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EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 23, 2000
AMONG
JOHN H. HARLAND COMPANY
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
as Administrative Agent
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SUNTRUST EQUITABLE SECURITIES CORPORATION
as Arranger and Book Manager
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS; CONSTRUCTION.................................................
Section 1.1. Definitions.................................................. 1
Section 1.2. Classifications of Loans and Borrowings...................... 19
Section 1.3. Accounting Terms and Determination........................... 20
Section 1.4. Terms Generally.............................................. 20
ARTICLE II. AMOUNT AND TERMS OF THE COMMITMENTS.......................................
Section 2.1. General Description of Facilities............................ 20
Section 2.2. Revolving Loans; Increase in Commitments..................... 21
Section 2.3. Procedure for Revolving Borrowings........................... 21
Section 2.4. Swingline Commitment......................................... 22
Section 2.5. Procedure for Swingline Borrowing; Etc....................... 22
Section 2.6. Funding of Borrowings........................................ 23
Section 2.7. Interest Elections........................................... 24
Section 2.8. Optional Reduction and Termination of Commitments............ 25
Section 2.9. Repayment of Loans........................................... 25
Section 2.10. Evidence of Indebtedness..................................... 25
Section 2.11. Optional Prepayments......................................... 26
Section 2.12. Interest on Loans............................................ 26
Section 2.13. Fees......................................................... 27
Section 2.14. Computation of Interest and Fees............................. 28
Section 2.15. Inability to Determine Interest Rates........................ 28
Section 2.16. Illegality................................................... 29
Section 2.17. Increased Costs.............................................. 29
Section 2.18. Funding Indemnity............................................ 30
Section 2.19. Taxes........................................................ 31
Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.. 32
Section 2.21. Mitigation of Obligations.................................... 34
Section 2.22. Letters of Credit............................................ 34
ARTICLE III. CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.......................
Section 3.1. Conditions to Effectiveness.................................. 38
Section 3.2. Each Credit Event............................................ 40
Section 3.3. Delivery of Documents........................................ 40
ARTICLE IV. REPRESENTATIONS AND WARRANTIES............................................
Section 4.1. Existence; Power............................................. 41
Section 4.2. Organizational Power; Authorization.......................... 41
Section 4.3. Governmental Approvals; No Conflicts......................... 41
Section 4.4. Financial Statements......................................... 41
Section 4.5. Litigation and Environmental Matters......................... 42
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Section 4.6. Compliance with Laws and Agreements.......................... 42
Section 4.7. Investment Company Act, Etc.................................. 42
Section 4.8. Taxes........................................................ 43
Section 4.9. Margin Regulations........................................... 43
Section 4.10. ERISA........................................................ 43
Section 4.11. Ownership of Property........................................ 43
Section 4.12. Disclosure................................................... 44
Section 4.13. Labor Relations.............................................. 44
Section 4.14. Subsidiaries................................................. 44
Section 4.15. Indebtedness; Investments and Liens.......................... 44
ARTICLE V. AFFIRMATIVE COVENANTS.....................................................
Section 5.1. Financial Statements and Other Information................... 44
Section 5.2. Notices of Material Events................................... 46
Section 5.3. Existence; Conduct of Business............................... 46
Section 5.4. Compliance with Laws, Etc.................................... 47
Section 5.5. Payment of Tax and Other Liabilities......................... 47
Section 5.6. Books and Records............................................ 47
Section 5.7. Visitation, Inspection, Etc.................................. 47
Section 5.8. Maintenance of Properties; Insurance......................... 47
Section 5.9. Use of Proceeds; Margin Regulations and Letters of Credit.... 47
Section 5.10. Subsidiary Guarantees; Pledge Agreements; Releases........... 48
ARTICLE VI. FINANCIAL COVENANTS.......................................................
Section 6.1. Leverage Ratio............................................... 49
Section 6.2. Fixed Charge Coverage Ratio.................................. 49
Section 6.3. Consolidated Net Worth....................................... 49
ARTICLE VII. NEGATIVE COVENANTS........................................................
Section 7.1. Indebtedness................................................. 49
Section 7.2. Negative Pledge.............................................. 50
Section 7.3. Fundamental Changes.......................................... 51
Section 7.4. Investments, Loans, Acquisitions, Etc........................ 52
Section 7.5. Restricted Payments.......................................... 53
Section 7.6. Sale of Assets............................................... 53
Section 7.7. Transactions with Affiliates................................. 54
Section 7.8. Restrictive Agreements....................................... 54
Section 7.9. Sale and Leaseback Transactions.............................. 55
Section 7.10. Hedging Agreements........................................... 55
Section 7.11. Amendment to Material Documents.............................. 55
Section 7.12. Accounting Changes........................................... 55
Section 7.13. Limitation on Securitization Undertakings of Borrower and
Restricted Subsidiaries...................................... 55
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ARTICLE VIII. EVENTS OF DEFAULT.........................................................
Section 8.1. Events of Default............................................ 56
ARTICLE IX. THE ADMINISTRATIVE AGENT..................................................
Section 9.1. Appointment of Administrative Agent.......................... 58
Section 9.2. Nature of Duties of Administrative Agent..................... 59
Section 9.3. Lack of Reliance on the Administrative Agent................. 60
Section 9.4. Certain Rights of the Administrative Agent................... 60
Section 9.5. Reliance by Administrative Agent............................. 60
Section 9.6. The Administrative Agent in its Individual Capacity.......... 60
Section 9.7. Successor Administrative Agent............................... 60
ARTICLE X. MISCELLANEOUS ............................................................
Section 10.1. Notices...................................................... 61
Section 10.2. Waiver; Amendments........................................... 63
Section 10.3. Expenses; Indemnification; Waivers........................... 64
Section 10.4. Successors and Assigns....................................... 65
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process... 67
Section 10.6. Waiver of Jury Trial......................................... 68
Section 10.7. Right of Setoff.............................................. 68
Section 10.8. Counterparts; Integration.................................... 69
Section 10.9. Survival..................................................... 69
Section 10.10. Severability................................................. 69
Section 10.11. Confidentiality.............................................. 69
Section 10.12. Interest Rate Limitation..................................... 70
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule I-D - To the Subsidiary Guarantee Agreement
Schedule I-E - To the Indemnity, Subrogation and Contribution
Agreement
Schedule I-G- - To Supplement No.___ to the Indemnity, Subrogation and
Contribution Agreement
Annex I-D - To the Subsidiary Guarantee Agreement
Annex I-E - To the Indemnity, Subrogation and Contribution Agreement
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered into as of August 23, 2000, by and among JOHN H. HARLAND COMPANY, a
Georgia corporation (the "Borrower"), the several banks and other financial
institutions from time to time party hereto (the "Lenders"), and SUNTRUST BANK,
in its capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish
a $325,000,000 revolving credit facility;
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their respective Commitments,
are willing to establish the requested revolving credit facility.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"ACQUISITION" shall mean any acquisition, whether by stock
purchase, asset purchase, merger, consolidation or otherwise of a Person or a
business line of a Person.
"ADJUSTED LIBO RATE" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing, the rate per annum obtained by
dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00
minus the Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such
term in the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
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"AFFILIATE" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the Closing
Date, the Aggregate Revolving Commitments equal $225,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean with respect to all Revolving
Loans outstanding on any date or the letter of credit fee, as the case may be, a
percentage per annum determined by reference to the applicable Leverage Ratio in
effect on such date as set forth on Schedule I attached hereto; provided, that a
change in the Applicable Margin resulting from a change in the Leverage Ratio
shall be effective on the second Business Day after which the Borrower is
required to deliver the financial statements required by Section 5.1(a) or (b)
and the compliance certificate required by Section 5.1 (c); provided further,
that if at any time the Borrower shall have failed to deliver such financial
statements and such certificate, the Applicable Margin shall be at Level V until
such time as such financial statements and certificate are delivered, at which
time the Applicable Margin shall be determined on the second Business Day after
the date of delivery of such financial statements as provided above.
Notwithstanding the foregoing, the Applicable Margin from the Closing Date until
the first financial statement and compliance certificate are required to be
delivered shall be at Level III.
"APPLICABLE PERCENTAGE" shall mean, with respect to the
commitment fee, as of any date, the percentage per annum determined by reference
to the applicable Leverage Ratio in effect on such date as set forth on Schedule
I attached hereto; provided, that a change in the Applicable Percentage
resulting from a change in the Leverage Ratio shall be effective on the second
Business Day after which the Borrower is required to deliver the financial
statements required by Section 5.1(a) or (b) and the compliance certificate
required by Section 5.1 (c); provided, further, that if at any time the Borrower
shall have failed to deliver such financial statements and such certificate, the
Applicable Percentage shall be at Level V until such time as such financial
statements and certificate are delivered, at which time the Applicable
Percentage shall be determined on the second Business Day after the date of
delivery of such financial statements as provided above. Notwithstanding the
foregoing, the Applicable Percentage for the commitment fee from the Closing
Date until the first financial statement and compliance certificate are required
to be delivered shall be at Level III.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by
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Section 10.4(b)) and accepted by the Administrative Agent, in the form of
Exhibit C attached hereto or any other form approved by the Administrative
Agent.
"ASSUMPTION AGREEMENT" shall mean an Assumption Agreement
entered into by Concentrex Incorporated, pursuant to Section 5.10, substantially
in the form of Exhibit H attached hereto.
"AVAILABILITY PERIOD" shall mean the period from the Closing
Date to the Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate
which the Administrative Agent publicly announces from time to time to be its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning in the introductory
paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of
the same Class and Type, made, converted or continued on the same date and in
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(ii) a Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia are authorized
or required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more
of the following events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or substantially
all of the assets of the Borrower to any Person or "group" (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of
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the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) of 30% or more of the
outstanding shares of the voting stock of the Borrower; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the current board of
directors or (ii) appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable
law, rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.17(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or a Swingline
Commitment.
"CLOSING DATE" shall mean the date on which the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived
in accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or the
Swingline Commitment or any combination thereof (as the context shall permit or
require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (i)
August 23, 2005, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.8 and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"CONCENTREX" shall mean, collectively, Concentrex
Incorporated, an Oregon corporation, and its Subsidiaries.
"CONSOLIDATED EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense, (iii) depreciation and amortization and (iv) all other
non-cash charges, determined on a consolidated basis in accordance with GAAP in
each case for such period.
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"CONSOLIDATED EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Lease Expense.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and
its Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense, net of interest income, for such period and (b)
Consolidated Lease Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total cash interest expense, including
without limitation the interest component of any payments in respect of Capital
Lease Obligations capitalized or expensed during such period (whether or not
actually paid during such period) plus (ii) the net amount payable (or minus the
net amount receivable) under Hedging Agreements during such period (whether or
not actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the
aggregate amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets, (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary, (iv) any income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Borrower or any Subsidiary on the date that such Person's assets are
acquired by the Borrower or any Subsidiary and (v) any income (or loss) of any
Subsidiary which is not a Subsidiary Loan Party to the extent the payment of
such income in the form of dividends or other distributions to the Borrower or
any Subsidiary is currently prohibited whether on account of restrictions in
organizational documents or restrictions in any agreement, document, contract,
deed or other instrument applicable to such Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (i) the
total assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus the sum of
(i) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP and (ii) the amount of any write-up in the book value of
any assets resulting from a revaluation thereof or any write-up in excess of the
cost of such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date of
determination, without
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duplication, the sum of (i) all Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis of the types described in the definition of
Indebtedness (other than as described in subsection (viii) thereof), including,
but not limited to, all obligations under the Loan Documents plus (ii) all
Indebtedness of any Permitted Securitization Subsidiaries.
"CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 10% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"DEFAULT" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section
2.12(c).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the
United States of America.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent
or otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or
not incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event
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for which the 30-day notice period is waived); (b) the existence with respect to
any Plan of an "accumulated funding deficiency" (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of
the maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article
VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender, any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.19(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or
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assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.19(a).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDAR for such period to (b) Consolidated Fixed Charges for such period.
"FOREIGN LENDER" shall mean any Lender that is organized under
the laws of a jurisdiction other than that of the Borrower. For purposes of this
definition, the United States of America or any State thereof or the District of
Columbia shall constitute one jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect
Restricted Subsidiary of the Borrower that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the
District of Columbia.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the
United States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
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<PAGE> 14
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and other
similar agreements or arrangements designed to protect against fluctuations in
interest rates, currency values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication,
such Person's (i) obligations for borrowed money, (ii) obligations representing
the deferred purchase price of property or services (other than accounts payable
arising in the ordinary course of such Person's business), (iii) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from property or asset now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by bonds, notes, acceptances or
other instruments, (v) capitalized lease obligations, (vi) guaranties, letter of
credit reimbursement obligations and other contingent obligations in respect of
other types of Indebtedness, (vii) Off-Balance Sheet Liabilities, and (viii)
obligations under any Hedging Agreement permitted under Section 7.10 hereof. For
purposes of determining Indebtedness under clause (viii), the obligations of the
Borrower or any Subsidiary in respect to any Hedging Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time. The Indebtedness of any Person shall
include the Indebtedness of any partnership in which such Person is a general
partner, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum dated August 2000 relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean (i) with respect to any
Eurodollar Borrowing, a period of one, two, three or six months and (ii) with
respect to a Swingline Loan, a period of
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<PAGE> 15
such duration not to exceed seven days, as the Borrower may request and the
Swingline Lender may agree in accordance with Section 2.5; provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless, in the case of a Eurodollar
Borrowing, such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar
Borrowing which begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the last
Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment
Termination Date or the Swingline Termination Date, as the case may be.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender,
each in its capacity as an issuer of Letters of Credit pursuant to Section 2.22.
"INTANGIBLE ASSETS" shall mean assets which are classified as
intangible assets in accordance with GAAP.
"LC COMMITMENT" shall mean that portion of the Aggregate
Revolving Commitments that may be used by the Borrower for the issuance of
Letters of Credit in an aggregate face amount not to exceed $20,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the total LC Exposure at such time.
"LENDER ADDITION AGREEMENT" shall have the meaning assigned to
such term in Section 2.2(b) hereof.
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<PAGE> 16
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued
pursuant to Section 2.22 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment.
"LEVERAGE RATIO" shall mean, as of any date of determination
with respect to the Borrower, the ratio of (i) Consolidated Total Debt as of
such date to (ii) Consolidated EBITDA for the four fiscal quarters then ending.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the rate per annum for deposits in Dollars for a
period equal to such Interest Period appearing on the display designated as Page
3750 on the Dow Jones Markets Service (or such other page on that service or
such other service designated by the British Banker's Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two Business Days prior
to the first day of the Interest Period or if such Page 3750 is unavailable for
any reason at such time, the rate which appears on the Reuters Screen ISDA Page
as of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are
offered to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank market as
of 10:00 a. m. for delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement,
the Notes, the LC documents, all Notices of Borrowing, the Subsidiary Guarantee
Agreement, the Indemnity and Contribution Agreement, the Lender Addition
Agreement, the Pledge Agreement and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing
including any commitment letters or fee letters.
"LOAN PARTIES" shall mean the Borrower, any Subsidiary Loan
Party and any other Subsidiary that delivers a Pledge Agreement.
"LOANS" shall mean all Revolving Loans and Swingline Loans in
the aggregate or any of them, as the context shall require.
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<PAGE> 17
"MARGIN REGULATIONS" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets or liabilities of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their respective obligations under the Loan Documents,
(iii) the rights and remedies of the Administrative Agent, the Issuing Bank and
the Lenders under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
"MATERIAL FOREIGN SUBSIDIARY" shall mean at any time any
direct or indirect wholly-owned Foreign Subsidiary having revenues in an amount
equal to at least 5% of the total revenues of the Borrower and its Subsidiaries
on a consolidated basis for the 12-month period ending on the last day of the
most recent fiscal quarter of the Borrower at such time.
"MINORITY INVESTMENT" shall mean with respect to any Person,
any corporation or other entity (including, without limitation, limited
liability companies, partnerships, joint ventures, and associations) regardless
of its jurisdiction of organization or formation, of which some but not more
than 50% of the total combined voting power of all classes of voting stock or
other ownership interests, at the time as of which any determination is being
made, is owned by such Person, either directly or indirectly through one or more
other Subsidiaries.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTE AGREEMENT" shall mean that certain Note Purchase
Agreement dated as of August 13, 1999 among Concentrex Incorporated (formerly
known as CFI ProServices, Inc.), Ultradata Corporation, Meca Software, LLC,
Moneyscape Holdings, Inc. and the Purchasers listed on Exhibit A thereto
pursuant to which, as of the Closing Date, not more than $7,500,000 in principal
amount is outstanding.
"NOTES" shall mean, collectively, the Revolving Credit Notes
and the Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices
of Revolving Borrowing and the Notices of Swingline Borrowing.
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<PAGE> 18
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.7(b)
hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set
forth in Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set
forth in Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to
the Administrative Agent, the Issuing Bank or any Lender (including the
Swingline Lender) pursuant to or in connection with this Agreement or any other
Loan Document, including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications or
refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i)
any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability (i.e., the guaranteed portion)
of such Person under any Synthetic Lease or (iv) any obligation arising with
respect to any asset securitization program or any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such Person.
"OFFERED RATE" shall mean, for any Interest Period, the rate
as offered by the Swingline Lender and accepted by the Borrower in accordance
with Section 2.5 hereof. The Borrower is under no obligation to accept the
Offered Rate and the Swingline Lender is under no obligation to provide it.
"OTHER TAXES" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section
10.4(c).
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<PAGE> 19
"PAYMENT OFFICE" shall mean the office of the Administrative
Agent located at 303 Peachtree Street, N.E., 25th Floor, Atlanta, Georgia 30308,
or such other location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"PERMITTED ACQUISITIONS" shall mean (i) the Acquisition of
Concentrex and (ii) any other Acquisition so long as (a) at the time of such
Acquisition, no Default or Event of Default is in existence, (b) such
acquisition has been approved by the board of directors of the Person being
acquired prior to any public announcement thereof, and (c) the Total Acquisition
Consideration of any single Acquisition or series of related Acquisitions does
not exceed $50,000,000. As used herein, Acquisitions will be considered related
Acquisitions if the sellers under such Acquisitions are the same Person or any
Affiliate thereof.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which
are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
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<PAGE> 20
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition;
(ii) U.S. Dollar denominated time deposits and
certificates of deposit of (a) any Lender, or (b) any domestic
commercial bank of recognized standing (y) having capital and surplus
in excess of US$500,000,000 and (z) whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof (any such bank being
an "Approved Bank"), in each case with maturities of not more than 270
days from the date of acquisition;
(iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition;
(iv) repurchase agreements entered into by a Person with a
bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of
US$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which such Person shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations;
(v) obligations of any State of the United States or any
political subdivision thereof, the interest with respect to which is
exempt from federal income taxation under Section 103 of the Internal
Revenue Code, having a long term rating of at least AA- or Aa-3 by S&P
or Moody's, respectively, and maturing within three years from the date
of acquisition thereof;
(vi) Investments in municipal auction preferred stock (a)
rated AAA (or the equivalent thereof) or better by S&P or Aaa (or the
equivalent thereof) or better by Moody's and (b) with dividends that
reset at least one every 365 days; and
(vii) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are administered
by reputable financial institutions having
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<PAGE> 21
capital of at least US $100,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (i) through (vi); and
(viii) other Investments deemed to cash equivalents in
accordance with GAAP.
"PERMITTED SECURITIZATION SUBSIDIARY" shall mean any
Subsidiary of the Borrower that (i) is directly or indirectly wholly-owned by
the Borrower, (ii) is formed and operated solely for purposes of a Permitted
Securitization Transaction, (iii) is "bankruptcy remote", (iv) has
organizational documents which limit the permitted activities of such Permitted
Securitization Subsidiary to the acquisition of accounts receivable and related
rights from the Borrower or one or more of its Restricted Subsidiaries, the
securitization of such accounts receivable and related rights and activities
necessary or incidental to the foregoing and (v) meets S&P's requirements for
special purpose entities engaged in securitization of assets.
"PERMITTED SECURITIZATION TRANSACTION" shall mean the
transfer by Borrower or one or more of its Restricted Subsidiaries of
receivables and rights related thereto to one or more Permitted Securitization
Subsidiaries and the related financing of such receivables and rights related
thereto; provided that (i) such transaction is treated as a "sale" of
receivables under Statement of Financial Accounting Standards No. 125,
"Accounting for Transfers and Servicing of Financial Assets and Extinguishment
of Liabilities", (ii) is non-recourse to Borrower and its Restricted
Subsidiaries, except for Standard Securitization Undertakings and (iii) the
aggregate total amount of all receivables at any time subject to all Permitted
Securitization Transactions shall not exceed $75,000,000 in the aggregate.
"PERSON" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PLEDGE AGREEMENT" shall mean a Pledge Agreement,
substantially in the form of Exhibit F executed and delivered by the Borrower or
one or more Loan Parties in favor of the Administrative Agent, for the ratable
benefit of the Lenders, in accordance with Sections 5.10 hereof, together with
all amendments and supplements thereto.
"PRO RATA SHARE" shall mean, with respect to any Lender at any
time, a percentage, the numerator of which shall be the sum of such Lender's
Revolving Commitment and the denominator of which shall be the sum of all
Lenders' Revolving Commitments; or if the Revolving Commitments have been
terminated or expired or if the Loans have been declared to be due and payable,
a percentage, the numerator of which shall be the sum of such Lender's Revolving
Credit Exposure, and the denominator of which shall be the sum of the aggregate
Revolving Credit Exposure of all Lenders.
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<PAGE> 22
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding
more than 50% of the aggregate outstanding Revolving Credit Exposures at such
time or if the Lenders have no Revolving Credit Exposure outstanding, then
Lenders holding more than 50% of the Aggregate Revolving Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer, the controller or a vice president of the Borrower or
such other representative of the Borrower as may be designated in writing by any
one of the foregoing with the consent of the Administrative Agent; and, with
respect to the financial covenants only, the chief financial officer, the
treasurer or the controller of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in
Section 7.5.
"RESTRICTED SUBSIDIARY" means all Subsidiaries of the Borrower
or its Subsidiaries other than a Permitted Securitization Subsidiary.
"REVOLVING COMMITMENT" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower
and to participate in Letters of Credit and Swingline Loans in an aggregate
principal amount not exceeding the amount set forth with respect to such Lender
on the signature pages to this Agreement, or in the case of a Person becoming a
Lender after the Closing Date, either (i) the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance Agreement executed by
such Person as an assignee, or (ii) the amount of "Revolving Commitment" as
provided in any Lender Addition Agreement executed by such Person as an
additional Lender as provided in Section 2.2(b) in each case, as the same may be
changed pursuant to the terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving
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<PAGE> 23
Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other
than the Swingline Lender) to the Borrower under its Revolving Commitment, which
may either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill.
"SOFTWARE BUSINESS" shall mean the operations of the Borrower
and its Subsidiaries which relate to software and technology applications
provided primarily to financial institutions.
"STANDARD SECURITIZATION UNDERTAKINGS" shall mean (i) any
obligations and undertakings of the Borrower and any Restricted Subsidiary on
terms and conditions consistent with sale treatment of receivables and that
result in a "sale" of receivables under Statement of Financial Accounting
Standards No. 125, "Accounting for Transfers and Servicing of Financial Assets
and Extinguishment of Liabilities", as in effect on the date of such transfer
("FASB 125") and (ii) any obligations and undertakings of the Borrower not
inconsistent with sale treatment under FASB 125 in connection with the
Borrower's servicing of receivables.
"SUBSIDIARY" shall mean, with respect to any Person (the
"PARENT"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (ii) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to a "wholly-owned
Subsidiary" shall mean any wholly-owned Subsidiary of the Borrower or any other
wholly-owned Subsidiary of any Subsidiary who is wholly-owned by the Borrower or
any of its direct or indirect wholly-owned Subsidiaries.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit D, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of
the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Restricted Subsidiary
that is required to execute a Subsidiary Guarantee Agreement.
"SWINGLINE COMMITMENT" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding not to exceed $20,000,000.
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<PAGE> 24
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender,
the principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, or any other
Lender that may agree to make Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the principal amount of
the Swingline Commitment, substantially in the form of Exhibit B.
"SYNTHETIC LEASE" shall mean any synthetic lease, tax
retention operating lease or similar off-balance sheet financing product where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease under GAAP.
"TAXES" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"TANGIBLE ASSETS" Shall mean assets which are not Intangible
Assets.
"TOTAL ACQUISITION CONSIDERATION" shall mean as at the date of
any Acquisition, the sum of the following without duplication: (i) the amount of
any cash and fair market value of other property given as consideration,
including at such date the deferred payment of any such amounts, (ii) the amount
(determined by using the outstanding amount or the amount payable at maturity,
whichever is greater) of any obligations for money borrowed incurred, assumed or
acquired by the Borrower or any Subsidiary in connection with such Acquisition,
(iii) all amounts paid in respect of covenants not to compete and consulting
agreements that should be recorded on the financial statements of the Borrower
and its Subsidiaries in accordance with GAAP, and (iv) the aggregate fair market
value of all other consideration given by the Borrower or any Subsidiary
(including any shares of capital stock of the Borrower or any Subsidiary) in
connection with such Acquisition.
"TOTAL TANGIBLE ASSETS" shall mean all of the Tangible Assets
of the Borrower and its subsidiaries on a consolidated basis.
"TYPE", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Base Rate
or the Offered Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan" , or "Swing Line Loan") or by Type (e.g. a "Eurodollar
Loan", "Base Rate Loan" or "Offered Rate Loan") or by Class and Type (e.g.
"Revolving Eurodollar Loan"). Borrowings also may be classified and referred to
by Class (e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar Borrowing")
or by Class and Type (e.g. " Revolving Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent in all material respects (except for material changes approved by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statement of the Borrower delivered pursuant to Section
5.1(a); provided, that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Article VI to eliminate the effect
of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article VI for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
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SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and
upon the terms and conditions herein set forth, (i) the Lenders hereby establish
in favor of the Borrower a revolving credit facility pursuant to which the
Lenders severally agree (to the extent of each Lender's Pro Rata Share up to
such Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.22, (iii) the Swingline Lender agrees to
make Swingline Loans in accordance with Section 2.4, and (iv) each Lender agrees
to purchase a participation interest in the Letters of Credit and the Swingline
Loans pursuant to the terms and conditions hereof; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans,
Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS; INCREASE IN COMMITMENTS. (a)
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make Revolving Loans to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Revolving Commitment or (b) the sum of the aggregate Revolving
Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitments.
During the Availability Period, the Borrower shall be entitled to borrow, prepay
and reborrow Revolving Loans in accordance with the terms and conditions of this
Agreement; provided, that the Borrower may not borrow or reborrow should there
exist a Default or Event of Default.
(b) The Aggregate Revolving Commitment may be increased
following a syndication to banks and other financial institutions acceptable to
the Borrower and the Administrative Agent. In order to effectuate such increase
in the Aggregate Revolving Commitment, the Borrower, the Administrative Agent
and banks and financial institutions who will become a Lender hereunder (A "NEW
LENDER") shall execute and deliver a Lender Addition Agreement, substantially in
the form of Exhibit 2.2(b) attached hereto (A "LENDER ADDITION AGREEMENT"). The
increased Aggregate Revolving Commitment as well as the Revolving Commitment for
the New Lender shall be set forth in the Lender Addition Agreement. As a
condition to the effectiveness of such Lender Addition Agreement, the Borrower
shall deliver to the Agent a Revolving Credit Note payable to the New Lender in
the face amount of the New Lender's Revolving Commitment.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Revolving
Borrowing substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE OF
REVOLVING BORROWING") (x) prior to 11:00 a.m. one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to the requested date of each Eurodollar Borrowing. Each
Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto (subject to the
provisions
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of the definition of Interest Period). Each Revolving Borrowing shall consist
entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request.
The aggregate principal amount of each Eurodollar Borrowing shall be not less
than $5,000,000 or a larger multiple of $1,000,000, and the aggregate principal
amount of each Base Rate Borrowing shall not be less than $1,000,000 or a larger
multiple of $100,000; provided, that Base Rate Loans made pursuant to Section
2.5 or Section 2.22(c) may be made in lesser amounts as provided therein. At no
time shall the total number of Eurodollar Borrowings outstanding at any time
exceed ten. Promptly following the receipt of a Notice of Revolving Borrowing in
accordance herewith, the Administrative Agent shall advise each Lender of the
details thereof and the amount of such Lender's Revolving Loan to be made as
part of the requested Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect and (ii) the difference between the
Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures of
all Lenders; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) The
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing ("NOTICE OF
SWINGLINE BORROWING") prior to 10:00 a.m. on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender (the "Offered Rate") and shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Swingline Lender. The
Swingline Lender will make the proceeds of each Swingline Loan available to the
Borrower in Dollars in immediately available funds at the account specified by
the Borrower in the applicable Notice of Swingline Borrowing not later than 1:00
p.m. on the requested date of such Swingline Loan. The Administrative Agent will
notify the Lenders on a quarterly basis if any Swingline Loans occurred during
such quarter.
(b) If (i) any Swingline Loan matures and remains unpaid;
(ii) any Default or Event of Default occurs or (iii) the Swingline Lender's
total amount of outstanding aggregate Revolving Credit Exposures and Swingline
Loans exceed the Swingline Lender's Revolving Commitment, then the Swingline
Lender, may, on behalf of the Borrower (which hereby irrevocably authorizes and
directs the Swingline Lender to act on its behalf), give a Notice of Revolving
Borrowing to the Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid
principal amount of any Swingline Loan. Each Lender will make the proceeds of
its Base Rate Loan included in
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such Borrowing available to the Administrative Agent for the account of the
Swingline Lender in accordance with Section 2.6, which will be used solely for
the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other than
the Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan
pursuant to Section 2.5(b) or to purchase the participating interests pursuant
to Section 2.5(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof at the
Federal Funds Rate. Until such time as such Lender makes its required payment,
the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan
Documents. In addition, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans and any other amounts due
to it hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section, until such amount has been purchased in full.
SECTION 2.6. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made
by it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. to the Administrative Agent at the Payment Office;
provided, that the Swingline Loans will be made as set forth in Section 2.5. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close of business
on such proposed date, to an account maintained by the Borrower with the
Administrative Agent or at the Borrower's option, by effecting a wire transfer
of such amounts to an account designated by the Borrower to the Administrative
Agent.
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(b) Unless the Administrative Agent shall have been
notified by any Lender prior to 5 p.m. one (1) Business Day prior to the date of
a Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate for up
to two (2) days and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders
on the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
SECTION 2.7. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type
specified in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall NOT apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "NOTICE OF
CONVERSION/CONTINUATION") that is to be converted or continued, as the case may
be, (x) prior to 10:00 a.m. one (1) Business Day prior to the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting
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Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) shall be specified for each resulting Borrowing); (ii) the
effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of "Interest Period". If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month. The principal amount of any resulting Borrowing
shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base
Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in
respect of any Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing is repaid as
provided herein, the Borrower shall be deemed to have elected to convert such
Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or
continued as, a Eurodollar Borrowing if a Default or an Event of Default exists,
unless the Administrative Agent and each of the Lenders shall have otherwise
consented in writing. No conversion of any Eurodollar Loans shall be permitted
except on the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of
Conversion/Continuation, the Administrative Agent shall promptly notify each
Lender of the details thereof and of such Lender's portion of each resulting
Borrowing.
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS.
(a) Unless previously terminated, all Revolving
Commitments and the Swingline Commitment shall terminate on the Commitment
Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.8 shall be in an
amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii)
no such reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders.
SECTION 2.9. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving
Loans shall be due and payable (together with accrued and unpaid interest
thereon) on the Commitment Termination Date.
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(b) The principal amount of each Swingline Borrowing
shall be due and payable (together with accrued interest thereon) on the earlier
of (i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Commitment Termination Date.
SECTION 2.10. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.7, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.7, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower agrees that it will execute and deliver to
such Lender a Revolving Credit Note and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such Lender.
SECTION 2.11. OPTIONAL PREPAYMENTS. The Borrower shall have
the right at any time and from time to time to prepay any Borrowing, in whole or
in part, without premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent no
later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m.
not less than three (3) Business Days prior to any such prepayment, (ii) in the
case of any prepayment of any Base Rate Borrowing, not less than one Business
Day prior to the date of such prepayment, and (iii) in the case of Swingline
Borrowings, prior to 11:00 a. m. on the date of such prepayment; provided, that
any prepayment of Eurodollar Borrowings must be in an amount of at least
$5,000,000 and any larger multiple of $1,000,000 and any prepayment of Base Rate
Borrowings must be in an amount of at least $1,000,000 and any larger multiple
of $100,000. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.12; provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.18. Each partial prepayment of any Loan (other
than
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a Swingline Loan) shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or
in the case of a Swingline Loan pursuant to Section 2.5. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
SECTION 2.12. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate
Loan at the Base Rate in effect from time to time and on each Eurodollar Loan at
the Adjusted LIBO Rate for the applicable Interest Period in effect for such
Loan, plus, in the case of a Eurodollar Loan, the Applicable Margin in effect
from time to time.
(b) The Borrower shall pay interest on each Swingline
Loan at the Base Rate or Offered Rate in effect from time to time.
(c) While an Event of Default exists or after
acceleration, at the option of the Required Lenders, the Borrower shall pay
interest ("DEFAULT INTEREST") with respect to all Eurodollar Loans at the rate
otherwise applicable for the then-current Interest Period plus an additional 2%
per annum until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and Offered Rate Loans (including all Swingline
Loans) and all other Obligations hereunder (other than Loans), at an all-in rate
in effect for Base Rate Loans, plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the date
of any repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months , on each day which occurs every three months,
after the initial date of such Interest Period, and on the Commitment
Termination Date. Interest on each Swingline Loan shall be payable on the
maturity date of such Loan, which shall be the last day of the Interest Period
applicable thereto, and on the Commitment Termination Date. Interest on any Loan
which is converted into a Loan of another Type or which is repaid or prepaid
shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof. All Default
Interest shall be payable on demand.
(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing). Any such determination shall be conclusive and binding
for all purposes, absent manifest error.
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SECTION 2.13. FEES.
(a) The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Percentage on the daily amount of the unused
Revolving Commitment of such Lender during the Availability Period. Accrued
commitment fees shall be payable in arrears on the last day of each March, June,
September and December of each year and on the Commitment Termination Date,
commencing on the first such date after the Closing Date. For purposes of
computing commitment fees with respect to the Revolving Commitments, the
Revolving Commitment of each Lender shall be deemed used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender.
(c) Letter of Credit Fees. The Borrower agrees to pay (i)
to the Administrative Agent, for the account of each Lender, a letter of credit
fee with respect to its participation in each Letter of Credit, which shall
accrue at the Applicable Margin then in effect on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) attributable to such Letter of Credit during the
period from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter expires or is drawn in full (including
without limitation any LC Exposure that remains outstanding after the Commitment
Termination Date) and (ii) to the Issuing Bank for its own account a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the Availability Period (or until the date
that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder.
(d) Payments. Accrued fees shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing
on September 30, 2000 and on the Commitment Termination Date (and if later, the
date the Loans and LC Exposure shall be repaid in their entirety).
SECTION 2.14. COMPUTATION OF INTEREST AND FEES.
Interest based on the prime rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap year) and paid for the
actual number of days elapsed (including the first day but excluding the last
day). All other interest (including any interest at the Adjusted LIBO Rate) and
all fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Each determination by the Administrative Agent of an interest amount or
fee hereunder shall be made in good faith and, except for manifest error, shall
be final, conclusive and binding for all purposes.
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SECTION 2.15. INABILITY TO DETERMINE INTEREST RATES. If prior
to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such Interest
Period, or
(ii) the Administrative Agent shall have received notice
from the Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or Lender, as
the case may be) of making, funding or maintaining their (or its, as
the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.16. ILLEGALITY. If any Change in Law shall make in
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
SECTION 2.17. INCREASED COSTS.
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(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise included
in the determination of the Adjusted LIBO Rate hereunder against assets
of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted
LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have
determined that on or after the date of this Agreement any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital (or on the capital of
such Lender's or the Issuing Bank's parent corporation) as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's parent corporation could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies or the policies
of such Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) by an amount deemed by such Lender to be material, then, from
time to time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's parent
corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand
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compensation pursuant to this Section shall not constitute a waiver of such
Lender's or the Issuing Bank's right to demand such compensation; provided, that
the Borrower shall not be required to compensate a Lender or the Issuing Bank
under this Section for any increased costs or reductions incurred more than six
(6) months prior to the date that such Lender or the Issuing Bank notifies the
Borrower of such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefor; provided further, that
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then such six-month period shall be extended to include the period
of such retroactive effect.
SECTION 2.18. FUNDING INDEMNITY. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, or (c) the failure by
the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the
date specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked), then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurodollar Loan
if such event had not occurred at the Adjusted LIBO Rate applicable to such
Eurodollar Loan for the period from the date of such event to the last day of
the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount payable
under this Section 2.18 submitted to the Borrower by any Lender shall be
conclusive, absent manifest error.
SECTION 2.19. TAXES.
(a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any Lender
or the Issuing Bank (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative
Agent, each Lender and
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the Issuing Bank, within five (5) Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate. Without limiting
the generality of the foregoing, each Foreign Lender agrees that it will deliver
to the Administrative Agent and the Borrower (or in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two (2) duly completed copies of Internal Revenue Service Form W-8ECI or W-8BEN,
or any successor form thereto, as the case may be, certifying in each case that
such Foreign Lender is entitled to receive payments made by the Borrower
hereunder and under the Notes payable to it, without deduction or withholding of
any United States federal income taxes and (ii) a duly completed Internal
Revenue Service Form W-8 or W-9, or any successor form thereto, as the case may
be, to establish an exemption from United States backup withholding tax. Each
such Foreign Lender shall deliver to the Borrower and the Administrative Agent
such forms on or before the date that it becomes a party to this Agreement (or
in the case of a Participant, on or before the date such Participant purchases
the related participation). In addition, each such Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Lender. Each such Lender shall promptly notify the Borrower
and the Administrative Agent at any time that it determines that it is no longer
in a position to provide any previously delivered certificate to the Borrower
(or any other form of certification adopted by the U.S. taxing authorities for
such purpose).
SECTION 2.20. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.17, 2.18 or 2.19, or
otherwise) prior to 12:00 noon, on the date
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when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except payments
to be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.17, 2.18 and
2.19 and 10.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements and Swingline Loans;
provided, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements or Swingline Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
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(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount or amounts due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.5(b), 2.20(c) or (d), 2.22 (d) or
10.3(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.21. MITIGATION OF OBLIGATIONS. (a) If any Lender
requests compensation under Section 2.17, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.19, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the sole judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable under Section 2.17 or Section 2.19, as the case may be, in the future
and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all costs and expenses incurred by any Lender in connection with
such designation or assignment.
SECTION 2.22. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section 2.22(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, that (i) each Letter of Credit shall expire on the date one year after
the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension); provided, that no
Letter of Credit shall be issued or renewed on or after the Commitment
Termination Date; (ii) each Letter of Credit shall be in a stated amount of at
least $5,000; and (iii) the Borrower may not request any Letter of Credit, if,
after giving effect to such issuance (A) the aggregate LC Exposure would exceed
the LC Commitment or (B) the aggregate LC Exposure, plus the aggregate
outstanding Revolving Loans of all Lenders, would exceed the Aggregate Revolving
Commitments. Upon the issuance of each Letter of Credit each Lender shall be
deemed to, and hereby irrevocably and unconditionally
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agrees to, purchase from the Issuing Bank without recourse a participation in
such Letter of Credit equal to such Lender's Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit. Each issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, the amount of such Letter of
Credit , the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions that such
Letter of Credit shall be in such form and contain such terms as the Issuing
Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of
Credit as the Issuing Bank shall reasonably require; provided, that in the event
of any conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received
such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit directing the
Issuing Bank not to issue the Letter of Credit because such issuance is not then
permitted hereunder because of the limitations set forth in Section 2.22(a) or
that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents
purporting to represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the Borrower and
the Administrative Agent of such demand for payment and whether the Issuing Bank
has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior
to the date on which such drawing is honored that the Borrower intends to
reimburse the Issuing Bank for the amount of such drawing in funds other than
from the proceeds of Revolving Loans, the Borrower shall be deemed to have
timely given a Notice of
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Revolving Borrowing to the Administrative Agent requesting the Lenders to make a
Base Rate Borrowing on the date on which such drawing is honored in an exact
amount due to the Issuing Bank; provided, that for purposes solely of such
Borrowing, the conditions precedents set forth in Section 3.2 hereof shall not
be applicable. The Administrative Agent shall notify the Lenders of such
Borrowing in accordance with Section 2.3, and each Lender shall make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Issuing Bank in accordance with
Section 2.6. The proceeds of such Borrowing shall be applied directly by the
Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other than
the Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) of this Section 2.22 on the
due date therefor, such Lender shall pay interest to the Issuing Bank (through
the Administrative Agent) on such amount from such due date to the date such
payment is made at a rate per annum equal to the Federal Funds Rate; provided,
that if such Lender shall fail to make such payment to the Issuing Bank within
three (3) Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the Default
Rate.
(g) If (i) any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of cash
collateral pursuant to this paragraph, or (ii) on the Commitment
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Termination Date, there are any Letters of Credit outstanding hereunder, then in
either case the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, with demand or notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Such deposits shall, at the Borrower's expense,
be held in an interest bearing account which shall bear interest at an interest
rate which is customary for overnight deposits of such type. Interest and
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it had not been reimbursed and to the extent
so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated, with the consent of the Required Lenders, be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
so applied as aforesaid) shall be returned to the Borrower with three Business
Days after all Events of Default have been cured or waived. Notwithstanding the
foregoing, in the event that there are any Letters of Credit outstanding on the
Commitment Termination Date and there is no Event of Default then in existence,
in lieu of depositing cash collateral as set forth above, the Borrower may
deliver a letter of credit (issued by a financial institution acceptable to the
Administrative Agent) payable to the Administrative Agent, for the benefit of
the Lenders, in form and substance satisfactory to the Administrative Agent
which assures the Required Lenders satisfaction of all reimbursement obligations
of the Borrower for the LC Exposure at such time.
(h) Promptly following the end of each fiscal quarter,
the Issuing Bank shall deliver (through the Administrative Agent) to each Lender
and the Borrower a report describing the aggregate Letters of Credit outstanding
at the end of such fiscal quarter. Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The Borrower's obligation to reimburse LC
Disbursements hereunder shall be absolute, unconditional and irrevocable and
shall be performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of
any Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense
or other right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against
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a beneficiary or any transferee of any Letter of Credit (or any Persons
or entities for whom any such beneficiary or transferee may be acting),
any Lender (including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under
a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) Payment by the Issuing Bank under a Letter
of Credit against presentation of a draft or other document to the
Issuing Bank that does not comply with the terms of such Letter of
Credit;
(v) Any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge
of, or provide a right of setoff against, the Borrower's obligations
hereunder; or
(vi) The existence of a Default or an Event of
Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree, that in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Unless otherwise expressly agreed by the Issuing Bank
and the Borrower when a Letter of Credit is issued and subject to applicable
laws, performance under Letters of Credit by the Issuing Bank, its
correspondents, and the beneficiaries thereof will be governed by
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the rules of the "International Standby Practices 1998" (ISP98) (or such later
revision as may be published by the Institute of International Banking Law &
Practice on any date any Letter of Credit may be issued) and to the extent not
inconsistent therewith, the governing law of this Agreement set forth in Section
10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent) required
to be reimbursed or paid by the Borrower hereunder, under any other Loan
Document and under any agreement with the Administrative Agent or SunTrust
Equitable Securities Corporation, as Arranger unless, in the case of
out-of-pocket expenses, the Administrative Agent shall have agreed to accept
such reimbursement or payment after the Closing Date.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or
on behalf of each party thereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;
(ii) duly executed Notes payable to each Lender;
(iii) a duly executed Subsidiary Guarantee
Agreement and Indemnity and Contribution Agreement for all wholly-owned
Restricted Subsidiaries (other than Foreign Subsidiaries) existing as
of the Closing Date;
(iv) a certificate of the Secretary or Assistant
Secretary of each Loan Party, attaching and certifying copies of its
bylaws and of the resolutions of its boards of directors (or any duly
authorized Executive Committee thereof), authorizing the execution,
delivery and performance of the Loan Documents to which it is a party
and certifying the name, title and true signature of each officer of
such Loan Party executing the Loan Documents to which it is a party;
(v) certified copies of the articles of
incorporation or other charter documents of each Loan Party, together
with certificates of good standing or existence,
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as may be available from the Secretary of State of the jurisdiction of
incorporation of such Loan Party and to the extent different from the
jurisdiction of incorporation, the jurisdiction where such Loan Party
has its principal place of business;
(vi) a favorable written opinion of King &
Spalding, counsel to the Loan Parties, substantially in the form of
Exhibit G-1 attached hereto, addressed to the Administrative Agent and
each of the Lenders;
(vii) a favorable written opinion of Stoel Rives,
local counsel to the Loan Parties, substantially in the form of Exhibit
G-2 attached hereto, addressed to the Administrative Agent and each of
the Lenders;
(viii) a certificate, dated the Closing Date and
signed by a Responsible Officer, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;
(ix) duly executed Notices of Borrowing, if
applicable;
(x) Satisfactory results of lien searches
performed against Concentrex in such locations as determined by the
Administrative Agent;
(xi) a duly executed funds disbursement
agreement; and
(xii) duly executed payoff letters, in form and
substance satisfactory to Administrative Agent, executed by each lender
holding Indebtedness to be refinanced at closing (which shall include
all obligations under Borrower's $85,000,000 private placement,
Borrower's $15,000,000 term loan facility and all Indebtedness for
borrowed money of Concentrex other than purchase money debt, capital
leases and obligations under the Note Agreement), together with all
documents reasonably required by Administrative Agent to evidence the
payoff of such Indebtedness.
(c) the Administrative Agent shall have received such
other documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such
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Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto; and
(c) since the date of the most recent financial
statements of the Borrower described in Section 5.1(a), there shall have been no
change which has had or could reasonably be expected to have a Material Adverse
Effect.
Each Borrowing and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and any other Loan
Party (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required,
stockholder action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or
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filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on the Borrower or any of its
Subsidiaries or any of its assets or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished
to each Lender (i) the audited consolidated balance sheet of the Borrower and
its Subsidiaries and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal years ending December 31,
1997, December 31, 1998 and December 31, 1999 prepared by Deloitte & Touche LLP;
(ii) the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of the fiscal quarter ending June 30, 2000, and the
related unaudited consolidated statements of income and cash flows for the
fiscal quarter and year-to-date period then ending, certified by a Responsible
Officer and (iii) the audited consolidated balance sheet of Concentrex
Incorporated and its Subsidiaries and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal years ending December
31, 1997, December 31, 1998 and December 31, 1999 prepared by Arthur Andersen
LLP and (iv) the unaudited consolidated balance sheet of Concentrex Incorporated
and its Subsidiaries as at the end of the fiscal quarter ending March 31, 2000,
and the related unaudited consolidated statements of income and cash flows for
the fiscal quarter and year-to-date period then ending. Such financial
statements identified in clauses (i) and (ii) fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as of such dates and
the consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Such
financial statements identified in clauses (iii) and (iv) present fairly the
consolidated financial condition of Concentrex Incorporated and its Subsidiaries
as of such dates and the consolidated results of operating such for periods in
conformity with GAAP consistently applied. Since December 31, 1999, there have
been no changes with respect to the Borrower and its Subsidiaries which have had
or could reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or
before any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii) which in any
manner draws into question the validity or enforceability of this Agreement or
any other Loan Document.
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(b) Except for the matters set forth on Schedule 4.5,
neither the Borrower nor any of its Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability, except where such failure or notice could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower
and each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations and orders of any Governmental Authority, and (b) all indentures,
agreements or other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company", as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, (b)
a "holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) otherwise subject to any
other regulatory scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves.
SECTION 4.9. MARGIN REGULATIONS. Other than with respect to
the acquisition of the common stock of Concentrex Incorporated, none of the
proceeds of any of the Loans or Letters of Credit will be used for "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of such
terms under the Margin Regulations. None of the proceeds of any of the Loans or
Letters of Credit (including any proceeds which are used to purchase the common
stock of Concentrex Incorporated) will be used for any purpose that violates the
provisions of the applicable Margin Regulations.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the
fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial
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Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good
and marketable title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business and which was
described in the most recent financial statements delivered pursuant to Section
5.1.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, free from any burdensome
restriction, all patents, trademarks, service marks, tradenames, copyrights and
other intellectual property material to its business except for any failure
that, individually or in the aggregate, would not have a Material Adverse
Effect, and the use thereof by the Borrower and its Subsidiaries does not
infringe on the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material Adverse
Effect.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts
or other material labor disputes or grievances pending against the Borrower or
any of its Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect. All payments due from the Borrower or any of its
Subsidiaries pursuant to the provisions of any collective bargaining agreement
have been paid or accrued as a liability on the books of the Borrower or any
such Subsidiary, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name
of, the ownership interest of the Borrower or any other Subsidiary in, the
jurisdiction of incorporation of, and the type of, each Subsidiary and
identifies each Subsidiary that is a Subsidiary Loan Party and each Subsidiary
that is a Foreign Subsidiary or a Material Foreign Subsidiary.
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SECTION 4.15. INDEBTEDNESS; INVESTMENTS AND LIENS. Schedules
7.1, 7.2 and 7.4 attached hereto sets forth all Indebtedness, Liens (other than
Permitted Encumbrances) and Investments (other than Permitted Investments),
respectively, of the Loan Parties as of the Closing Date (other than
Indebtedness and Liens which will be paid on the Closing Date).
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of and interest on any Loan or any
fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.
The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower, a copy of the annual audited
report for such fiscal year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable
detail and reported on by Deloitte & Touche, LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its Subsidiaries for such fiscal
year on a consolidated basis in accordance with GAAP and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Borrower, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal quarter and the related unaudited
consolidated statements of income, stockholders equity and cash flows of the
Borrower and its Subsidiaries for such fiscal quarter and the then elapsed
portion of such fiscal year, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all certified by the chief financial officer,
the controller or treasurer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes;
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(c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer, (i) certifying as to whether there exists a Default or
Event of Default on the date of such certificate, and if a Default or an Event
of Default then exists, specifying the details thereof and the action which the
Borrower has taken or proposes to take with respect thereto, (ii) setting forth
in reasonable detail calculations demonstrating compliance with Article VI and
(iii) stating whether any change in GAAP or the application thereof has occurred
since the date of the Borrower's audited financial statements referred to in
Section 4.4 and, if any change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial
statements referred to in clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.2 NOTICES OF MATERIAL EVENTS. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or, to
the knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development
by which the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
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(d) the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $5,000,000; and
(e) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and maintain in full force and effect its
legal existence and its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and requirements of any Governmental Authority applicable to its properties,
except where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5. PAYMENT OF TAX AND OTHER LIABILITIES. The
Borrower will, and will cause each of its Subsidiaries to, pay and discharge at
or before maturity all of its tax liabilities and its other liabilities and
claims that could result in a statutory Lien before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make such payment could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will,
and will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the
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Administrative Agent or any Lender may reasonably request after reasonable prior
notice to the Borrower.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
SECTION 5.9. USE OF PROCEEDS; MARGIN REGULATIONS AND LETTERS
OF CREDIT. The Borrower will use the proceeds of all Loans to finance working
capital needs, Permitted Acquisitions, capital expenditures and for other
general corporate purposes of the Borrower and its Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including the Margin Regulations. All Letters of
Credit will be used for general corporate purposes.
SECTION 5.10. SUBSIDIARY GUARANTEES; PLEDGE AGREEMENTS;
RELEASES.
(a) If any wholly-owned Restricted Subsidiary is acquired
or formed after the Closing Date or if any previously owned Restricted
Subsidiary which was not wholly-owned becomes wholly-owned after the Closing
Date (in each case other than any Foreign Subsidiary), the Borrower will, within
ten (10) Business Days after such Restricted Subsidiary is acquired or formed or
becomes wholly-owned, notify the Administrative Agent thereof and within 30 days
from the date of acquisition, creation or formation, will cause such Restricted
Subsidiary to become a Subsidiary Loan Party by executing agreements in the form
of Annex I to Exhibit D and Annex I to Exhibit E in form and substance
satisfactory to the Administrative Agent and shall deliver such documents as the
Administrative Agent may reasonably request (including without limitation,
certificates of incorporation, articles of incorporation and bylaws, membership
operating agreements of the Restricted Subsidiary and opinion letters and
appropriate resolutions of the Board of Directors of such Restricted
Subsidiary); provided, that upon the merger of JH Acquisition Corp. into
Concentrex Incorporated, Concentrex Incorporated shall be obligated to deliver
an Assumption Agreement, substantially in the form of Exhibit H attached hereto,
and shall deliver such documents as the Administrative Agent may reasonably
request (including without limitation, certified copies of articles of
incorporation and bylaws of Concentrex Incorporated and opinion letters and
appropriate resolutions of the Board of Directors of Concentrex Incorporated).
(b) If any Material Foreign Subsidiary is acquired or
formed after the Closing Date or if any previously owned Foreign Subsidiary
which is not a Material Foreign Subsidiary becomes a Material Foreign
Subsidiary, the Borrower will, within ten (10) Business Days after such Material
Foreign Subsidiary is acquired or formed or becomes a Material Foreign
Subsidiary, notify the Administrative Agent thereof and will within 60 days from
the date of
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acquisition, creation, formation of such Material Foreign Subsidiary or from the
date such Subsidiary becomes a Material Foreign Subsidiary, cause the Borrower
or any Subsidiary Loan Party who owns such Material Foreign Subsidiary to pledge
65% of the capital stock (and deliver related stock powers) of such Material
Foreign Subsidiary pursuant to a Pledge Agreement and shall deliver such
documents as the Administrative Agent may reasonably request (including without
limitation, certified copies of articles of incorporation and bylaws, membership
operating agreements of the Material Foreign Subsidiary and opinion letters and
appropriate resolutions of the Board of Directors of the Borrower or such
Subsidiary pledging such capital stock). Notwithstanding the foregoing, the
Agent may, in its discretion, extend the period for delivery of the Pledge
Agreement, stock certificates and related documents referenced in the preceding
sentence if it believes the Borrower is using its reasonable best efforts to
deliver such documents.
(c) In the event that any Subsidiary Loan Party or
Material Foreign Subsidiary is dissolved as permitted in Section 7.3 or sold or
disposed of as permitted by Section 7.6 hereof, then such Subsidiary Loan Party
shall be released from all obligations under the Subsidiary Guarantee Agreement
and Indemnity and Contribution Agreement which it had previously delivered to
the Agent and to the extent any capital stock of such Material Foreign
Subsidiary has been pledged pursuant to a Pledge Agreement, then such capital
stock shall be released. Such release shall occur upon the consummation of the
dissolution or sale of any such Subsidiary, as the case may be, and the
Administrative Agent shall execute and deliver any releases or other documents
reasonably requested by the Borrower to effectuate such release.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on or any Loan
remains unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
SECTION 6.1. LEVERAGE RATIO. The Borrower will have, as of the
end of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2000, a Leverage Ratio of not greater than 3.00 to 1.00.
SECTION 6.2. FIXED CHARGE COVERAGE RATIO. The Borrower will
have, as of the end of each fiscal quarter of the Borrower, commencing with the
fiscal quarter ending September 30, 2000, a Fixed Charge Coverage Ratio of not
less than 2.50 to 1.00.
SECTION 6.3. CONSOLIDATED NET WORTH The Borrower will not
permit its Consolidated Net Worth at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending September 30, 2000, to be
less than an amount equal to $141,000,000, plus 50% of Consolidated Net Income
on a cumulative basis for all fiscal quarters of the Borrower preceding the date
of determination, commencing with the fiscal quarter beginning July 1, 2000;
provided, that if Consolidated Net Income is negative in any fiscal quarter the
amount added for
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such fiscal quarter shall be zero and such negative Consolidated Net Income
shall not reduce the amount of Consolidated Net Income added from any previous
fiscal quarter, plus (iii) 100% of the net proceeds from any equity offering,
plus (iv) any non-cash charges actually taken which are associated with the
accelerated write-off of any tangible or intangible assets related to the
acquisition of Concentrex or to the Software Business provided that such amounts
do not exceed $15,000,000 in the aggregate through the Commitment Termination
Date.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set
forth on Schedule 7.1 (other than obligations under the Note Agreement which
shall be subject to clause (g) hereof) and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) unless permitted under this Section 7.1;
(c) Indebtedness of the Borrower or any Subsidiary (other
than any Indebtedness under any Synthetic Lease) incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets secured by a Lien on any such assets
prior to the acquisition thereof; provided, that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvements; provided, further, that the aggregate principal
amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary
and of any Subsidiary owing to the Borrower or any other Subsidiary; provided,
that any such Indebtedness that is owed to a Subsidiary that is not a Subsidiary
Loan Party shall be subject to Section 7.4;
(e) Guarantees by the Borrower of Indebtedness of any
Subsidiary or Minority Investment and by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary or Minority Investment; provided, that
Guarantees by any Loan Party of Indebtedness of any Subsidiary or Minority
Investment that is not a Subsidiary Loan Party shall be subject to Section 7.4;
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(f) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10; and
(g) Indebtedness under Synthetic Leases and other
unsecured Indebtedness in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding; and
(h) Indebtedness of the Borrower or any Restricted
Subsidiary (i) resulting from the transfer of any receivable in connection with
a Permitted Securitization Transaction so long as such Indebtedness is
non-recourse as to the Borrower or any Restricted Subsidiary (other than as to
the transferred receivables and related property) and (ii) consisting of
Standard Securitization Undertakings in connection with any Permitted
Securitization Transaction; and
(i) Indebtedness of any Permitted Securitization
Subsidiary incurred in connection with any Permitted Securitization Transaction.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Liens created in favor of the Administrative Agent
for the benefit of the Lenders pursuant to any Pledge Agreement;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or
any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of construction or improvement
of such fixed or capital assets or to secure Indebtedness incurred solely for
the purpose of financing the acquisition, construction or improvement of such
fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by
Section 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90
days after the acquisition, improvement or completion of the construction
thereof; (iii) such Lien does not extend to any other asset; and (iv) the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing
or improving such fixed or capital assets;
(e) Liens, if any, upon or in any fixed or capital assets
to secure any Synthetic Lease permitted under Section 7.1(g);
(f) extensions, renewals, or replacements of any Lien
referred to in paragraphs (a) through (e) of this Section; provided, that the
principal amount of the Indebtedness secured thereby is not increased and that
any such extension, renewal or replacement is limited to the assets originally
encumbered thereby;
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(g) any Lien against the Borrower or any Restricted
Subsidiary evidencing the transfer of any receivables and related property to
any Permitted Securitization Subsidiary pursuant to any Permitted Securitization
Transaction; and
(h) any Lien against a Permitted Securitization
Subsidiary pursuant to any Permitted Securitization Transaction.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or liquidate or dissolve;
provided, that if at the time thereof and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
(i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or
such Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into another Subsidiary; provided, that if
any party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party
shall be the surviving Person or the Subsidiary into whom the Subsidiary Loan
Party is merged into must expressly assume all obligations under the Subsidiary
Guarantee and become a Subsidiary Loan Party (and deliver to the Administrative
Agent all appropriate documents, opinions and certificates referenced in Section
5.10), (iii) any Subsidiary may merge into another Person in order to consummate
a Permitted Acquisition; provided, that if any party to such merger is a
Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person
or the Person into whom the Subsidiary Loan Party is merged into must expressly
assume all obligations under the Subsidiary Guarantee and become a Subsidiary
Loan Party (and deliver to the Administrative Agent all appropriate documents,
opinions and certificates referenced in Section 5.10), (iv) any Subsidiary
(other than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
and (v) any Subsidiary Loan Party may liquidate or dissolve provided that the
assets of such Subsidiary Loan Party are transferred or liquidated into the
Borrower or any other Subsidiary Loan Party.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date hereof and businesses reasonably related thereto (including the
securitization of receivables by any Permitted Securitization Subsidiary).
SECTION 7.4. INVESTMENTS, LOANS, ACQUISITIONS, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of the foregoing
being collectively called "INVESTMENTS"), or consummate any Acquisition, except:
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(a) Investments (other than Permitted Investments)
existing on the date hereof and set forth on Schedule 7.4 (including Investments
in Subsidiaries set forth on Schedule 7.4);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by
Section 7.1; provided, that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan
Party shall be subject to the limitation set forth in clause (d) hereof;
(d) Investments made by the Borrower in or to any
Subsidiary or any Minority Investment and by any Subsidiary to the Borrower or
in or to another Subsidiary or Minority Investment; provided, that the aggregate
amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties
of Indebtedness of any Subsidiary or Minority Investment that is not a
Subsidiary Loan Party (excluding all such Investments and Guarantees existing on
the Closing Date described in Schedule 7.4) shall not exceed at any time
outstanding an amount equal to the sum of (i) $25,000,000 plus (ii) the proceeds
received by the Borrower from the sale or other disposition of its investment in
Bottomline Technologies, Inc.;
(e) initial Investments made by the Borrower in
Concentrex prior to Concentrex becoming a guarantor in an amount not to exceed
$125,000,000 the proceeds of which are used to purchase common stock of
Concentrex Incorporated and to satisfy certain Indebtedness of Concentrex;
(f) loans or advances to employees, officers or directors
of the Borrower or any Subsidiary in the ordinary course of business;
(g) Hedging Agreements permitted by Section 7.10;
(h) Permitted Acquisitions;
(i) Investments which are received by the Borrower or any
Subsidiary in consideration of any sale or other disposition of assets permitted
by Sections 7.6(d) and (e); and
(j) Investments in Permitted Securitization Subsidiaries
pursuant to any Permitted Securitization Transaction.
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock of the Borrower or any options, warrants, or other
rights to purchase such common stock, whether now or hereafter outstanding
(each, a "RESTRICTED PAYMENT"), if a Default or Event of Default has occurred
and is continuing or would be caused
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by the making of such Restricted Payment (except for dividends payable by the
Borrower solely in shares of any class of its common stock).
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will
not permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's common stock to any Person other than the Borrower
or a Subsidiary Loan Party (or to qualify directors if required by applicable
law), except:
(a) the sale or other disposition for fair value, if any,
of obsolete or worn out property or the sale or other disposition for fair value
of other property not necessary for operations disposed of in the ordinary
course of business (including any dispositions associated with a closed plant);
(b) the sale of inventory and Permitted Investments in
the ordinary course of business; and
(c) the sale of any asset pursuant to any sale-leaseback
transaction permitted under Section 7.9 hereof;
(d) provided that no Default or Event of Default has
occurred and is continuing or would be caused thereby, the sale or other
disposition of Intangible Assets related to the Borrower's Software Business
provided that the aggregate book value of all such Intangible Assets sold or
disposed under this clause (d) from the Closing Date through the Commitment
Termination Date shall not exceed $126,000,000;
(e) provided that no Default or Event of Default has
occurred and is continuing or would be caused thereby, the sale or other
disposition of Tangible Assets related to the Borrower's Software Business
provided that the aggregate book value of all such Tangible Assets sold or
disposed under this clause (e) from the Closing Date through the Commitment
Termination Date shall not exceed $76,000,000;
(f) provided that no Default or Event of Default has
occurred and is continuing or would be caused thereby, the sale or other
disposition of assets which are unrelated to the Software Business, provided
that the aggregate book value of all assets sold or disposed hereunder
(excluding assets sold under clauses (a) - (e) above) from the Closing Date
through the Commitment Termination Date shall not exceed 10% of the book value
of Total Tangible Assets calculated at the time immediately prior to the
proposed sale or disposition; and
(g) the sale of any receivables and related property to
one or more Permitted Securitization Subsidiaries so long as such sale is made
to consummate a Permitted Securitization Transaction.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or
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purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions between or
among the Borrower and any Subsidiary Loan Party not involving any other
Affiliates, (c) transactions between or among the Borrower and any of its
Subsidiaries on the one hand and any Minority Investment or any Subsidiary which
is not a Subsidiary Loan Party on the other hand subject to the limitations set
forth in Section 7.4, (d) any Restricted Payment permitted by Section 7.5 and
(e) transactions between the Borrower and any Restricted Subsidiary on the one
hand and any Permitted Securitization Subsidiary on the other hand pursuant to
any Permitted Securitization Transaction.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any wholly-owned Restricted Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
wholly-owned Subsidiary to create, incur or permit any Lien upon any of its
assets or properties, whether now owned or hereafter acquired, or (b) the
ability of any wholly-owned Subsidiary to pay dividends or other distributions
with respect to its common stock, to make or repay loans or advances to the
Borrower or any other Subsidiary, to Guarantee Indebtedness of the Borrower or
any other Subsidiary or to transfer any of its property or assets to the
Borrower or any Subsidiary of the Borrower; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by law or by this
Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness, (iv) clause (a) shall not apply to customary
provisions in leases restricting the assignment thereof and (v) the requirement
that no wholly-owned Subsidiary be restricted from paying dividends or other
distributions with respect to its common stock shall not apply to the Note
Agreement.
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred other than sale and leaseback of property
(which may include the Borrower's digital printing equipment) which in the
aggregate does not have a book value exceeding $25,000,000.
SECTION 7.10. HEDGING AGREEMENTS. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business
which are designed to protect the Borrower or its Subsidiaries against
fluctuations in interest rates, exchange rates or fluctuations in commodity
prices.
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SECTION 7.11. AMENDMENT TO MATERIAL DOCUMENTS. The Borrower
will not, and will not permit any other Loan Party to, amend, modify or waive
any of its rights in a manner materially adverse to the Lenders under its
certificate of incorporation, bylaws or other organizational documents.
SECTION 7.12. ACCOUNTING CHANGES. The Borrower will not, and
will not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any Subsidiary, except to change the fiscal
year of a Subsidiary to conform its fiscal year to that of the Borrower.
SECTION 7.13. LIMITATION ON SECURITIZATION UNDERTAKINGS OF
BORROWER AND RESTRICTED SUBSIDIARIES. Neither the Borrower nor any Restricted
Subsidiary shall incur or become obligated in respect of any Indebtedness or
other obligation in connection with any Permitted Securitization Transaction
other than Indebtedness (i) resulting from the transfer of any receivable and
related property in connection with a Permitted Securitization Transaction so
long as such Indebtedness is non-recourse as to the Borrower and any Restricted
Subsidiary (other than as to the transferred receivables and related property)
and (ii) consisting of Standard Securitization Undertakings.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any
Loan or of any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount payable under clause
(a) of this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by
or on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached thereto)
and any amendments or modifications hereof or waivers hereunder, or in any
certificate or financial statement submitted to the Administrative Agent or the
Lenders by any Loan Party pursuant to or in connection with this Agreement or
any other Loan Document shall prove to be incorrect in any material respect when
made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.2, 5.3 (with respect to the
Borrower's existence) or Articles VI or VII; or
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(e) any Loan Party or any Permitted Securitization
Subsidiary shall fail to observe or perform any covenant or agreement contained
in this Agreement (other than those referred to in clauses (a), (b) and (d)
above), and such failure shall remain unremedied for 30 days after the earlier
of (i) any officer of the Borrower becomes aware of such failure, or (ii) notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(f) the Borrower, any Permitted Securitization
Subsidiary, any Subsidiary Loan Party or any Material Foreign Subsidiary
(whether as primary obligor or as guarantor or other surety) shall fail to pay
any principal of or premium or interest on any Indebtedness exceeding $5,000,000
individually or in the aggregate, when and as the same shall become due and
payable (whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable; or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; provided, however, no Event of Default shall occur hereunder
as a result of any default or breach of covenant or condition in the Note
Agreement unless such Indebtedness exceeding $5,000,000 is accelerated and not
satisfied in full within 30 days of such acceleration; or
(g) the Borrower, any Permitted Securitization
Subsidiary, any Subsidiary Loan Party or any Material Foreign Subsidiary shall
(i) commence a voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a custodian, trustee, receiver, liquidator or other
similar official of it or any substantial part of its property, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower, any Subsidiary Loan Party or any
Material Foreign Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors,
or (vi) take any action for the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower, any Subsidiary Loan Party, any
Permitted Securitization Subsidiary or any Material Foreign Subsidiary or its
debts, or any substantial part of its assets, under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect
or (ii) the appointment of a custodian, trustee, receiver, liquidator or other
similar official for the Borrower, any Subsidiary Loan Party or any Material
Foreign Subsidiary or for a substantial part of its assets, and in any
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such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower, any Permitted Securitization
Subsidiary, any Subsidiary Loan Party or any Material Foreign Subsidiary shall
become unable to pay, shall admit in writing its inability to pay, or shall fail
to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, when taken
together with other ERISA Events that have occurred, could reasonably be
expected to result in liability to the Borrower and the Subsidiaries in an
aggregate amount exceeding $5,000,000; or
(k) any judgment or order for the payment of money where
the amount not covered by insurance (or the amount as to which the insurer
denies liability) exceeds $5,000,000 in the aggregate shall be rendered against
the Borrower, any Permitted Securitization Subsidiary, any Subsidiary Loan Party
or any Material Foreign Subsidiary which judgment remains in effect for 30 days
without being paid, stayed or dismissed; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower, any Permitted Securitization Subsidiary, any Subsidiary
Loan Party or any Material Foreign Subsidiary that could reasonably be expected
to have a Material Adverse Effect, and there shall be a period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Loan Document shall for any
reason cease to be valid and binding on, or enforceable against, any Loan Party,
or any Loan Party shall so state in writing, or any Subsidiary Loan Party shall
seek to terminate its Subsidiary Guarantee Agreement; or
(o) any event of default shall occur under any Loan
Document, or the Borrower, any Permitted Securitization Subsidiary or any
Subsidiary Loan Party shall violate any term or condition of any Loan Document
(after giving effect to any cure or grace periods therein); or
(p) There shall occur any breach of any covenant by the
Borrower, any Restricted Subsidiary or any Permitted Securitization Subsidiary
contained in any agreement relating to Permitted Securitization Transaction
causing or permitting the acceleration of the obligations thereunder or
requiring the prepayment of such obligations or termination of such
securitization program prior to its stated maturity or term;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate
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immediately; (ii) declare the principal of and any accrued interest on the
Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each
Lender irrevocably appoints SunTrust Bank as the Administrative Agent and
authorizes it to take such actions on its behalf and to exercise such powers as
are delegated to the Administrative Agent under this Agreement and the other
Loan Documents, together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent and the Related Parties of the
Administrative Agent and any such sub-agent and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan
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Documents that the Administrative Agent is required to exercise in writing by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall not be deemed to have knowledge of any Default or Event of Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Each of the Lenders, the Swingline Lender and the Issuing Bank acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, continue to make its own decisions in
taking or not taking of any action under or based on this Agreement, any related
agreement or any document furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be
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genuine and to have been signed, sent or made by the proper Person. The
Administrative Agent may also rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person and shall not incur
any liability for relying thereon. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY. The bank serving as the Administrative Agent shall have the same
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to the approval by the Borrower (not to be
unreasonably withheld or delayed) provided that no Default or Event of Default
shall exist at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state thereof or a bank
which maintains an office in the United States, having a combined capital and
surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in
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respect of any actions taken or not taken by any of them while it was serving as
the Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
<TABLE>
<S> <C>
To the Borrower: John H. Harland Company
2939 Miller Road
Decatur, GA 30035
Attention: Treasurer
Telecopy Number: (770) 593-5201
With a copy to: John H. Harland Company
2939 Miller Road
Decatur, GA 30035
Attention: General Counsel
Telecopy Number: (770) 593-5619
To the Administrative Agent:
SunTrust Bank
303 Peachtree Street, N. E., 2nd Floor
Atlanta, Georgia 30308
Attention: Brian Peters
Telecopy Number: (404) 588-8833
With a copy to: SunTrust Equitable Securities Corporation
303 Peachtree Street, N. E./24th Floor
Atlanta, Georgia 30308
Attention: Jenna Kelly
Telecopy Number: (404) 827-6514
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
Atlanta, Georgia 30303
Attention: Michael E. Sullivan
Telecopy Number: (404) 588-8129
To the Swingline Lender: SunTrust Bank
</TABLE>
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<PAGE> 68
<TABLE>
<S> <C>
303 Peachtree Street, N.E./2nd Floor
Atlanta, Georgia 30308
Attention: Brian Peters
Telecopy Number: (404) 588-8833
To any other Lender: the address set forth in the Administrative Questionnaire
</TABLE>
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Borrower. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between the Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder
or thereunder. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or the issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of
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whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this
Agreement or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders or the Borrower and
the Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.20 (b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement except as provided
in Section 5.10 hereof without the written consent of each Lender; (vii) release
all or substantially all collateral (if any) securing any of the Obligations
except as provided in Section 5.10 hereof or agree to subordinate any Lien in
such collateral to any other creditor of the Borrower or any Subsidiary without
the written consent of each Lender; provided further, that no such agreement
shall amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Bank or the Issuing Bank without the prior
written consent of such Person.
SECTION 10.3. EXPENSES; INDEMNIFICATION; WAIVERS.
(a) The Borrower shall pay (i) all reasonable,
out-of-pocket costs and expenses of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents and any amendments, modifications or waivers thereof (whether
or not the transactions contemplated in this Agreement or any other Loan
Document shall be consummated) including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit, (ii) all reasonable out-of-pocket expenses incurred
by the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii)
all out-of-pocket costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the
enforcement of its rights in connection with this Agreement,
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including its rights under this Section, or in connection with the Loans made or
any Letters of Credit issued hereunder.
(b) The Borrower shall indemnify the Administrative
Agent, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing (each, an "INDEMNITEE") against, and hold each of them harmless from,
any and all costs, losses, liabilities, claims, damages and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
which may be incurred by or asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or delivery of this
Agreement or any other agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or
the consummation of any of the transactions contemplated hereby, (ii) any Loan
or Letter of Credit or any actual or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned by the Borrower or any Subsidiary or any Environmental Liability related
in any way to the Borrower or any Subsidiary or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided, that the Borrower shall not be
obligated to indemnify any Indemnitee for any of the foregoing arising out of
such Indemnitee's gross negligence or willful misconduct as determined by a
court of competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative
Agent and each of the Lenders harmless from and against, any and all present and
future stamp, documentary, and other similar taxes with respect to this
Agreement and any other Loan Documents, any collateral described therein, or any
payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any
amount required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) arising out of, in connection
with or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the transactions contemplated therein, any Loan or any
Letter of Credit or the use of proceeds thereof.
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(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall
be null and void).
(b) Any Lender may at any time assign to one or more
banks or other financial institutions all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including all or
a portion of its Commitment and the Loans and LC Exposure at the time owing to
it); provided, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative Agent (and,
in the case of an assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent (which
consent shall not be unreasonably withheld or delayed), (ii) except in the case
of an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire amount of the assigning Lender's Commitment hereunder or an assignment
while an Event of Default has occurred and is continuing, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 (unless
the Borrower and the Administrative Agent shall otherwise consent), (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement and the other
Loan Documents, (iv) the assigning Lender and the assignee shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee payable by the assigning Lender or the assignee
(as determined between such Persons) in an amount equal to $1,000 and (v) such
assignee, if it is not a Lender, shall deliver a duly completed Administrative
Questionnaire to the Administrative Agent; provided, that any consent of the
Borrower otherwise required hereunder shall not be required if an Event of
Default has occurred and is continuing. Upon the execution and delivery of the
Assignment and Acceptance and payment by such assignee to the assigning Lender
of an amount equal to the purchase price agreed between such Persons, such
assignee shall become a party to this Agreement and any other Loan Documents to
which such assigning Lender is a party and, to the extent of such interest
assigned by such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement, and the assigning Lender shall be
released from its obligations hereunder to a corresponding extent (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.17,
2.18, 2.19 and 10.3). Upon the consummation of any such assignment hereunder,
the assigning Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements to have new Notes issued. Any assignment or other
transfer by a Lender that does
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not fully comply with the terms of this clause (b) shall be treated for purposes
of this Agreement as a sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of
the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment, the Loans owing to
it and its LC Exposure); provided, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
hereunder, and (iii) the Borrower, the Administrative Agent, the Swingline Bank,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
between such Lender and the Participant with respect to such participation shall
provide that such Lender shall retain the sole right and responsibility to
enforce this Agreement and the other Loan Documents and the right to approve any
amendment, modification or waiver of this Agreement and the other Loan
Documents; provided, that such participation agreement may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver of this Agreement described in the first proviso of
Section 10.2(b) that affects the Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 to
the same extent as if it were a Lender hereunder and had acquired its interest
by assignment pursuant to paragraph (b); provided, that no Participant shall be
entitled to receive any greater payment under Section 2.17 or 2.19 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant unless the sale of such participation is
made with the Borrower's prior written consent. To the extent permitted by law,
the Borrower agrees that each Participant shall be entitled to the benefits of
Section 2.20 as though it were a Lender, provided, that such Participant agrees
to share with the Lenders the proceeds thereof in accordance with Section 2.20
as fully as if it were a Lender hereunder. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.19
unless the Borrower is notified of such participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.19(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure its obligations to a Federal Reserve Bank without
complying with this Section; provided, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPV"), identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan and (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of
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any Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPV hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if such Loan were
made by such Granting Lender. Each party hereto hereby agrees that no SPV shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Lender). In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, it will not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State contrary in this Section 10.4, any SPV may (i) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrower and the Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPV to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPV. As this Section 10.4(e) applies to
any particular SPV, this Section may not be amended without the written consent
of such SPV.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving effect
to the conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Northern District of Georgia, and of any
state court of the State of Georgia located in Fulton County and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Georgia state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives
any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by
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applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
the service of process in the manner provided for notices in Section 10.1.
Nothing in this Agreement or in any other Loan Document will affect the right of
any party hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now
or hereafter granted under applicable law and not by way of limitation of any
such rights, each Lender and the Issuing Bank shall have the right, at any time
or from time to time upon the occurrence and during the continuance of an Event
of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to
set off and apply against all deposits (general or special, time or demand,
provisional or final) of the Borrower at any time held or other obligations at
any time owing by such Lender and the Issuing Bank to or for the credit or the
account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the
Issuing Bank shall have made demand hereunder and although such Obligations may
be unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
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SECTION 10.9. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement
or any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any
of the foregoing on a nonconfidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vi)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
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SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be treated
as interest on such Loan under applicable law (collectively, the "CHARGES"),
shall exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may
be contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
(remainder of page left intentionally blank)
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed under seal in the case of the Borrower by their
respective authorized officers as of the day and year first above written.
JOHN H. HARLAND COMPANY
By /S/ JOHN STAKEL
--------------------------------
Name: John Stakel
Title: Treasurer
[SEAL]
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING BANK, AS SWINGLINE
LENDER AND AS A LENDER
By /S/ BRIAN PETERS
--------------------------------
Name: Brian Peters
Title: Managing Director
<TABLE>
<S> <C>
Revolving Commitment: $225,000,000
LC Commitment: $ 20,000,000
Swingline Commitment: $ 20,000,000
</TABLE>
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE> 78
SCHEDULE I
APPLICABLE MARGIN AND COMMITMENT FEE PERCENTAGE
<TABLE>
<CAPTION>
Pricing Leverage Applicable Applicable
Level Ratio Margin Percentage
------- -------- ---------- ----------
<S> <C> <C>
I Less than .75% p.a. .175% p.a.
1.00:1.00
II Less than .875% p.a. .20% p.a.
1.50:1.00 but
greater than or
equal to
1.00:1.00
III Less than 1.00% p.a. .225% p.a.
2.00:1.00 but
greater than or
equal to
1.50:1.00
IV Less than 1.125% p.a. .25% p.a.
2.50:1.00 but
greater than or
equal to
2.00:1.0
V Greater than or 1.25% p.a. .30% p.a.
equal to
2.50:1.00
</TABLE>
Schedule I-1
