or any one or
more of the Banks is a party; provided, further, that in no event shall you be
obligated or required to return any materials furnished to you pursuant to this
Confidentiality Agreement.
Please indicate your agreement to the foregoing by signing the
enclosed two copies of this Confidentiality Agreement by signing on the line
provided below and returning one such signed copy to us and the other such
signed copy to the Company.
Very truly yours,
[INSERT NAME OF BANK]
By____________________________
Title:
THE FOREGOING IS AGREED TO
AS OF THE DATE OF THIS LETTER:
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By____________________________
Title:
Confidentiality Agreement
<PAGE> 157
EXHIBIT G
[FORM OF MONEY MARKET QUOTE REQUEST]
[DATE]
To: The Chase Manhattan Bank
(National Association),
as Agent
From: First Financial Management Corporation
Re: Money Market Quote Request
Pursuant to Section 2.04 of the Revolving Credit Agreement
dated as of May 2, 1995 (as modified and supplemented and in effect from time
to time, the "Credit Agreement"), between First Financial Management
Corporation, First Financial Bank, the banks named therein (including the
Swingline Bank) and The Chase Manhattan Bank (National Association), as Agent,
we hereby give notice that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
<TABLE>
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/
--------- ----- - ------ - ---- - ------ -
<S> <C> <C> <C> <C>
</TABLE>
Terms used herein have the meanings assigned to them in the
Credit Agreement.
FIRST FINANCIAL MANAGEMENT
CORPORATION
By_____________________________
_______________ Title:
1/ For use if a Money Market Rate in a Set Rate Auction is requested to
be submitted before the date of the borrowing.
2/ Each amount must be $25,000,000 or a larger multiple of $500,000.
3/ Insert either "Margin" (in the case of LIBOR Market Loans) or "Rate"
(in the case of Set Rate Loans).
4/ 1, 2, 3 or 6 months, in the case of a LIBOR Market Loan or, in the
case of a Set Rate Loan, a period of up to 180 days after the making
of such Set Rate Loan and ending on a Business Day.
Money Market Quote Request
<PAGE> 158
EXHIBIT H
[FORM OF MONEY MARKET QUOTE]
To: The Chase Manhattan Bank
(National Association),
as Agent
From: [NAME OF BANK]
Re: Money Market Quote
First Financial Management Corporation
This Money Market Quote is given in accordance with Section
2.04(c) of the Revolving Credit Agreement dated as of May 2, 1995 (as modified
and supplemented and in effect from time to time, the "Credit Agreement"),
between First Financial Management Corporation, First Financial Bank, the banks
named therein (including the Swingline Bank) and The Chase Manhattan Bank
(National Association), as Agent. Terms defined in the Credit Agreement are
used herein as defined therein.
In response to the Borrower's invitation dated __________,
19__, we hereby make the following Money Market Quote(s) on the following
terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest Periods and at the
following rates:
<TABLE>
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/ Rate 5/
--------- ----- - ------ - ---- - ------ - ---- -
<S> <C> <C> <C> <C> <C>
</TABLE>
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate(s) us to make the Money Market Loan(s)
for which any offer(s) [IS] [ARE]
Money Market Quote
<PAGE> 159
- 2 -
accepted, in whole or in part (subject to the third sentence of Section 2.04(e)
of the Credit Agreement).
Very truly yours,
[NAME OF BANK]
Dated: By:______________________________
_______________ Authorized Officer
1/ As specified in the related Money Market Quote Request.
2/ The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
or a larger multiple of $500,000.
3/ Indicate "Margin" (in the case of LIBOR Market Loans) or "Rate" (in
the case of Set Rate Loans).
4/ 1, 2, 3 or 6 months in the case of a LIBOR Market Loan or, in the case
of a Set Rate Loan, a period of up to 180 days after the making of
such Set Rate Loan and ending on a Business Day, as specified in the
related Money Market Quote Request.
5/ For a LIBOR Market Loan, specify margin over or under the London
interbank offered rate determined for the applicable Interest Period.
Specify percentage (rounded to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS". For a Set Rate Loan, specify rate of
interest per annum (rounded to the nearest 1/10,000 of 1%).
Money Market Quote
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUN-30-1995
<CASH> 298
<SECURITIES> 0
<RECEIVABLES> 422
<ALLOWANCES> 8
<INVENTORY> 0
<CURRENT-ASSETS> 821
<PP&E> 160
<DEPRECIATION> 0
<TOTAL-ASSETS> 3,112
<CURRENT-LIABILITIES> 693
<BONDS> 650
<COMMON> 6
0
0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 3,112
<SALES> 25
<TOTAL-REVENUES> 1,466
<CGS> 17
<TOTAL-COSTS> 1,307
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 15
<INCOME-PRETAX> 136
<INCOME-TAX> 56
<INCOME-CONTINUING> 80
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 80
<EPS-PRIMARY> 1.25
<EPS-DILUTED> 1.25
</TABLE>
