<PAGE> 1
1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X Quarterly report pursuant to Section 13 or 15(d) of the Securities
- ----- Exchange Act of 1934
For the quarterly period ended September 30, 1999
Transition report pursuant to Section 13 or 15(d) of the Securities
- ----- Exchange Act of 1934
For the transition period from to
----------- ----------
Commission File Number 1-7120
------
HARTE-HANKS, INC.
-----------------
(Exact name of registrant as specified in its charter)
Delaware 74-1677284
------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 Concord Plaza Drive, San Antonio, Texas 78216
--------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code -- 210/829-9000
------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
------- -------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock: $1 par value, 68,665,972 shares as of October 31, 1999.
<PAGE> 2
2
HARTE-HANKS, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
FORM 10-Q REPORT
September 30, 1999
<TABLE>
<CAPTION>
Page
----
<S> <C>
Part I. Financial Information
Item 1. Interim Condensed Consolidated Financial
Statements (Unaudited)
Condensed Consolidated Balance Sheets - 3
September 30, 1999 and December 31, 1998
Consolidated Statements of Operations - 4
Three months ended September 30, 1999 and 1998
Consolidated Statements of Operations - 5
Nine months ended September 30, 1999 and 1998
Consolidated Statements of Cash Flows - 6
Nine months ended September 30, 1999 and 1998
Consolidated Statements of Stockholders' Equity - 7
Nine months ended September 30, 1999 and 1998
Notes to Interim Condensed Consolidated Financial 8
Statements
Item 2. Management's Discussion and Analysis of Financial 11
Condition and Results of Operations
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K 18
(a) Exhibits
(b) Reports on Form 8-K
Signature 19
</TABLE>
<PAGE> 3
3
Harte-Hanks, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets
(in thousands, except per share and share amounts)
- --------------------------------------------------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
--------------- ---------------
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents ......................... $ 124,018 $ 30,367
Short-term investments ............................ 2,395 138,874
Accounts receivable, net .......................... 135,452 127,518
Inventory ......................................... 5,762 6,485
Prepaid expenses .................................. 15,143 8,727
Current deferred income tax asset ................. 7,731 8,339
Other current assets .............................. 5,229 5,503
--------------- ---------------
Total current assets ............................ 295,730 325,813
Property, plant and equipment, net .................. 102,784 92,274
Goodwill, net ....................................... 308,995 290,831
Other assets ........................................ 12,625 6,295
--------------- ---------------
Total assets .................................... $ 720,134 $ 715,213
=============== ===============
Liabilities and Stockholders' Equity
Current liabilities
Accounts payable .................................. $ 56,411 $ 56,397
Accrued payroll and related expenses .............. 22,672 23,208
Customer deposits and unearned revenue ............ 30,755 23,139
Income taxes payable .............................. 8,972 8,412
Other current liabilities ......................... 9,520 5,328
--------------- ---------------
Total current liabilities ....................... 128,330 116,484
Other long term liabilities ......................... 31,241 21,638
--------------- ---------------
Total liabilities ............................... 159,571 138,122
--------------- ---------------
Stockholders' equity
Common stock, $1 par value, 250,000,000 shares
authorized. 76,316,038 and 75,789,355 shares
issued at September 30, 1999 and December 31,
1998, respectively .............................. 76,316 75,789
Additional paid-in capital ........................ 196,575 189,698
Retained earnings ................................. 474,494 425,999
--------------- ---------------
747,385 691,486
Less treasury stock: 7,550,883 and 4,531,303
shares at cost at September 30, 1999 and
December 31, 1998, respectively ................. (186,822) (114,395)
--------------- ---------------
Total stockholders' equity ...................... 560,563 577,091
--------------- ---------------
Total liabilities and stockholders' equity ...... $ 720,134 $ 715,213
=============== ===============
</TABLE>
See Notes to Interim Condensed Consolidated Financial Statements.
<PAGE> 4
4
Harte-Hanks, Inc. and Subsidiaries
Consolidated Statements of Operations
(in thousands, except per share amounts)
- --------------------------------------------------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended September 30,
----------------------------------
1999 1998
--------------- ---------------
<S> <C> <C>
Operating revenues .................................... $ 207,632 $ 183,409
--------------- ---------------
Operating expenses
Payroll ............................................. 74,677 66,057
Production and distribution ......................... 75,336 68,644
Advertising, selling, general and administrative .... 18,681 15,179
Depreciation ........................................ 6,097 5,135
Goodwill amortization ............................... 2,578 1,931
--------------- ---------------
177,369 156,946
--------------- ---------------
Operating income ...................................... 30,263 26,463
--------------- ---------------
Other expenses (income)
Interest expense .................................... 67 22
Interest income ..................................... (1,554) (2,772)
Other, net .......................................... 280 139
--------------- ---------------
(1,207) (2,611)
--------------- ---------------
Income before income taxes ............................ 31,470 29,074
Income tax expense .................................... 12,867 12,154
--------------- ---------------
Net income ............................................ $ 18,603 $ 16,920
=============== ===============
Basic:
Earnings per common share ........................... $ 0.27 $ 0.23
=============== ===============
Weighted-average common shares outstanding .......... 69,487 72,667
=============== ===============
Diluted:
Earnings per common share ........................... $ 0.26 $ 0.22
=============== ===============
Weighted-average common and common equivalent
shares outstanding ................................ 71,715 76,192
=============== ===============
</TABLE>
See Notes to Interim Condensed Consolidated Financial Statements.
<PAGE> 5
5
Harte-Hanks, Inc. and Subsidiaries
Consolidated Statements of Operations
(in thousands, except per share amounts)
- --------------------------------------------------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Nine months ended September 30,
----------------------------------
1999 1998
--------------- ---------------
<S> <C> <C>
Operating revenues .................................... $ 592,793 $ 547,888
--------------- ---------------
Operating expenses
Payroll ............................................. 216,045 198,313
Production and distribution ......................... 217,521 207,721
Advertising, selling, general and administrative .... 49,675 48,091
Depreciation ........................................ 17,362 15,727
Goodwill amortization ............................... 7,385 5,760
--------------- ---------------
507,988 475,612
--------------- ---------------
Operating income ...................................... 84,805 72,276
--------------- ---------------
Other expenses (income)
Interest expense .................................... 157 151
Interest income ..................................... (5,403) (11,153)
Other, net .......................................... 637 1,000
--------------- ---------------
(4,609) (10,002)
--------------- ---------------
Income before income taxes ............................ 89,414 82,278
Income tax expense .................................... 36,709 34,243
--------------- ---------------
Net income ............................................ $ 52,705 $ 48,035
=============== ===============
Basic:
Earnings per common share ........................... $ 0.75 $ 0.66
=============== ===============
Weighted-average common shares outstanding ............ 70,400 73,230
=============== ===============
Diluted:
Earnings per common share ........................... $ 0.73 $ 0.63
=============== ===============
Weighted-average common and common equivalent
shares outstanding ................................ 72,700 76,844
=============== ===============
</TABLE>
See Notes to Interim Condensed Consolidated Financial Statements.
<PAGE> 6
6
Harte-Hanks, Inc. and Subsidiaries
Consolidated Statements of Cash Flows (in thousands)
- --------------------------------------------------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Nine months ended September 30,
----------------------------------
1999 1998
--------------- ---------------
<S> <C> <C>
Operating Activities
Net income .......................................................... $ 52,705 $ 48,035
Adjustments to reconcile net income to cash provided
by (used in) operating activities:
Depreciation ..................................................... 17,362 15,727
Goodwill amortization ............................................ 7,385 5,760
Amortization of option-related compensation ...................... 494 441
Deferred income taxes ............................................ 7,220 1,408
Other, net ....................................................... 224 (33)
Changes in operating assets and liabilities, net of acquisitions:
Increase in accounts receivable, net ............................. (3,274) (3,424)
Decrease in inventory ............................................ 739 2,267
Increase in prepaid expenses and other
current assets ................................................ (5,762) (1,342)
Increase in accounts payable ..................................... 4,237 2,797
Increase (decrease) in other accrued expenses
and other liabilities ......................................... 8,266 (864)
Other, net ....................................................... (2,095) 3,784
--------------- ---------------
Net cash provided by continuing operations .................... 87,501 74,556
--------------- ---------------
Net cash used in discontinued operating activities .................. -- (265,650)
--------------- ---------------
Net cash provided by (used in) operating
activities .................................................. 87,501 (191,094)
--------------- ---------------
Investing Activities
Acquisitions ........................................................ (36,051) (15,695)
Purchases of property, plant and equipment .......................... (21,065) (18,982)
Proceeds from sale of property, plant and equipment ................. 488 214
Proceeds from divestiture ........................................... -- 5,000
Net sales and maturities of
available-for-sale short-term investments ........................ 136,479 259,765
Other ............................................................... (3,000) --
--------------- ---------------
Net cash provided by investing
activities .................................................. 76,851 230,302
--------------- ---------------
Financing Activities
Issuance of common stock ............................................ 5,916 6,180
Purchase of treasury stock .......................................... (72,473) (66,474)
Issuance of treasury stock .......................................... 66 --
Dividends paid ...................................................... (4,210) (3,304)
--------------- ---------------
Net cash used in financing
activities .................................................. (70,701) (63,598)
--------------- ---------------
Net increase (decrease) in cash ..................................... 93,651 (24,390)
Cash and cash equivalents at beginning of year ...................... 30,367 83,675
--------------- ---------------
Cash and cash equivalents at end of period .......................... $ 124,018 $ 59,285
=============== ===============
</TABLE>
See Notes to Interim Condensed Consolidated Financial Statements.
<PAGE> 7
7
Harte-Hanks, Inc. and Subsidiaries
Consolidated Statements of Stockholders' Equity
- --------------------------------------------------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Accumulated
Additional Other Total
Common Paid-In Retained Treasury Comprehensive Stockholders'
In thousands Stock Capital Earnings Stock Income Equity
---------- ---------- ---------- ---------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1998 ........... $ 74,843 $ 177,238 $ 362,000 $ (47,267) $ (577) $ 566,237
Common stock issued - employee
benefit plans .................... 162 2,908 -- -- -- 3,070
Exercise of stock options ............ 633 2,477 -- -- -- 3,110
Tax benefit of options
exercised ........................ -- 2,434 -- -- -- 2,434
Dividends paid ($0.03 per share) ..... -- -- (3,304) -- -- (3,304)
Net income ........................... -- -- 48,035 -- -- 48,035
Treasury stock repurchase ............ -- -- -- (66,474) -- (66,474)
Change in unrealized loss on
short-term investments (net of
tax) ............................. -- -- -- -- 315 315
---------- ---------- ---------- ---------- ------------- -------------
Balance at September 30,
1998 ............................. $ 75,638 $ 185,057 $ 406,731 $ (113,741) $ (262) $ 553,423
========== ========== ========== ========== ============= =============
Balance at January 1, 1999 ........... $ 75,789 $ 189,698 $ 425,999 $ (114,395) $ -- $ 577,091
Common stock issued - employee
benefit plans .................... 148 3,121 -- -- -- 3,269
Exercise of stock options ............ 379 2,268 -- -- -- 2,647
Tax benefit of options
exercised ........................ -- 1,468 -- -- -- 1,468
Dividends paid ($0.04 per
share) ........................... -- -- (4,210) -- -- (4,210)
Net income ........................... -- -- 52,705 -- -- 52,705
Treasury stock repurchase ............ -- -- -- (72,473) -- (72,473)
Treasury stock issued ................ -- 20 -- 46 -- 66
---------- ---------- ---------- ---------- ------------- -------------
Balance at September 30,
1999 ............................. $ 76,316 $ 196,575 $ 474,494 $ (186,822) $ -- $ 560,563
========== ========== ========== ========== ============= =============
</TABLE>
See Notes to Interim Condensed Consolidated Financial Statements.
<PAGE> 8
8
Harte-Hanks, Inc. and Subsidiaries
Notes to Interim Condensed Consolidated Financial Statements
(Unaudited)
NOTE A - BASIS OF PRESENTATION
The accompanying unaudited Interim Condensed Consolidated Financial Statements
include the accounts of Harte-Hanks, Inc. and subsidiaries (the "Company").
The statements have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring adjustments)
considered necessary for a fair presentation have been included. Operating
results for the three months and nine months ended September 30, 1999 are not
necessarily indicative of the results that may be expected for the year ending
December 31. For further information, refer to the consolidated financial
statements and footnotes included in the Company's annual report on Form 10-K
for the year ended December 31, 1998.
Certain prior period amounts have been reclassified for comparative purposes.
NOTE B - INCOME TAXES
The Company's quarterly and nine month income tax provision of $12.9 million and
$36.7 million, respectively, was calculated using an effective income tax rate
of approximately 40.9% and 41.1%, respectively. The Company's effective income
tax rate is derived by estimating pretax income and income tax expense for the
year ending December 31, 1999. The effective income tax rate calculated is
higher than the federal statutory rate of 35% due to the addition of state taxes
and to certain expenses recorded for financial reporting purposes (primarily
goodwill amortization) which are not deductible for federal income tax purposes.
NOTE C - EARNINGS PER SHARE
A reconciliation of basic and diluted earnings per share is as follows:
<TABLE>
<CAPTION>
Three Months Ended September 30,
In thousands, except per share amount 1999 1998
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
BASIC EPS
Net Income ......................................................... $ 18,603 $ 16,920
=============== ===============
Weighted-average common shares outstanding
used in earnings per share computations .......................... 69,487 72,667
=============== ===============
Earnings per common share .......................................... $ 0.27 $ 0.23
=============== ===============
DILUTED EPS
Net Income ......................................................... $ 18,603 $ 16,920
=============== ===============
Shares used in earnings per share computations ..................... 71,715 76,192
=============== ===============
Earnings per common share .......................................... $ 0.26 $ 0.22
=============== ===============
Computation of shares used in earnings per share computations:
Average outstanding common shares .................................. 69,487 72,667
Average common equivalent shares -
dilutive effect of option shares ................................. 2,228 3,525
--------------- ---------------
Shares used in earnings per share computations ..................... 71,715 76,192
=============== ===============
</TABLE>
<PAGE> 9
9
<TABLE>
<CAPTION>
Nine Months Ended Septmeber 30,
In thousands, except per share amount 1999 1998
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
BASIC EPS
Net Income ......................................................... $ 52,705 $ 48,035
=============== ===============
Weighted-average common shares outstanding
used in earnings per share computations .......................... 70,400 73,230
=============== ===============
Earnings per common share .......................................... $ 0.75 $ 0.66
=============== ===============
DILUTED EPS
Net Income ......................................................... $ 52,705 $ 48,035
=============== ===============
Shares used in earnings per share computations ..................... 72,700 76,844
=============== ===============
Earnings per common share .......................................... $ 0.73 $ 0.63
=============== ===============
Computation of shares used in earnings per share computations:
Average outstanding common shares .................................. 70,400 73,230
Average common equivalent shares -
dilutive effect of option shares ................................. 2,300 3,614
--------------- ---------------
Shares used in earnings per share computations ..................... 72,700 76,844
=============== ===============
</TABLE>
NOTE D - COMPREHENSIVE INCOME
The Company's total comprehensive income for the third quarter 1999 was equal to
net income, whereas comprehensive income for the third quarter 1998 was $0.3
million less than net income. Total comprehensive income for the nine months
ended September 30 of 1999 was equal to net income, whereas comprehensive income
was $0.3 greater than net income for the same period of 1998.
NOTE E - BUSINESS SEGMENTS
Harte-Hanks is a highly focused targeted media company with operations in two
segments - direct marketing and shoppers.
Information about the Company's operations in different industry segments:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
Three Months Ended Sept. 30,
In thousands 1999 1998
- ----------------------------------------------------------------------------------
<S> <C> <C>
Operating revenues
Direct Marketing ....................... $ 137,639 $ 119,590
Shoppers ............................... 69,993 63,819
--------------- ---------------
Total operating revenues ........... $ 207,632 $ 183,409
=============== ===============
Operating income
Direct Marketing ....................... $ 18,898 $ 16,721
Shoppers ............................... 13,223 11,707
Corporate Activities ................... (1,858) (1,965)
--------------- ---------------
Total operating income ............. $ 30,263 $ 26,463
=============== ===============
Income before income taxes
Operating income ....................... $ 30,263 $ 26,463
Interest expense ....................... (67) (22)
Interest income ........................ 1,554 2,772
Other, net ............................. (280) (139)
--------------- ---------------
Total income before income taxes ... $ 31,470 $ 29,074
=============== ===============
</TABLE>
<PAGE> 10
10
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Nine months ended Sept. 30,
In thousands 1999 1998
- -----------------------------------------------------------------------------------
<S> <C> <C>
Operating revenues
Direct Marketing ........................ $ 391,558 $ 355,582
Shoppers ................................ 201,235 192,306
--------------- ---------------
Total operating revenues ............ $ 592,793 $ 547,888
=============== ===============
Operating income
Direct Marketing ........................ $ 54,706 $ 47,361
Shoppers ................................ 35,766 31,470
Corporate Activities .................... (5,667) (6,555)
--------------- ---------------
Total operating income .............. $ 84,805 $ 72,276
=============== ===============
Income before income taxes
Operating income ........................ $ 84,805 $ 72,276
Interest expense ........................ (157) (151)
Interest income ......................... 5,403 11,153
Other, net .............................. (637) (1,000)
--------------- ---------------
Total income before income taxes .... $ 89,414 $ 82,278
=============== ===============
</TABLE>
<PAGE> 11
11
2. Management's Discussion and Analysis of Financial Condition and Results of
Operations
RESULTS OF OPERATIONS
Operating results were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
In thousands SEPT. 30, 1999 SEPT. 30, 1998 CHANGE SEPT. 30, 1999 SEPT. 30, 1998 CHANGE
- ------------ -------------- -------------- ------ -------------- -------------- ------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 207,632 $ 183,409 13.2% $ 592,793 $ 547,888 8.2%
Operating expenses 177,369 156,946 13.0% 507,988 475,612 6.8%
-------------- -------------- -------------- --------------
Operating income $ 30,263 $ 26,463 14.4% $ 84,805 $ 72,276 17.3%
============== ============== ============== ==============
Net income $ 18,603 $ 16,920 9.9% $ 52,705 $ 48,035 9.7%
============== ============== ============== ==============
Diluted earnings
per share $ 0.26 $ 0.22 18.2% $ 0.73 $ 0.63 15.9%
============== ============== ============== ==============
</TABLE>
Consolidated revenues grew 13.2% to $207.6 million and operating income grew
14.4% to $30.3 million in the third quarter of 1999 when compared to the third
quarter of 1998. The Company's overall growth resulted from increased business
with both new and existing customers and from the sale of new products and
services. Overall operating expenses compared to 1998 increased 13.0% to $177.4
million.
Net income grew 9.9% to $18.6 million, or 26 cents per share, compared to 22
cents per share on a diluted basis. The net income growth resulted from the
growth in operating income offset by a decrease of $1.2 million in interest
income.
DIRECT MARKETING
Direct marketing operating results were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
In thousands SEPT. 30, 1999 SEPT. 30, 1998 CHANGE SEPT. 30, 1999 SEPT. 30, 1998 CHANGE
- ------------ -------------- -------------- ------ -------------- -------------- ------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 137,639 $ 119,590 15.1% $ 391,558 $ 355,582 10.1%
Operating expenses 118,741 102,869 15.4% 336,852 308,221 9.3%
-------------- -------------- -------------- --------------
Operating income $ 18,898 $ 16,721 13.0% $ 54,706 $ 47,361 15.5%
============== ============== ============== ==============
</TABLE>
Direct marketing revenues increased $18.0 million, or 15.1%, in the third
quarter of 1999 compared to 1998. Revenue increases were lead by response
management and marketing services which both had strong growth, followed by
database marketing which experienced good growth except for softness in the
healthcare and managed care markets. The traditional growth oriented
business-to-business activities of response management had good growth. Response
management revenues increased due to increased consulting and internet business
with existing customers and new customer gains. The high technology,
government/not-for-profit, mutual funds and non-bank finance industry sectors
contributed significantly to overall response management revenue growth.
Marketing services revenues, led by its targeted mail operations, increased due
to increased product sales as well as new product sales to new and existing
customers, primarily in the government/not-for-profit, non-bank finance and
retail industries. The November 1998 acquisition of Printing Management Systems,
Inc. (PMSI) and the May 1999 acquisition of Direct Marketing Associates, Inc.
(DMA) also contributed to the marketing services revenue increase. Database
marketing revenues increased primarily due to growth in database processing. The
retail, pharmaceutical and insurance industries provided the largest revenue
increase for database marketing, partially offset by softness in the
healthcare/managed care industries. While the fourth quarter is not expected to
be as strong as the third because of the healthcare and managed
<PAGE> 12
12
care softness, and some concern for Y2K related delays, we do expect to report
good revenue growth as the quarter will benefit from the ZD Market Intelligence
acquisition that closed October 1, 1999.
Operating expenses increased $15.9 million, or 15.4%, in the third quarter of
1999 compared to 1998. Payroll costs increased $7.3 million due to expanded
hiring to support future revenue growth. Also contributing to the increased
operating expenses were additional production costs of $5.6 million due to
increased volumes. General and administrative expense increased $1.4 million due
to increased reserve for bad debt and professional services fees. Depreciation
and amortization expense increased $1.5 million due to goodwill associated with
acquisitions and higher levels of capital investment to support growth.
Operating expenses were also impacted by the acquisitions noted above.
Direct marketing revenues increased $36.0 million, or 10.1%, in the first nine
months of 1999 compared to the first nine months of 1998. Response management
and marketing services experienced good revenue growth, while database marketing
experienced softness in the first nine months of 1999, partially due to a strong
first half of 1998. Overall, revenue growth resulted from increased business
with both new and existing customers, particularly in services provided to the
retail, high tech, government/not-for-profit and pharmaceutical industries.
Operating expenses rose $28.6 million, or 9.3%, in the first nine months of 1999
compared to the first nine months of 1998. Payroll costs increased $18.6 million
due to expanded hiring to support revenue growth. In addition, production costs
increased $7.8 million due to increased volumes. General and administrative
expense decreased $1.1 million primarily due to decreased reserve for bad debt.
Depreciation and amortization expense increased $3.3 million due to goodwill
associated with acquisitions and higher levels of capital investment to support
growth. The acquisitions mentioned above also contributed to the increased
operating expenses.
SHOPPERS
Shopper operating results were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
In thousands SEPT. 30, 1999 SEPT. 30, 1998 CHANGE SEPT. 30, 1999 SEPT. 30, 1998 CHANGE
- ------------ -------------- -------------- ------ -------------- -------------- ------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 69,993 $ 63,819 9.7% $ 201,235 $ 192,306 4.6%
Operating expenses 56,770 52,112 8.9% 165,469 160,836 2.9%
-------------- -------------- -------------- --------------
Operating income $ 13,223 $ 11,707 12.9% $ 35,766 $ 31,470 13.7%
============== ============== ============== ==============
</TABLE>
Shopper revenues increased $6.2 million, or 9.7%, in the third quarter of 1999
compared to 1998. Revenue increases were the result of improved sales in
established markets as well as new year-over-year geographic expansions into new
neighborhoods, in both Northern and Southern California. From a product-line
perspective, Shoppers had growth in both its in-book products, primarily
employment and core sales, and its distribution products, primarily 4-color
glossy flyers. In the quarter, Shoppers experienced softness in its real-estate
and personals advertising segments.
Operating expenses increased $4.7 million, or 8.9%, in the third quarter of 1999
compared to 1998. The increase in operating expenses was primarily due to
increases in payroll costs of $1.5 million, increases in postage of $1.1 million
due to increased volumes, and increased reserve for bad debt of $0.8 million.
Shopper revenues increased $8.9 million, or 4.6%, in the first nine months of
1999 compared to the first nine months of 1998. Excluding the effects of three
small shopper publications which were sold in April 1998, revenue increases were
the result of improved sales in established markets as well as new
year-over-year geographic expansions into new neighborhoods, in both Northern
and Southern California. From a product-line perspective, Shoppers had growth in
both its in-book products, primarily employment and core sales, and its
distribution
<PAGE> 13
13
products, primarily 4-color glossy flyers and pre-printed inserts. In the first
nine months of 1999, Shoppers experienced slowdown in its real-estate and
personals advertising segments.
Operating expenses increased $4.6 million, or 2.9%, in the first nine months of
1999 compared to the first nine months of 1998. Excluding the divestiture
mentioned above, the increase in operating expenses was primarily due to
increases in payroll costs of $2.5 million, additional production costs of $2.6
million, and increased postage of $2.7 million due to increased volumes.
Other Income and Expense
The Company realized a loss of approximately $0.4 million in the first quarter
1998 on the sale of equity securities that were held in its investment
portfolio. In the third quarter of 1998, the Company recognized income of
approximately $0.6 million for an insurance settlement. This income was
partially offset by approximately $0.5 million of non-operating costs.
Interest Expense/Interest Income
Interest income decreased $1.2 million in the third quarter of 1999 and $5.8
million in the first nine months of 1999 over the same periods in 1998. The
decrease in the first nine months of 1999 over the same period in 1998 was due
to larger cash and investment balances in the first quarter of 1998 since
divestiture related tax payments were not made until the end of the first
quarter in 1998.
Income Taxes
The Company's income tax expense increased $0.7 million in the third quarter of
1999 and $2.5 million in the first nine months of 1999 compared to the same
periods in 1998. This increase was due primarily to the higher pre-tax income
levels. The effective tax rate was 40.9% for the third quarter of 1999 and 41.1%
for the first nine months of 1999 compared to 41.8% and 41.6%, respectively, for
the same periods of 1998.
Liquidity and Capital Resources
Cash provided by operating activities of continuing operations for the nine
months ended September 30, 1999 was $87.5 million. Net cash used by discontinued
operations in 1998 of $265.7 million relates to the payment of income taxes on
the 1997 sale of discontinued operations. Net cash inflows from investing
activities were $76.9 million for the first nine months of 1999 compared to net
cash inflows of $230.3 million for the first nine months of 1998. The cash
inflows from investing activities in 1999 and 1998 were primarily attributable
to sales and maturities of marketable securities totaling $136.5 million and
$259.8 million, respectively. The proceeds from the sales and maturities of
marketable securities in 1998 were used to help fund the Company's tax payments
made in the first quarter of 1998. Net cash outflows from financing activities
were $70.7 million in 1999 compared to net cash outflows of $63.6 million in
1998. The cash outflow from financing activities in 1999 and 1998 are
attributable primarily to the repurchase of treasury stock of $72.5 million and
$66.5 million in the first nine months of 1999 and 1998, respectively.
Capital resources are also available from and provided through the Company's two
unsecured credit facilities. All borrowings under the $100 million revolving
364-Day Credit Agreement are to be repaid by November 3, 2000 unless the Company
requests and is granted a 364-day extension. All borrowings under the $100
million revolving Three-Year Credit Agreement are to be repaid by November 4,
2002. Management believes that its credit facilities, together with cash
provided from operating activities, will be sufficient to fund operations and
anticipated capital service needs for the foreseeable future. The effective date
of both credit facilities is November 4, 1999.
<PAGE> 14
14
Recent Developments
On October 1, 1999, the Company completed the previously announced acquisition
of ZD Market Intelligence (ZDMI), a unit of Ziff-Davis Inc., for $101 million
cash. The Company utilized its existing cash and cash equivalents at September
30, 1999 to fund this acquisition. ZDMI is a leading provider of database
products and solutions to the high-tech and communications industries in the
United States, Canada and Europe.
On November 3, 1999, the Company's board of directors authorized an increase of
four million shares in the Company's stock repurchase program, representing
approximately 6% of its outstanding shares. As of such date, the Company is
authorized to repurchase an aggregate 5.0 million shares of its common stock
under the amended stock repurchase program.
Factors That May Affect Future Results and Financial Condition
From time to time, in both written reports and oral statements by senior
management, the Company may express its expectations regarding its future
performance. These "forward-looking statements" are inherently uncertain, and
investors should realize that events could turn out to be other than what senior
management expected. Set forth below are some key factors which could adversely
affect the Company's future performance, including its revenues, net income and
earnings per share; however, the risks described below are not the only ones the
Company faces. Additional risks and uncertainties that are not presently known,
or that the Company currently considers immaterial, could also impair the
Company's business operations.
Legislation -- There could be a material adverse impact on the Company's direct
marketing business due to the enactment of legislation or industry regulations
arising from public concern over consumer privacy issues. Restrictions or
prohibitions could be placed upon the collection and use of information that is
currently legally available.
Data Suppliers -- The Company could suffer a material adverse effect if owners
of the data the Company uses were to withdraw the data. Data providers could
withdraw their data if there is a competitive reason to do so or if legislation
is passed restricting the use of the data.
Acquisitions -- In recent years the Company has made a number of acquisitions in
its direct marketing and shopper businesses, and it expects to pursue additional
acquisition opportunities. Acquisition activities, even if not consummated,
require substantial amounts of management time and can distract from normal
operations. In addition, there can be no assurance that the synergies and other
objectives sought in acquisitions will be achieved.
Competition -- Direct marketing is a rapidly evolving business, subject to
periodic technological advancements, high turnover of customer personnel who
make buying decisions, and changing customer needs and preferences.
Consequently, the Company's direct marketing business faces competition in each
of its three sectors -- response management/teleservices, database marketing,
and marketing services. The Company's shopper business competes for advertising,
as well as for readers, with other print and electronic media. Competition comes
from local and regional newspapers, magazines, radio, broadcast and cable
television, shoppers and other communications media that operate in the
Company's markets. The extent and nature of such competition are, in large part,
determined by the location and demographics of the markets targeted by a
particular advertiser, and the number of media alternatives in those markets.
Failure to continually
<PAGE> 15
15
improve the Company's current processes and to develop new products and services
could result in loss of the Company's customers to current or future
competitors. In addition, failure to gain market acceptance of new products and
services could adversely affect the Company's growth.
Qualified Personnel -- Competition for qualified technical and other personnel
is intense, and the Company periodically is required to pay premium wages to
attract and retain personnel. There can be no assurance that the Company will be
able to continue to hire and retain sufficient qualified management, technical,
sales and other personnel necessary to conduct operations successfully,
particularly if the planned growth of the Company's business occurs.
Postal Rates -- The Company's shoppers are delivered by standard mail, and
postage is the second largest expense, behind payroll, in the Company's shopper
business. The present standard postage rates went into effect in January 1999.
Postal rates also influence the demand for the Company's direct marketing
services even though the cost of mailings is borne by the Company's customers
and is not directly reflected in the Company's revenues or expenses. Postal
increases could force direct mailers to mail fewer pieces and to target their
prospects more carefully. This sort of response by direct mailers could affect
the Company by decreasing the amount of processing services purchased.
Economic Conditions -- Changes in national economic conditions can affect levels
of advertising expenditures generally, and such changes can affect each of the
Company's businesses. Revenues from the Company's shopper business are dependent
to a large extent on local advertising expenditures in the markets in which they
operate. Such expenditures are substantially affected by the strength of the
local economies in those markets. Direct marketing revenues are dependent on
national and international economics.
Year 2000 Issue -- The Year 2000 Issue is a result of computer programs being
written using two digits rather than four to define the applicable year.
Accordingly, computer systems that rely on two digits to define an applicable
year may recognize a date using "00" as the year 1900, rather than the Year 2000
(the "Year 2000 Issue"). This could result in a system failure or
miscalculations causing disruptions of operations, including, but not limited
to, a temporary inability to process or transmit data or engage in normal
business activities.
The Company relies on computer hardware, information technology ("IT Systems")
and non-information technology systems ("Non-IT Systems") to operate its
business. IT Systems are used in the creation and delivery of the Company's
products and services, as well as, the Company's internal operations such as
billing and accounting. IT Systems include systems which use information
provided by third-party data suppliers to update the Company's databases. The
Company also relies on Non-IT Systems (primarily consisting of embedded
technology), such as microprocessors in tape drives, printing and inserting
equipment, and elevators, and on utilities, such as telecommunications and
power.
The Company defined Year 2000 Compliant to mean that a process will continue to
run in the same manner when dealing with dates on or after January 1, 2000, as
it did before January 1, 2000. The Company conducted a comprehensive review of
its IT Systems and Non-IT Systems to identify those that could be affected by
the Year 2000 Issue, and developed a remediation plan to resolve the issue. The
most important areas of focus of the Company's Year 2000 remediation plan were
the Company's products and services (including its databases, software that
manipulates these databases and software provided to customers); business
operation support systems (billing, ordering, tracking systems, payroll and
technical infrastructure (such as LANs, mail systems and websites)); and
suppliers, facilities and equipment. The Company utilized both internal and
external resources to correct or reprogram, and test the systems for the Year
2000 compliance.
<PAGE> 16
16
The Company's compliance objectives included products and services the Company
provided to customers in the past and will provide to customers in the future;
all internal operating software systems and equipment; and the services,
products, equipment and systems the Company obtained and will obtain in the
future from outside vendors. The Company's first objective was to remediate all
products and services the Company has, or will provide, to customers. This
included informing customers of their need to make their applications Year 2000
compliant to provide or accept associated files for services provided by the
Company. This objective was deemed the top priority and was initiated in late
1997. In early 1998, the Company initiated action to remediate all internal
business operation support systems, and the associated equipment these systems
operate on. As part of this process, the Company developed a standard Year 2000
compliance certification memorandum which was sent to all vendors who had or
were currently providing products or services to the Company, revised customer
standard contract language to include a Year 2000 statement, and instituted a
review process for formally responding to customer inquiries on the Company's
Year 2000 compliance plans and status. The Company contacted its critical
suppliers and other entities to determine the extent to which the Company's
interface systems were vulnerable to those third parties' failure to remediate
their own Year 2000 Issues. While the Company has not been informed of any
material risks associated with these entities, there is no guarantee that the
systems of these critical suppliers or other entities on which the Company
relies, will be timely converted and will not have an adverse effect on the
Company's systems or operations. In addition to the above, the Company formed a
Year 2000 Compliance Council in June 1998 which monitored the status of
compliance efforts to ensure that compliance issues were consistently addressed.
The Company's Year 2000 remediation plan consisted of four key phases:
Inventory/Assessment, Repair/Replacement, Testing and Compliance/Internal
Certification. As related to the Company's products and services, the Company is
100%, 100%, 100% and 100% completed, respectively. With regards to business
operation support systems, the Company is 100%, 100%, 100%, and 99% completed,
respectively. Finally, suppliers, facilities and equipment are 100%, 100%, 100%,
99% completed, respectively. The Company completed its high priority
reprogramming efforts as of March 31, 1999, and has performed extensive testing
efforts through September 30, 1999. Some final items will be completed in the
fourth quarter, mostly consisting of low priority items such as phone and
voicemail system updates; however, the Company can provide no assurance in this
regard. Several recent acquisitions are also being reviewed to insure that Year
2000 issues are properly addressed on a timely basis.
The Company has spent $4.04 million of cost incurred to date related to the Year
2000 Issue. The total remaining cost of the Year 2000 project is presently
estimated at $0.37 million. The cost of the project and the date on which the
Company believed it would complete the Year 2000 modifications were based on
management's best estimates, which were derived utilizing numerous assumptions
of future events, including the continued availability of certain resources. At
this time, based on the status of the project, we believe these estimates have
been achieved and actual results should not differ materially from those stated
above.
Through the Company's Year 2000 review efforts, we believe that all critical
areas are ready to operate in the Year 2000 and beyond. It has been our goal to
manage this date change successfully without adverse effect on our employees and
our customers. There can be no guarantee that the Company will not experience
disruptions in its operations, including among other things, a temporary
inability to fulfill customer direct marketing requests (such as sales leads and
personalized mailings), process financial transactions, or engage in similar
normal business activities. In addition, disruptions in the economy generally
resulting from the Year 2000 Issue could also materially adversely affect the
Company. The Company could be subject to litigation for computer systems
failures, equipment shutdowns or failure to properly date business records. The
amount of potential liability and lost revenue cannot be reasonably estimated.
<PAGE> 17
17
Contingency plans have been developed for the Company except for recent
acquisitions. Contingency plans cover products and services, as well as business
operation support systems. These contingency plans include the identification of
alternate providers in case primary providers cannot meet delivery requirements,
and provide specific 100-year interval windowing techniques to customers in the
event their applications cannot be made Year 2000 compliant.
<PAGE> 18
18
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits. See index to Exhibits on Page 20.
(b) No Form 8-K has been filed during the three months ended
September 30, 1999.
<PAGE> 19
19
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company
has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
HARTE-HANKS, INC.
November 12, 1999 /s/ Jacques D. Kerrest
----------------- -----------------------------------
Date Jacques D. Kerrest
Senior Vice President, Finance and
Chief Financial Officer
<PAGE> 20
20
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit Page No.
- ------- ---------------------- --------
<S> <C> <C>
2(a) Certificate of Ownership and Merger (filed as Exhibit 2(a) to
the Company's Registration Statement No. 33-69202 and
incorporated by reference herein).
2(b) Agreement and Plan of Merger dated as of February 4, 1996 among
Harte-Hanks Communications, Inc., HHD Acquisition Corp. and
DiMark, Inc. (filed as Appendix A to the Company's Registration
Statement No. 333-02047 and incorporated by reference herein).
2(c) Agreement and Plan of Merger and Reorganization, dated as of May
16, 1997, by and between The E.W. Scripps Company and
Harte-Hanks Communications, Inc. (filed as Exhibit 2.1 to the
Company's Form 8-K dated May 22, 1997 and incorporated by
reference herein).
2(d) Acquisition Agreement, dated as of May 16, 1997, by and between
The E.W. Scripps Company and Harte-Hanks Communications, Inc.
(filed as Exhibit 2.2 to the Company's Form 8-K dated May 22,
1997 and incorporated by reference herein).
2(e) Stock Purchase Agreement dated as of July 26, 1997 between ABC,
Inc. and Harte-Hanks Communications, Inc. (filed as Exhibit 2(e)
to the Company's Form 10-Q for the nine months ended September
30, 1997 and incorporated by reference herein).
3(a) Amended and Restated Certificate of Incorporation (filed as
Exhibit 3(a) to the Company's Form 10-K for the year ended
December 31, 1993 and incorporated by reference herein).
3(b) Amended and Restated Bylaws (filed as Exhibit 3(b) to the
Company's Registration Statement No. 33-69202 and incorporated
by reference herein).
3(c) Amendment dated April 30, 1996 to Amended and Restated
Certificate of Incorporation (filed as Exhibit 3(c) to the
Company's Form 10-Q for the nine months ended September 30, 1996
and incorporated by reference herein).
3(d) Amendment dated May 5, 1998 to Amended and Restated Certificate
of Incorporation (filed as Exhibit 3(d) to the Company's Form
10-Q for the six months ended June 30, 1998 and incorporated by
reference herein).
3(e) Amended and Restated Certificate of Incorporation as amended
through May 5, 1998 (filed as Exhibit 3(e) to the Company's Form
10-Q for the six months ended June 30, 1998 and incorporated by
reference herein).
*4(a) 364-Day Credit Agreement dated as of November 4, 1999 between
Harte-Hanks, Inc. and the Lenders named therein [$100 million]. 23
*4(b) Three-Year Credit Agreement dated as of November 4, 1999 between
Harte-Hanks, Inc. and the Lenders named therein [$100 million]. 92
</TABLE>
<PAGE> 21
21
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit Page No.
- ------- ---------------------- --------
<S> <C> <C>
4(c) Other long term debt instruments are not being filed pursuant to
Section (b)(4)(iii) of Item 601 of Regulation S-K. Copies of
such instruments will be furnished to the Commission upon
request.
10(a) 1984 Stock Option Plan (filed as Exhibit 10(d) to the Company's
Form 10-K for the year ended December 31, 1984 and
incorporated herein by reference).
10(b) Registration Rights Agreement dated as of September 11, 1984
among HHC Holding Inc. and its stockholders (filed as Exhibit
10(b) to the Company's Form 10-K for the year ended December
31, 1993 and incorporated by reference herein).
10(c) Severance Agreement between Harte-Hanks Communications, Inc.
and Larry Franklin, dated as of July 23, 1993 (filed as Exhibit
10(f) to the Company's Registration Statement No. 33-69202
and incorporated by reference herein).
10(d) Form of Severance Agreement between Harte-Hanks
Communications, Inc. and certain Executive Officers of the
Company, dated as of July 7 or December 28,1997 (filed as
Exhibit 10(f) to the Company's Form 10-K for the year ended
December 31, 1997 and incorporated by reference herein).
10(e) Harte-Hanks, Inc. Restoration Pension Plan
(filed as Exhibit 10(j) to the Company's Registration Statement
No. 33-69202 and incorporated by reference herein).
10(f) Harte-Hanks Communications, Inc. 1996 Incentive Compensation
Plan (filed as Exhibit 10(p) to the Company's Form 10-Q for the
nine months ended September 30, 1996 and incorporated by reference
herein).
10(g) Harte-Hanks, Inc. Amended and Restated 1991 Stock Option Plan
(filed as Exhibit 10(g) to the Company's Form 10-Q for the six
months ended June 30, 1998 and incorporated by reference herein).
10(h) Harte-Hanks, Inc. 1998 Director Stock Plan (filed as Exhibit 10(h)
to the Company's Form 10-Q for the six months ended June 30, 1998
and incorporated by reference herein).
10(i) Harte-Hanks, Inc. Deferred Compensation Plan (filed as Exhibit
10(i) to the Company's Form 10-K for the year ended December 31,
1998 and incorporate by reference herein).
10(j) Amendment to Harte-Hanks, Inc. Restoration Pension Plan (filed
as Exhibit 10(j) to the Company's Form 10-K for the year ended
December 31, 1998 and incorporate by reference herein).
*11 Statement Regarding Computation of Net Income (Loss) Per Common
Share. 160
*21 Subsidiaries of the Company. 161
</TABLE>
<PAGE> 22
22
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit Page No.
- ------- ---------------------- --------
<S> <C> <C>
*27 Financial Data Schedule. 162
</TABLE>
- ---------------------
*Filed herewith
<PAGE> 1
23
EXECUTION COUNTERPART
================================================================================
364-DAY CREDIT AGREEMENT
dated as of
November 4, 1999
between
HARTE-HANKS, INC.
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
--------------
$100,000,000
--------------
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
================================================================================
<PAGE> 2
24
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..............................................................................28
SECTION 1.02. Classification of Loans and Borrowings.....................................................38
SECTION 1.03. Terms Generally............................................................................39
SECTION 1.04. Accounting Terms; GAAP.....................................................................39
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments............................................................................39
SECTION 2.02. Loans and Borrowings.......................................................................39
SECTION 2.03. Requests for Syndicated Borrowings.........................................................40
SECTION 2.04. Competitive Bid Procedure..................................................................41
SECTION 2.05. Intentionally Left Blank...................................................................42
SECTION 2.06. Funding of Borrowings......................................................................42
SECTION 2.07. Interest Elections.........................................................................43
SECTION 2.08. Termination and Reduction of the Commitments...............................................44
SECTION 2.09. Repayment of Loans; Conversion of Revolving Loans to Term Loans; Evidence of Debt..........44
SECTION 2.10. Extension of Commitment Termination Date...................................................46
SECTION 2.11. Prepayment of Loans........................................................................47
SECTION 2.12. Fees.......................................................................................47
SECTION 2.13. Interest...................................................................................48
SECTION 2.14. Alternate Rate of Interest.................................................................48
SECTION 2.15. Increased Costs............................................................................49
SECTION 2.16. Break Funding Payments.....................................................................50
SECTION 2.17. Taxes......................................................................................50
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................................51
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.............................................52
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.......................................................................53
</TABLE>
<PAGE> 3
25
<TABLE>
<S> <C>
SECTION 3.02. Authorization; Enforceability..............................................................53
SECTION 3.03. Governmental Approvals; No Conflicts.......................................................53
SECTION 3.04. Financial Condition; No Material Adverse Change............................................54
SECTION 3.05. Properties.................................................................................54
SECTION 3.06. Litigation and Environmental Matters.......................................................55
SECTION 3.07. Compliance with Laws and Agreements........................................................55
SECTION 3.08. Investment and Holding Company Status......................................................55
SECTION 3.09. Taxes......................................................................................55
SECTION 3.10. ERISA......................................................................................55
SECTION 3.11. Disclosure.................................................................................55
SECTION 3.12. Use of Credit..............................................................................56
SECTION 3.13. Material Agreements and Liens..............................................................56
SECTION 3.14. Subsidiaries...............................................................................56
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.............................................................................56
SECTION 4.02. Each Credit Event..........................................................................57
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.................................................58
SECTION 5.02. Notices of Material Events.................................................................59
SECTION 5.03. Existence; Conduct of Business.............................................................59
SECTION 5.04. Payment of Obligations.....................................................................59
SECTION 5.05. Maintenance of Properties; Insurance.......................................................59
SECTION 5.06. Books and Records; Inspection Rights.......................................................60
SECTION 5.07. Compliance with Laws.......................................................................60
</TABLE>
- xxv -
<PAGE> 4
26
<TABLE>
<CAPTION>
ARTICLE VI
NEGATIVE COVENANTS
<S> <C>
SECTION 6.01. Liens......................................................................................60
SECTION 6.02. Fundamental Changes........................................................................61
SECTION 6.03. Sale and Leasebacks........................................................................61
SECTION 6.04. Transactions with Affiliates...............................................................62
SECTION 6.05. Certain Financial Covenants................................................................62
ARTICLE VII
EVENTS OF DEFAULT.....................................................62
ARTICLE VIII
THE ADMINISTRATIVE AGENT.....................................................64
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices....................................................................................66
SECTION 9.02. Waivers; Amendments........................................................................66
SECTION 9.03. Expenses; Indemnity; Damage Waiver.........................................................67
SECTION 9.04. Successors and Assigns.....................................................................68
SECTION 9.05. Survival...................................................................................69
SECTION 9.06. Counterparts; Integration; Effectiveness...................................................70
SECTION 9.07. Severability...............................................................................70
SECTION 9.08. Right of Setoff............................................................................70
SECTION 9.09. Governing Law; Jurisdiction; Etc...........................................................70
SECTION 9.10. WAIVER OF JURY TRIAL.......................................................................71
SECTION 9.11. Headings...................................................................................71
SECTION 9.12. Treatment of Certain Information; Confidentiality..........................................71
</TABLE>
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
- xxvi -
<PAGE> 5
27
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrower
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
- xxvii -
<PAGE> 6
28
364-DAY CREDIT AGREEMENT dated as of November 4, 1999, between
HARTE-HANKS, INC., the LENDERS party hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) make loans to it in an aggregate principal amount not
exceeding $100,000,000 at any one time outstanding. The Lenders are prepared to
make such loans upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:
ARTICLE I
- --------------------------------------------------------------------------------
DEFINITIONS
- -----------
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, for the Interest Period for any
Syndicated Eurodollar Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate for such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the aggregate principal amount of the Syndicated Loans
held by the Lenders or, if no Syndicated Loans are outstanding, the Commitments
most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Syndicated Eurodollar
364-Day Credit Agreement
<PAGE> 7
- 29 -
Loan, or with respect to the facility fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption "ABR
Spread", "Eurodollar Spread" or "Facility Fee Rate", respectively, based upon
the Leverage Ratio as of the most recent determination date:
<TABLE>
<CAPTION>
ABR Eurodollar Facility
Leverage Ratio: Spread Spread Fee Rate
--------------- ------ ---------- --------
<S> <C> <C> <C>
Category 1
Less than 1.00x 0.000% 0.420% 0.080%
Category 2
Equal to or greater than 1.00x but
less than or equal to 1.75x 0.000% 0.525% 0.100%
Category 3
Greater than 1.75x 0.000% 0.750% 0.125%
</TABLE>
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year based upon the
Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date three Business Days after delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 3 (A)
at any time that an Event of Default has occurred and is continuing and (B) if
the Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to and including the Commitment Termination Date.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Harte-Hanks, Inc., a Delaware corporation.
"Borrowing" means (a) all ABR Loans made, converted or
continued on the same date or (b) all Syndicated Eurodollar Loans or Competitive
Loans of the same Class and Type that have the same Interest Period (or any
single Competitive Loan that does not have the same Interest Period as any other
Competitive Loan of the same Type). For purposes hereof, the date of a
Syndicated Borrowing comprising Loans that have been converted or continued
shall be the effective date of the most recent conversion or continuation of
such Loans.
364-Day Credit Agreement
<PAGE> 8
- 30 -
"Borrowing Request" means a request by the Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed and (b) if such day relates to a Competitive
Bid Request or Competitive Bid for a Competitive Eurodollar Loan, or to a
borrowing of, a payment or prepayment of principal of or interest on, a
continuation or conversion of or into, or the Interest Period for, a Eurodollar
Borrowing, or to a notice by the Borrower with respect to any such borrowing,
payment, prepayment, continuation, conversion, or Interest Period, that is also
a day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially, by any Person or group (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Syndicated Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Syndicated Loans hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule I, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial aggregate
amount of the Lenders' Commitments is $100,000,000.
"Commitment Termination Date" means the date 364 days from the
Effective Date, subject to extension as provided in Section 2.10 (or, if such
date is not a Business Day, the preceding Business Day).
364-Day Credit Agreement
<PAGE> 9
- 31 -
"Competitive", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule III and the environmental matters disclosed in Schedule
IV.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person (other than the Borrower
or any of its Subsidiaries) excluding (i) any sale, assignment, transfer or
other disposition of any property sold or disposed of in the ordinary course of
business and on ordinary business terms and (ii) any loss or damage to, or any
condemnation or taking of, any property.
"Dollars" or "$" refers to lawful money of the United States
of America.
"EBITDA" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) income (loss) from operations
(calculated before Interest Expense, taxes, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period plus (b)
depreciation, amortization and other non-cash charges (to the extent deducted in
determining income from operations) for such period.
Notwithstanding the foregoing, if during any period for which
EBITDA is being determined the Borrower or any of its Subsidiaries shall have
consummated any acquisition (including the Ziff Acquisition) or shall have
consummated any Disposition then, for all purposes of this Agreement, EBITDA
shall be determined on a pro forma basis (taking into account adjustments for
excess owner's compensation and other cost savings that have been determined in
good faith by the Borrower to be achievable and that the Borrower has so
demonstrated to the reasonable satisfaction of the Administrative Agent) as if
such acquisition or such Disposition had been made or consummated on the first
day of such period.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees,
364-Day Credit Agreement
<PAGE> 10
- 32 -
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to (a) in the case of a
Syndicated Loan or a Syndicated Borrowing, the Adjusted LIBO Rate, or (b) in the
case of a Competitive Loan or a Competitive Borrowing, the LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
364-Day Credit Agreement
<PAGE> 11
- 33 -
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 (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), 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 is attributable to such Foreign Lender's failure or
inability to comply with Section 2.17(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Competitive Eurodollar Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid. When used in reference to any Loan or Borrowing, "Fixed Rate" refers to
whether such Loan, or the Loans constituting such Borrowing, are Competitive
Loans bearing interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or
364-Day Credit Agreement
<PAGE> 12
- 34 -
wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (or with respect to deposits
or advances of any kind that have substantially the same effect as obligations
for borrowed money), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person and (i)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means, as at any date of
determination thereof, the ratio of (a) EBITDA for the period of four fiscal
quarters ending on or most recently ended prior to such date to (b) Interest
Expense for such period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower or any of its Subsidiaries
shall have consummated any acquisition (including the Ziff Acquisition) or
Disposition then, for all purposes of this Agreement, Interest Expense shall be
determined on a pro forma basis as if such acquisition or Disposition (and any
Indebtedness incurred by the Borrower or any of its Subsidiaries in connection
with such acquisition or repaid as a result of such Disposition) had been made
or consummated (and such Indebtedness incurred or repaid) on the first day of
such period.
"Interest Payment Date" means (a) with respect to any ABR
Loan, each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day
of each Interest Period therefor and, in the case of any Interest Period for a
Eurodollar Loan of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at three-month intervals after the first
day of such Interest Period and (c) with respect to any Fixed Rate Loan,
364-Day Credit Agreement
<PAGE> 13
- 35 -
the last day of the Interest Period therefor and, in the case of any Interest
Period for a Fixed Rate Loan of more than 90 days' duration (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at 90-day intervals after the first day
of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Loan.
"Interest Period" means:
(a) for any Syndicated Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is one, two, three or six months
thereafter, as specified in the applicable Borrowing Request or
Interest Election Request;
(b) for any Competitive Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is one, three, six or nine months
thereafter, as specified in the applicable Competitive Bid Request; and
(c) for any Fixed Rate Loan, the period (which shall not be
less than seven days or more than 360 days) commencing on the date of
such Loan and ending on the date specified in the applicable
Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such
Loan is made and, in the case of a Syndicated Loan, thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Leverage Ratio" means, as at any date, the ratio of (a)
Indebtedness of the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) on such date to (b) EBITDA
for the period of four fiscal quarters ending on or most recently ended prior to
such date.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
364-Day Credit Agreement
<PAGE> 14
- 36 -
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the Lenders under this
Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $20,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Person would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Subsidiary which (i) accounts
for more than 5% of the total consolidated revenue of the Borrower and its
Subsidiaries or (ii) represents more than 5% of the total consolidated assets of
the Borrower and its Subsidiaries.
"Maturity Date" has the meaning set forth in Section 2.09(b).
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
364-Day Credit Agreement
<PAGE> 15
- 37 -
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) cash 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;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Syndicated Loans and unused Commitments representing at least 51% of the sum of
the total Syndicated Loans and unused Commitments at such time (provided that,
for purposes of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or the Commitments expire or terminate, the outstanding Competitive
Loans of the Lenders shall be included in determining the Required Lenders). The
"Required Lenders" of a particular Class of Loans means Lenders having Revolving
Credit Exposures and unused Commitments of such Class representing at least 51%
of the total Revolving Credit Exposures and unused Commitments of such Class at
such time.
"Statutory Reserve Rate" means, for the Interest Period for
any Syndicated Eurodollar Borrowing, a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
364-Day Credit Agreement
<PAGE> 16
- 38 -
number one minus the arithmetic mean, taken over each day in such Interest
Period, of the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. 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 such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
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, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held. Unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Syndicated", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Revolving or Term Loans or Borrowings (i.e. such Loan or Borrowing is not a
Competitive Loan or Borrowing).
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" has the meaning set forth in Section 2.09(b).
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Ziff Acquisition" means the transactions contemplated by the
Ziff Acquisition Agreement.
"Ziff Acquisition Agreement" means the Purchase Agreement
dated August 30, 1999, and as amended October 1, 1999, among the Borrower, ZD
Inc. and ZD Holdings (Europe) Ltd.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a
"Competitive Loan"), by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Competitive Eurodollar Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Competitive Borrowing"), by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Competitive Eurodollar
Borrowing").
364-Day Credit Agreement
<PAGE> 17
- 39 -
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
- -------------------------------------------------------------------------------
THE CREDITS
- -----------
SECTION 2.01. THE COMMITMENTS. Subject to the terms and conditions set forth
herein, each Lender agrees to make Syndicated Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Syndicated Loans exceeding such Lender's
Commitment or (b) the sum of the total Syndicated Loans plus the aggregate
principal amount of outstanding Competitive Loans exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Syndicated Loans.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Obligations of Lenders. Each Syndicated Loan shall be made
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, (i) each
Syndicated Borrowing shall be constituted entirely of ABR Loans or of Eurodollar
Loans as the Borrower may request in accordance herewith, and (ii) each
Competitive Borrowing shall be constituted entirely of Eurodollar Loans or Fixed
Rate Loans as the Borrower may
364-Day Credit Agreement
<PAGE> 18
- 40 -
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Syndicated Eurodollar Borrowing shall be in an aggregate amount of $5,000,000 or
a larger multiple of $1,000,000. Each ABR Borrowing shall be in an aggregate
amount equal to $1,000,000 or a larger multiple of $1,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments. Each Competitive Borrowing shall be in an
aggregate amount equal to $5,000,000 or a larger multiple of $1,000,000.
Borrowings of more than one Class and Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of 20 Syndicated
Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request (or
to elect to convert to or continue as a Syndicated Eurodollar Borrowing) any
Borrowing prior to the Commitment Termination Date if the Interest Period
requested therefor would end after the Commitment Termination Date.
SECTION 2.03. REQUESTS FOR SYNDICATED BORROWINGS.
(a) Notice by the Borrower. To request a Syndicated Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(i) in the case of a Syndicated Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and
signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Syndicated Eurodollar Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period" and permitted under Section
2.02(d); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a
Syndicated Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
364-Day Credit Agreement
<PAGE> 19
- 41 -
Syndicated Eurodollar Borrowing, then the requested Borrowing shall be made
instead as an ABR Borrowing.
SECTION 2.04. COMPETITIVE BID PROCEDURE.
(a) Requests for Bids by the Borrower. Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Syndicated Loans plus the aggregate principal amount
of outstanding Competitive Loans at any time shall not exceed the total
Commitments. To request Competitive Bids, the Borrower shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrower may submit
up to (but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period" and
permitted under Section 2.02(d); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Competitive Eurodollar
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before the proposed date of such Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the proposed date of
such Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender of such
rejection as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be $5,000,000 or a larger multiple of $1,000,000
and which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which
the Lender is prepared to make such Loan or Loans (expressed as a percentage
rate per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period for each such Loan and the last day thereof.
364-Day Credit Agreement
<PAGE> 20
- 42 -
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrower. Subject only to the
provisions of this paragraph, the Borrower may accept or reject any Competitive
Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed
by telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of a
Competitive Eurodollar Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided, that (i) the
failure of the Borrower to give such notice shall be deemed to be a rejection of
each Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the aggregate amount
of the requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (ii) or (iii) of
this proviso, the Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) of this
proviso, no Competitive Bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a principal amount of $5,000,000 or a larger multiple of
$1,000,000; provided further that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) of the first
proviso of this paragraph, such Competitive Loan may be in an amount of
$1,000,000 or any multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to such clause (iv) the amounts shall be rounded
to multiples of $1,000,000 in a manner determined by the Borrower. A notice
given by the Borrower pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent.
The Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the Borrower at least one quarter
of an hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) of this Section.
SECTION 2.05. INTENTIONALLY LEFT BLANK. This Section 2.05 has been intentionally
left blank.
SECTION 2.06. FUNDING OF BORROWINGS.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have
364-Day Credit Agreement
<PAGE> 21
- 43 -
received notice from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Administrative Agent such Lender's
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS.
(a) Elections by the Borrower for Syndicated Borrowings. The
Loans constituting each Syndicated Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Syndicated
Eurodollar Borrowing, shall have the Interest Period specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
Borrowing of a different Type or to continue such Borrowing as a Borrowing of
the same Type and, in the case of a Syndicated Eurodollar Borrowing, may elect
the Interest Period therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.
(c) Content of Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.02(d).
364-Day Credit Agreement
<PAGE> 22
- 44 -
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely and complete Interest Election Request with respect to a
Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Syndicated Borrowing may be converted to or
continued as a Syndicated Eurodollar Borrowing and (ii) unless repaid, each
Syndicated Eurodollar Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period therefor.
SECTION 2.08. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate at the close of business on the Commitment
Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000
or a larger multiple of $5,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Syndicated Loans in accordance with Section 2.11, the sum of the total
Syndicated Loans plus the aggregate principal amount of outstanding Competitive
Loans would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.09. REPAYMENT OF LOANS; CONVERSION OF REVOLVING LOANS TO TERM
LOANS; EVIDENCE OF DEBT.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Administrative Agent for account of the Lenders,
the then unpaid principal amount of the Syndicated Loans on the
Commitment Termination Date, and
(ii) to the Administrative Agent for account of the respective
Lender, the then unpaid principal amount of each Competitive Loan of
such Lender on the last day of the Interest Period therefor.
364-Day Credit Agreement
<PAGE> 23
- 45 -
provided that, to the extent a Borrower shall have elected to convert any
portion of the outstanding Syndicated Loans into Term Loans pursuant to Section
2.09(b), such Term Loans shall mature (and such Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Term Loan) on the Maturity Date.
(b) Conversion to Term Loans. The Borrower may, by notice to
the Administrative Agent not later than 11:00 a.m., New York City time, one
Business Day prior to the Commitment Termination Date convert all Loans made to
the Borrower that are outstanding on the Commitment Termination Date (including
any Syndicated Loans made on the Commitment Termination Date) into term loans
(each, a "Term Loan" and collectively, the "Term Loans"). Each Term Loan shall
bear interest, until the payment in full thereof, at the rates provided for in
Section 2.13 and shall otherwise constitute a Syndicated Loan for all purposes
of this Agreement. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of the Lenders the unpaid principal amount of
the Term Loans made to such Borrower that are outstanding on the date (the
"Maturity Date") that is one year after the Commitment Termination Date (or, if
such date is not a Business Day, the next preceding Business Day).
(c) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first), and for these purposes, Competitive Loans shall be deemed to be in the
same Class as Syndicated Loans. Each payment of a Syndicated Borrowing shall be
applied ratably to the Loans included in such Borrowing.
(d) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice records evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(e) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each Interest
Period therefor, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the records
maintained pursuant to paragraph (d) or (e) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such records or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(g) Promissory Notes. Any Lender may request that Loans made
by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a
364-Day Credit Agreement
<PAGE> 24
- 46 -
registered note, to such payee and its registered assigns).
SECTION 2.10. EXTENSION OF COMMITMENT TERMINATION DATE.
(a) Request for Extension. The Borrower may, by notice to the
Administrative Agent, which shall promptly notify the Lenders, not less than 40
days and not more than 45 days prior to the Commitment Termination Date then in
effect hereunder (the "Existing Commitment Termination Date"), request that the
Lenders extend the Commitment Termination Date for an additional 364 days from
the Consent Date (as defined below). Each Lender, acting in its sole discretion,
shall, by notice to the Borrower and the Administrative Agent given on or before
the date that is 30 days prior to the Existing Commitment Termination Date or,
if such date is not a Business Day, the Business Day next succeeding such date
(such date or Business Day, as the case may be, the "Consent Date"), advise the
Borrower whether or not such Lender agrees to such extension; provided that each
Lender that determines not to extend the Commitment Termination Date (a
"Non-extending Lender") shall notify the Administrative Agent (which shall
notify the Lenders) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Lender that does not advise the
Borrower on or before the Consent Date shall be deemed to be a Non-extending
Lender; provided further that any such consent given before the Consent Date
shall be revocable until the opening of business of the Administrative Agent on
the Consent Date and any such consent given after, or not revoked before, the
opening of business of the Administrative Agent on the Consent Date shall be
irrevocable. The election of any Lender to agree to such extension shall not
obligate any other Lender to so agree.
(b) Replacement of Non-extending Lenders. The Borrower shall
have the right on or before the Existing Commitment Termination Date to replace
each Non-extending Lender with, and otherwise add to this Agreement, one or more
other financial institutions (which may include any Lender, each prior to the
Existing Commitment Termination Date an "Additional Commitment Lender") with the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Lenders shall have entered into
an agreement in form and substance satisfactory to the Borrower and the
Administrative Agent pursuant to which such Additional Commitment Lender shall,
effective as of the Existing Commitment Termination Date, undertake a Commitment
(and, if any such Additional Commitment Lender is already a Lender, its
Commitment shall be in addition to such Lender's Commitment hereunder on such
date).
(c) Effectiveness of Extension. If (and only if) the total of
the Commitments of the Lenders that have agreed so to extend the Commitment
Termination Date and the additional Commitments of the Additional Commitment
Lenders shall be at least 66-2/3% of the aggregate amount of the Commitments in
effect immediately prior to the Consent Date, then, effective as of the Existing
Commitment Termination Date, the Existing Commitment Termination Date shall be
extended to the date falling 364 days after the Consent Date (except that, if
such date is not a Business Day, such Commitment Termination Date as so extended
shall be the next preceding Business Day) and each Additional Commitment Lender
shall thereupon become a "Lender" for all purposes of this Agreement.
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any Lender
unless:
(i) no Default shall have occurred and be continuing on each
of the date of the notice requesting such extension, on the Consent
Date and on the Existing Commitment Termination Date;
(ii) each of the representations and warranties made by the
Borrower in Article III shall be true and complete on and as of each of
the date of the notice requesting such extension, the Consent Date and
the Existing Commitment Termination Date with the same force and effect
as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date,
as of such specific date); and
364-Day Credit Agreement
<PAGE> 25
- 47 -
(iii) each Non-extending Lender shall have been paid in full
by the Borrower all amounts owing to such Lender hereunder on or before
the Existing Commitment Termination Date,
and the Administrative Agent shall have received a certification to such effect
from a Financial Officer of the Borrower.
Even if the Existing Commitment Termination Date is extended
as aforesaid, the Commitment of each Non-extending Lender shall terminate on the
Existing Commitment Termination Date.
SECTION 2.11. PREPAYMENT OF LOANS.
(a) Right to Prepay Borrowings. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section (provided, however, that any
partial prepayment shall be in an amount of at least $5,000,000 or a larger
multiple of $1,000,000 and, provided further that the Borrower shall not have
the right to prepay any Competitive Loan without the prior consent of the Lender
thereof).
(b) Notices, Etc. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Syndicated Eurodollar Borrowing or of a Competitive
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment or (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Syndicated Borrowing or
Competitive Borrowing, the Administrative Agent shall advise the relevant
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of a Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Syndicated Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13 and shall be made in the manner specified in Section 2.09(c).
SECTION 2.12. FEES.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the amount of the Commitment of such Lender
(whether used or unused) during the period from and including the date hereof to
but excluding the later of the date such Commitment terminates and the date such
Lender's Loans shall have been paid in full; provided that, if such Lender
continues to have any Loans outstanding after its Commitment terminates
(including by reason of a conversion of such Lender's Loans into Term Loans
pursuant to Section 2.09(b)), then such facility fee shall continue to accrue on
the amount of such Lender's Loans from and including the date on which its
Commitment terminates to but excluding the date on which such Lender's Loans
shall have been paid in full. Accrued facility fees shall be payable on each
Quarterly Date and on the later of the date the Commitments terminate and the
date upon which the Loans of all of the Lenders shall have been paid in full,
provided that, if any principal of any Term Loan is not paid when due, whether
at stated maturity, upon acceleration or otherwise, facility fee in respect of
such principal shall be payable on demand. All facility fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
364-Day Credit Agreement
<PAGE> 26
- 48 -
(b) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
(c) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of facility fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Syndicated Eurodollar Borrowing, the Adjusted LIBO Rate for the Interest Period
for such Borrowing plus the Applicable Rate, or (ii) in the case of a
Competitive Eurodollar Borrowing, the LIBO Rate for the Interest Period for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Loan prior to the Maturity Date), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective
date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement of the
Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest
364-Day Credit Agreement
<PAGE> 27
- 49 -
error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar
Borrowing) or the LIBO Rate (in the case of a Competitive Eurodollar
Borrowing) for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Competitive Eurodollar Borrowing, any
Lender that is required to make a Loan included in such Borrowing) that
the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar
Borrowing) or the LIBO Rate (in the case of a Competitive Eurodollar
Borrowing) for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining
their respective Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Syndicated Eurodollar
Borrowing shall be ineffective and such Syndicated Borrowing (unless prepaid)
shall be continued as, or converted to, an ABR Borrowing, (ii) if any Borrowing
Request requests a Syndicated Eurodollar Borrowing, such Borrowing shall be made
as an ABR Borrowing and (iii) any request by the Borrower for a Competitive
Eurodollar Borrowing shall be ineffective; provided that if the circumstances
giving rise to such notice do not affect all the Lenders, then requests by the
Borrower for Competitive Eurodollar Borrowings may be made to Lenders that are
not affected thereby.
SECTION 2.15. INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b)
364-Day Credit Agreement
<PAGE> 28
- 50 -
of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Competitive Loans. Notwithstanding the foregoing
provisions of this Section 2.15, a Lender shall not be entitled to compensation
pursuant to this Section 2.15 in respect of any Competitive Loan if the Change
in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which
such Loan was made.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day
of an Interest Period therefor (including as a result of an Event of Default),
(b) the conversion of any Syndicated Eurodollar Loan other than on the last day
of an Interest Period therefor, (c) the failure to borrow, convert, continue or
prepay any Syndicated Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.11(b) and is revoked in accordance herewith), (d) the failure to
borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment as a result of a request by the Borrower pursuant to
Section 2.19 of any Syndicated Eurodollar Loan other than on the last day of an
Interest Period therefor or of any Competitive Loan, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Loan) or
the LIBO Rate (in the case of a Competitive Eurodollar Loan) for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for Dollar deposits from other banks in the
eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES.
(a) Payments Free of Taxes. 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 or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the
364-Day Credit Agreement
<PAGE> 29
- 51 -
relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, 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 by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. 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) Foreign Lenders. 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 or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
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
its offices at 270 Park Avenue, New York, New York, except payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03, which shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
364-Day Credit Agreement
<PAGE> 30
- 52 -
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing shall be made from the Lenders,
each payment of facility fee under Section 2.12 shall be made for account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.08 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Syndicated Borrowing shall be allocated pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of the
making of Syndicated Loans) or their respective Loans that are to be included in
such Borrowing (in the case of conversions and continuations of Loans); (iii)
each payment or prepayment of principal of Syndicated Loans by the Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by them; and
(iv) each payment of interest on Syndicated Loans by the Borrower shall be made
for account of the Lenders pro rata in accordance with the amounts of interest
on such Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. 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 Syndicated Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its Syndicated Loans and accrued interest thereon then due 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
Syndicated 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
Syndicated 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 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.
(e) Presumptions of Payment. 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 account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.06(b) or 2.18(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental
364-Day Credit Agreement
<PAGE> 31
- 53 -
Authority for account of any Lender pursuant to Section 2.17, then such Lender
shall use reasonable efforts to designate a different lending office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.15, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (other than Competitive Loans), accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
- --------------------------------------------------------------------------------
REPRESENTATIONS AND WARRANTIES
- ------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its Subsidiaries is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, by all necessary shareholder action. This Agreement
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except
364-Day Credit Agreement
<PAGE> 32
- 54 -
such as have been obtained or made and are in full force and 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, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) will not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders (i) its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for the fiscal year ended December
31, 1998, reported on by KPMG Peat Marwick LLP, independent public accountants
and (ii) its consolidated balance sheet and statements of income, stockholders'
equity and cash flows as of and for the fiscal quarter and the portion of the
fiscal year ended June 30, 1999, certified by the chief financial officer of the
Borrower. Such financial statements present fairly, in all material respects,
the actual or pro forma, as the case may be, financial position and results of
operations and cash flows of the Borrower and its Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) of the first sentence of this paragraph. None of the Borrower
nor any of its Subsidiaries has on the date hereof any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheet as at June 30,
1999.
(b) No Material Adverse Change. Since June 30, 1999, there has
been no material adverse change in the business, assets, properties, operations,
prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
(c) Year 2000 Issues. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the computer systems
of the Borrower and its Subsidiaries and (ii) equipment containing embedded
microchips (including systems and equipment maintained by others with which the
systems of the Borrower and its Subsidiaries interface) and the testing of all
such systems and equipment, as so reprogrammed, has been completed in all
material respects. The cost to the Borrower of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Borrower
(including reprogramming errors and the failure of others' systems or equipment)
will not result in a Material Adverse Effect.
SECTION 3.05. PROPERTIES.
(a) Property Generally. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to their businesses, taken as a whole, subject
only to Liens permitted by Section 6.01 and except for minor defects in title
that do not interfere with its ability to conduct such businesses as currently
conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to their
businesses, taken as a whole, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
364-Day Credit Agreement
<PAGE> 33
- 55 -
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Actions, Suits and Proceedings. There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
(c) Disclosed Matters. Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or could reasonably be expected to result in,
a Material Adverse Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has timely filed
or caused to be filed all Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such
364-Day Credit Agreement
<PAGE> 34
- 56 -
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. USE OF CREDIT. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and after applying the proceeds of any Loan
hereunder, not more than 25% of the fair market value of the assets of the
Borrower and its Subsidiaries consists of Margin Stock.
SECTION 3.13. MATERIAL AGREEMENTS AND LIENS.
(a) Material Agreements. Part A of Schedule II is a complete
and correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries outstanding on the date hereof the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $10,000,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding on the date
hereof the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $10,000,000 and covering any property of the Borrower or any of
its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Part B of Schedule II.
SECTION 3.14. SUBSIDIARIES. Set forth in Schedule V is a complete and correct
list of all of the Subsidiaries of the Borrower as of the date hereof, together
with, for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding ownership interests in such Subsidiary and
(iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Schedule V, on the date hereof, (x) each of
the Borrower and its Subsidiaries owns, free and clear of Liens, and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Schedule V, (y) all of the issued and outstanding
capital stock of each such Person organized as a corporation is validly issued,
fully paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
ARTICLE IV
- -------------------------------------------------------------------------------
CONDITIONS
- ----------
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which the Administrative
Agent shall have received each of the following documents, each of which shall
be satisfactory to the Administrative Agent (and to the extent specified below,
to each Lender) in form and substance (or such condition shall have been waived
in accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrower. A favorable written
opinion (addressed to the
364-Day Credit Agreement
<PAGE> 35
- 57 -
Administrative Agent and the Lenders and dated the Effective Date) of
Hughes & Luce, counsel for the Borrower, substantially in the form of
Exhibit B, and covering such other matters relating to the Borrower,
this Agreement or the Transactions as the Required Lenders shall
reasonably request (and the Borrower hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to Chase, substantially in the form of Exhibit
C (and Chase hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating
to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming (i) compliance with the conditions
set forth in the lettered clauses of the first sentence of Section
4.02, (ii) that the Leverage Ratio does not exceed 3.00 to 1 and (iii)
that the Interest Coverage Ratio is not less than 2.75 to 1.
(f) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to Chase
may reasonably request.
The obligation of any Lender to make its initial Loan
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Chase, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the Loans hereunder (to the extent that statements for such fees and expenses
have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New
York City time, on November 15, 1999 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make any Loan
is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Loan; and
(b) at the time of and immediately after giving effect to such
Loan, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
364-Day Credit Agreement
<PAGE> 36
- 58 -
ARTICLE V
- --------------------------------------------------------------------------------
AFFIRMATIVE COVENANTS
- ---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower will
furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows of the Borrower and
its Subsidiaries as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
all reported on by KPMG Peat Marwick LLP or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows of the Borrower and its Subsidiaries as of the
end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures
for (or, in the case of the balance sheet, as of the end of the prior
fiscal year) the corresponding period or periods of the previous fiscal
year, all certified by a Financial Officer 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 consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating compliance
with Sections 6.05 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (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 by the Borrower or any of its Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
364-Day Credit Agreement
<PAGE> 37
- 59 -
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Affiliates that could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations,
other than any environmental matter or alleged violation that (either
individually or in the aggregate) could not reasonably be expected to
have a Material Adverse Effect; 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 statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause each of
its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
364-Day Credit Agreement
<PAGE> 38
- 60 -
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority, including, but not limited to, Environmental Laws
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
ARTICLE VI
- --------------------------------------------------------------------------------
NEGATIVE COVENANTS
- ------------------
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
of its Subsidiaries existing on the date hereof and set forth in Part B
of Schedule II (or, to the extent not meeting the minimum thresholds
for required listing on Schedule II pursuant to Section 3.13, in an
aggregate amount not exceeding $10,000,000); provided that (i) no such
Lien shall extend to any other property or asset of the Borrower or any
of its Subsidiaries and (ii) any such Lien shall secure only those
obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof; and
(d) Liens on assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such security interests
and the Indebtedness secured thereby are incurred prior to or within
365 days after such acquisition or the completion of such construction
or improvement, (ii) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such assets, (iii)
such security interests shall not apply to any other property or assets
of the Borrower or any Subsidiary
364-Day Credit Agreement
<PAGE> 39
- 61 -
and (iv) the aggregate principal amount of Indebtedness secured by all
such security interests under this paragraph (d) shall not exceed
$50,000,000.
SECTION 6.02. FUNDAMENTAL CHANGES.
(a) Mergers, Consolidations, Disposal of Assets, Etc. The
Borrower will not, nor will it permit any of its Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any of its assets, or any of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter
acquired), if the effect of any such sale of assets or stock or merger or
consolidation would be to sell, transfer, lease or otherwise dispose of all or
substantially all of the assets of the Borrower and its Subsidiaries (taken as a
whole) or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing:
(i) any Person may merge into or consolidate with the Borrower
in a transaction in which the Borrower is the surviving corporation;
(ii) any Person may merge into or consolidate with any
Subsidiary in a transaction in which the surviving entity is a
Subsidiary;
(iii) the Borrower may merge into or consolidate with any
other Person in a transaction in which such Person is the surviving
entity so long as (x) such Person assumes all of the obligations of the
Borrower under this Agreement by an instrument in form and substance
reasonably satisfactory to the Administrative Agent and (y) such Person
delivers such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by the Borrower pursuant to Section 4.01 on the Effective
Date or as the Administrative Agent shall have reasonably requested;
(iv) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to another Subsidiary; and
(v) any Subsidiary 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; provided that if any such merger shall be between a
Subsidiary and a wholly owned Subsidiary, then the wholly owned
Subsidiary shall be the continuing or surviving corporation.
(b) Lines of Business. The Borrower will not, nor will it
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 of execution of this Agreement and businesses reasonably related
thereto.
SECTION 6.03. SALE AND LEASEBACKS. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, become or thereafter remain
liable as lessee or as guarantor or other surety with respect to the lessee's
obligations under any lease, whether an operating lease or a capital lease, of
any property (whether real or personal or mixed) whether now owned or hereafter
acquired, (a) which the Borrower or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person or (b) which the
Borrower or any such Subsidiary intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
the Borrower or any such Subsidiary to any Person in connection with such lease,
if in the case of clause (a) or (b) above, such sale and such lease are part of
the same transaction or a series of related transactions or are with the same
other Person; provided that the Borrower or any Subsidiary may enter into any
such transaction so long as the sale price of all such transactions does not
exceed $20,000,000 in the aggregate during the term of this Agreement.
364-Day Credit Agreement
<PAGE> 40
- 62 -
SECTION 6.04. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any of its Subsidiaries to, sell lease or otherwise transfer any property
or assets to, or purchase, lease or otherwise acquire any property or assets
from, or otherwise engage in any other transactions with, any of its Affiliates,
except (a) transactions 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 its Subsidiaries not involving
any other Affiliate and (c) loans to employees of the Borrower or any Subsidiary
for relocation expenses or other purposes; provided that the aggregate
outstanding principal amount of the loans permitted under this clause (c) shall
not exceed $3,000,000 at any one time. .
SECTION 6.05. CERTAIN FINANCIAL COVENANTS.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio to exceed 3.00 to 1 at any time during the term of this Agreement.
(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than 2.75 to 1 at any time during the term of
this Agreement.
ARTICLE VII
- --------------------------------------------------------------------------------
EVENTS OF DEFAULT
- -----------------
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a
period of three or more Business Days; or the Borrower shall fail to
pay any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of thirty or more days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in
connection with this Agreement or any amendment or modification hereof,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a) or 5.03
(with respect to the Borrower's existence) or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) and
such failure shall continue unremedied for a period of 30 or more days
after notice thereof from the Administrative Agent at the direction of
any Lender to the Borrower;
364-Day Credit Agreement
<PAGE> 41
- 63 -
(f) the Borrower or any of its Material Subsidiaries shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable (whether at stated maturity or
on acceleration);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, but without
any further lapse of time) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its
Material Subsidiaries or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Material
Subsidiaries or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for a
period of 60 or more days or an order or decree approving or ordering
any of the foregoing shall be entered;
(i) the Borrower or any of its Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Material
Subsidiaries 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;
(j) the Borrower or any of its Material Subsidiaries shall
become unable, admit in writing its inability or fail generally to pay
its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $20,000,000 shall be rendered against the
Borrower or any of its Material Subsidiaries or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any of its Material Subsidiaries to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) there shall have been asserted against the Borrower or any
of its Subsidiaries any claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the generation,
storage, transport, handling or disposal of Hazardous Materials by the
Borrower or any of its Subsidiaries that, in the judgment of the
Required Lenders, are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to
364-Day Credit Agreement
<PAGE> 42
- 64 -
have a Material Adverse Effect (insofar as such amount is payable by
the Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
- --------------------------------------------------------------------------------
THE ADMINISTRATIVE AGENT
- ------------------------
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other
364-Day Credit Agreement
<PAGE> 43
- 65 -
document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
364-Day Credit Agreement
<PAGE> 44
- 66 -
ARTICLE IX
- --------------------------------------------------------------------------------
MISCELLANEOUS
- -------------
SECTION 9.01. NOTICES. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to the Borrower, to it at Harte-Hanks, Inc., 200
Concord Plaza Drive, Suite 800, San Antonio, TX 78216, Attention of
Donald R. Crews (Telecopy No. (210) 829-9139);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Christopher Riggio, Loan and Agency Services Group
(Telecopy No. (212) 552-5700), with a copy to The Chase Manhattan Bank,
270 Park Avenue, New York, New York 10017, Attention of Bruce
Langenkamp (Telecopy No. (212) 270-1264); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) alter the provisions of Section 2.17(d), without the
written consent of each Lender, or (v) change any of the provisions of this
Section or the percentage in the definition of the term "Required Lenders" or
any other provision hereof specifying the number or percentage of Lenders
required to
364-Day Credit Agreement
<PAGE> 45
- 67 -
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; and provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement that could reasonably be expected to adversely affect the Lenders of
any Class in a manner that does not affect all Classes equally shall be
effective against the Lenders of such Class unless the Required Lenders of such
Class shall have concurred with such waiver or modification.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its capacity
as such.
364-Day Credit Agreement
<PAGE> 46
- 68 -
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or a domestic Affiliate of a Lender, each of the Borrower and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $10,000,000 unless
each of the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (a), (b), (h) or (i) of Article VII has occurred and is continuing. Upon
acceptance and recording pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the
364-Day Credit Agreement
<PAGE> 47
- 69 -
Lenders, and the Commitment of, and principal amount of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.15 or 2.17 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.17(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(h) No Assignments to the Borrower or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the
364-Day Credit Agreement
<PAGE> 48
- 70 -
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, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract between and among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
to this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; ETC.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all
364-Day Credit Agreement
<PAGE> 49
- 71 -
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the
Borrower and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory
364-Day Credit Agreement
<PAGE> 50
- 72 -
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Borrower or (viii) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this paragraph or (B) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this paragraph, "Information" means
all information received from the Borrower relating to the Borrower, its
Subsidiaries or their Affiliates or their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
364-Day Credit Agreement
<PAGE> 51
- 73 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
HARTE-HANKS, INC.
By
-----------------------------------
Name:
Title:
364-Day Credit Agreement
<PAGE> 52
- 74 -
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By
-----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
-----------------------------------
Name:
Title:
BANK OF MONTREAL
By
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
-----------------------------------
Name:
Title:
364-Day Credit Agreement
<PAGE> 53
- 75 -
BANK ONE, TEXAS, N.A.
By
-----------------------------------
Name:
Title:
MELLON BANK, N.A.
By
-----------------------------------
Name:
Title:
WELLS FARGO BANK, N.A.
By
-----------------------------------
Name:
Title:
364-Day Credit Agreement
<PAGE> 54
- 76 -
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI, LTD.
By
-----------------------------------
Name:
Title:
364-Day Credit Agreement
<PAGE> 55
77
SCHEDULE I
Commitments
<TABLE>
<CAPTION>
Name of Lender Commitment ($)
- -------------- ---------------
<S> <C>
The Chase Manhattan Bank 14,750,000.00
Bank of America, N.A 14,750,000.00
Bank of Montreal 10,500,000.00
The Bank of New York 10,500,000.00
Bank One, Texas, N.A 10,500,000.00
Mellon Bank, N.A 10,500,000.00
Wells Fargo Bank, N.A 10,500,000.00
Westdeutsche Landesbank Girozentrale New York Branch 10,500,000.00
Bank Of Tokyo-Mitsubishi, Ltd. 7,500,000.00
--------------
Total 100,000,000.00
</TABLE>
Schedule I to 364-Day Credit Agreement
<PAGE> 56
78
SCHEDULE II
Material Agreements and Liens
Part A - Material Agreements
None.
Part B - Liens
None.
Schedule II to 364-Day Credit Agreement
<PAGE> 57
79
SCHEDULE III
Litigation
None.
Schedule III to 364-Day Credit Agreement
<PAGE> 58
80
SCHEDULE IV
Environmental Matters
None.
Schedule IV to 364-Day Credit Agreement
<PAGE> 59
81
SCHEDULE V
Subsidiaries
SUBSIDIARIES OF HARTE-HANKS, INC.
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization % Owned
- -------------- --------------- -------
<S> <C> <C>
DiMark, Inc. New Jersey 100%
DiMark Marketing, Inc. Pennsylvania 100%(1)
Direct Market Concepts, Inc. Florida 100%
Direct Marketing Associates, Inc. Maryland 100%
DMK, Inc. Delaware 100%(2)
The Flyer Publishing Corporation Florida 100%
Harte-Hanks Data Technologies, Inc. Massachusetts 100%
Harte-Hanks Delaware, Inc. Delaware 100%
Harte-Hanks Direct, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Baltimore, Inc. Maryland 100%
Harte-Hanks Direct Marketing/Cincinnati, Inc. Ohio 100%
Harte-Hanks Direct Marketing/Dallas, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Fullerton, Inc. California 100%
Harte-Hanks Direct Marketing/Kansas City, Inc. Missouri 100%
Harte-Hanks do Brazil Consultoria e Servicos Ltda. Brazil 100%(3)
Harte-Hanks Limited England 100%(3)
Harte-Hanks Market Intelligence, Inc. California 100%
Harte-Hanks Market Intelligence Espana, LLC Colorado 100%
Harte-Hanks Market Intelligence Europe Netherlands 100%
Harte-Hanks Market Intelligence GmbH Germany 100%
Harte-Hanks Market Intelligence Limited Ireland 100%
Harte-Hanks Market Intelligence Limited UK 100%
Harte-Hanks Market Intelligence SAS France 100%
Harte-Hanks Market Research, Inc. New Jersey 100%
Harte-Hanks Partnership, Ltd. Texas 100%(6)
Harte-Hanks Pty. Limited Australia 100%(3)
Harte-Hanks Response Management/Austin, Inc. Delaware 100%
Harte-Hanks Response Management/Boston, Inc. Massachusetts 100%
Harte-Hanks Response Management Call Centers, Inc. Delaware 100%
Harte-Hanks Response Management Europe Belgium 100%
Harte-Hanks Shoppers, Inc. California 100%
Harte-Hanks Stock Plan, Inc. Delaware 100%
H&R Communications, Inc. New Jersey 100%(2)
HTS, Inc. Connecticut 100%
Information for Marketing Limited (shell corporation) England 100%(5)
Mars Graphic Services, Inc. New Jersey 100%(4)
NSO, Inc. Ohio 100%
Printing Management Services, Inc. Delaware 100%
PRO Direct Response Corp. New Jersey 100%(2)
Southern Comprint Co. California 100%
Spectral Resources, Inc. New York 100%
</TABLE>
Schedule V to 364-Day Credit Agreement
<PAGE> 60
- 82 -
(1) Owned by Mars Graphic Services, Inc.
(2) Owned by DiMark Marketing, Inc.
(3) Owned by Harte-Hanks Data Technologies, Inc.
(4) Owned by DiMark, Inc.
(5) Owned by Harte-Hanks Limited
(6) 99.5% Owned by Harte-Hanks Delaware, Inc.
.5% Owned by Harte-Hanks, Inc.
Schedule V to 364-Day Credit Agreement
<PAGE> 61
83
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
November 4, 1999 (as amended and in effect on the date hereof, the "364-Day
Credit Agreement"), between Harte-Hanks, Inc., the Lenders named therein and The
Chase Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in
the 364-Day Credit Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the 364-Day Credit Agreement,
including the interests set forth below in the Commitment of the Assignor on the
Assignment Date and Competitive Loans and Syndicated Loans owing to the Assignor
which are outstanding on the Assignment Date, together with unpaid interest
accrued on the assigned Loans to the Assignment Date, and the amount, if any,
set forth below of the fees accrued to the Assignment Date for account of the
Assignor. The Assignee hereby acknowledges receipt of a copy of the 364-Day
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the 364-Day Credit Agreement and, to
the extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the 364-Day
Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the 364-Day Credit Agreement, duly completed and executed by the
Assignee, and (ii) if the Assignee is not already a Lender under the 364-Day
Credit Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor]
shall pay the fee payable to the Administrative Agent pursuant to Section
9.04(b) of the 364-Day Credit Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Assignment and Acceptance
<PAGE> 62
- 84 -
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
<TABLE>
<CAPTION>
Percentage Assigned of
Facility/Commitment
(set forth, to at
Principal Amount least 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
- -------- ------------------ -----------------------
<S> <C> <C>
Commitment Assigned: $ %
Syndicated Loans:
Competitive Loans:
Fees Assigned (if any):
</TABLE>
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
------------------
By:
-------------------------------------------
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
------------------
By:
-------------------------------------------
Name:
Title:
Assignment and Acceptance
<PAGE> 63
- 85 -
The undersigned hereby consent to the within assignment:
HARTE-HANKS, INC.
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
---------------------------------
Name:
Title:
<PAGE> 64
86
EXHIBIT B
[Form of Opinion of Counsel to the Borrower]
November 4, 1999
The Chase Manhattan Bank, as Administrative Agent,
and the Lenders party to the 364-Day Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as special counsel to Harte-Hanks, Inc., a Delaware
corporation ("Borrower"), in connection with the 364-Day Credit Agreement, dated
as of November 4, 1999 (the "364-Day Agreement") among Borrower, The Chase
Manhattan Bank, as Administrative Agent and the Lenders party thereto.
Capitalized terms not defined herein are used as defined in the 364-Day
Agreement. This opinion is being delivered pursuant to Section 4.01(b) of the
364-Day Agreement.
For purposes of this opinion, we have reviewed the 364-Day Agreement.
We have also reviewed and relied upon the originals, or copies certified or
otherwise identified to our satisfaction, of corporate documents and records of
Borrower and certificates of public officials and other documents, certificates,
instruments and agreements as in our judgment are necessary to enable us to
deliver this opinion letter. As to questions of fact material to the opinions,
we have relied upon information received from officers of Borrower without
independent verification.
In rendering our opinions, we have assumed:
(a) the genuineness and authenticity of all signatures to all
documents submitted to us as originals (other than Borrower's
signatures);
(b) the conformity to authentic original documents of all
documents submitted to us as certified, conformed, or
photostatic copies;
(c) the correctness and accuracy of all facts set forth in all
certificates and documents delivered to us in connection with
this opinion;
(d) the 364-Day Agreement is enforceable against all parties
thereto (except as otherwise expressly stated with respect to
the Borrower in Paragraph 4 of the opinions below); and
(e) there are no agreements or understandings among the parties
that would define, supplement or qualify the terms of the
364-Day Agreement.
Based upon and subject to the foregoing and subject also to the
assumptions and qualifications set forth
Opinion of Counsel to the Borrower
<PAGE> 65
- 87 -
below, and having considered such questions of law as we have deemed necessary
as a basis for the opinions expressed below, we are of the opinion that:
1. Borrower is a validly existing corporation in good standing
under the laws of the State of Delaware. Borrower has all
requisite corporate power and authority to carry on its
business as now conducted and, except where the failure to do
so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
2. The Transactions are within the corporate powers of Borrower.
3. The Transactions have been duly authorized by all necessary
corporate action on the part of Borrower.
4. The 364-Day Agreement has been duly executed and delivered by
the Borrower and constitutes the legal, valid and binding
obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
5. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any
Governmental Authority, (b) will not violate the charter or
by-laws of the Borrower or, to our knowledge, any applicable
law or regulation or any order of any Governmental Authority,
(c) to our knowledge, will not violate or result in a default
under any material indenture, agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or
assets, or give rise to a right thereunder to require any
payment to be made by any such Person and (d) to our
knowledge, will not result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Material
Subsidiaries.
6. To our knowledge, there are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority now
pending against or threatened against or affecting the
Borrower or any of its Subsidiaries (a) as to which there is a
reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect (other than Disclosed Matters) or (b) that involve the
364-Day Agreement or the Transactions.
7. The Borrower is not (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of
1935.
The foregoing opinions are subject to the following qualifications and
exceptions:
(a) The foregoing opinions are limited to the Federal laws of the
United States of America, the General Corporation Law of the
State of Delaware and Texas law. To the extent the matters
herein are governed by the laws of the State of New York, we
have assumed such laws are the same as the laws of the State
of Texas.
Opinion of Counsel to the Borrower
<PAGE> 66
- 88 -
(b) The qualification of any opinion or statement herein by the
use of the words "to our knowledge," "known to us" or words of
similar import means that during the course of our
representation as described herein, no information has come to
the attention of the attorneys in this firm directly involved
in the transactions described herein which gave such attorneys
actual knowledge contrary to the position stated.
(c) In rendering the opinion set forth in Paragraph 5 hereof, we
have reviewed only those statutes and regulations that a
lawyer in the State of Texas exercising customary professional
diligence would reasonably recognize as being directly
applicable to Borrower and the transactions contemplated by
the 364-Day Agreement.
(d) We express no opinion with respect to any provision contained
in the 364-Day Agreement prohibiting oral amendments to or
waivers of provisions of such documents or limiting the effect
of a course of dealing between the parties thereto.
(e) This opinion letter is limited to the matters stated herein as
of the date hereof and is limited to present statutes, rules,
laws and regulations and to the facts as they currently exist.
We assume no obligation to update this opinion letter or to
advise you of any changes in our opinions in the event of
changes in applicable law or facts becoming effective or
occurring after the date hereof or if additional newly
discovered information is brought to our attention after the
date hereof.
(f) We express no opinion as to usury laws.
(g) The opinions set forth in Paragraph 4 of this opinion letter
to the extent covering Texas law, are also subject to the
effect of generally applicable rules of Texas law that:
(i) provide forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum
selected;
(ii) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own
action or inaction, to the extent the action or
inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct;
(iii) may permit a party who has materially failed to
render or offer performance required by the contract
to cure that failure unless (i) permitting a cure
would unreasonably hinder the aggrieved party from
making substitute arrangements for performance, or
(ii) it was important in the circumstances to the
aggrieved party that performance occur by the date
stated in the contract;
(iv) impose limitations on attorneys' or trustees' fees;
(v) limit or affect the enforceability of provisions for
late charges, prepayment charges, or yield
maintenance charges, acceleration of future amounts
due (other than principal) without appropriate
discount to present value, liquidated damages, and
"penalties";
Opinion of Counsel to the Borrower
<PAGE> 67
- 89 -
(vi) limit or affect the enforceability of provisions that
provide for the acceleration of indebtedness upon any
transfer or change in the control, ownership, or
management of any party; and
(vii) limit or affect the enforcement of provisions of a
contract that purport to require waiver of jury
trial.
This opinion letter is delivered to you solely for your benefit in
connection with the 364-Day Agreement. This opinion letter may not be relied on
by you for any other purpose, nor may it be furnished to, used by, circulated
to, quoted to or referred to by, any other person for any purpose without our
prior express written consent.
Very truly yours,
Opinion of Counsel to the Borrower
<PAGE> 68
- 90 -
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
November __, 1999
To the Lenders party to the 364-Day Credit Agreement referred
to below and The Chase Manhattan Bank, as Administrative
Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank ("Chase") in connection with the 364-Day Credit Agreement (the
"364-Day Credit Agreement") dated as of November 4, 1999, between Harte-Hanks,
Inc. (the "Borrower"), the lenders party thereto and Chase, as Administrative
Agent, providing for loans to be made by said lenders to the Borrower in an
aggregate principal amount not exceeding $100,000,000. Terms defined in the
364-Day Credit Agreement are used herein as defined therein. This opinion letter
is being delivered pursuant to Section 4.01(c) of the 364-Day Credit Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the 364-Day Credit Agreement; and
(b) such records of the Borrower and such other documents as
we have deemed necessary as a basis for the opinions expressed below.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon certificates of governmental officials and appropriate
representatives of the Borrower and upon representations made in or pursuant to
the 364-Day Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been
duly executed and delivered by, and (except to the extent set forth in
the opinions expressed below as to the Borrower) constitute legal,
valid, binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly organized
and validly existing and have the
Opinion of Counsel to the Borrower
<PAGE> 69
- 91 -
power and authority (corporate or other) to execute, deliver and
perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the 364-Day Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the 364-Day Credit
Agreement is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the 364-Day Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the 364-Day Credit
Agreement to the effect that terms may not be waived or modified except
in writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.18(d) of the 364-Day
Credit Agreement and (iii) the first sentence of Section 9.09(b) of the
364-Day Credit Agreement, insofar as such sentence relates to the
subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to
the 364-Day Credit Agreement.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
At the request of our client, this opinion letter is, pursuant
to Section 4.01(c) of the 364-Day Credit Agreement, provided to you by us in our
capacity as special New York counsel to Chase and may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the 364-Day Credit Agreement without, in each instance, our
prior written consent.
Very truly yours,
RJW/WFC
<PAGE> 1
- 92 -
EXECUTION COUNTERPART
===============================================================================
THREE-YEAR CREDIT AGREEMENT
dated as of
November 4, 1999
between
HARTE-HANKS, INC.
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
--------------
$100,000,000
--------------
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
===============================================================================
<PAGE> 2
93
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................97
SECTION 1.02. Classification of Loans and Borrowings........................108
SECTION 1.03. Terms Generally...............................................108
SECTION 1.04. Accounting Terms; GAAP........................................108
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments...............................................108
SECTION 2.02. Loans and Borrowings..........................................108
SECTION 2.03. Requests for Syndicated Borrowings............................109
SECTION 2.04. Competitive Bid Procedure.....................................110
SECTION 2.05. Swingline Loans...............................................112
SECTION 2.06. Funding of Borrowings.........................................113
SECTION 2.07. Interest Elections............................................113
SECTION 2.08. Termination and Reduction of the Commitments..................114
SECTION 2.09. Repayment of Loans; Evidence of Debt..........................115
SECTION 2.10. Intentionally Left Blank......................................116
SECTION 2.11. Prepayment of Loans...........................................116
SECTION 2.12. Fees..........................................................116
SECTION 2.13. Interest......................................................117
SECTION 2.14. Alternate Rate of Interest....................................117
SECTION 2.15. Increased Costs...............................................118
SECTION 2.16. Break Funding Payments........................................119
SECTION 2.17. Taxes.........................................................119
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...120
SECTION 2.19. Mitigation Obligations; Replacement of Lenders................121
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..........................................122
SECTION 3.02. Authorization; Enforceability.................................122
</TABLE>
<PAGE> 3
- 94 -
<TABLE>
<S> <C>
SECTION 3.03. Governmental Approvals; No Conflicts.........................122
SECTION 3.04. Financial Condition; No Material Adverse Change..............123
SECTION 3.05. Properties...................................................123
SECTION 3.06. Litigation and Environmental Matters.........................124
SECTION 3.07. Compliance with Laws and Agreements..........................124
SECTION 3.08. Investment and Holding Company Status........................124
SECTION 3.09. Taxes........................................................124
SECTION 3.10. ERISA........................................................124
SECTION 3.11. Disclosure...................................................124
SECTION 3.12. Use of Credit................................................125
SECTION 3.13. Material Agreements and Liens................................125
SECTION 3.14. Subsidiaries.................................................125
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date...............................................125
SECTION 4.02. Each Credit Event............................................126
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information...................127
SECTION 5.02. Notices of Material Events...................................128
SECTION 5.03. Existence; Conduct of Business...............................128
SECTION 5.04. Payment of Obligations.......................................128
SECTION 5.05. Maintenance of Properties; Insurance.........................128
SECTION 5.06. Books and Records; Inspection Rights.........................129
SECTION 5.07. Compliance with Laws.........................................129
</TABLE>
- xciv -
<PAGE> 4
- 95 -
ARTICLE VI
NEGATIVE COVENANTS
<TABLE>
<S> <C>
SECTION 6.01. Liens........................................................129
SECTION 6.02. Fundamental Changes..........................................130
SECTION 6.03. Sale and Leasebacks..........................................130
SECTION 6.04. Transactions with Affiliates.................................131
SECTION 6.05. Certain Financial Covenants..................................131
ARTICLE VII
EVENTS OF DEFAULT.......................131
ARTICLE VIII
THE ADMINISTRATIVE AGENT.......................133
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices......................................................135
SECTION 9.02. Waivers; Amendments..........................................135
SECTION 9.03. Expenses; Indemnity; Damage Waiver...........................136
SECTION 9.04. Successors and Assigns.......................................137
SECTION 9.05. Survival.....................................................139
SECTION 9.06. Counterparts; Integration; Effectiveness.....................139
SECTION 9.07. Severability.................................................139
SECTION 9.08. Right of Setoff..............................................139
SECTION 9.09. Governing Law; Jurisdiction; Etc.............................140
SECTION 9.10. WAIVER OF JURY TRIAL.........................................140
SECTION 9.11. Headings.....................................................140
SECTION 9.12. Treatment of Certain Information; Confidentiality............140
</TABLE>
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
- xcv -
<PAGE> 5
- 96 -
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrower
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
- xcvi -
<PAGE> 6
97
THREE-YEAR CREDIT AGREEMENT dated as of November 4, 1999,
between HARTE-HANKS, INC., the LENDERS party hereto, and THE CHASE MANHATTAN
BANK, as Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) make loans to it in an aggregate principal amount not
exceeding $100,000,000 at any one time outstanding. The Lenders are prepared to
make such loans upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:
ARTICLE I
- --------------------------------------------------------------------------------
DEFINITIONS
- -----------
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, for the Interest Period for any
Syndicated Eurodollar Borrowing, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest
Period.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate for such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Applicable Percentage" means, with respect to any Lender,
the percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Syndicated Eurodollar Loan, or with respect to the facility fees
payable hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR Spread", "Eurodollar Spread" or "Facility Fee
Rate", respectively, based upon the Leverage Ratio as of the most recent
determination date:
Three-Year Credit Agreement
<PAGE> 7
- 98 -
<TABLE>
<CAPTION>
===============================================================================
ABR Eurodollar Facility
Leverage Ratio: Spread Spread Fee Rate
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Category 1
Less than 1.00x 0.000% 0.400% 0.100%
- -------------------------------------------------------------------------------
Category 2
Equal to or greater than 1.00x but
less than or equal to 1.75x 0.000% 0.500% 0.125%
- -------------------------------------------------------------------------------
Category 3
Greater than 1.75x 0.000% 0.725% 0.150%
===============================================================================
</TABLE>
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year based upon the
Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date three Business Days after delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 3
(A) at any time that an Event of Default has occurred and is continuing and (B)
if the Borrower fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 5.01(a) or (b), during the period
from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the Commitment Termination Date.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Harte-Hanks, Inc., a Delaware corporation.
"Borrowing" means (a) all Syndicated ABR Loans made,
converted or continued on the same date, (b) all Syndicated Eurodollar Loans or
Competitive Loans of the same Class and Type that have the same Interest Period
(or any single Competitive Loan that does not have the same Interest Period as
any other Competitive Loan of the same Type) or (c) a Swingline Loan. For
purposes hereof, the date of a Syndicated Borrowing comprising Loans that have
been converted or continued shall be the effective date of the most recent
conversion or continuation of such Loans.
Three-Year Credit Agreement
<PAGE> 8
- 99 -
"Borrowing Request" means a request by the Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed and (b) if such day relates to a
Competitive Bid Request or Competitive Bid for a Competitive Eurodollar Loan,
or to a borrowing of, a payment or prepayment of principal of or interest on, a
continuation or conversion of or into, or the Interest Period for, a Eurodollar
Borrowing, or to a notice by the Borrower with respect to any such borrowing,
payment, prepayment, continuation, conversion, or Interest Period, that is also
a day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of the Borrower; (b) occupation of
a majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Syndicated Loans, Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Syndicated Loans and to acquire
participations in Swingline Loans hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $100,000,000.
"Commitment Termination Date" means November 4, 2002.
"Competitive", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or
Three-Year Credit Agreement
<PAGE> 9
- 100 -
the Loans constituting such Borrowing, are made pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule III and the environmental matters disclosed in Schedule
IV.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person (other than the
Borrower or any of its Subsidiaries) excluding (i) any sale, assignment,
transfer or other disposition of any property sold or disposed of in the
ordinary course of business and on ordinary business terms and (ii) any loss or
damage to, or any condemnation or taking of, any property.
"Dollars" or "$" refers to lawful money of the United States
of America.
"EBITDA" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) income (loss) from operations
(calculated before Interest Expense, taxes, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period plus (b)
depreciation, amortization and other non-cash charges (to the extent deducted
in determining income from operations) for such period.
Notwithstanding the foregoing, if during any period for which
EBITDA is being determined the Borrower or any of its Subsidiaries shall have
consummated any acquisition (including the Ziff Acquisition) or shall have
consummated any Disposition then, for all purposes of this Agreement, EBITDA
shall be determined on a pro forma basis (taking into account adjustments for
excess owner's compensation and other cost savings that have been determined in
good faith by the Borrower to be achievable and that the Borrower has so
demonstrated to the reasonable satisfaction of the Administrative Agent) as if
such acquisition or such Disposition had been made or consummated on the first
day of such period.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management,
Three-Year Credit Agreement
<PAGE> 10
- 101 -
release or threatened release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are bearing interest at a rate determined by reference to (a) in the
case of a Syndicated Loan or a Syndicated Borrowing, the Adjusted LIBO Rate, or
(b) in the case of a Competitive Loan or a Competitive Borrowing, the LIBO
Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of
Three-Year Credit Agreement
<PAGE> 11
- 102 -
a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), 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 is attributable to such Foreign Lender's failure or inability to
comply with Section 2.17(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Competitive Eurodollar Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid. When used in reference to any Loan or Borrowing, "Fixed Rate"
refers to whether such Loan, or the Loans constituting such Borrowing, are
Competitive Loans bearing interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
Three-Year Credit Agreement
<PAGE> 12
- 103 -
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (or with respect to deposits
or advances of any kind that have substantially the same effect as obligations
for borrowed money), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person and
(i) all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means, as at any date of
determination thereof, the ratio of (a) EBITDA for the period of four fiscal
quarters ending on or most recently ended prior to such date to (b) Interest
Expense for such period.
"Interest Election Request" means a request by the Borrower
to convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower or any of its Subsidiaries
shall have consummated any acquisition (including the Ziff Acquisition) or
Disposition then, for all purposes of this Agreement, Interest Expense shall be
determined on a pro forma basis as if such acquisition or Disposition (and any
Indebtedness incurred by the Borrower or any of its Subsidiaries in connection
with such acquisition or repaid as a result of such Disposition) had been made
or consummated (and such Indebtedness incurred or repaid) on the first day of
such period.
"Interest Payment Date" means (a) with respect to any
Syndicated ABR Loan, each Quarterly Date, (b) with respect to any Eurodollar
Loan, the last day of each Interest Period therefor and, in the case of any
Interest Period for a Eurodollar Loan of more than three months' duration, each
day prior to the last day of such Interest Period that occurs at three-month
intervals after the first day of such Interest Period, (c) with respect to any
Fixed Rate Loan, the last day of the Interest Period therefor and, in the case
of any Interest Period for a Fixed Rate Loan of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each
Three-Year Credit Agreement
<PAGE> 13
- 104 -
day prior to the last day of such Interest Period that occurs at 90-day
intervals after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Loan and (d) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.
"Interest Period" means:
(a) for any Syndicated Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is one, two, three or six months
thereafter, as specified in the applicable Borrowing Request or
Interest Election Request;
(b) for any Competitive Eurodollar Loan, the period
commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month that is one, three, six or
nine months thereafter, as specified in the applicable Competitive Bid
Request; and
(c) for any Fixed Rate Loan, the period (which shall not be
less than seven days or more than 360 days) commencing on the date of
such Loan and ending on the date specified in the applicable
Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Loan initially shall be the date on which
such Loan is made and, in the case of a Syndicated Loan, thereafter shall be
the effective date of the most recent conversion or continuation of such Loan.
"Lenders" means the Persons listed on Schedule I and any
other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lenders.
"Leverage Ratio" means, as at any date, the ratio of (a)
Indebtedness of the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) on such date to (b) EBITDA
for the period of four fiscal quarters ending on or most recently ended prior
to such date.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative
Agent from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the LIBO Rate for such Interest
Period shall be the rate at which Dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
Three-Year Credit Agreement
<PAGE> 14
- 105 -
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan
in its related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the Lenders under this
Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $20,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Person would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Subsidiary which (i) accounts
for more than 5% of the total consolidated revenue of the Borrower and its
Subsidiaries or (ii) represents more than 5% of the total consolidated assets
of the Borrower and its Subsidiaries.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing similar
functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
Three-Year Credit Agreement
<PAGE> 15
- 106 -
(d) cash 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;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Syndicated Loans and unused Commitments representing at least 51% of the sum of
the total Syndicated Loans and unused Commitments at such time (provided that,
for purposes of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or the Commitments expire or terminate, the outstanding Competitive
Loans of the Lenders shall be included in determining the Required Lenders).
The "Required Lenders" of a particular Class of Loans means Lenders having
Revolving Credit Exposures and unused Commitments of such Class representing at
least 51% of the total Revolving Credit Exposures and unused Commitments of
such Class at such time.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Syndicated Loans and its Swingline Exposure at such time.
"Statutory Reserve Rate" means, for the Interest Period for
any Syndicated Eurodollar Borrowing, a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the arithmetic mean, taken over each day in such Interest Period, of
the aggregate of the
Three-Year Credit Agreement
<PAGE> 16
- 107 -
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
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 such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
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, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means Chase and such other Lender that
agrees to become a Swingline Lender and is consented to by the Administrative
Agent and the Borrower, in their capacity as a lender of Swingline Loans
hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Syndicated", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are Revolving Loans or Borrowings (i.e. such Loan or Borrowing is
not a Competitive or Swingline Loan or Borrowing).
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Ziff Acquisition" means the transactions contemplated by the
Ziff Acquisition Agreement.
"Ziff Acquisition Agreement" means the Purchase Agreement
dated August 30, 1999, and as amended October 1, 1999, among the Borrower, ZD
Inc, and ZD Holdings (Europe) Ltd.
Three-Year Credit Agreement
<PAGE> 17
- 108 -
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a
"Competitive Loan"), by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Competitive Eurodollar Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Competitive Borrowing"), by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Competitive Eurodollar
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
- --------------------------------------------------------------------------------
THE CREDITS
- -----------
SECTION 2.01. THE COMMITMENTS. Subject to the terms and conditions set forth
herein, each Lender agrees to make Syndicated Loans to the Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender's Syndicated Loans exceeding such Lender's
Commitment or (b) the sum of the total Syndicated Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate principal
amount of Swingline Loans exceeding the total Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Syndicated Loans.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Obligations of Lenders. Each Syndicated Loan shall be
made as part of a Borrowing consisting of Loans of the same Type made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any
Three-Year Credit Agreement
<PAGE> 18
- 109 -
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, (i) each
Syndicated Borrowing shall be constituted entirely of ABR Loans or of
Eurodollar Loans as the Borrower may request in accordance herewith, and (ii)
each Competitive Borrowing shall be constituted entirely of Eurodollar Loans or
Fixed Rate Loans as the Borrower may request in accordance herewith. Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Syndicated Eurodollar Borrowing shall be in an aggregate amount of $5,000,000
or a larger multiple of $1,000,000. Each Syndicated ABR Borrowing shall be in
an aggregate amount equal to $1,000,000 or a larger multiple of $1,000,000;
provided that a Syndicated ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000. Each Swingline Loan shall be in an amount equal to
$1,000,000 or a larger multiple of $100,000. Borrowings of more than one Class
and Type may be outstanding at the same time; provided that there shall not at
any time be more than a total of 20 Syndicated Eurodollar Borrowings
outstanding.
(d) Limitations on Interest Periods. Notwithstanding any
other provision of this Agreement, the Borrower shall not be entitled to
request (or to elect to convert to or continue as a Syndicated Eurodollar
Borrowing) any Borrowing prior to the Commitment Termination Date if the
Interest Period requested therefor would end after the Commitment Termination
Date.
SECTION 2.03. REQUESTS FOR SYNDICATED BORROWINGS.
(a) Notice by the Borrower. To request a Syndicated
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (i) in the case of a Syndicated Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (ii) in the case of a Syndicated ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Syndicated Eurodollar Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period" and permitted under Section
2.02(d); and
Three-Year Credit Agreement
<PAGE> 19
- 110 -
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a
Syndicated Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Syndicated Eurodollar Borrowing, then the requested Borrowing shall be made
instead as a Syndicated ABR Borrowing.
SECTION 2.04. COMPETITIVE BID PROCEDURE.
(a) Requests for Bids by the Borrower. Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have
any obligation to) accept Competitive Bids and borrow Competitive Loans;
provided that the sum of the total Syndicated Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans at any time shall not exceed the total
Commitments. To request Competitive Bids, the Borrower shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrower may
submit up to (but not more than) three Competitive Bid Requests on the same
day, but a Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Each such telephonic Competitive
Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d); and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the
Administrative Agent
Three-Year Credit Agreement
<PAGE> 20
- 111 -
by telecopy, in the case of a Competitive Eurodollar Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., New York City time, on the proposed date of such Borrowing. Competitive
Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender of such rejection as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be $5,000,000 or a larger multiple of $1,000,000 and which
may equal the entire principal amount of the Competitive Borrowing requested by
the Borrower) of the Competitive Loan or Loans that the Lender is willing to
make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period for each such Loan and the last day thereof.
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrower. Subject only to the
provisions of this paragraph, the Borrower may accept or reject any Competitive
Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed
by telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of
a Competitive Eurodollar Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before the date of the proposed Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30
a.m., New York City time, on the proposed date of the Competitive Borrowing;
provided, that (i) the failure of the Borrower to give such notice shall be
deemed to be a rejection of each Competitive Bid, (ii) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (ii) or (iii) of this proviso, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) of this proviso, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a principal amount of
$5,000,000 or a larger multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) of the first proviso of this paragraph, such
Competitive Loan may be in an amount of $1,000,000 or any multiple thereof, and
in calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to such clause
(iv) the amounts shall be rounded to multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent.
The Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount
and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the Borrower at least one quarter
of an hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) of this Section.
Three-Year Credit Agreement
<PAGE> 21
- 112 -
SECTION 2.05. SWINGLINE LOANS.
(a) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the respective Swingline Lenders agrees to
make Swingline Loans to the Borrower from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding
the total Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan (i) to refinance an outstanding Swingline Loan or (ii)
on the last Business Day of any calendar month. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lenders of any such notice received from the
Borrower. The Swingline Lenders shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower
with the respective Swingline Lender by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice to the Administrative Agent shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above in this paragraph, to pay to the Administrative Agent, for
account of each Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph
by wire transfer of immediately available funds, in the same manner as provided
in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the relevant Swingline Lender
the amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
relevant Swingline Lender. Any amounts received by a Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof. Notwithstanding the foregoing, a Lender shall not have any
obligation to acquire a participation in a Swingline Loan pursuant to this
paragraph if a Default shall have occurred and be continuing at the time such
Swingline Loan was made and such Lender shall have notified the Swingline
Lender in writing, at least one Business Day prior to the time such Swingline
Loan was made, that such Default has occurred and that such
Three-Year Credit Agreement
<PAGE> 22
- 113 -
Lender will not acquire participations in Swingline Loans made while such
Default is continuing.
SECTION 2.06. FUNDING OF BORROWINGS.
(a) Funding by Lenders. Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS.
(a) Elections by the Borrower for Syndicated Borrowings. The
Loans constituting each Syndicated Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Syndicated
Eurodollar Borrowing, shall have the Interest Period specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a Borrowing of a different Type or to continue such Borrowing as a Borrowing
of the same Type and, in the case of a Syndicated Eurodollar Borrowing, may
elect the Interest Period therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings or Swingline Borrowings,
which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Borrower.
(c) Content of Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information
in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are
Three-Year Credit Agreement
<PAGE> 23
- 114 -
being elected with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) of this
paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period therefor after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period" and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower
fails to deliver a timely and complete Interest Election Request with respect
to a Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to a Syndicated ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Syndicated Borrowing may be
converted to or continued as a Syndicated Eurodollar Borrowing and (ii) unless
repaid, each Syndicated Eurodollar Borrowing shall be converted to a Syndicated
ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.08. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate at the close of business on the Commitment
Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000
or a larger multiple of $5,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Syndicated Loans in accordance with Section 2.11, the sum of the total
Syndicated Loans plus the aggregate principal amount of outstanding Competitive
Loans would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The
Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice
may be revoked by the Borrower (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with
Three-Year Credit Agreement
<PAGE> 24
- 115 -
their respective Commitments.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) Repayment. The Borrower hereby unconditionally promises
to pay the Loans as follows:
(i) to the Administrative Agent for account of the Lenders,
the then unpaid principal amount of the Syndicated Loans on the
Commitment Termination Date;
(ii) to the Administrative Agent for account of the
respective Lender, the then unpaid principal amount of each
Competitive Loan of such Lender on the last day of the Interest Period
therefor and
(iii) to each Swingline Lender the then unpaid principal
amount of each Swingline Loan made by such Swingline Lender on the
earlier of the Commitment Termination Date and the first Business Day
which is 15 days after such Swingline Loan is made; provided that on
each date that a Syndicated Borrowing or Competitive Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding;
and provided further that on the last Business Day of any calendar
month the Borrower shall repay all Swingline Loans then outstanding in
an aggregate amount in excess of $5,000,000.
(b) Manner of Payment. Prior to any repayment or prepayment
of any Borrowings hereunder, the Borrower shall select the Borrowing or
Borrowings to be paid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 11:00 a.m., New York
City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings shall be applied to repay any
outstanding ABR Borrowings before any other Borrowings. If the Borrower fails
to make a timely selection of the Borrowing or Borrowings to be repaid or
prepaid, such payment shall be applied, first, to pay any outstanding ABR
Borrowings and, second, to other Borrowings in the order of the remaining
duration of their respective Interest Periods (the Borrowing with the shortest
remaining Interest Period to be repaid first), and for these purposes,
Competitive Loans shall be deemed to be in the same Class as Syndicated Loans.
Each payment of a Syndicated Borrowing shall be applied ratably to the Loans
included in such Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice records evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each
Interest Period therefor, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records
maintained pursuant to paragraph (c) or (d) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to
maintain such records or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of
this Agreement.
(f) Promissory Notes. Any Lender may request that Loans made
by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and
Three-Year Credit Agreement
<PAGE> 25
- 116 -
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. INTENTIONALLY LEFT BLANK. This Section 2.10 has been
intentionally left blank.
SECTION 2.11. PREPAYMENT OF LOANS.
(a) Right to Prepay Borrowings. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section (provided, however, that any
partial prepayment shall be in an amount of at least $5,000,000 or a larger
multiple of $1,000,000 and, provided further that the Borrower shall not have
the right to prepay any Competitive Loan without the prior consent of the
Lender thereof).
(b) Notices, Etc. The Borrower shall notify the
Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the
relevant Swingline Lender) by telephone (confirmed by telecopy) of any
prepayment hereunder (i) in the case of prepayment of a Syndicated Eurodollar
Borrowing or of a Competitive Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice relating to a Syndicated
Borrowing or Competitive Borrowing, the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Syndicated Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13 and shall be made in the manner specified in
Section 2.09(b).
SECTION 2.12. FEES.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the amount of the Commitment of such Lender
(whether used or unused) during the period from and including the date hereof
to but excluding the later of the date such Commitment terminates and the date
such Lender's Loans shall have been paid in full; provided that, if such Lender
continues to have any Loans outstanding after its Commitment terminates, then
such facility fee shall continue to accrue on the amount of such Lender's Loans
from and including the date on which its Commitment terminates to but excluding
the date on which such Lender's Loans shall have been paid in full. Accrued
facility fees shall be payable on each Quarterly Date and on the later of the
date the Commitments terminate and the date upon which the Loans of all of the
Lenders shall have been paid in full, provided that, if any principal of any
Loan is not paid when due, whether at stated maturity, upon acceleration or
otherwise, facility fee in respect of such principal shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the
Three-Year Credit Agreement
<PAGE> 26
- 117 -
Administrative Agent.
(c) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of facility fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST.
(a) ABR Loans. The Loans constituting each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal
to the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Syndicated Eurodollar Borrowing, the Adjusted LIBO Rate for the Interest Period
for such Borrowing plus the Applicable Rate, or (ii) in the case of a
Competitive Eurodollar Borrowing, the LIBO Rate for the Interest Period for
such Borrowing plus (or minus, as applicable) the Margin applicable to such
Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear
interest at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Syndicated Loans, upon termination of the Commitments; provided that
(i) interest accrued pursuant to paragraph (d) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of a Syndicated ABR Loan prior to the Commitment Termination
Date), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Syndicated Eurodollar Borrowing prior to the end of the
Interest Period therefor, accrued interest on such Borrowing shall be payable
on the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement of the
Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
(in the case of a Syndicated Eurodollar Borrowing) or the LIBO Rate
(in the case of a Competitive Eurodollar
Three-Year Credit Agreement
<PAGE> 27
- 118 -
Borrowing) for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Competitive Eurodollar Borrowing, any
Lender that is required to make a Loan included in such Borrowing)
that the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar
Borrowing) or the LIBO Rate (in the case of a Competitive Eurodollar
Borrowing) for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining
their respective Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to,
or the continuation of any Syndicated Borrowing as, a Syndicated Eurodollar
Borrowing shall be ineffective and such Syndicated Borrowing (unless prepaid)
shall be continued as, or converted to, a Syndicated ABR Borrowing, (ii) if any
Borrowing Request requests a Syndicated Eurodollar Borrowing, such Borrowing
shall be made as a Syndicated ABR Borrowing and (iii) any request by the
Borrower for a Competitive Eurodollar Borrowing shall be ineffective; provided
that if the circumstances giving rise to such notice do not affect all the
Lenders, then requests by the Borrower for Competitive Eurodollar Borrowings
may be made to Lenders that are not affected thereby.
SECTION 2.15. INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
Three-Year Credit Agreement
<PAGE> 28
- 119 -
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to
the date that such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's intention to
claim compensation therefor; provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of retroactive
effect thereof.
(e) Competitive Loans. Notwithstanding the foregoing
provisions of this Section 2.15, a Lender shall not be entitled to compensation
pursuant to this Section 2.15 in respect of any Competitive Loan if the Change
in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which
such Loan was made.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day
of an Interest Period therefor (including as a result of an Event of Default),
(b) the conversion of any Syndicated Eurodollar Loan other than on the last day
of an Interest Period therefor, (c) the failure to borrow, convert, continue or
prepay any Syndicated Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.11(b) and is revoked in accordance herewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment as a result of a request by the Borrower pursuant
to Section 2.19 of any Syndicated Eurodollar Loan other than on the last day of
an Interest Period therefor or of any Competitive Loan, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Loan)
or the LIBO Rate (in the case of a Competitive Eurodollar Loan) for such
Interest Period, over (ii) the amount of interest that such Lender would earn
on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for Dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. TAXES.
(a) Payments Free of Taxes. 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 or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other
Three-Year Credit Agreement
<PAGE> 29
- 120 -
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, 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 by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. 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) Foreign Lenders. 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 or reasonably requested by the Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
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 its offices at 270 Park Avenue, New York, New York, except payments to be
made directly to the Swingline Lenders as expressly provided herein and
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03, which shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing shall be made from the Lenders,
each payment of facility fee under Section 2.12 shall be made for
Three-Year Credit Agreement
<PAGE> 30
- 121 -
account of the Lenders, and each termination or reduction of the amount of the
Commitments under Section 2.08 shall be applied to the respective Commitments
of the Lenders, pro rata according to the amounts of their respective
Commitments; (ii) each Syndicated Borrowing shall be allocated pro rata among
the Lenders according to the amounts of their respective Commitments (in the
case of the making of Syndicated Loans) or their respective Loans that are to
be included in such Borrowing (in the case of conversions and continuations of
Loans); (iii) each payment or prepayment of principal of Syndicated Loans by
the Borrower shall be made for account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Syndicated Loans held by
them; and (iv) each payment of interest on Syndicated Loans by the Borrower
shall be made for account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective
Lenders.
(d) Sharing of Payments by Lenders. 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 Syndicated Loans or
participations in Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Syndicated Loans
participations in Swingline Loans and accrued interest thereon then due 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 Syndicated Loans and participations in Swingline Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Syndicated Loans and participations in
Swingline Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
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.
(e) Presumptions of Payment. 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 account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(b) or 2.18(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to
Three-Year Credit Agreement
<PAGE> 31
- 122 -
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15 or 2.17, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.15, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.17, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement (other than any outstanding
Competitive Loans held by it) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Commitment is being assigned, the Swingline
Lenders), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans (other than Competitive Loans) and participations in Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
- -------------------------------------------------------------------------------
REPRESENTATIONS AND WARRANTIES
- ------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its Subsidiaries
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, by all necessary shareholder action. This Agreement
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable in accordance with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except
Three-Year Credit Agreement
<PAGE> 32
- 123 -
such as have been obtained or made and are in full force and 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, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) Financial Condition. The Borrower has heretofore
furnished to the Lenders (i) its consolidated balance sheet and statements of
income, stockholders' equity and cash flows as of and for the fiscal year ended
December 31, 1998, reported on by KPMG Peat Marwick LLP, independent public
accountants and (ii) its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for the fiscal quarter and the
portion of the fiscal year ended June 30, 1999, certified by the chief
financial officer of the Borrower. Such financial statements present fairly, in
all material respects, the actual or pro forma, as the case may be, financial
position and results of operations and cash flows of the Borrower and its
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) of the first sentence of this
paragraph. None of the Borrower nor any of its Subsidiaries has on the date
hereof any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said balance sheet as at June 30, 1999.
(b) No Material Adverse Change. Since June 30, 1999, there
has been no material adverse change in the business, assets, properties,
operations, prospects or condition, financial or otherwise, of the Borrower and
its Subsidiaries, taken as a whole.
(c) Year 2000 Issues. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the computer
systems of the Borrower and its Subsidiaries and (ii) equipment containing
embedded microchips (including systems and equipment maintained by others with
which the systems of the Borrower and its Subsidiaries interface) and the
testing of all such systems and equipment, as so reprogrammed, has been
completed in all material respects. The cost to the Borrower of such
reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower (including reprogramming errors and the failure of
others' systems or equipment) will not result in a Material Adverse Effect.
SECTION 3.05. PROPERTIES.
(a) Property Generally. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to their businesses, taken as a whole, subject
only to Liens permitted by Section 6.01 and except for minor defects in title
that do not interfere with its ability to conduct such businesses as currently
conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to their
businesses, taken as a whole, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Three-Year Credit Agreement
<PAGE> 33
- 124 -
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Actions, Suits and Proceedings. There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement
or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
(c) Disclosed Matters. Since the date of this Agreement,
there has been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has timely filed
or caused to be filed all Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
Three-Year Credit Agreement
<PAGE> 34
- 125 -
SECTION 3.12. USE OF CREDIT. Neither the Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, and after applying the proceeds of any Loan
hereunder, not more than 25% of the fair market value of the assets of the
Borrower and its Subsidiaries consists of Margin Stock.
SECTION 3.13. MATERIAL AGREEMENTS AND LIENS.
(a) Material Agreements. Part A of Schedule II is a complete
and correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or
commitment for any extension of credit) to, or guarantee by, the Borrower or
any of its Subsidiaries outstanding on the date hereof the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $10,000,000,
and the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of
Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding on the date
hereof the aggregate principal or face amount of which equals or exceeds (or
may equal or exceed) $10,000,000 and covering any property of the Borrower or
any of its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Part B of Schedule II.
SECTION 3.14. SUBSIDIARIES.
Set forth in Schedule V is a complete and correct list of all
of the Subsidiaries of the Borrower as of the date hereof, together with, for
each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and (iii) the
nature of the ownership interests held by each such Person and the percentage
of ownership of such Subsidiary represented by such ownership interests. Except
as disclosed in Schedule V, on the date hereof, (x) each of the Borrower and
its Subsidiaries owns, free and clear of Liens, and has the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it in Schedule V, (y) all of the issued and outstanding capital stock of each
such Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
ARTICLE IV
- --------------------------------------------------------------------------------
CONDITIONS
- ----------
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which the Administrative
Agent shall have received each of the following documents, each of which shall
be satisfactory to the Administrative Agent (and to the extent specified below,
to each Lender) in form and substance (or such condition shall have been waived
in accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i)
a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
Three-Year Credit Agreement
<PAGE> 35
- 126 -
(b) Opinion of Counsel to the Borrower. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Hughes & Luce, counsel for the Borrower,
substantially in the form of Exhibit B, and covering such other
matters relating to the Borrower, this Agreement or the Transactions
as the Required Lenders shall reasonably request (and the Borrower
hereby instructs such counsel to deliver such opinion to the Lenders
and the Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to Chase, substantially in the form of
Exhibit C (and Chase hereby instructs such counsel to deliver such
opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and
its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set
forth in the lettered clauses of the first sentence of Section 4.02,
(ii) that the Leverage Ratio does not exceed 3.00 to 1 and (iii) that
the Interest Coverage Ratio is not less than 2.75 to 1.
(f) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to
Chase may reasonably request.
The obligation of any Lender to make its initial Loan
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Chase, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the Loans hereunder (to the extent that statements for such fees and expenses
have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New
York City time, on November 15, 1999 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make any Loan
is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the
date of such Loan; and
(b) at the time of and immediately after giving effect to
such Loan, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
Three-Year Credit Agreement
<PAGE> 36
- 127 -
ARTICLE V
- --------------------------------------------------------------------------------
AFFIRMATIVE COVENANTS
- ---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, the Borrower covenants and agrees with the Lenders
that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower will
furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the
Borrower and its Subsidiaries as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG Peat Marwick LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows of the Borrower and its Subsidiaries as of the
end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the
figures for (or, in the case of the balance sheet, as of the end of
the prior fiscal year) the corresponding period or periods of the
previous fiscal year, all certified by a Financial Officer 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
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.05 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in Section
3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (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 by the Borrower or any of its Subsidiaries with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to
its shareholders generally, as the case may be; and
Three-Year Credit Agreement
<PAGE> 37
- 128 -
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Affiliates that could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect
(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations,
other than any environmental matter or alleged violation that (either
individually or in the aggregate) could not reasonably be expected to
have a Material Adverse Effect; 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 statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause each of
its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
Three-Year Credit Agreement
<PAGE> 38
- 129 -
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority, including, but not limited to, Environmental Laws
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
ARTICLE VI
- --------------------------------------------------------------------------------
NEGATIVE COVENANTS
- ------------------
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
of its Subsidiaries existing on the date hereof and set forth in Part
B of Schedule II (or, to the extent not meeting the minimum thresholds
for required listing on Schedule II pursuant to Section 3.13, in an
aggregate amount not exceeding $10,000,000); provided that (i) no such
Lien shall extend to any other property or asset of the Borrower or
any of its Subsidiaries and (ii) any such Lien shall secure only those
obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof; and
(d) Liens on assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such security interests
and the Indebtedness secured thereby are incurred prior to or within
365 days after such acquisition or the completion of such construction
or improvement, (ii) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such assets, (iii)
such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary
Three-Year Credit Agreement
<PAGE> 39
- 130 -
and (iv) the aggregate principal amount of Indebtedness secured by all
such security interests under this paragraph (d) shall not exceed
$50,000,000.
SECTION 6.02. FUNDAMENTAL CHANGES.
(a) Mergers, Consolidations, Disposal of Assets, Etc. The
Borrower will not, nor will it permit any of its Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any of its assets, or any of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter
acquired), if the effect of any such sale of assets or stock or merger or
consolidation would be to sell, transfer, lease or otherwise dispose of all or
substantially all of the assets of the Borrower and its Subsidiaries (taken as
a whole) or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing;
(i) any Person may merge into or consolidate with the
Borrower in a transaction in which the Borrower is the surviving
corporation;
(ii) any Person may merge into or consolidate with any
Subsidiary in a transaction in which the surviving entity is a
Subsidiary;
(iii) the Borrower may merge into or consolidate with any
other Person in a transaction in which such Person is the surviving
entity so long as (x) such Person assumes all of the obligations of
the Borrower under this Agreement by an instrument in form and
substance reasonably satisfactory to the Administrative Agent and (y)
such Person delivers such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent
with those delivered by the Borrower pursuant to Section 4.01 on the
Effective Date or as the Administrative Agent shall have reasonably
requested;
(iv) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to another Subsidiary; and
(v) any Subsidiary 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; provided that if any such merger shall
be between a Subsidiary and a wholly owned Subsidiary, then the wholly
owned Subsidiary shall be the continuing or surviving corporation.
(b) Lines of Business. The Borrower will not, nor will it
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 of execution of this Agreement and businesses
reasonably related thereto.
SECTION 6.03. SALE AND LEASEBACKS. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, become or thereafter remain
liable as lessee or as guarantor or other surety with respect to the lessee's
obligations under any lease, whether an operating lease or a capital lease, of
any property (whether real or personal or mixed) whether now owned or hereafter
acquired, (a) which the Borrower or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person or (b) which the
Borrower or any such Subsidiary intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
the Borrower or any such Subsidiary to any Person in connection with such
lease, if in the case of clause (a) or (b) above, such sale and such lease are
part of the same transaction or a series of related transactions or are with
the same other Person; provided that the Borrower or any Subsidiary may enter
into any such transaction so long as the sale price of all such transactions
does not exceed $20,000,000 in the aggregate during the term of this
Three-Year Credit Agreement
<PAGE> 40
- 131 -
Agreement.
SECTION 6.04. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any of its Subsidiaries to, sell lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions 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 its Subsidiaries
not involving any other Affiliate and (c) loans to employees of the Borrower or
any Subsidiary for relocation expenses or other purposes; provided that the
aggregate outstanding principal amount of the loans permitted under this clause
(c) shall not exceed $3,000,000 at any one time.
SECTION 6.05. CERTAIN FINANCIAL COVENANTS.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio to exceed 3.00 to 1 at any time during the term of this Agreement.
(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than 2.75 to 1 at any time during the term
of this Agreement.
ARTICLE VII
- --------------------------------------------------------------------------------
EVENTS OF DEFAULT
- -----------------
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan
or any fee payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of three or more Business Days; or the Borrower shall fail to
pay any other amount (other than an amount referred to in clause (a)
of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of thirty or more days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in
connection with this Agreement or any amendment or modification
hereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a) or 5.03
(with respect to the Borrower's existence) or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) and
such failure shall continue unremedied for a period of 30 or more days
after notice thereof from the Administrative Agent to the Borrower;
Three-Year Credit Agreement
<PAGE> 41
- 132 -
(f) the Borrower or any of its Material Subsidiaries shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable (whether at stated
maturity or on acceleration);
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, but
without any further lapse of time) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf
to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of
its Material Subsidiaries or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Material Subsidiaries or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for a period of 60 or more days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Material Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Material Subsidiaries 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;
(j) the Borrower or any of its Material Subsidiaries shall
become unable, admit in writing its inability or fail generally to pay
its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $20,000,000 shall be rendered against
the Borrower or any of its Material Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or any of its Material
Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) there shall have been asserted against the Borrower or
any of its Subsidiaries any claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the generation,
storage, transport, handling or disposal of Hazardous Materials by the
Borrower or any of its Subsidiaries that, in the judgment of the
Required Lenders, are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof
(either individually or in the aggregate) is reasonably likely to
Three-Year Credit Agreement
<PAGE> 42
- 133 -
have a Material Adverse Effect (insofar as such amount is payable by
the Borrower or any of its Subsidiaries but after deducting any
portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor); or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
- --------------------------------------------------------------------------------
THE ADMINISTRATIVE AGENT
- ------------------------
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such Person and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required
Lenders, and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders or in the absence of its own gross negligence
or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to
the Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with this Agreement, (ii) the contents of any certificate, report or other
Three-Year Credit Agreement
<PAGE> 43
- 134 -
document delivered hereunder or in connection herewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent's resignation shall nonetheless become effective and (1)
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and (2) the Required Lenders shall perform the duties of
the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder (if not already discharged therefrom as provided above in
this paragraph). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Three-Year Credit Agreement
<PAGE> 44
- 135 -
ARTICLE IX
- --------------------------------------------------------------------------------
MISCELLANEOUS
- -------------
SECTION 9.01. NOTICES. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to the Borrower, to it at Harte-Hanks, Inc., 200
Concord Plaza Drive, Suite 800, San Antonio, TX 78216, Attention of
Donald R. Crews (Telecopy No. (210) 829-9139);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Christopher Riggio, Loan and Agency Services Group
(Telecopy No. (212) 552-5700), with a copy to The Chase Manhattan
Bank, 270 Park Avenue, New York, New York 10017, Attention of Bruce
Langenkamp (Telecopy No. (212) 270-1264);
(c) if to Chase as Swingline Lender, to it at The Chase
Manhattan Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York
10081, Attention of Christopher Riggio, Loan and Agency Services Group
(Telecopy No. (212) 552-5700); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto (or, in
the case of any such change by a Lender, by notice to the Borrower and the
Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making
of a Loan shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent or any Lender may have had notice or knowledge
of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the
Three-Year Credit Agreement
<PAGE> 45
- 136 -
written consent of each Lender affected thereby, (iv) alter the provisions of
Section 2.17(d), without the written consent of each Lender, or (v) change any
of the provisions of this Section or the percentage in the definition of the
term "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without the written
consent of each Lender; and provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent or the Swingline Lender hereunder without the prior written consent of
the Administrative Agent or the Swingline Lender, as the case may be.
Anything in this Agreement to the contrary notwithstanding,
no waiver or modification of any provision of this Agreement that has the
effect (either immediately or at some later time) of enabling the Borrower to
satisfy a condition precedent to the making of a Loan of any Class shall be
effective against the Lenders of such Class for purposes of the Commitments of
such Class unless the Required Lenders of such Class shall have concurred with
such waiver or modification, and no waiver or modification of any provision of
this Agreement that could reasonably be expected to adversely affect the
Lenders of any Class in a manner that does not affect all Classes equally shall
be effective against the Lenders of such Class unless the Required Lenders of
such Class shall have concurred with such waiver or modification.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent
or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Swingline Lender, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity
Three-Year Credit Agreement
<PAGE> 46
- 137 -
payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent
or the Swingline Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or a domestic Affiliate of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of
a Commitment or any Lender's obligations in respect of its Swingline Exposure,
the Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $10,000,000
unless each of the Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations under this Agreement,
except that this clause (iii) shall not apply to rights in respect of
outstanding Competitive Loans, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for
Three-Year Credit Agreement
<PAGE> 47
- 138 -
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices in New York City a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of
the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section, the Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Participations. Any Lender may, without the consent of
the Borrower, the Administrative Agent or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant
shall not be entitled to receive any greater payment under Section 2.15 or 2.17
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a
party hereto.
Three-Year Credit Agreement
<PAGE> 48
- 139 -
(h) No Assignments to the Borrower or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or
any of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 9.05. 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, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract between and among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page to this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have occurred and
be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
Three-Year Credit Agreement
<PAGE> 49
- 140 -
SECTION 9.09. GOVERNING LAW; JURISDICTION; ETC.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect
any right that the Administrative Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower
hereby authorizes each Lender to share any information delivered to such Lender
by the Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such
Three-Year Credit Agreement
<PAGE> 50
- 141 -
Lender to enter into this Agreement, to any such subsidiary or affiliate, it
being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) of this Section
as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iv) to any other party to this Agreement, (v) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this paragraph, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (vii) with the
consent of the Borrower or (viii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this paragraph or (B)
becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this paragraph, "Information" means all information received from the
Borrower relating to the Borrower, its Subsidiaries or their Affiliates or
their respective businesses other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Three-Year Credit Agreement
<PAGE> 51
- 142 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
HARTE-HANKS, INC.
By
-----------------------------
Name:
Title:
Three-Year Credit Agreement
<PAGE> 52
- 143 -
LENDERS
THE CHASE MANHATTAN BANK,
Individually, as Swingline Lender and as
Administrative Agent
By
-----------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
-----------------------------
Name:
Title:
BANK OF MONTREAL
By
-----------------------------
Name:
Title:
THE BANK OF NEW YORK
By
-----------------------------
Name:
Title:
Three-Year Credit Agreement
<PAGE> 53
- 144 -
BANK ONE, TEXAS, N.A.
By
-----------------------------
Name:
Title:
MELLON BANK, N.A.
By
-----------------------------
Name:
Title:
WELLS FARGO BANK, N.A.
By
-----------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI, LTD.
By
-----------------------------
Name:
Title:
Three-Year Credit Agreement
<PAGE> 54
145
SCHEDULE I
Commitments
<TABLE>
<CAPTION>
Name of Lender Commitment ($)
- -------------- --------------
<S> <C>
The Chase Manhattan Bank 14,750,000.00
Bank of America, N.A 14,750,000.00
Bank of Montreal 10,500,000.00
The Bank of New York 10,500,000.00
Bank One, Texas, N.A 10,500,000.00
Mellon Bank, N.A 10,500,000.00
Wells Fargo Bank, N.A 10,500,000.00
Westdeutsche Landesbank Girozentrale New York Branch 10,500,000.00
Bank Of Tokyo-Mitsubishi, Ltd. 7,500,000.00
Total 100,000,000.00
</TABLE>
Schedule I to Three-Year Credit Agreement
<PAGE> 55
146
SCHEDULE II
Material Agreements and Liens
Part A - Material Agreements
None.
Part B - Liens
None.
Schedule II to Three-Year Credit Agreement
<PAGE> 56
147
SCHEDULE III
Litigation
None.
Schedule III to Three-Year Credit Agreement
<PAGE> 57
148
SCHEDULE IV
Environmental Matters
None.
Schedule IV to Three-Year Credit Agreement
<PAGE> 58
149
SCHEDULE V
Subsidiaries
SUBSIDIARIES OF HARTE-HANKS, INC.
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization % Owned
- -------------- ------------ -------
<S> <C> <C>
DiMark, Inc. New Jersey 100%
DiMark Marketing, Inc. Pennsylvania 100%(1)
Direct Market Concepts, Inc. Florida 100%
Direct Marketing Associates, Inc. Maryland 100%
DMK, Inc. Delaware 100%(2)
The Flyer Publishing Corporation Florida 100%
Harte-Hanks Data Technologies, Inc. Massachusetts 100%
Harte-Hanks Delaware, Inc. Delaware 100%
Harte-Hanks Direct, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Baltimore, Inc. Maryland 100%
Harte-Hanks Direct Marketing/Cincinnati, Inc. Ohio 100%
Harte-Hanks Direct Marketing/Dallas, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Fullerton, Inc. California 100%
Harte-Hanks Direct Marketing/Kansas City, Inc. Missouri 100%
Harte-Hanks do Brazil Consultoria e Servicos Ltda Brazil 100%(3)
Harte-Hanks Limited England 100%(3)
Harte-Hanks Market Intelligence, Inc. California 100%
Harte-Hanks Market Intelligence Espana, LLC Colorado 100%
Harte-Hanks Market Intelligence Europe Netherlands 100%
Harte-Hanks Market Intelligence GmbH Germany 100%
Harte-Hanks Market Intelligence Limited Ireland 100%
Harte-Hanks Market Intelligence Limited UK 100%
Harte-Hanks Market Intelligence SAS France 100%
Harte-Hanks Market Research, Inc. New Jersey 100%
Harte-Hanks Partnership, Ltd. Texas 100%(6)
Harte-Hanks Pty. Limited Australia 100%(3)
Harte-Hanks Response Management/Austin, Inc. Delaware 100%
Harte-Hanks Response Management/Boston, Inc. Massachusetts 100%
Harte-Hanks Response Management Call Centers, Inc. Delaware 100%
Harte-Hanks Response Management Europe Belgium 100%
Harte-Hanks Shoppers, Inc. California 100%
Harte-Hanks Stock Plan, Inc. Delaware 100%
H&R Communications, Inc. New Jersey 100%(2)
HTS, Inc. Connecticut 100%
Information for Marketing Limited (shell corporation) England 100%(5)
Mars Graphic Services, Inc. New Jersey 100%(4)
NSO, Inc. Ohio 100%
Printing Management Services, Inc. Delaware 100%
PRO Direct Response Corp. New Jersey 100%(2)
Southern Comprint Co. California 100%
Spectral Resources, Inc. New York 100%
</TABLE>
Schedule V to Three-Year Credit Agreement
<PAGE> 59
- 150 -
(1) Owned by Mars Graphic Services, Inc.
(2) Owned by DiMark Marketing, Inc.
(3) Owned by Harte-Hanks Data Technologies, Inc.
(4) Owned by DiMark, Inc.
(5) Owned by Harte-Hanks Limited
(6) 99.5% Owned by Harte-Hanks Delaware, Inc.
.5% Owned by Harte-Hanks, Inc.
Schedule V to Three-Year Credit Agreement
<PAGE> 60
151
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Three-Year Credit Agreement dated as
of November 4, 1999 (as amended and in effect on the date hereof, the
"Three-Year Credit Agreement"), between Harte-Hanks, Inc., the Lenders named
therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders.
Terms defined in the Three-Year Credit Agreement are used herein with the same
meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Three-Year Credit Agreement,
including the interests set forth below in the Commitment of the Assignor on the
Assignment Date and Competitive Loans and Syndicated Loans owing to the Assignor
which are outstanding on the Assignment Date, together with unpaid interest
accrued on the assigned Loans to the Assignment Date, the participations in
Swingline Loans held by the Assignor on the Assignment Date, and the amount, if
any, set forth below of the fees accrued to the Assignment Date for account of
the Assignor. The Assignee hereby acknowledges receipt of a copy of the
Three-Year Credit Agreement. From and after the Assignment Date (i) the Assignee
shall be a party to and be bound by the provisions of the Three-Year Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Three-Year Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Three-Year Credit Agreement, duly completed and executed by the
Assignee, and (ii) if the Assignee is not already a Lender under the Three-Year
Credit Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor]
shall pay the fee payable to the Administrative Agent pursuant to Section
9.04(b) of the Three-Year Credit Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Assignment and Acceptance
<PAGE> 61
- 152 -
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
<TABLE>
<CAPTION>
Percentage Assigned of
Facility/Commitment
(set forth, to at
Principal Amount least 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
- -------- ------------------ -----------
<S> <C> <C>
Commitment Assigned: $ %
Syndicated Loans:
Competitive Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
</TABLE>
[NAME OF ASSIGNOR], as Assignor
------------------
By:
---------------------------------
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
------------------
By:
---------------------------------
Name:
Title:
Assignment and Acceptance
<PAGE> 62
- 153 -
The undersigned hereby consent to the within assignment:
HARTE-HANKS, INC.
By:
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
and as Swingline Lender
By:
-------------------------
Name:
Title:
Assignment and Acceptance
<PAGE> 63
154
EXHIBIT B
[Form of Opinion of Counsel to the Borrower]
November 4, 1999
The Chase Manhattan Bank, as Administrative Agent,
and the Lenders party to the Three Year Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as special counsel to Harte-Hanks, Inc., a Delaware
corporation ("Borrower"), in connection with the Three Year Credit Agreement,
dated as of November 4, 1999 (the "Three Year Agreement") among Borrower, The
Chase Manhattan Bank, as Administrative Agent and the Lenders party thereto.
Capitalized terms not defined herein are used as defined in the Agreement. This
opinion is being delivered pursuant to Section 4.01(b) of the Three Year
Agreement.
For purposes of this opinion, we have reviewed the Three Year
Agreement. We have also reviewed and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of corporate documents
and records of Borrower and certificates of public officials and other
documents, certificates, instruments and agreements as in our judgment are
necessary to enable us to deliver this opinion letter. As to questions of fact
material to the opinions, we have relied upon information received from officers
of Borrower without independent verification.
In rendering our opinions, we have assumed:
(a) the genuineness and authenticity of all signatures to all
documents submitted to us as originals (other than Borrower's
signatures);
(b) the conformity to authentic original documents of all
documents submitted to us as certified, conformed, or
photostatic copies;
(c) the correctness and accuracy of all facts set forth in all
certificates and documents delivered to us in connection with
this opinion;
(d) the Three Year Agreement is enforceable against all parties
thereto (except as otherwise expressly stated with respect to
the Borrower in Paragraph 4 of the opinions below); and
(e) there are no agreements or understandings among the parties
that would define, supplement or qualify the terms of the
Three Year Agreement.
Based upon and subject to the foregoing and subject also to the
assumptions and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
Opinion of Counsel to the Borrower
<PAGE> 64
- 155 -
1. Borrower is a validly existing corporation in good standing
under the laws of the State of Delaware. Borrower has all
requisite corporate power and authority to carry on its
business as now conducted and, except where the failure to do
so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
2. The Transactions are within the corporate powers of Borrower.
3. The Transactions have been duly authorized by all necessary
corporate action on the part of Borrower.
4. The Three Year Agreement has been duly executed and delivered
by the Borrower and constitutes the legal, valid and binding
obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
5. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any
Governmental Authority, (b) will not violate the charter or
by-laws of the Borrower or, to our knowledge, any applicable
law or regulation or any order of any Governmental Authority,
(c) to our knowledge, will not violate or result in a default
under any material indenture, agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or
assets, or give rise to a right thereunder to require any
payment to be made by any such Person and (d) to our
knowledge, will not result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Material
Subsidiaries.
6. To our knowledge, there are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority now
pending against or threatened against or affecting the
Borrower or any of its Subsidiaries (a) as to which there is a
reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect (other than Disclosed Matters) or (b) that involve the
Three Year Agreement or the Transactions.
7. The Borrower is not (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of
1935.
The foregoing opinions are subject to the following qualifications and
exceptions:
(a) The foregoing opinions are limited to the Federal laws of the
United States of America, the General Corporation Law of the
State of Delaware and Texas law. To the extent the matters
herein are governed by the laws of the State of New York, we
have assumed such laws are the same as the laws of the State
of Texas.
(b) The qualification of any opinion or statement herein by the
use of the words "to our knowledge,"
Opinion of Counsel to the Borrower
<PAGE> 65
- 156 -
"known to us" or words of similar import means that during the
course of our representation as described herein, no
information has come to the attention of the attorneys in this
firm directly involved in the transactions described herein
which gave such attorneys actual knowledge contrary to the
position stated.
(c) In rendering the opinion set forth in Paragraph 5 hereof, we
have reviewed only those statutes and regulations that a
lawyer in the State of Texas exercising customary professional
diligence would reasonably recognize as being directly
applicable to Borrower and the transactions contemplated by
the Three Year Agreement.
(d) We express no opinion with respect to any provision contained
in the Three Year Agreement prohibiting oral amendments to or
waivers of provisions of such documents or limiting the effect
of a course of dealing between the parties thereto.
(e) This opinion letter is limited to the matters stated herein as
of the date hereof and is limited to present statutes, rules,
laws and regulations and to the facts as they currently exist.
We assume no obligation to update this opinion letter or to
advise you of any changes in our opinions in the event of
changes in applicable law or facts becoming effective or
occurring after the date hereof or if additional newly
discovered information is brought to our attention after the
date hereof.
(f) We express no opinion as to usury laws.
(g) The opinions set forth in Paragraph 4 of this opinion letter
to the extent covering Texas law, are also subject to the
effect of generally applicable rules of Texas law that:
(i) provide forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum
selected;
(ii) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own
action or inaction, to the extent the action or
inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct;
(iii) may permit a party who has materially failed to
render or offer performance required by the contract
to cure that failure unless (i) permitting a cure
would unreasonably hinder the aggrieved party from
making substitute arrangements for performance, or
(ii) it was important in the circumstances to the
aggrieved party that performance occur by the date
stated in the contract;
(iv) impose limitations on attorneys' or trustees' fees;
(v) limit or affect the enforceability of provisions for
late charges, prepayment charges, or yield
maintenance charges, acceleration of future amounts
due (other than principal) without appropriate
discount to present value, liquidated damages, and
"penalties";
(vi) limit or affect the enforceability of provisions that
provide for the acceleration of indebtedness upon any
transfer or change in the control, ownership, or
management of
Opinion of Counsel to the Borrower
<PAGE> 66
- 157 -
any party; and
(vii) limit or affect the enforcement of provisions of a
contract that purport to require waiver of jury
trial.
This opinion letter is delivered to you solely for your benefit in
connection with the Three Year Agreement. This opinion letter may not be relied
on by you for any other purpose, nor may it be furnished to, used by, circulated
to, quoted to or referred to by, any other person for any purpose without our
prior express written consent.
Very truly yours,
Opinion of Counsel to the Borrower
<PAGE> 67
- 158 -
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
November 4, 1999
To the Lenders party to the Three-Year Credit Agreement referred to
below and The Chase Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank ("Chase") in connection with the Three-Year Credit Agreement (the
"Three-Year Credit Agreement") dated as of November 4, 1999, between
Harte-Hanks, Inc. (the "Borrower"), the lenders party thereto and Chase, as
Administrative Agent, providing for loans to be made by said lenders to the
Borrower in an aggregate principal amount not exceeding $100,000,000. Terms
defined in the Three-Year Credit Agreement are used herein as defined therein.
This opinion letter is being delivered pursuant to Section 4.01(c) of the
Three-Year Credit Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Three-Year Credit Agreement; and
(b) such records of the Borrower and such other documents as
we have deemed necessary as a basis for the opinions expressed below.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon certificates of governmental officials and appropriate
representatives of the Borrower and upon representations made in or pursuant to
the Three-Year Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been
duly executed and delivered by, and (except to the extent set forth in
the opinions expressed below as to the Borrower) constitute legal,
valid, binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly organized
and validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Opinion of Counsel to the Borrower
<PAGE> 68
- 159 -
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Three-Year Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the Three-Year Credit
Agreement is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the Three-Year
Credit Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Three-Year Credit
Agreement to the effect that terms may not be waived or modified except
in writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.18(d) of the Three-Year
Credit Agreement and (iii) the first sentence of Section 9.09(b) of the
Three-Year Credit Agreement, insofar as such sentence relates to the
subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to
the Three-Year Credit Agreement.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
At the request of our client, this opinion letter is, pursuant
to Section 4.01(c) of the Three-Year Credit Agreement, provided to you by us in
our capacity as special New York counsel to Chase and may not be relied upon by
any Person for any purpose other than in connection with the transactions
contemplated by the Three-Year Credit Agreement without, in each instance, our
prior written consent.
Very truly yours,
RJW/WFC
<PAGE> 1
- 160 -
Exhibit 11
HARTE-HANKS, INC. AND SUBSIDIARIES
EARNINGS PER SHARE COMPUTATIONS
(in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended September 30,
In thousands, except per share amount 1999 1998
- -------------------------------------------------------------------------------------------------
<S> <C> <C>
BASIC EPS
Net Income ................................................... $18,603 $16,920
======= =======
Weighted-average common shares outstanding
used in earnings per share computations .................... 69,487 72,667
======= =======
Earnings per common share .................................... $ 0.27 $ 0.23
======= =======
DILUTED EPS
Net Income ................................................... $18,603 $16,920
======= =======
Shares used in earnings per share computations ............... 71,715 76,192
======= =======
Earnings per common share .................................... $ 0.26 $ 0.22
======= =======
Computation of shares used in earnings per share computations:
Average outstanding common shares ............................ 69,487 72,667
Average common equivalent shares -
dilutive effect of option shares ........................... 2,228 3,525
------- -------
Shares used in earnings per share computations ............... 71,715 76,192
======= =======
</TABLE>
<TABLE>
<CAPTION>
Nine months ended September 30,
In thousands, except per share amount 1999 1998
- -------------------------------------------------------------------------------------------------
<S> <C> <C>
BASIC EPS
Net Income ................................................... $52,705 $48,035
======= =======
Weighted-average common shares outstanding
used in earnings per share computations .................... 70,400 73,230
======= =======
Earnings per common share .................................... $ 0.75 $ 0.66
======= =======
DILUTED EPS
Net Income ................................................... $52,705 $48,035
======= =======
Shares used in earnings per share computations ............... 72,700 76,844
======= =======
Earnings per common share .................................... $ 0.73 $ 0.63
======= =======
Computation of shares used in earnings per share computations:
Average outstanding common shares ............................ 70,400 73,230
Average common equivalent shares -
dilutive effect of option shares ........................... 2,300 3,614
------- -------
Shares used in earnings per share computations ............... 72,700 76,844
======= =======
</TABLE>
<PAGE> 1
- 161 -
Exhibit 21
RESTRICTED SUBSIDIARIES
OF HARTE-HANKS , INC.
As of October 1, 1999
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization % Owned
- -------------- ------------ -------
<S> <C> <C>
DiMark, Inc. New Jersey 100%
DiMark Marketing, Inc. Pennsylvania 100%(1)
Direct Market Concepts, Inc. Florida 100%
Direct Marketing Associates, Inc. Maryland 100%
DMK, Inc. Delaware 100%(2)
The Flyer Publishing Corporation Florida 100%
Harte-Hanks Data Technologies, Inc. Massachusetts 100%
Harte-Hanks Delaware, Inc. Delaware 100%
Harte-Hanks Direct, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Baltimore, Inc. Maryland 100%
Harte-Hanks Direct Marketing/Cincinnati, Inc. Ohio 100%
Harte-Hanks Direct Marketing/Dallas, Inc. Delaware 100%
Harte-Hanks Direct Marketing/Fullerton, Inc. California 100%
Harte-Hanks Direct Marketing/Kansas City, Inc. Missouri 100%
Harte-Hanks do Brazil Consultoria e Servicos Ltda Brazil 100%(3)
Harte-Hanks Limited England 100%(3)
Harte-Hanks Market Intelligence, Inc. California 100%
Harte-Hanks Market Intelligence Espana LLC Colorado 100%
Harte-Hanks Market Intelligence Europe Netherlands 100%
Harte-Hanks Market Intelligence GmbH Germany 100%
Harte-Hanks Market Intelligence Limited Ireland 100%
Harte-Hanks Market Intelligence Limited UK 100%
Harte-Hanks Market Intelligence SAS France 100%
Harte-Hanks Market Research, Inc. New Jersey 100%
Harte-Hanks Partnership, Ltd. Texas 100%(6)
Harte-Hanks Pty. Limited Australia 100%(3)
Harte-Hanks Response Management/Austin, Inc. Delaware 100%
Harte-Hanks Response Management/Boston, Inc. Massachusetts 100%
Harte-Hanks Response Management Call Centers, Inc. Delaware 100%
Harte-Hanks Response Management Europe Belgium 100%
Harte-Hanks Shoppers, Inc. California 100%
Harte-Hanks Stock Plan, Inc. Delaware 100%
H&R Communications, Inc. New Jersey 100%(2)
HTS, Inc. Connecticut 100%
Information for Marketing Limited (shell corporation) England 100%(5)
Mars Graphic Services, Inc. New Jersey 100%(4)
NSO, Inc. Ohio 100%
Printing Management Services, Inc. Delaware 100%
PRO Direct Response Corp. New Jersey 100%(2)
Southern Comprint Co. California 100%
Spectral Resources, Inc. New York 100%
</TABLE>
(1) Owned by Mars Graphic Services, Inc.
(2) Owned by DiMark Marketing, Inc.
(3) Owned by Harte-Hanks Data Technologies, Inc.
(4) Owned by DiMark, Inc.
(5) Owned by Harte-Hanks Limited
(6) 99.5% Owned by Harte-Hanks Delaware, Inc.
.5% Owned by Harte-Hanks , Inc.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 124,018
<SECURITIES> 2,395
<RECEIVABLES> 138,615
<ALLOWANCES> 3,164
<INVENTORY> 5,762
<CURRENT-ASSETS> 295,730
<PP&E> 218,961
<DEPRECIATION> 116,177
<TOTAL-ASSETS> 720,134
<CURRENT-LIABILITIES> 128,330
<BONDS> 0
0
0
<COMMON> 76,316
<OTHER-SE> 484,247
<TOTAL-LIABILITY-AND-EQUITY> 720,134
<SALES> 592,793
<TOTAL-REVENUES> 592,793
<CGS> 433,566
<TOTAL-COSTS> 507,988
<OTHER-EXPENSES> (4,758)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 149
<INCOME-PRETAX> 89,414
<INCOME-TAX> 36,709
<INCOME-CONTINUING> 52,705
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 52,705
<EPS-BASIC> .75
<EPS-DILUTED> .73
</TABLE>
