<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JULY 23, 1999
infoUSA INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 0-19598 47-0751545
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5711 SOUTH 86TH CIRCLE, OMAHA, NEBRASKA 68127
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (402)593-4500
NOT APPLICABLE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On July 23, 1999, infoUSA Inc., a Delaware corporation ("infoUSA" or
"Registrant"), Hugo Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of infoUSA ("Merger Sub"), First Data Corporation, a Delaware
corporation ("Seller Parent"), First Data Information Management Group, Inc.
("Seller"), DM Holdings, Inc., a Delaware corporation and wholly owned
subsidiary of Seller ("Holdco"), Donnelley Marketing Holdings, Inc., a Delaware
corporation and wholly owned subsidiary of Holdco ("Parent") and Donnelley
Marketing, Inc., a Delaware corporation and wholly owned subsidiary of Parent
("Donnelley Marketing") completed an Agreement and Plan of Reorganization (the
"Merger Agreement") with respect to the acquisition by infoUSA of Donnelley
Marketing, Parent and Holdco. Pursuant to the Merger Agreement, Merger Sub
merged with and into Holdco (the "Merger"). Following the Merger, the separate
corporate existence of Merger Sub ceased and Holdco continues as the surviving
corporation.
The aggregate purchase price payable for all of the outstanding capital
stock of Holdco in the merger is $200 million in cash, adjusted to reflect
certain payables and receivables of Donnelley Marketing in the period commencing
July 1, 1999 and ending on the closing date. InfoUSA, Merger Sub, Seller Parent,
Seller, Holdco, Parent and Donnelley Marketing entered into an agreement
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amending certain terms of the Merger Agreement, among others to reflect the
purchase price adjustment referred to above (the "Amendment Agreement"). InfoUSA
financed the purchase price by a bank funding with respect to an aggregate of
$195 million (the "Bank Financing") from Bankers Trust Company who leads a
syndicate of banks as administrative agent for the financing. For this purpose,
infoUSA entered into a credit agreement (the "Credit Agreement") with Bankers
Trust Company and various Lenders (as defined in the Credit Agreement) dated as
of July 23, 1999.
At the closing, infoUSA entered into a Non Competition Agreement with
Seller Parent whereby Seller Parent agreed not to engage in the business as
currently conducted by Donnelley Marketing in the United States of America for a
period of five years. InfoUSA also entered into a Database License Agreement
with First Data Resources, Inc. whereby it granted First Data Resources, Inc. a
license to use infoUSA's database of information on approximately 10 million
businesses in the United States. InfoUSA also entered into an Interim Services
Agreement with Seller Parent whereby Seller Parent agreed to provide certain
transition services to Donnelley Marketing and infoUSA agreed that Donnelley
Marketing will provide certain transition services to Seller Parent. In
addition, Donnelley Marketing entered into an Amended and Restated Database
License Agreement with First Data Resources, Inc. whereby it granted First Data
Resources, Inc. a license to use its consumer information database, a Database
License Agreement with Hogan Information Services, Inc. whereby Hogan
Information Services, Inc. granted Donnelley Marketing a license to use its
public records database, a Services Agreement with First Data Technologies, Inc.
pursuant to which First Data Technologies, Inc. will provide certain data
processing services and systems to Donnelley Marketing, a DecisionScope Services
Agreement with First Data Resources, Inc. pursuant to which Donnelley Marketing
will have the right to maintain servers in First Data Resources, Inc.'s data
center and license certain software owned by First Data Resources, Inc. and an
Assignment and Marketing Agreement with First Data Resources, Inc. pursuant to
which First Data Resources, Inc. has the right to provide Donnelley Marketing's
InfoSight and KnowledgeSight products to its customers in exchange for paying
certain revenues from such products to Donnelley Marketing. At the Closing,
Seller Parent granted infoUSA an option to acquire Hogan Information Services,
Inc.
A copy of the Merger Agreement was filed as Exhibit 99.2 to the current
report on Form 8-K filed with the Securities and Exchange Commission on May 28,
1999 and is incorporated by reference herein. A copy of the Amendment Agreement
is filed herewith as Exhibit 2.1 and incorporated by reference herein. A list
identifying the contents of all omitted schedules to the Merger Agreement and
the Amendment Agreement is filed herewith as Exhibit 2.2 and incorporated by
reference herein. A copy of the Credit Agreement is filed herewith as Exhibit
2.3 and incorporated by reference herein. A list identifying the contents of all
omitted schedules to the Credit Agreement is filed herewith as Exhibit 2.4 and
incorporated by reference herein. A copy of the press release issued by infoUSA
concerning the Merger is filed herewith as Exhibit 99.1 and incorporated by
reference herein.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of businesses acquired.
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Financial statements required by this item will be filed by amendment
not later than October 6, 1999.
(b) Pro forma financial information
Pro forma financial information required by this item will be filed by
amendment not later than October 6, 1999.
(c) Exhibits
2.1 Amendment Agreement to the Agreement and Plan of Reorganization
by and among infoUSA Inc., Hugo Acquisition Corp., First Data
Corporation, First Data Information Management Group, Inc., DM
Holdings, Inc., Donnelley Marketing Holdings, Inc. and Donnelley
Marketing, Inc. dated as of July 23, 1999.
2.2 List briefly identifying the contents of all omitted schedules to
the Merger Agreement and the Amendment Agreement. InfoUSA, Inc.
shall furnish supplementally a copy of any omitted schedules to
the Securities and Exchange Commission upon request.
2.3 Credit agreement by and among infoUSA, Inc., various Lenders (as
defined therein) and Bankers Trust Company dated as of July 23,
1999.
2.4 List briefly identifying the contents of all omitted schedules to
the Credit Agreement. InfoUSA, Inc. shall furnish supplementally
a copy of any omitted schedules to the Securities and Exchange
Commission upon request.
99.1 News release dated July 23, 1999 relating to the closing of the
Agreement and Plan of Reorganization by and among infoUSA Inc.,
Hugo Acquisition Corp., First Data Corporation, First Data
Information Management Group, Inc., DM Holdings, Inc., Donnelley
Marketing Holdings, Inc. and Donnelley Marketing, Inc. which took
place on July 23, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
InfoUSA Inc.
(Registrant)
Date: August 6, 1999 By: /s/ JACK J. MCGOVERN
------------------------------------
Jack J. McGovern, Chief Financial
Officer (for Registrant and as
Principal Financial Officer)
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
2.1 Amendment Agreement to the Agreement and Plan of Reorganization
by and among infoUSA Inc., Hugo Acquisition Corp., First Data
Corporation, First Data Information Management Group, Inc., DM
Holdings, Inc., Donnelley Marketing Holdings, Inc. and Donnelley
Marketing, Inc. dated as of July 23, 1999.
2.2 List briefly identifying the contents of all omitted schedules to
the Merger Agreement and the Amendment Agreement. InfoUSA, Inc.
shall furnish supplementally a copy of any omitted schedules to
the Securities and Exchange Commission upon request.
2.3 Credit agreement by and among infoUSA, Inc., various Lenders (as
defined therein) and Bankers Trust Company dated as of July 23,
1999.
2.4 List briefly identifying the contents of all omitted schedules to
the Credit Agreement. InfoUSA, Inc. shall furnish supplementally
a copy of any omitted schedules to the Securities and Exchange
Commission upon request.
99.1 News release dated July 23, 1999 relating to the closing of the
Agreement and Plan of Reorganization by and among infoUSA Inc.,
Hugo Acquisition Corp., First Data Corporation, First Data
Information Management Group, Inc., DM Holdings, Inc., Donnelley
Marketing Holdings, Inc. and Donnelley Marketing, Inc. which took
place on July 23, 1999.
</TABLE>
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EXHIBIT 2.1
July 23, 1999
infoUSA Inc.
Hugo Acquisition Corporation
5711 South 86 Circle
Omaha, Nebraska 68127
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Reorganization, dated
as of May 28, 1999 (the "Agreement"), among infoUSA Inc., a Delaware corporation
("Purchaser"), Hugo Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of Purchaser ("Merger Sub"), First Data Corporation, a Delaware
corporation ("Seller Parent"), First Data Information Management Group, Inc., a
Delaware corporation ("Seller"), DM Holdings, Inc., a Delaware corporation
("Holdco"), Donnelley Marketing Holdings, Inc., a Delaware corporation
("Parent"), and Donnelley Marketing, Inc., a Delaware corporation (the
"Company"). Each reference in the Agreement to "this Agreement" shall mean the
Agreement as amended by this letter agreement, and as hereafter amended or
restated. Terms not defined herein shall have the respective meanings set forth
in the Agreement.
Purchaser, Merger Sub, Seller Parent, Holdco, Parent and Company,
acknowledge that they desire to amend the Agreement in certain respects pursuant
to Section 9.4 of the Agreement (Seller having been merged into Seller Parent
effective July 22, 1999).
In consideration of the foregoing and of the mutual agreements set
forth herein, the parties hereto agree as follows:
SECTION 1. Amendments to the Agreement. Effective as of the date
hereof, the Agreement is hereby amended as follows:
(a) The first sentence of Section 1.6 of the Agreement is hereby
deleted in its entirety and the following is substituted therefor:
"1.6 Consideration. The consideration to be paid by
Purchaser in exchange for the acquisition by Purchaser of all
outstanding Holdco Capital Stock in the merger (the "PURCHASE PRICE")
shall be equal to:
(i) $200,000,000 plus
(ii) the absolute value of the Net July Cash Amount, as
determined in accordance with the provisions of Section 1.6.1 of this
Agreement.
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
(b) The following is hereby inserted immediately after Section 1.6 of
the Agreement:
1.6.1 Determination of Estimated Payment Adjustment. (a) For
the period from July 1, 1999 to the Closing Date (the "JULY PERIOD"),
the Company shall accept any third-party account receivable payments
received by the Company during such July Period (collectively, such
payments being the "JULY CASH RECEIPTS") and shall pay all amounts due
by the Company to third-parties in the ordinary course of business
consistent with past practice during such July Period (such amounts,
including, but not limited to, any outstanding checks not cleared as
of June 30, 1999 and checks and wire transfers cut and mailed from
June 30, 1999 through the Closing Date for all disbursement categories
which have been or will be presented to the Seller Parent's bank and
cleared against Seller Parent accounts from June 30, 1999, hereinafter
collectively being the "JULY CASH PAYMENTS"). The Company shall ensure
that all July Cash Receipts and July Cash Payments are noted in the
books and records maintained by the Company with respect to such
payments. The amount of July Cash Receipts minus the amount of July
Cash Payments is hereinafter referred to as the "NET JULY CASH
AMOUNT".
(b) Seller Parent and Purchaser hereby agree that the Net
July Cash Amount is a negative amount equal to $665,084.19; Seller
Parent having provided to Purchaser on or prior to the date hereof
detailed documentation (the "July Cash Details") supporting such Net
July Cash Amount. Purchaser shall pay to Seller Parent at Closing, by
wire transfer of immediately available funds to such bank account of
Seller Parent as Seller Parent shall designate in writing to
Purchaser, an amount equal to $200,000,000. On July 28, 1999,
Purchaser shall pay to Seller Parent, by wire transfer of immediately
available funds to such bank account of Seller Parent as Seller Parent
shall designate in writing to Purchaser, an amount equal to
$665,084.19, plus any interest accruing thereon from the Closing Date
to the date of such payment at the Agreed Rate. The "Agreed Rate"
shall mean: the Prime Rate as published in The Wall Street Journal on
July 28, 1999, plus 2%. Seller Parent and Purchaser agree that the
Purchase Price shall not be subject to further adjustment, except as
expressly provided herein.
(c) Schedule 2.4 to the Agreement is hereby amended as follows:
(i) by deleting the following agreement:
2
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
"Bundling Agreement dated 2/11/97 between
Quarterdeck Corporation and the Company, requires
consent upon a change in control";
(ii) by deleting the last sentence of paragraph #5 in its
entirety and by substituting therefor the following:
"The Company and Purchaser are working with the
U.S. Postal Service to arrange a novation of the
current NCOA License and to bring the Company
under Purchaser's current NCOA License as a second
platform."
(d) Schedule 2.7 to the Agreement is hereby amended by inserting the
contents of Annex A attached hereto.
(e) Schedule 2.11(g) to the Agreement is hereby amended by deleting
the following agreement and all references thereto:
"Bundling Agreement dated February 11, 1997 between
Quarterdeck Corporation and the Company, as licensee."
(f) Schedule 2.20 to the Agreement is hereby amended by deleting the
following names from Attachment 2.20:
(i) Beck, Cindy Manager
(ii) Kaiser, Jim Vice President
(g) Section 6.11 of the Agreement is hereby deleted in its entirety
and the contents of Annex B attached hereto is substituted therefor.
(h) Section 6.13 of the Agreement is hereby amended to read in its
entirety as follows:
6.13 Release of Guaranties. With respect to any obligations
of Seller Parent under the guaranty identified on Schedule 6.13 (the
"Ames Lease Guaranty"), Purchaser shall, within 30 days of the Closing
Date, post or have posted a letter of credit authorizing Seller Parent
to draw upon such letter of credit for any and all losses and/or
expenses incurred after the Closing Date by Seller Parent in respect
of the Ames Lease Guaranty. Purchaser shall, within 45 days of the
Closing Date, have or have caused Seller Parent to be released from
the Ames
3
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
Lease Guaranty either by posting or having posted a letter of credit
in favor of the holder of the Ames Lease Guaranty, or by any other
commercially reasonable means. Purchaser shall indemnify and hold
harmless Seller Parent from any and all losses and/or expenses
incurred after the Closing Date by Seller Parent in respect of the
Ames Lease Guaranty, without regard to the limitations set forth in
Section 10.4. Without limiting the foregoing, after the Closing,
Purchaser will not, and will not permit any of its Affiliates to,
renew, extend, amend or supplement any loan, contract, lease or other
obligation that is covered by the Ames Lease Guaranty without
providing to Seller Parent evidence satisfactory to Seller Parent that
the Ames Lease Guaranty has been released. Any cash or other
collateral posted by Seller Parent in respect of the Ames Lease
Guaranty shall be delivered to Seller Parent.
(i) Article VII to the Agreement is hereby amended by inserting the
following:
7.7 STAY BONUS AGREEMENT. Seller Parent shall use its reasonable best
efforts to cause each of the Company employees identified on Schedule
7.7 (the "Identified Employees") to enter into an agreement with the
Company substantially in the form attached hereto as Exhibit K
(collectively, the "Stay Bonus Agreements"). Purchaser shall deliver
to Seller Parent an officer's certificate setting forth (1) the total
amount of payments made to the Identified Employees in respect of the
Stay Bonus Agreements, and (2) that all such payments were made to the
Identified Employees named on such certificate only after the
fulfillment by such Identified Employees of the terms and conditions
set forth in the Stay Bonus Agreements. Upon receipt of such officer's
certificate, Seller Parent shall reimburse the Company for all amounts
paid by the Company to the Identified Employees in accordance with the
Stay Bonus Agreements.
(j) The Schedules to the Agreement are hereby amended by inserting
the contents of Annex C attached hereto.
(k) Section 8.3(c) of the Agreement is hereby amended to read in its
entirety as follows:
"Third Party Consents. Seller Group shall have used its
reasonable best efforts to obtain the consents, approvals
and waivers set forth in Schedule 8.3(c).
(l) Exhibit A (Excluded Liabilities) to the Agreement is hereby
amended by deleting paragraph #3 in its entirety and by substituting therefor
the following:
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
"All liabilities related to the lease of the Naperville, IL
facility of the Company and the termination of the Employees
identified in Attachment A-1, other than the Company's
sublease of the current second floor space at such facility
(approximately 19,411 square feet) unless as otherwise
provided for in the Interim Services Agreement."
SECTION 2. Effect of Termination Date. If the Closing shall not have
occurred on or before July 31, 1999, then the provisions of clauses (ii) and
(iii) of the first sentence of Section 1.6 of the Agreement and Section 1.6.1 of
the Agreement shall be of no further force and effect and the provisions of the
Agreement hereby amended by those provisions shall be deemed reinstated as they
existed prior hereto.
SECTION 3. Confirmation of the Agreement. Except as herein expressly
amended, the Agreement is ratified and confirmed in all respects and shall
remain in full force and effect in accordance with its terms.
SECTION 4. Execution in Counterparts. This letter agreement may be
executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of Purchaser and
Seller Parent.
SECTION 5. Amendments; Conflicts. This letter agreement shall not be
amended, modified or supplemented except by a written instrument signed by an
authorized representative of each of the parties hereto. In the event of any
conflict between the provisions of this letter agreement and the provisions of
the Agreement, the provisions of this letter agreement shall control.
SECTION 6. Governing Law. This letter agreement shall be governed by
and construed in accordance with the internal laws (as opposed to the conflict
of laws provisions) of the State of New York.
5
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us as a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among Purchaser,
Merger Sub, Seller Parent, Holdco, Parent and Company.
Very truly yours,
FIRST DATA CORPORATION
By
--------------------------------
Name:
Title:
DONNELLEY MARKETING HOLDINGS, INC. DM HOLDINGS, INC.
By By
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
DONNELLEY MARKETING, INC.
By
--------------------------------
Name:
Title:
[Signature page to Master Amendment]
6
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
The foregoing amendment is hereby confirmed and accepted as of the date of this
letter.
infoUSA Inc. HUGO ACQUISITION CORPORATION
By By
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
[Signature page to Master Amendment]
7
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infoUSA Inc.
Hugo Acquisition Corporation
July 23, 1999
ANNEX B
6.11 Certain Tax Matters.
(a) Liability for Taxes.
(i) Seller Parent shall be liable for and pay, and pursuant to
Article X (and subject to any applicable limitations thereunder) shall
indemnify, defend and hold harmless Purchaser against, all Taxes (A) imposed on
any Holdco Group Member, or for which any Holdco Group Member may otherwise be
liable, for any taxable year or period that ends on or before the Closing Date
and, with respect to any Straddle Period (as hereinafter defined), the portion
of such Straddle Period that ends on and includes the Closing Date, (B) imposed
on any Holdco Group Member, pursuant to Treas. Reg. Section 1.1502-6 or similar
provision of state, local or foreign law solely as a result of such Holdco Group
Member having been a member of Seller Parent's Group (as hereinafter defined),
(C) that are withholding or payroll Taxes associated with any Payment (as
defined in Section 6.11(a)(vi)), (D) imposed as a result of any audit, written
inquiry, claim or demand by a taxing authority disallowing a deduction or
similar Tax item that was previously claimed with respect to a Payment in
accordance with Section 6.11(a)(vi) and that gave rise to a tax reduction for
which Purchaser previously paid Seller Parent in accordance with Section
6.11(a)(vi) or (E) imposed as a result of any dividend or other transfer
contemplated by Section 6.12; provided, however, that Seller Parent shall not be
liable for or pay, and shall not indemnify, defend or hold harmless Purchaser
against, (I) any Taxes shown as a liability on the Company Financials (other
than the Excluded Liabilities), (II) any Taxes that result from any actual or
deemed election under Section 338 of the Code or any similar provisions of
state, local or foreign law as a result of the purchase of Holdco Capital Stock
or the deemed purchase of shares of any of its subsidiaries, or that result from
Purchaser, any Affiliate of Purchaser, any Holdco Group Member or any of their
subsidiaries engaging in any activity or transaction that would cause the
transactions contemplated by this Agreement to be treated a purchase or sale of
assets of any Holdco Group Member or any of their subsidiaries for federal,
state or local Tax purposes, (III) any Taxes imposed on any Holdco Group Member
or for which any Holdco Group Member may otherwise be liable as a result of
transactions other than in the ordinary course of business and occurring on the
Closing Date that are properly allocable (based on, among other relevant
factors, factors set forth in Treas. Reg. Section 1.1502-76(b)(1)(ii)(B)) to the
portion of the Closing Date after the Closing and (IV) any Interim Period Tax
imposed on any Holdco Group Member or for which any Holdco Group Member may
otherwise be liable to the extent in excess of the Offset Amount with respect to
such Interim Period Tax (Taxes described in this proviso, hereinafter "Excluded
Taxes"). Purchaser and Seller Parent agree that, with respect to any transaction
described in clause (III) of the preceding sentence, each Holdco Group
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Member and all persons related to any Holdco Group Member under Section 267(b)
of the Code immediately after the Closing shall treat the transaction for all
federal income Tax purposes (in accordance with Treas. Reg. Section
1.1502-76(b)(1)(ii)(B)), and (to the extent permitted) for other income Tax
purposes, as occurring at the beginning of the day following the Closing Date.
Seller Parent shall be entitled to any refund of (or credit for) Taxes allocable
to any taxable year or period that ends on or before the Closing Date and, with
respect to any Straddle Period, the portion of such Straddle Period ending on
and including the Closing Date other than any Tax refunds shown as an asset on
the Company Financials.
For purposes of this Section 6.11:
(A) "CUT-OFF DATE" shall mean June 30, 1999.
(B) "CUT-OFF STRADDLE PERIOD" shall mean any taxable year or
period that begins before and ends after the Cut-Off Date.
(C) "INTERIM PERIOD" shall mean the period of time beginning on
the day after the Cut-Off Date and ending at the close of the Closing
Date.
(D) "INTERIM PERIOD TAX" shall mean any Tax imposed with
respect to the Interim Period.
(E) "OFFSET AMOUNT" shall mean, with respect to an Interim
Period Tax, either (i) the amount of such Tax that is included in July
Cash Payments as reflected in the July Cash Details or (ii) the amount
by which the Tax liability of Seller Parent is actually reduced, upon
the conversion of the stock of Holdco pursuant to Article I, by reason
of the Tax items which result in such Interim Period Tax increasing
the Tax basis of Seller Parent's Holdco Capital Stock.
(F) "SELLER PARENT'S GROUP" shall mean any "affiliated group"
(as defined in Section 1504(a) of the Code without regard to the
limitations contained in Section 1504(b) of the Code), and any
combined, consolidated, unitary or affiliated group under state, local
or foreign law, that includes Seller Parent.
(G) "STRADDLE PERIOD" shall mean any taxable year or period
beginning before and ending after the Closing Date (whether or not
such taxable year or period is also a Cut-Off Straddle Period).
(ii) Purchaser shall be liable for and pay, and pursuant to
Article X (and subject to any applicable limitations thereunder) shall
indemnify, defend and hold harmless Seller Parent against, (A) all Taxes imposed
on any Holdco Group Member or for which any Holdco Group Member may otherwise be
liable, for any taxable year or period that begins after the Closing Date and,
with respect to any Straddle Period, the portion of such Straddle Period
beginning after the Closing Date and (B) Excluded Taxes. Except as otherwise
provided herein,
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Purchaser shall be entitled to any refund of (or credit for) Taxes allocable to
any taxable year or period that begins after the Closing Date and, with respect
to any Straddle Period, the portion of such Straddle Period beginning after the
Closing Date.
(iii) For purposes of Sections 6.11(a)(i) and 6.11(a)(ii), in
determining the amount of Interim Period Taxes:
(A) the Interim Period Taxes of the Holdco Group and each
Member thereof shall be computed as if the Effective Time of the
Merger had occurred at the close of the CutOff Date, except that
(where relevant) the benefits of the graduated tax rates of Section 11
of the Code, the $25,000 bracket amount in Section 38 of the Code, the
$40,000 exemption amount and the $150,000 phase-out bracket amount in
Section 55 of the Code, and the $2 million bracket amount in Section
59A of the Code (and any similar or corresponding benefits under
federal, state or local Tax law) shall be taken into account solely in
determining the Tax liability of Seller Parent.
(B) Interim Period Taxes shall be computed without regard to
any Tax items that arise as a result of transactions other than in the
ordinary course of business (with such disregarded Tax items
including, but not limited to, any income or gain arising as a result
of transactions other than in the ordinary course of business, any
deduction for severance or similar payments or benefits, any deduction
related to the exercise of employee stock options, and any deduction
attributable to what would be a "Payment" as defined in Section
6.11(a)(vi) if "Cut-Off Date" were substituted in place of each
reference to "Closing Date" therein (other than the second reference
to "Closing Date" in clause (ii) thereof)); and
(C) the Interim Period Taxes shall include Taxes attributable
to the portion of any Cut-Off Straddle Period or Straddle Period
included in such period, determined in accordance with Section
6.11(a)(iv).
(iv) For purposes of paragraphs (a)(i), (a)(ii) and (a)(iii),
whenever it is necessary to determine the liability for (or refund with respect
to) Taxes of any Holdco Group Member for a Cut-Off Straddle Period or Straddle
Period, the determination of the Taxes of such Holdco Group Member for the
portion of the Cut-Off Straddle Period ending on and including, and the portion
of the Cut-Off Straddle Period beginning after, the Cut-Off Date, or for the
portion of the Straddle Period ending on and including, and the portion of the
Straddle Period beginning after the Closing Date, as the case may be, shall be
determined by assuming that the Cut-Off Straddle Period or Straddle Period, as
the case may be, consisted of two taxable years or periods, one which ended at
the close of the Cut-Off Date or Closing Date, as the case may be, and the other
which began at the beginning of the day following the Cut-Off Date or Closing
Date, as the case may be, and items of income, gain, deduction, loss or credit
of such Holdco Group Member for the Cut-Off Straddle Period or Straddle Period
shall be allocated between such two taxable years or periods on a "closing of
the books basis" by assuming that the books of such Holdco Group Member were
closed at the close of the Cut-Off Date or Closing Date, provided, however, that
(I) transactions occurring on the Closing Date that are properly allocable
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(based on, among other relevant factors, factors set forth in Treas. Reg.
Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the
Closing shall be allocated to the taxable year or period that is deemed to begin
at the beginning of the day following the Closing Date, and (II) exemptions,
allowances or deductions that are calculated on an annual basis, such as the
deduction for depreciation, shall be apportioned between such two taxable years
or periods on a daily basis. Notwithstanding the foregoing provisions of this
paragraph (a)(iv), if the transactions contemplated by this Agreement result in
the reassessment of the value of any property owned by any Holdco Group Member
for property Tax purposes, or the imposition of any property Taxes at a rate
which is different than the rate that would have been imposed if such
transactions had not occurred, then (y) the portion of such property Taxes for
the portion of the Straddle Period ending on and including the Closing Date
shall be determined on a daily basis, using the assessed value and Tax rate that
would have applied had such transactions not occurred, and (z) the portion of
such property Taxes for the portion of such Straddle Period beginning after the
Closing Date shall be the total property Taxes for the Straddle Period minus the
amount described in clause (y) of this sentence.
(v) Notwithstanding anything herein to the contrary, Purchaser
shall pay, and shall indemnify, defend and hold harmless Seller Parent and its
Affiliates against, any real property transfer or gains Tax, sales Tax, use Tax,
stamp Tax, stock transfer Tax, or other similar Tax imposed on the conversion of
the stock of Holdco pursuant to the Merger.
(vi) To the extent it is established in accordance with the
procedures set forth in this Section 6.11(a)(vi), that any Payment (as defined
below) results in a reduction of the federal, state or local income, franchise
or similar Taxes of any Holdco Group Member, Purchaser or any Affiliate or
successor thereof for any taxable year or period beginning after the Closing
Date or for the portion of any Straddle Period that begins after the Closing
Date (each such reduction, a "TAX REDUCTION"), Purchaser shall pay to Seller
Parent an amount equal to such Tax Reduction. For purposes of this Section
6.11(a)(vi), the amount of any Tax Reduction shall be determined after taking
into account all other applicable items of income, gain, deduction or loss (or
any other Tax attributes) of Purchaser, any Affiliate of Purchaser or any Holdco
Group Member. Purchaser shall be required to claim, and to cause the relevant
Holdco Group Member, Affiliate or successor to claim, a deduction or similar Tax
item (and to claim no income, gain or similar Tax item) with respect to a
Payment unless there is no reasonable basis for doing so under the standards of
Section 6662 of the Code. Any dispute regarding whether the standard set forth
in the preceding sentence is met, or regarding the calculation of the Tax
Reduction, shall be referred to a mutually acceptable independent accounting
firm for final resolution. Payment of any Tax Reduction shall be made at the due
date for filing the Return (after taking into account extensions) for the
taxable year or period in which the Tax Reduction in question occurs, together
with interest on the amount of such payment computed at the applicable federal
rate (determined under Section 1274 of the Code) from the due date for filing
such Return (without taking into account extensions) through the date of
payment. Seller Parent shall refund to Purchaser any Tax Reduction to the extent
it has been paid by Purchaser to Seller Parent but is subsequently recaptured by
Purchaser (other than as a result of an audit, written inquiry, claim or demand
by a taxing authority for which indemnification is provided under
12
<PAGE> 12
Section 6.11(a)(i)) including, for example, by reason of any carry back of
losses. To the extent that, after any such recapture, the relevant Payment
subsequently produces a Tax Reduction (established in accordance with the above
procedures), such Tax Reduction shall be governed by this Section 6.11(a)(vi).
For purposes of this Section 6.11:
"PAYMENT" shall mean (i) any payment or delivery by Seller Parent or
any Affiliate thereof of cash, stock or other property (including, without
limitation, any delivery of Seller Parent common stock pursuant to an option to
purchase Seller Parent common stock) after the Closing Date to or for the
benefit of any employee, former employee or independent contractor of any Holdco
Group Member (or, after the Closing Date, any Affiliate thereof) (collectively,
the "EMPLOYEES" and individually an "EMPLOYEE"), except, in all cases, the Stay
Bonus Agreements contemplated by Section 7.7 hereof, (ii) any vesting after the
Closing Date of cash, stock or other property paid or delivered by Seller
Parent, Seller or any Affiliate of either thereof on or prior to the Closing
Date to an Employee, and (iii) any severance payment that Seller or Seller
Parent is responsible for under Section 6.8(k).
(b) Returns.
(i) Seller Parent shall timely file or cause to be timely filed
when due (taking into account all extensions properly obtained) all Returns that
are required to be filed by or with respect to each Holdco Group Member for
taxable years or periods ending on or before the Closing Date (in the case of
income, franchise and similar Returns required to be filed by or with respect to
each Holdco Group Member as well as Returns required to be filed by or with
respect to any Holdco Group Member on a combined, consolidated or unitary basis
with Seller Parent, Seller, or any Affiliate thereof that is not a Holdco Group
Member) or due on or before the Closing Date (with respect to other Returns),
and in each case Seller Parent shall remit or cause to be remitted any Taxes due
in respect of such Returns, and Purchaser shall timely file or cause to be
timely filed when due (taking into account all extensions properly obtained) all
other Returns that are required to be filed by or with respect to any Holdco
Group Member and Purchaser shall remit or cause to be remitted any Taxes due in
respect of such Returns. With respect to Returns to be filed by Purchaser
pursuant to the preceding sentence that relate to taxable years or periods
ending on or before the Closing Date or Straddle Periods: [x] except to the
extent no reasonable basis exists for doing so, such Returns shall be filed in a
manner consistent with past practice and no position shall be taken, election
made or method adopted that is inconsistent with positions taken, elections made
or methods used in prior periods in filing such Returns (including positions
which would have the effect of accelerating income to periods for which Seller
Parent is liable hereunder or deferring deductions to periods for which
Purchaser is liable hereunder) and (y) such Returns shall be submitted to Seller
Parent not later than forty-five (45) days prior to the due date for filing such
Returns (or, if such due date is within 45 days following the Closing Date, as
promptly as practicable following the Closing Date) for review and approval by
Seller Parent, which approval may not be unreasonably withheld, but may in all
cases be withheld if such Returns were not prepared in accordance with clause
[x] of this
13
<PAGE> 13
sentence. Seller Parent or Purchaser shall pay the other party for the Taxes for
which Seller Parent or Purchaser, respectively, is liable pursuant to paragraph
(a) of this Section 6.11 but which are payable with any Tax Return to be filed
by the other party pursuant to this paragraph (b) upon the written request of
the party entitled to payment, setting forth in detail the computation of the
amount owed by Seller Parent or Purchaser, as the case may be, but in no event
earlier than ten (10) days prior to the due date for paying such Taxes.
(ii) None of Purchaser or any Affiliate of Purchaser shall (or
shall cause or permit any Holdco Group Member to) amend, refile or otherwise
modify (or grant an extension of any statute of limitation with respect to) any
Return relating in whole or in part to any Holdco Group Member with respect to
any taxable year or period ending on or before the Closing Date (or with respect
to any Straddle Period) without the prior written consent of Seller Parent,
which consent may be withheld in the sole discretion of Seller Parent. In no
event may Purchaser, any Holdco Group Member or any Affiliate thereof carry back
any net operating loss or net capital loss of any Holdco Group Member from a
taxable year or period ending after the Closing Date to a taxable year or period
ending on or before the Closing Date without the express written consent of
Seller Parent.
(iii) Purchaser shall promptly cause each Holdco Group Member
to prepare and provide to Seller Parent a package of Tax information materials,
including, without limitation, schedules and work papers (the "TAX PACKAGE")
required by Seller Parent to enable Seller Parent to prepare and file all
Returns required to be prepared and filed by it pursuant to paragraph (b)(i).
The Tax Package shall be completed in accordance with past practice, including
past practice as to providing such information and as to the method of
computation of separate taxable income or other relevant measure of income of
each Holdco Group Member. Purchaser shall cause the Tax Package to be delivered
to Seller Parent within one hundred twenty (120) days after the Closing Date.
(c) Contest Provisions. Upon receipt by a party entitled to any
indemnification provided for under this Agreement, including this Section 6.11
or Section 2.8 (for purposes of this paragraph, the "INDEMNIFIED PARTY"), of
notice of any audit, written inquiry, claim or demand by a taxing authority, in
each case (i) related to Taxes with respect to which the indemnified party would
be entitled to indemnification under this Agreement to any extent or (ii) that
could result in the disallowance of any deduction or similar Tax item previously
claimed with respect to a Payment in accordance with Section 6.11(a)(vi) whether
or not indemnification payments would be owing upon such disallowance (any such
audit, written inquiry, claim or demand by a taxing authority, hereinafter a
"TAX ASSERTION"), the indemnified party shall notify the party obligated to
provide such indemnification (for purposes of this paragraph, the "INDEMNIFYING
PARTY") in writing of the Tax Assertion as promptly as practicable but in any
event within fifteen (15) days after receipt by such indemnified party of notice
of such Tax Assertion; provided, however, that failure to give such notification
shall not affect the indemnification provided hereunder except to the extent the
indemnifying party shall have been prejudiced as a result of such failure.
Thereafter, the indemnified party shall deliver to the indemnifying party,
promptly after the indemnified party's receipt thereof, copies of all notices
14
<PAGE> 14
and documents (including court papers) received by the indemnified party
relating to such Tax Assertion. If a Tax Assertion is made, the indemnifying
party or any Person designated by the indemnifying party (the indemnifying party
or such Person, as relevant as determined by the indemnifying party with respect
to each reference herein, the "RELEVANT PARTY") will be entitled to choose to
defend and solely control the defense of such Tax Assertion (at the Relevant
Party's expense) with counsel selected by the Relevant Party (at the Relevant
Party's expense). If the Relevant Party chooses to defend or prosecute any Tax
Assertion, all of the parties hereto shall cooperate in the defense or
prosecution thereof. Such cooperation shall include taking all reasonable steps
necessary to retain and (upon the Relevant Party's request) to provide to the
Relevant Party records and information which are reasonably relevant to such Tax
Assertion, and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder.
Notwithstanding anything herein to the contrary, the indemnified party
shall have the sole right to defend any issue relating to a Tax Assertion not
described in clause (ii) of the definition thereof to the extent the indemnified
party shall have agreed to forego any indemnification under this Agreement with
respect thereto. Whether or not the Relevant Party shall have assumed the
defense of a Tax Assertion, neither the indemnified party nor the Relevant Party
shall admit any liability with respect to, or settle, such Tax Assertion without
the Relevant Party's prior written consent.
(d) Assistance and Cooperation. After the Closing Date, each of
Seller Parent and Purchaser shall (and cause their respective Affiliates to)
make commercially reasonable efforts to:
(i) assist the other party in preparing any Returns which such
other party is responsible for preparing and filing in accordance with paragraph
(b) of this Section 6.11;
(ii) cooperate fully in preparing for any audits of, or disputes
with taxing authorities regarding, any Returns of any Holdco Group Member;
(iii) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating to Taxes
of any Holdco Group Member;
(iv) provide timely notice to the other in writing of any
pending or threatened Tax audits or assessments of any Holdco Group Member for
taxable periods for which the other may have a liability under this Section
6.11;
(v) furnish the other with copies of all correspondence
received from any taxing authority in connection with any Tax audit or
information request with respect to any such taxable period;
(vi) timely sign and deliver such certificates or forms as may
be necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Returns or other reports
15
<PAGE> 15
with respect to, Taxes described in paragraph (a)(v) of this Section 6.11
(relating to sales, transfer and similar Taxes);
(vii) timely provide to the other powers of attorney or similar
authorizations necessary to carry out the purposes of this Section 6.11; and
(viii) upon Seller Parent's reasonable request, Purchaser shall
provide information as to (i) whether there has been any extension, tolling or
expiration of any federal income tax statute of limitation for any Holdco Group
Member for any taxable year ended on or before the Closing Date; or (ii) whether
an IRS Form 870-AD (or successor form having the same effect) has been executed
by Purchaser or any Affiliate in respect of any Holdco Group Member for any
taxable year ended on or before the Closing Date.
16
<PAGE> 1
EXHIBIT 2.2
LIST BRIEFLY IDENTIFYING THE CONTENTS OF ALL OMITTED SCHEDULES TO THE
MERGER AGREEMENT
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit A - Filed as Exhibit to the Merger Agreement.
Exhibit B - Intentionally left blank.
Exhibit C - Non Competition Agreement by and among infoUSA and Seller
Parent whereby Seller Parent agreed not to engage in the
business as currently conducted by Donnelley Marketing in
the United States of America for a period of five years.
Exhibit D - Amended and Restated Database License Agreement by and among
Donnelley Marketing and First Data Resources, Inc. whereby
Donnelley Marketing granted First Data Resources, Inc. a
license to use its consumer information database.
Exhibit E - Database License Agreement by and among infoUSA and First
Data Resources, Inc. whereby infoUSA granted First Data
Resources, Inc. a license to use infoUSA's database of
information on approximately 10 million businesses in the
United States.
Exhibit F - Database License Agreement by and among Donnelley Marketing
and Hogan Information Services, Inc. whereby Hogan
Information Services, Inc. granted Donnelley Marketing a
license to use its public records database.
Exhibit G - Hogan Option Agreement by and among infoUSA and First Data
Corporation whereby First Data Corporation granted infoUSA
an option to acquire Hogan Information Services, Inc.
Exhibit H - Services Agreement by and among Donnelley Marketing and
First Data Technologies, Inc. pursuant to which First Data
Technologies, Inc. will provide certain data processing
services and systems to Donnelley Marketing.
Exhibit I - Interim Services Agreement by and among infoUSA and Seller
Parent whereby Seller Parent agreed to provide certain
transition services to Donnelley Marketing and infoUSA
agreed that Donnelley Marketing will provide certain
transition services to Seller Parent.
Exhibit J1 - DecisionScope Services Agreement by and among Donnelley
Marketing and First Data Resources, Inc. pursuant to which
Donnelley Marketing will have the right to maintain servers
in First Data Resources, Inc.'s data center and license
certain software owned by First Data Resources, Inc.
</TABLE>
-5-
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit J2 - Assignment and Marketing Agreement by and among Donnelley
Marketing and First Data Resources, Inc. pursuant to which
First Data Resources, Inc. has the right to provide
Donnelley Marketing's InfoSight and KnowledgeSight products
to its customers in exchange for paying certain revenues
from such products to Donnelley Marketing.
</TABLE>
LIST BRIEFLY IDENTIFYING THE CONTENTS OF ALL OMITTED SCHEDULES TO THE
AMENDMENT AGREEMENT
<TABLE>
<CAPTION>
<S> <C> <C>
Annex A - List of employees receiving salary increases.
Annex B - Filed as Annex B to the Amendment Agreement.
Schedule 7.7 - List of employees to enter into Stay Bonus Agreement
Exhibit K - Form of Stay Bonus Agreement
</TABLE>
-6-
<PAGE> 1
EXHIBIT 2.3
===============================================================================
CREDIT AGREEMENT
among
INFOUSA INC.,
VARIOUS LENDERS,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
--------------------------------------
Dated as of July 23, 1999
--------------------------------------
DEUTSCHE BANK SECURITIES INC.,
as LEAD ARRANGER AND SOLE BOOK MANAGER
===============================================================================
<PAGE> 2
CREDIT AGREEMENT, dated as of July 23, 1999, among INFOUSA INC., a
Delaware corporation (the "Borrower"), the Lenders party hereto from time to
time, and BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent") (all capitalized terms used herein and defined in
Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Lender with a Tranche A Term Loan Commitment severally
agrees to make a term loan or term loans (each a "Tranche A Term Loan" and,
collectively, the "Tranche A Term Loans") to the Borrower, which Tranche A Term
Loans (i) only may be incurred by the Borrower on the Initial Borrowing Date,
(ii) shall, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that, (A)
except as otherwise specifically provided in Section 1.10(b), all Tranche A
Term Loans comprising the same Borrowing shall at all times be of the same Type
and (B) unless the Administrative Agent has determined that the Syndication
Date has occurred (at which time this clause (B) shall no longer be
applicable), (x) on or prior to July 30, 1999, all Tranche A Term Loans shall
be incurred and maintained as Base Rate Loans and (y) thereafter, no more than
three Borrowings of Tranche A Term Loans to be maintained as Eurodollar Loans
may be incurred prior to the 28th day after the Initial Borrowing Date (each of
which Borrowings of Eurodollar Loans may only have an Interest Period of seven
days, and the first of which Borrowings may only be made on or before August 6,
1999, and with each such Borrowing made thereafter to be made only on the last
day of the Interest Period of the immediately preceding Borrowing), and (iii)
shall be made by each such Lender in that aggregate principal amount which does
not exceed the Tranche A Term Loan Commitment of such Lender on the Initial
Borrowing Date (before giving effect to the termination thereof on such date
pursuant to Section 3.03(b)). Once repaid, Tranche A Term Loans incurred
hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with a Tranche B Term Loan Commitment severally agrees to make a
term loan or term loans (each a "Tranche B Term Loan" and, collectively, the
"Tranche B Term Loans") to the Borrower, which Tranche B Term Loans (i) only
may be incurred on the Initial Borrowing Date, (ii) shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided that, (A) except as otherwise specifically
provided in Section 1.10(b), all Tranche B Term Loans comprising the same
Borrowing shall at all times be
<PAGE> 3
of the same Type and (B) unless the Administrative Agent has determined that
the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), (x) on or prior to July 30, 1999, all Tranche B Term
Loans shall be incurred and maintained as Base Rate Loans and (y) thereafter,
no more than three Borrowings of Tranche B Term Loans to be maintained as
Eurodollar Loans may be incurred prior to the 28th day after the Initial
Borrowing Date (each of which Borrowings of Eurodollar Loans (A) may only have
the same Interest Period as is then permitted for a Borrowing of Tranche A Term
Loans that are maintained as Eurodollar Loans and (B) shall begin and end on
the same day as a Borrowing of Tranche A Term Loans that are maintained as
Eurodollar Loans), and (iii) shall be made by each such Lender in that
aggregate principal amount which does not exceed the Tranche B Term Loan
Commitment of such Lender on the Initial Borrowing Date (before giving effect
to the termination thereof or such date pursuant to Section 3.03(c)).
(c) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees to make, at any
time and from time to time on or after the Initial Borrowing Date and prior to
the Revolving Loan Maturity Date, a revolving loan or revolving loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that, (A) except as otherwise specifically provided in Section
1.10(b), all Revolving Loans comprising the same Borrowing shall at all times
be of the same Type and (B) unless the Administrative Agent has determined that
the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), (x) on or prior to July 30, 1999, all Revolving Loans
shall be incurred and maintained as Base Rate Loans and (y) thereafter, no more
than three Borrowings of Revolving Loans to be maintained as Eurodollar Loans
may be incurred prior to the 28th day after the Initial Borrowing Date (each of
which Borrowings of Eurodollar Loans (A) may only have the same Interest Period
as is then permitted for a Borrowing of Tranche A Term Loans that are
maintained as Eurodollar Loans and (B) shall begin and end on the same day as a
Borrowing of Tranche A Term Loans that are maintained as Eurodollar Loans),
(ii) may be repaid and reborrowed in accordance with the provisions hereof,
(iii) shall not exceed for any such Lender at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Lender's RL Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Lender at such time, and (iv) shall not exceed for all such
Lenders at any time outstanding that aggregate principal amount which, when
added to the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Total Revolving
Loan Commitment at such time.
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<PAGE> 4
(d) Subject to and upon the terms and conditions set forth herein, the
Swingline Lender agrees to make, at any time and from time to time on or after
the Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving
loan or revolving loans (each a "Swingline Loan" and, collectively, the
"Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made and
maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance
with the provisions hereof, (iii) shall not exceed in aggregate principal
amount at any time outstanding, when combined with the aggregate principal
amount of all Revolving Loans then outstanding and the aggregate amount of all
Letter of Credit Outstandings at such time, an amount equal to the Total
Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate
principal amount at any time outstanding the Maximum Swingline Amount.
Notwithstanding anything to the contrary contained in this Section 1.01(d), (i)
the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Lenders' participation
in such Swingline Loans, including by cash collateralizing such Defaulting
Lender's or Lenders' RL Percentage of the outstanding Swingline Loans and (ii)
the Swingline Lender shall not make any Swingline Loan after it has received
written notice from the Borrower or the Required Lenders stating that a Default
or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission of all
such notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the
Required Lenders.
(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the RL Lenders that the Swingline Lender's
outstanding Swingline Loans shall be funded with one or more Borrowings of
Revolving Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 10), in which case one or more Borrowings of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each such RL Lender's RL Percentage (determined
before giving effect to any termination of the Revolving Loan Commitments
pursuant to the last paragraph of Section 10) and the proceeds thereof shall be
applied directly by the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding
(i) the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 6 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the
amount of the Total Revolving Loan Commitment at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each RL Lender hereby agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the
-3-
<PAGE> 5
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in the outstanding Swingline Loans as shall be
necessary to cause the RL Lenders to share in such Swingline Loans ratably
based upon their respective RL Percentages (determined before giving effect to
any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender until the date
as of which the respective participation is required to be purchased and, to
the extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing RL
Lender shall be required to pay the Swingline Lender interest on the principal
amount of participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the overnight Federal Funds Rate
for the first three days and at the rate otherwise applicable to Revolving
Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Loans under a respective Tranche shall not be less than
the Minimum Borrowing Amount applicable to such Tranche. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding
more than fifteen Borrowings of Eurodollar Loans in the aggregate.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
(x) Eurodollar Loans hereunder, the Borrower shall give the Administrative
Agent at the Notice Office at least three Business Days' prior notice of each
Eurodollar Loan to be incurred hereunder and (y) Base Rate Loans hereunder
(excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory
Borrowing), the Borrower shall give the Administrative Agent at the Notice
Office at least one Business Day's prior notice of each Base Rate Loan to be
incurred hereunder, provided that (in each case) any such notice shall be
deemed to have been given on a certain day only if given before 11:00 A.M. (New
York time) on such day. Each such notice (each a "Notice of Borrowing"), except
as otherwise expressly provided in Section 1.10, shall be irrevocable and shall
be given by the Borrower in writing, or by telephone promptly confirmed in
writing, in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of the Loans to be incurred pursuant to such
Borrowing, the date of such Borrowing (which shall be a Business Day), whether
the Loans being incurred pursuant to such Borrowing shall constitute Tranche A
Term Loans, Tranche B Term Loans or Revolving Loans and whether the Loans being
incurred pursuant to such Borrowing are to be initially maintained as Base Rate
Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Lender's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Lender no later than 1:00 P.M.
(New York time) on the
-4-
<PAGE> 6
date that a Swingline Loan is to be incurred, written notice or telephonic
notice promptly confirmed in writing of each Swingline Loan to be incurred
hereunder. Each such notice shall be irrevocable and specify in each case (A)
the date of Borrowing (which shall be a Business Day) and (B) the aggregate
principal amount of the Swingline Loans to be incurred pursuant to such
Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent or the Swingline Lender, as the case may be,
may act without liability upon the basis of telephonic notice of such Borrowing
or prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from the Chairman of
the Board, the President, the Chief Financial Officer, the Treasurer or any
Assistant Treasurer of the Borrower, or from any other authorized officer of
the Borrower designated in writing by the Borrower to the Administrative Agent
as being authorized to give such notices, prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's or Swingline Lender's record of the terms of
such telephonic notice of such Borrowing or prepayment of Loans, as the case
may be, absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 1:00 P.M. (New York time) on the date specified in Section 1.01(e)),
each Lender with a Commitment of the respective Tranche will make available its
pro rata portion (determined in accordance with Section 1.07) of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
the Swingline Lender will make available the full amount thereof). All such
amounts will be made available in Dollars and in immediately available funds at
the Payment Office, and the Administrative Agent will, except in the case of
Revolving Loans made pursuant to a Mandatory Borrowing, make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Lenders. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to
the
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Administrative Agent. The Administrative Agent also shall be entitled to
recover on demand from such Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, the overnight Federal Funds Rate for the first three days and at the
interest rate otherwise applicable to such Loans for each day thereafter and
(ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Lender from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Lender as a result of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Lender shall be evidenced in the Register
maintained by the Administrative Agent pursuant to Section 13.15 and shall, if
requested by such Lender, also be evidenced (i) if Tranche A Term Loans, by a
promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-1, with blanks appropriately completed in conformity
herewith (each a "Tranche A Term Note" and, collectively, the "Tranche A Term
Notes"), (ii) if Tranche B Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-3, with blanks appropriately completed in conformity
herewith (each a "Revolving Note" and, collectively, the "Revolving Notes"),
and (iv) if Swingline Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-4, with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Lender that has a Tranche A
Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be executed
by the Borrower, (ii) be payable to such Lender or its registered assigns and
be dated the Initial Borrowing Date (or, if issued after the Initial Borrowing
Date, be dated the date of issuance thereof), (iii) be in a stated principal
amount equal to the Tranche A Term Loans made by such Lender on the Initial
Borrowing Date (or, if issued after the Initial Borrowing Date, be in a stated
principal amount equal to the outstanding principal amount of Tranche A Term
Loans of such Lender at such time) and be payable in the outstanding principal
amount of Tranche A Term Loans evidenced thereby, (iv) mature on the Tranche A
Term Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Tranche B Term Note issued to each Lender that has a Tranche B
Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed
by the Borrower, (ii) be payable to such Lender or its registered assigns and
be dated the Initial
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<PAGE> 8
Borrowing Date (or, if issued after the Initial Borrowing Date, be dated the
date of the issuance thereof), (iii) be in a stated principal amount equal to
the Tranche B Term Loans made by such Lender on the Initial Borrowing Date (or,
if issued after the Initial Borrowing Date, be in a stated principal amount
equal to the outstanding Tranche B Term Loans of such Lender at such time) and
be payable in the outstanding principal amount of Tranche B Term Loans
evidenced thereby, (iv) mature on the Tranche B Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02, and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) The Revolving Note issued to each Lender that has a Revolving Loan
Commitment or outstanding Revolving Loans shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Initial Borrowing Date (or, if issued after the Initial Borrowing Date, be
dated the date of the issuance thereof), (iii) be in a stated principal amount
equal to the Revolving Loan Commitment of such Lender (or, if issued after the
termination thereof, be in a stated principal amount equal to the outstanding
Revolving Loans of such Lender at such time) and be payable in the outstanding
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(e) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Lender or its
registered assigns and be dated the Initial Borrowing Date, (iii) be in a
stated principal amount equal to the Maximum Swingline Amount and be payable in
the outstanding principal amount of the Swingline Loans evidenced thereby from
time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in such notation shall not affect the Borrower's
obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on any
Business Day occurring on or after the earlier of (x) August 2, 1999 and (y)
the Syndication Date, all or a portion equal to at least the Minimum Borrowing
Amount of the outstanding principal amount of Loans (other than Swingline Loans
which may not be converted pursuant to this Section 1.06) made pursuant to one
or more Borrowings (so long as of the same Tranche) of
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<PAGE> 9
one or more Types of Loans into a Borrowing (of the same Tranche) of another
Type of Loan, provided that, (i) except as otherwise provided in Section
1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on the
last day of an Interest Period applicable to the Loans being converted and no
such partial conversion of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single Borrowing
to less than the Minimum Borrowing Amount applicable thereto, (ii) unless the
Required Lenders otherwise agree, Base Rate Loans may only be converted into
Eurodollar Loans if no Default or Event of Default is in existence on the date
of the conversion, (iii) unless the Administrative Agent has determined that
the Syndication Date has occurred (at which time this clause (iii) shall no
longer be applicable), prior to the 28th day after the Initial Borrowing Date,
conversions of Base Rate Loans into Eurodollar Loans may only be made if any
such conversion is effective on the first day of the first, second or third
Interest Period referred to in clause (B) of the proviso in each of Sections
1.01(a)(ii), 1.01(b)(ii) and 1.01(c)(i) and so long as such conversion does not
result in a greater number of Borrowings of Eurodollar Loans prior to the 28th
day after the Initial Borrowing Date as are permitted under such Sections, and
(iv) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02.
Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at the Notice Office prior to 11:00 A.M. (New York time)
at least three Business Days' prior notice (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing or Borrowings pursuant
to which such Loans were made and, if to be converted into Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Administrative
Agent shall give each Lender prompt notice of any such proposed conversion
affecting any of its Loans. Upon any such conversion the proceeds thereof will
be deemed to be applied directly on the day of such conversion to prepay the
outstanding principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans under this Agreement shall be incurred
from the Lenders pro rata on the basis of their Tranche A Term Loan
Commitments, Tranche B Term Loan Commitments or Revolving Loan Commitments, as
the case may be. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate per annum which
shall be equal to the sum of the Applicable Margin plus the Base Rate each as
in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a
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rate per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the Applicable Margin plus the Eurodollar Rate for such
Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater of (x) the rate which is 2% in excess of the
rate then borne by such Loans and (y) the rate which is 2% in excess of the
rate otherwise applicable to Base Rate Loans of the respective Tranche from
time to time, and all other overdue amounts payable hereunder or under any
other Credit Document shall bear interest at a rate per annum equal to the rate
which is 2% in excess of the rate applicable to Revolving Loans maintained as
Base Rate Loans from time to time. Interest which accrues under this Section
1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period, and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand; provided,
however, that in the case of Base Rate Loans, interest shall not be payable
pursuant to preceding clause (iii) at the time of any repayment or prepayment
thereof (but shall otherwise be payable as provided in preceding clause (i))
unless the respective repayment or prepayment is made either in conjunction
with a permanent reduction of the Total Revolving Loan Commitment or with a
repayment or prepayment in full of all outstanding Loans of the respective
Tranche.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to the
respective Eurodollar Loans and shall promptly notify the Borrower and the
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or prior to 11:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to such
Eurodollar Loan (in the case of any subsequent Interest Period), the Borrower
shall have the right to elect, by giving the Administrative Agent notice
thereof, the interest period (each an "Interest Period") applicable to such
Eurodollar Loan, which Interest Period shall, at the option of the Borrower
(but otherwise subject to clause (B) of the proviso to Sections 1.01(a)(ii),
1.01(b)(ii) and 1.01(c)(i) and to clause (iii) of the proviso to Section 1.06),
be a one, two, three or six month period and, if prior to the earlier of the
Syndication Date and August 20, 1999, a 7-day period, provided that (in each
case):
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
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(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a day
which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) unless the Required Lenders otherwise agree, no Interest Period
may be selected at any time when a Default or an Event of Default is then
in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche of
Loans shall be selected which extends beyond the respective Maturity Date
for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Tranche A Term
Loans or Tranche B Term Loans, as the case may be, shall be selected which
extends beyond any date upon which a mandatory repayment of such Tranche
of Term Loans will be required to be made under Section 4.02(b) (i) or
(ii), as the case may be, if the aggregate principal amount of Tranche A
Term Loans or Tranche B Term Loans, as the case may be, which have
Interest Periods which will expire after such date will be in excess of
the aggregate principal amount of Tranche A Term Loans or Tranche B Term
Loans, as the case may be, then outstanding less the aggregate amount of
such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect
to clause (i) below, may be made only by the Administrative Agent):
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(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Effective Date in
any applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to any Lender of the principal of or interest on the Loans or the
Notes or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or profits
of such Lender pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein) or (B) a change in official
reserve requirements, but, in all events, excluding reserves required
under Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances arising since the Effective
Date affecting such Lender, the interbank Eurodollar market or the
position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Lender in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or Notice
of Conversion given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall, subject to Section 1.14, pay to such Lender, upon such Lender's written
request therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Lender in
its sole discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted
to the Borrower by such Lender
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<PAGE> 13
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Lender
to convert such Eurodollar Loan into a Base Rate Loan, provided that, if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the Effective Date the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the NAIC or any governmental authority, central bank
or comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to
Section 1.14, pay to such Lender, upon its written demand therefor, such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as
a result of such increase of capital. In determining such additional amounts,
each Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Lender's
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show in reasonable detail the basis for
calculation of such additional amounts.
1.11 Compensation. The Borrower shall compensate each Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Lender to fund its Eurodollar Loans but excluding loss
of anticipated profits) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing
of, or conversion from or into, Eurodollar Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion (whether or
not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.01,
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Section 4.02 or as a result of an acceleration of the Loans pursuant to Section
10) or conversion of any of its Eurodollar Loans occurs on a date which is not
the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in
a notice of prepayment given by the Borrower; or (iv) as a consequence of (x)
any other default by the Borrower to repay its Eurodollar Loans when required
by the terms of this Agreement or any Note held by such Lender or (y) any
election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that
such designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections
1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans, (y) upon the
occurrence of an event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to any Lender
which results in such Lender charging to the Borrower increased costs in excess
of those being generally charged by the other Lenders or (z) in the case of a
refusal by a Lender to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists
(or, in the case of preceding clause (z), no Default or Event of Default will
exist immediately after giving effect to such replacement), to replace such
Lender (the "Replaced Lender") with one or more other Eligible Transferees,
none of whom shall constitute a Defaulting Lender at the time of such
replacement (collectively, the "Replacement Lender") and each of whom shall be
required to be reasonably acceptable to the Administrative Agent, provided that
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to
said Section 13.04(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all of the Commitments and outstanding
Loans of, and in each case participations in Letters of Credit by, the Replaced
Lender and, in connection therewith, shall pay to (x) the Replaced Lender in
respect thereof an amount equal to the sum of (I) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, (II) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time, and (III) an amount equal to
all accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant
to Section 3.01, (y) the Issuing Lender an amount equal to such Replaced
Lender's RL Percentage of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Lender to the Issuing Lender and (z) the Swingline Lender
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an amount equal to such Replaced Lender's RL Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such Replaced
Lender to the Swingline Lender and (ii) all obligations of the Borrower due and
owing to the Replaced Lender at such time (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such
Replaced Lender concurrently with such replacement. Upon the execution of the
respective Assignment and Assumption Agreement, the payment of amounts referred
to in clauses (i) and (ii) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate Note or Notes
executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and
13.01), which shall survive as to such Replaced Lender.
1.14 Limitation on Additional Amounts. Notwithstanding anything to the
contrary contained in Section 1.10 or 2.06, unless a Lender gives notice to the
Borrower that the Borrower is obligated to pay any amount under Section 1.10 or
2.06 within 180 days after the later of (x) the date such Lender incurs the
respective increased costs or reduction in the rate of return or (y) the date
such Lender has actual knowledge of its incurrence of the respective increased
costs or reduction in the rate of return, such Lender shall only be entitled to
be compensated for such amount by the Borrower pursuant to Section 1.10 or 2.06
to the extent the respective increased costs or reduction in the rate of return
are incurred or suffered on or after the date which occurs 180 days prior to
such Lender giving notice to the Borrower that it is obligated to pay the
respective amounts pursuant to Section 1.10 or 2.06. This Section 1.14 shall
have no applicability to any Section of this Agreement other than Sections 1.10
and 2.06.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that the Issuing Lender
issue, at any time and from time to time on and after the Initial Borrowing
Date and prior to the 30th day prior to the Revolving Loan Maturity Date, for
the account of the Borrower and for the benefit of (x) any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Obligations of the Borrower or any of its Subsidiaries, an
irrevocable standby letter of credit, in a form customarily used by the Issuing
Lender or in such other form as has been approved by the Issuing Lender, and
(y) sellers of goods to the Borrower or any of its Subsidiaries, an irrevocable
trade letter of credit, in a form customarily used by the Issuing Lender or in
such other form as has been approved by the Issuing Lender (each such letter of
credit, a "Letter of Credit" and, collectively, the "Letters of Credit"). All
Letters of Credit shall be denominated in Dollars and shall be issued on a
sight basis only.
(b) Subject to and upon the terms and conditions set forth herein, the
Issuing Lender agrees that it will, at any time and from time to time on and
after the Initial Borrowing Date and prior to the 30th day prior to the
Revolving Loan Maturity Date, following its receipt of the respective Letter of
Credit Request, issue for the account of the Borrower, one or more
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Letters of Credit as are permitted to remain outstanding hereunder without
giving rise to a Default or an Event of Default, provided that the Issuing
Lender shall be under no obligation to issue any Letter of Credit of the types
described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to the Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over the Issuing Lender shall prohibit, or request that the
Issuing Lender refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which the Issuing Lender is not otherwise
compensated hereunder) not in effect with respect to the Issuing Lender on
the date hereof, or any unreimbursed loss, cost or expense which was not
applicable or in effect with respect to the Issuing Lender as of the date
hereof and which the Issuing Lender reasonably and in good faith deems
material to it; or
(ii) the Issuing Lender shall have received from the Borrower or the
Required Lenders prior to the issuance of such Letter of Credit, notice of
the type described in the second sentence of Section 2.03(b).
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $5,000,000 or (y) when added to the sum of
(I) the aggregate principal amount of all Revolving Loans then outstanding and
(II) the aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time and (ii) each
Letter of Credit shall by its terms terminate on or before the earlier of (x)
(A) in the case of standby Letters of Credit, the date which occurs 12 months
after the date of the issuance thereof (although any such standby Letter of
Credit may be extendible for successive periods of up to 12 months, but, in
each case, not beyond the third Business Day prior to the Revolving Loan
Maturity Date, on terms acceptable to the Issuing Lender) and (B) in the case
of trade Letters of Credit, the date which occurs 180 days after the date of
issuance thereof, and (y) (A) in the case of standby Letters of Credit, three
Business Days prior to the Revolving Loan Maturity Date and (B) in the case of
trade Letters of Credit, 30 days prior to the Revolving Loan Maturity Date.
2.03 Letter of Credit Requests; Minimum Stated Amount. (a) Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the Issuing Lender at least
five Business Days' (or such shorter period as is acceptable to the Issuing
Lender) written notice thereof (including by way of facsimile). Each notice
shall be in the form of Exhibit C, appropriately completed (each a "Letter of
Credit Request").
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(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.02. Unless the Issuing Lender has received notice from the Borrower or the
Required Lenders before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 or 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.02, then the Issuing
Lender shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of the Borrower in accordance with
the Issuing Lender's usual and customary practices. Upon the issuance of or
modification or amendment to any standby Letter of Credit, the Issuing Lender
shall promptly notify the Borrower, the Administrative Agent and each
Participant of such issuance, modification or amendment as the case may be.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that a Lender Default exists, the Issuing Lender shall not be required to
issue any Letter of Credit unless the Issuing Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate the Issuing
Lender's risk with respect to the participation in Letters of Credit by the
Defaulting Lender or Lenders, including by cash collateralizing such Defaulting
Lender's or Lenders' RL Percentage of the Letter of Credit Outstandings.
(c) The initial Stated Amount of each Letter of Credit shall not be
less than $50,000 or such lesser amount as is acceptable to the Issuing Lender.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by the Issuing Lender of any Letter of Credit, the Issuing Lender
shall be deemed to have sold and transferred to each RL Lender, other than the
Issuing Lender (each such Lender, in its capacity under this Section 2.04, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's RL Percentage, in such Letter of Credit, each drawing or
payment made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or RL
Percentages of the Lenders pursuant to Section 1.13 or 13.04(b), it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new RL Percentages
of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
Issuing Lender shall not have an obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter
of Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Issuing Lender under or in connection with
any Letter of Credit shall not create for the Issuing Lender any resulting
liability to the Borrower, any other Credit Party, any Lender or any other
Person unless such action is taken or omitted to be taken with gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
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(c) In the event that the Issuing Lender makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to the Issuing Lender pursuant to Section 2.05(a), the Issuing Lender shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Issuing Lender the amount of such Participant's RL
Percentage of such unreimbursed payment in Dollars and in same day funds. If
the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on
any Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the Issuing Lender in Dollars
such Participant's RL Percentage of the amount of such payment on such Business
Day in same day funds. If and to the extent such Participant shall not have so
made its RL Percentage of the amount of such payment available to the Issuing
Lender, such Participant agrees to pay to the Issuing Lender, forthwith on
demand such amount, together with interest thereon, for each day from such date
until the date such amount is paid to the Issuing Lender at the overnight
Federal Funds Rate for the first three days and at the interest rate applicable
to Revolving Loans maintained as Base Rate Loans for each day thereafter. The
failure of any Participant to make available to the Issuing Lender its RL
Percentage of any payment under any Letter of Credit shall not relieve any
other Participant of its obligation hereunder to make available to the Issuing
Lender its RL Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Issuing Lender such
other Participant's RL Percentage of any such payment.
(d) Whenever the Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, the Issuing Lender shall pay to each such
Participant which has paid its RL Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) Upon the request of any Participant, the Issuing Lender shall
furnish to such Participant copies of any Letter of Credit issued by it and
such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the
Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a
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Letter of Credit, any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the Administrative Agent, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower or any Subsidiary of the Borrower and the beneficiary named
in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
agrees to reimburse the Issuing Lender, by making payment to the Administrative
Agent in immediately available funds at the Payment Office, for any payment or
disbursement made by the Issuing Lender under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), not later than one
Business Day following receipt by the Borrower of notice of such payment or
disbursement (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 10.05 shall have occurred and be
continuing, in which case the Unpaid Drawing shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the Borrower)), with interest on the amount so paid
or disbursed by the Issuing Lender, to the extent not reimbursed prior to 12:00
Noon (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date the Issuing
Lender was reimbursed by the Borrower therefor at a rate per annum equal to the
Base Rate in effect from time to time plus the Applicable Margin for Revolving
Loans maintained as Base Rate Loans; provided, however, to the extent such
amounts are not reimbursed prior to 12:00 Noon (New York time) on the third
Business Day following the receipt by the Borrower of notice of such payment or
disbursement or following the occurrence of a Default or an Event of Default
under Section 10.05, interest shall thereafter accrue on the amounts so paid or
disbursed by the Issuing Lender (and until reimbursed by the Borrower) at a
rate per annum equal to the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans plus 2%,
with interest to be payable on demand. The Issuing Lender shall give the
Borrower prompt written notice of each Drawing under any Letter of Credit,
provided that the failure to give any such notice shall in no way affect,
impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse the Issuing Lender with respect to drawings under Letters of Credit
(each a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or any
Subsidiary of the Borrower may have or have had against any Lender (including
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in its capacity as the Issuing Lender or as a Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of
Credit to conform to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing; provided,
however, that the Borrower shall not be obligated to reimburse the Issuing
Lender for any wrongful payment made by the Issuing Lender under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
2.06 Increased Costs. If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by the
NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by the Issuing Lender or any Participant
with any request or directive by the NAIC or by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by the Issuing Lender or participated in by
any Participant, or (ii) impose on the Issuing Lender or any Participant any
other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the
cost to the Issuing Lender or any Participant of issuing, maintaining or
participating in any Letter of Credit, or reduce the amount of any sum received
or receivable by the Issuing Lender or any Participant hereunder or reduce the
rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income or
profits of the Issuing Lender or such Participant pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein),
then, upon the delivery of the certificate referred to below to the Borrower by
the Issuing Lender or any Participant (a copy of which certificate shall be
sent by the Issuing Lender or such Participant to the Administrative Agent),
the Borrower shall, subject to Section 1.14, pay to the Issuing Lender or such
Participant such additional amount or amounts as will compensate such Lender
for such increased cost or reduction in the amount receivable or reduction on
the rate of return on its capital. The Issuing Lender or any Participant, upon
determining that any additional amounts will be payable pursuant to this
Section 2.06, will give prompt written notice thereof to the Borrower, which
notice shall include a certificate submitted to the Borrower by the Issuing
Lender or such Participant (a copy of which certificate shall be sent by the
Issuing Lender or such Participant to the Administrative Agent), setting forth
in reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate the Issuing Lender or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall,
absent manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting RL Lender a commitment commission (the
"Commitment Commission") for the period from and including the Effective Date
to but excluding the Revolving Loan Maturity Date (or such earlier date on
which the Total Revolving Loan
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Commitment has been terminated) computed at a rate per annum for each day equal
to 1/2 of 1% on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Lender. Accrued Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the date upon which
the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each RL Lender (based on each such RL Lender's respective RL
Percentage) a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") for the period from and including the date of issuance of such Letter of
Credit to and including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to the Applicable Margin then in
effect with respect to Revolving Loans maintained as Eurodollar Loans on the
daily Stated Amount of each such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and on the first day on or after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the Issuing Lender, for its own
account, a facing fee in respect of each Letter of Credit (the "Facing Fee")
for the period from and including the date of issuance of such Letter of Credit
to and including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to 1/4 of 1% on the daily Stated
Amount of such Letter of Credit, provided that in any event the minimum amount
of the Facing Fee payable in any 12-month period for each Letter of Credit
shall be $500; it being agreed that, on the date of issuance of any Letter of
Credit and on each anniversary thereof prior to the termination of such Letter
of Credit, if $500 will exceed the amount of Facing Fees that will accrue with
respect to such Letter of Credit for the immediately succeeding 12-month
period, the full $500 shall be payable on the date of issuance of such Letter
of Credit and on each such anniversary thereof. Except as otherwise provided in
the proviso to the immediately preceding sentence, accrued Facing Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and upon
the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(d) The Borrower agrees to pay to the Issuing Lender, for its own
account, upon each payment under, issuance of, or amendment to, any Letter of
Credit, such amount as shall at the time of such event be the administrative
charge and the reasonable expenses which the Issuing Lender is generally
imposing in connection with such occurrence with respect to letters of credit.
(e) The Borrower agrees to pay to the Administrative Agent, for its
own account, such other fees as have been agreed to in writing by the Borrower
and the Administrative Agent.
3.02 Voluntary Termination of Unutilized Revolving Loan Commitments.
(a) Upon at least one Business Day's prior written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right,
at any time or from time to time, without premium
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or penalty, to terminate the Total Unutilized Revolving Loan Commitment in
whole, or reduce it in part, pursuant to this Section 3.02(a), in an integral
multiple of $500,000 in the case of partial reductions to the Total Unutilized
Revolving Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each RL
Lender.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate all of the Commitments of such Lender, so long as all Loans, together
with accrued and unpaid interest, Fees and all other amounts, owing to such
Lender are repaid concurrently with the effectiveness of such termination
pursuant to Section 4.01(b) (at which time Schedule I shall be deemed modified
to reflect such changed amounts) and such Lender's RL Percentage of all
outstanding Letters of Credit is cash collateralized in a manner satisfactory
to the Administrative Agent and the Issuing Lender, and at such time, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnifications under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which
shall survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and
the Commitments of each Lender) shall terminate in its entirety on July 31,
1999 unless the Initial Borrowing Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche A Term Loan Commitment (and the Tranche
A Term Loan Commitment of each Lender) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the incurrence of the Tranche A
Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Lender) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the incurrence of the Tranche B
Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Lender) shall terminate in its entirety on the earlier
of (i) the Revolving Loan Maturity Date and (ii) unless the Required Lenders
otherwise agree, the date on which a Change of Control occurs.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date after the Initial Borrowing Date upon which
a mandatory repayment of Term Loans pursuant to any of Sections 4.02(c) through
(g), inclusive, is required (and exceeds in amount the aggregate principal
amount of Term Loans then outstanding) or
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would be required if Term Loans were then outstanding, the Total Revolving Loan
Commitment shall be permanently reduced by the amount, if any, by which the
amount required to be applied pursuant to said Sections (determined as if an
unlimited amount of Term Loans were actually outstanding) exceeds the aggregate
principal amount of Term Loans then outstanding.
(f) Each reduction and/or termination to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment and the Total Revolving
Loan Commitment shall be applied to proportionately reduce and/or terminate the
Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment and the
Revolving Loan Commitment, as the case may be, of each Lender with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 12:00 Noon (New York time) at the
Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of Swingline Loans)
and (y) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans,
which notice (in each case) shall specify whether Tranche A Term Loans, Tranche
B Term Loans, Revolving Loans or Swingline Loans shall be prepaid, the amount
of such prepayment and the Types of Loans to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made,
and which notice the Administrative Agent shall, except in the case of
Swingline Loans, promptly transmit to each of the Lenders; (ii) (x) each
partial prepayment of Term Loans pursuant to this Section 4.01(a) shall be in
an aggregate principal amount of at least $500,000, (y) each partial prepayment
of Revolving Loans pursuant to this Section 4.01(a) shall be in an aggregate
principal amount of at least $250,000 and (z) each partial prepayment of
Swingline Loans pursuant to this Section 4.01(a) shall be in an aggregate
principal amount of at least $50,000, provided that if any partial prepayment
of Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding
principal amount of Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the Borrower shall
have no force or effect; (iii) each prepayment pursuant to this Section 4.01(a)
in respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans, provided that at the Borrower's election in connection with
any prepayment of Revolving Loans pursuant to this Section 4.01(a), such
prepayment shall not, so long as no Default or Event of Default then exists, be
applied to any Revolving Loan of a Defaulting Lender; (iv) each prepayment of
Term Loans pursuant to this Section 4.01(a) shall be applied pro rata to each
Tranche of outstanding Term Loans, with the Tranche A Term Loans to be
allocated the Tranche A Term Loan Percentage of the amount of such prepayment
and the Tranche B Term Loans to be allocated the Tranche B Term Loan Percentage
of the amount of such prepayment; and (v) each prepayment of any Tranche of
Term Loans pursuant to this Section 4.01(a) shall be applied to reduce the then
remaining Scheduled Repayments of such Tranche of Term Loans on a
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pro rata basis (based upon the then remaining unpaid principal amounts of such
Scheduled Repayments of the respective Tranche of Term Loans after giving
effect to all prior reductions thereto).
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, upon five Business
Days' prior written notice to the Administrative Agent at the Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders) repay all Loans, together with accrued and unpaid interest, Fees, and
other amounts owing to such Lender in accordance with, and subject to the
requirements of, said Section 13.12(b) so long as (I) in the case of the
repayment of Revolving Loans of any Lender pursuant to this Section 4.01(b),
the Revolving Loan Commitment of such Lender is terminated concurrently with
such repayment pursuant to Section 3.02(b) (at which time Schedule I shall be
deemed modified to reflect the changed Revolving Loan Commitments), (II) such
Lender's RL Percentage of all outstanding Letters of Credit is cash
collateralized in a manner satisfactory to the Administrative Agent and the
Issuing Lender and (III) the consents, if any, required under Section 13.12(b)
in connection with the repayment pursuant to this clause (b) have been
obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) On any day on
which the sum of (I) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on such
date), (II) the aggregate outstanding principal amount of all Swingline Loans
(after giving effect to all other repayments thereof on such date) and (III)
the aggregate amount of all Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment at such time, the Borrower shall prepay on such day
the principal of Swingline Loans and, after all Swingline Loans have been
repaid in full or if no Swingline Loans are outstanding, Revolving Loans in an
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment of
such time, the Borrower shall pay to the Administrative Agent at the Payment
Office on such day an amount of cash and/or Cash Equivalents equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash and/or Cash Equivalents to be held as
security for all obligations of the Borrower to the Issuing Lender and the
Lenders hereunder in a cash collateral account to be established by the
Administrative Agent.
(b)(i) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date set forth below, the Borrower shall be required to
repay that principal amount of Tranche A Term Loans, to the extent then
outstanding, as is set forth opposite each such date below (each such
repayment, as the same may be reduced as provided in Sections 4.01(a) and
4.02(h), a "Tranche A Term Loan Scheduled Repayment"):
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<PAGE> 25
<TABLE>
<CAPTION>
Tranche A Term Loan
Scheduled Repayment Date Amount
- ------------------------ ------
<S> <C>
September 30, 2000 $3,250,000
December 31, 2000 $3,250,000
March 31, 2001 $3,250,000
June 30, 2001 $3,250,000
September 30, 2001 $4,062,500
December 31, 2001 $4,062,500
March 31, 2002 $4,062,500
June 30, 2002 $4,062,500
September 30, 2002 $4,062,500
December 31, 2002 $4,062,500
March 31, 2003 $4,062,500
June 30, 2003 $4,062,500
September 30, 2003 $4,875,000
December 31, 2003 $4,875,000
March 31, 2004 $4,875,000
Tranche A Term Loan
Maturity Date $4,875,000
</TABLE>
(ii) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date set forth below, the Borrower shall be required to
repay that principal amount of Tranche B Term Loans, to the extent then
outstanding, as is set forth opposite each such date below (each such
repayment, as the same may be reduced as provided in Sections 4.01(a) and
4.02(h), a "Tranche B Term Loan Scheduled Repayment"):
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<PAGE> 26
<TABLE>
<CAPTION>
Tranche B Term Loan
Scheduled Repayment Date Amount
- ------------------------ ------
<S> <C>
September 30, 2000 $312,500
December 31, 2000 $312,500
March 31, 2001 $312,500
June 30, 2001 $312,500
September 30, 2001 $312,500
December 31, 2001 $312,500
March 31, 2002 $312,500
June 30, 2002 $312,500
September 30, 2002 $312,500
December 31, 2002 $312,500
March 31, 2003 $312,500
June 30, 2003 $312,500
September 30, 2003 $312,500
December 31, 2003 $312,500
March 31, 2004 $312,500
June 30, 2004 $312,500
September 30, 2004 $11,875,000
December 31, 2004 $11,875,000
March 31, 2005 $11,875,000
June 30, 2005 $11,875,000
September 30, 2005 $11,875,000
December 31, 2005 $11,875,000
March 31, 2006 $11,875,000
Tranche B Term Loan
Maturity Date $11,875,000
</TABLE>
(c) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after the Initial Borrowing Date upon which
the Borrower or any of its Subsidiaries receives any cash proceeds from any
capital contribution or any sale or issuance of its equity (other than cash
proceeds received (i) from the issuance by the Borrower of shares of its common
stock (including as a result of the exercise of any options with regard
thereto), or options to purchase shares of its common stock, to officers,
directors and employees of the Borrower or any of its Subsidiaries in an
aggregate amount not to exceed $500,000 in any fiscal year of the Borrower or
(ii) from equity contributions to any Subsidiary of the Borrower to the extent
made by the Borrower or another Subsidiary of the Borrower), an amount equal to
50% of the Net Equity Proceeds of such capital contribution or sale or issuance
of equity shall be applied on such date as a mandatory repayment of principal
of outstanding Term Loans in accordance with the requirements of Sections
4.02(h) and (i); provided, however, no repayment shall be required pursuant to
this Section 4.02(c) if at the time of receipt of such Net Equity Proceeds no
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<PAGE> 27
Default or Event of Default then exists and the Consolidated Leverage Ratio at
such time shall be less than 3.00:1.00.
(d) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after the Initial Borrowing Date upon which
the Borrower or any of its Subsidiaries receives any cash proceeds from any
incurrence by the Borrower or any of its Subsidiaries of Indebtedness for
borrowed money (other than Indebtedness for borrowed money permitted to be
incurred pursuant to Section 9.04 as such Section is in effect on the Effective
Date), an amount equal to 100% of the Net Debt Proceeds of the respective
incurrence of Indebtedness shall be applied on such date as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date on or after the Initial Borrowing Date upon which
the Borrower or any of its Subsidiaries receives any cash proceeds from any
Asset Sale, an amount equal to 100% of the Net Sale Proceeds therefrom shall be
applied on such date as a mandatory repayment of principal of outstanding Term
Loans in accordance with the requirements of Sections 4.02(h) and (i); provided
that with respect to no more than $5,000,000 in the aggregate of cash proceeds
from Asset Sales in any fiscal year of the Borrower (other than cash proceeds
received from the sale of the InfoSpace Stock, which cash proceeds shall be
applied as provided above in this Section 4.02(e) without regard to this
proviso), the Net Sale Proceeds therefrom shall not be required to be so
applied on such date so long as no Default or Event of Default then exists and
the Borrower has delivered a certificate to the Administrative Agent on or
prior to such date stating that such Net Sale Proceeds shall be used to
purchase assets used or to be used in the business permitted pursuant to
Section 9.14 (including, without limitation (but only to the extent permitted
by Section 9.02), the purchase of the assets or 100% of the capital stock of a
Person engaged in such businesses) within 180 days following the date of such
Asset Sale (which certificate shall set forth the estimates of the proceeds to
be so expended), and provided further, that if all or any portion of such Net
Sale Proceeds not required to be applied to the repayment of outstanding Term
Loans are not so reinvested within such 180-day period (or such earlier date,
if any, as the Borrower determines not to reinvest the Net Sale Proceeds from
such Asset Sale as set forth above), such remaining portion shall be applied on
the last day of such period (or such earlier date, as the case may be) as a
mandatory repayment of principal of outstanding Term Loans as provided above in
this Section 4.02(e) without regard to the preceding proviso.
(f) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each Excess Cash Payment Date, an amount equal to 75% of the
Excess Cash Flow for the relevant Excess Cash Payment Period shall be applied
as a mandatory repayment of principal of outstanding Term Loans in accordance
with the requirements of Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments pursuant to this
Section 4.02, within 10 days following each date on or after the Initial
Borrowing Date upon which the Borrower or any of its Subsidiaries receives any
cash proceeds from any Recovery Event (other than Recovery Events in which the
Net Insurance Proceeds therefrom do not exceed $100,000), an amount equal to
100% of the Net Insurance Proceeds from such Recovery Event shall be
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<PAGE> 28
applied on such date as a mandatory repayment of principal of outstanding Term
Loans in accordance with the requirements of Sections 4.02(h) and (i); provided
that so long as no Default or Event of Default then exists, such Net Insurance
Proceeds shall not be required to be so applied on such date to the extent that
the Borrower has delivered a certificate to the Administrative Agent on or
prior to such date stating that such Net Insurance Proceeds shall be used to
replace or restore any properties or assets in respect of which such Net
Insurance Proceeds were paid within 180 days following the date of the receipt
of such Net Insurance Proceeds (which certificate shall set forth the estimates
of the Net Insurance Proceeds to be so expended), and provided further, that
(i) if the amount of such Net Insurance Proceeds exceeds $2,500,000, then the
entire amount of such Net Insurance Proceeds (and not just the portion of such
Net Insurance Proceeds in excess of $2,500,000) shall be deposited with the
Administrative Agent pursuant to a cash collateral arrangement reasonably
satisfactory to the Administrative Agent whereby such proceeds shall be
disbursed to the Borrower from time to time as needed to pay actual costs
incurred by it or its applicable Subsidiary in connection with the replacement
or restoration of the respective properties or assets (pursuant to such
certification requirements as may be reasonably required by the Administrative
Agent, including certifications to the effect that (x) no Default or Event of
Default then exists and (y) the Borrower or its applicable Subsidiary has
actually incurred such costs (which certification shall be accompanied by any
paid invoices or invoices required to be paid within 5 Business Days
thereafter)), although at any time while an Event of Default has occurred and
is continuing, the Required Lenders may direct the Administrative Agent (in
which case the Administrative Agent shall, and is hereby authorized by the
Borrower to, follow said directions) to apply any or all proceeds then on
deposit in such collateral account to the repayment of Obligations hereunder,
and (ii) if all or any portion of such Net Insurance Proceeds not required to
be applied to the repayment of outstanding Term Loans pursuant to the preceding
proviso are not so used within 180 days after the date of the receipt of such
Net Insurance Proceeds (or such earlier date, if any, as the Borrower
determines not to reinvest the Net Insurance Proceeds relating to such Recovery
Event as set forth above), such remaining portion shall be applied on the last
day of such period (or such earlier date, as the case may be) as a mandatory
repayment of principal of outstanding Term Loans as provided above in this
Section 4.02(g) without regard to the preceding proviso.
(h) Each amount required to be applied to the outstanding Term Loans
pursuant to Sections 4.02(c), (d), (e), (f) and (g) shall be applied pro rata
to each Tranche of outstanding Term Loans, with the Tranche A Term Loans to be
allocated the Tranche A Term Loan Percentage of the amount of such prepayment
and the Tranche B Term Loans to be allocated the Tranche B Term Loan Percentage
of the amount of such prepayment. The amount of such principal repayment of
each Tranche of Term Loans made is required by said Sections 4.02(c), (d), (e),
(f) and (g) shall be applied to reduce the then remaining Scheduled Repayments
of such Tranche of Term Loans on a pro rata basis (based upon the then
remaining unpaid principal amounts of such Scheduled Repayments of the
respective Tranche of Term Loans after giving effect to all prior reductions
thereto).
(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective
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<PAGE> 29
Tranche pursuant to which made, provided that: (i) repayments of Eurodollar
Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans of the
respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment
of any Loans made pursuant to a Borrowing shall be applied pro rata among such
Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
(j) Notwithstanding anything to the contrary contained in this Section
4.02 or elsewhere in this Agreement (including, without limitation, in Section
13.12), at any time that Tranche A Term Loans are outstanding, the Borrower
shall have the option, in its sole discretion, to give the Lenders with
outstanding Tranche B Term Loans (the "B Lenders") the option to waive their
pro rata share of a mandatory repayment of Tranche B Term Loans which is to be
made pursuant to Sections 4.02(c), (d), (e), (f) and/or (g) (each such
repayment, a "Waivable Mandatory Repayment") upon the terms and provisions set
forth in this Section 4.02(j). If the Borrower elects to exercise the option
referred to in the immediately preceding sentence, the Borrower shall give to
the Administrative Agent written notice of the Borrower's intention to give the
B Lenders the right to waive a Waivable Mandatory Repayment (including in such
notice, the aggregate amount of such proposed repayment) at least five Business
Days prior to the date of the proposed repayment, which notice the
Administrative Agent shall promptly forward to all B Lenders (indicating in
such notice the amount of such repayment to be applied to each such B Lender's
outstanding Tranche B Term Loans). The Borrower's offer to permit the B Lenders
to waive any such Waivable Mandatory Repayment may apply to all or part of such
repayment, provided that any offer to waive part of such repayment must be made
ratably to the B Lenders on the basis of their outstanding Tranche B Term
Loans. In the event that any such B Lender desires to waive its pro rata share
of such B Lender's right to receive any such Waivable Mandatory Repayment in
whole or in part, such B Lender shall so advise the Administrative Agent no
later than 4:00 P.M. (New York time) on the date which is two Business Days
after the date of such notice from the Administrative Agent, which notice shall
also include the amount such B Lender desires to receive in respect of such
repayment. If any B Lender does not reply to the Administrative Agent within
such two Business Day period, such B Lender will be deemed not to have waived
any part of such repayment. If any B Lender does not not specify an amount it
wishes to receive, such B Lender will be deemed to have accepted 100% of its
share of such repayment. In the event that any such B Lender waives all or part
of its share of any such Waivable Mandatory Repayment, the Administrative Agent
shall apply 100% of the amount so waived by such B Lender to the outstanding
Tranche A Term Loans in accordance with Sections 4.02(h) and (i).
(k) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, (i) all then outstanding Loans of
any Tranche shall be repaid in full on the respective Maturity Date for such
Tranche of Loans and (ii) unless the Required
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<PAGE> 30
Lenders otherwise agree, all then outstanding Loans shall be repaid in full on
the date on which a Change of Control occurs.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect to such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender
is organized or in which the principal office or applicable lending office of
such Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
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<PAGE> 31
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date or, in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or
13.04(b) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor
forms) certifying to such Lender's entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or any successor
forms) pursuant to clause (i) above, (x) a certificate substantially in the
form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate")
and (y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN (with respect to the portfolio interest exemption) (or
successor form) certifying to such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and under any Note. In addition,
each Lender agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, such Lender will deliver to the
Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with
respect to the benefits of any income tax treaty), Form W-8BEN (with respect to
the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or such Lender shall immediately notify the Borrower
and the Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or
other amounts payable hereunder for the account of any Lender which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Lender has
not provided to the Borrower U.S. Internal Revenue Service Forms that establish
a complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 4.04(a) to gross-up payments to be
made to a Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not establish
a complete exemption from withholding of such taxes. Notwithstanding anything
to the contrary contained in the preceding sentence or elsewhere in this
Section 4.04 and except as set forth in Section
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<PAGE> 32
13.04(b), the Borrower agrees to pay any additional amounts and to indemnify
each Lender in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
SECTION 5. Conditions Precedent to Credit Events on the Initial
Borrowing Date. The obligation of each Lender to make Loans, and the obligation
of the Issuing Lender to issue Letters of Credit, on the Initial Borrowing
Date, is subject at the time of the making of such Loans or the issuance of
such Letters of Credit to the satisfaction of the following conditions:
5.01 Execution of Agreement; Disclosure Letter; Notes. On or prior to
the Initial Borrowing Date, (i) the Effective Date shall have occurred, (ii)
the Lenders shall have received an executed copy of the Disclosure Letter,
which shall be in form and substance satisfactory to the Administrative Agent
and the Required Lenders, and (iii) there shall have been delivered to the
Administrative Agent for the account of each of the Lenders that has requested
same the appropriate Tranche A Term Note, Tranche B Term Note and/or Revolving
Note executed by the Borrower and to the extent requested by the Swingline
Lender, the Swingline Note executed by the Borrower, in each case, in the
amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate, dated the Initial
Borrowing Date and signed on behalf of the Borrower by the Chairman of the
Board, the President, the Chief Financial Officer or any Vice President of the
Borrower, certifying on behalf of the Borrower that all of the conditions in
Sections 5.06, 5.07, 5.08 and 6.01 have been satisfied on such date (although
no such certification shall be required to the extent that any determination to
be made under any such Section is to be made by the Administrative Agent or any
Lender).
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from Wilson Sonsini Goodrich &
Rosati, a Professional Corporation, special counsel to the Borrower, an opinion
addressed to the Administrative Agent, the Collateral Agent and each of the
Lenders and dated the Initial Borrowing Date covering the matters set forth in
Exhibit E-1 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request, (ii) from Winthrop,
Stimson, Putnam & Roberts, special New York counsel to the Borrower, an opinion
addressed to the Administrative Agent, the Collateral Agent and each of the
Lenders and dated the Initial Borrowing Date covering the matters set forth in
Exhibit E-2 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request, and (iii) reliance
letters addressed to the Administrative Agent, the Collateral Agent and each of
the Lenders and dated the Initial Borrowing Date with respect to the opinions
delivered pursuant to the Acquisition Agreement, which reliance letters and
opinions shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
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<PAGE> 33
5.04 Corporate Documents; Proceedings; etc. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate from
each Credit Party, dated the Initial Borrowing Date, signed by the Chairman of
the Board, the President, the Chief Financial Officer or any Vice President of
such Credit Party, and attested to by the Secretary or any Assistant Secretary
of such Credit Party, in the form of Exhibit F with appropriate insertions,
together with copies of the certificate of incorporation and by-laws (or
equivalent organizational documents) of such Credit Party and the resolutions
of such Credit Party referred to in such certificate, and each of the foregoing
shall be in form and substance reasonably acceptable to the Administrative
Agent.
(b) All corporate, partnership and limited liability company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent and
the Required Lenders, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental
authorities.
5.05 Plans; Shareholders' Agreements; Management Agreements;
Employment Agreements; Non-Compete Agreements; Collective Bargaining
Agreements; Tax Sharing Agreements; Existing Indebtedness Agreements. On or
prior to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent true and correct copies of the following documents:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or ERISA Affiliates (provided that the foregoing shall apply
in the case of any multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, only to the extent that any document described therein is in the
possession of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate or reasonably available thereto from the sponsor or trustee of
any such Plan) (collectively, the "Employee Benefit Plans";
(ii) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of its capital stock
and any agreements entered into by its shareholders relating to any such
entity with respect to its capital stock (collectively, the "Shareholders'
Agreements");
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(iii) all material agreements with members of, or with respect to, the
management of the Borrower or any of its Subsidiaries (collectively, the
"Management Agreements");
(iv) all material employment agreements entered into by the Borrower
or any of its Subsidiaries (collectively, the "Employment Agreements");
(v) all material non-compete agreements entered into by the Borrower
or any of its Subsidiaries which restrict the Borrower's or any of its
Subsidiaries' business activities (collectively, the "Non-Compete
Agreements");
(vi) all collective bargaining agreements applying or relating to any
employee of the Borrower or any of its Subsidiaries (collectively, the
"Collective Bargaining Agreements");
(vii) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower or any of its Subsidiaries (collectively, the
"Tax Sharing Agreements"); and
(viii) all agreements evidencing or relating to any material
Indebtedness of the Borrower or any of its Subsidiaries which is to remain
outstanding after giving effect to the Transaction (collectively, the
"Existing Indebtedness Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Non-Compete Agreements, Collective
Bargaining Agreements, Tax Sharing Agreements and Existing Indebtedness
Agreements shall be in full force and effect on the Initial Borrowing Date.
5.06 Consummation of the Transaction. (a) On the Initial Borrowing
Date, the Acquisition shall have been consummated in all material respects in
accordance with the Acquisition Documents and all applicable laws, and each of
the conditions precedent to the consummation of the Acquisition as set forth in
the Acquisition Agreement shall have been satisfied in all material respects
and not waived, except with the consent of the Administrative Agent, to the
reasonable satisfaction of the Administrative Agent.
(b) On the Initial Borrowing Date, the Borrower shall have
unrestricted cash on hand of at least $45,000,000 and the Borrower shall have
used at least $45,000,000 of such cash to make payments owing in connection
with the Transaction prior to utilizing any proceeds of the Loans for such
purpose.
(c) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent and the Lenders true and correct copies
of all Acquisition Documents, and all of the terms and conditions of such
Acquisition Documents shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Required Lenders and shall be in full force
and effect.
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(d) The Administrative Agent shall have received evidence, in form and
substance reasonably satisfactory to it, that the matters set forth in Sections
5.06(a) and (b) have been satisfied as of the Initial Borrowing Date.
5.07 Adverse Change, etc. (a) Nothing shall have occurred (and neither
the Administrative Agent nor any Lender shall have become aware of any facts or
conditions not previously known) which the Administrative Agent or the Required
Lenders shall reasonably determine has had, or could reasonably be expected to
have, a Material Adverse Effect.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents
in connection with the Transaction and the other transactions contemplated by
the Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect (other than immaterial consents relating to the
Acquisition), and all applicable waiting periods with respect thereto shall
have expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the
consummation of the Transaction or the other transactions contemplated by the
Documents or otherwise referred to herein or therein. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the Transaction or
the other transactions contemplated by the Documents or otherwise referred to
herein or therein.
5.08 Litigation. On the Initial Borrowing Date, there shall be no
actions, suits or proceedings pending or threatened (i) with respect to the
Transaction, this Agreement or any other Document or (ii) which the
Administrative Agent or the Required Lenders shall reasonably determine could
reasonably be expected to have a Material Adverse Effect.
5.09 Pledge Agreement. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered the Pledge Agreement
in the form of Exhibit G (as amended, modified or supplemented from time to
time, the "Pledge Agreement") and shall have delivered to the Collateral Agent,
as Pledgee thereunder, all of the Pledge Agreement Collateral, if any, referred
to therein and then owned by such Credit Party, (x) endorsed in blank in the
case of promissory notes constituting Pledge Agreement Collateral and (y)
together with executed and undated stock powers in the case of capital stock
constituting Pledge Agreement Collateral.
5.10 Security Agreement. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered the Security Agreement
in the form of Exhibit H (as modified, supplemented or amended from time to
time, the "Security Agreement") covering all of such Credit Party's present and
future Security Agreement Collateral, together with:
(i) proper Financing Statements (Form UCC-1 or the equivalent) fully
executed for filing under the UCC or other appropriate filing offices of
each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Security Agreement;
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(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name the Borrower, DM Holdings or any of their respective
Subsidiaries as debtor and that are filed in the jurisdictions referred to
in clause (i) above, together with copies of such other financing
statements that name the Borrower, DM Holdings or any of their respective
Subsidiaries as debtor (none of which shall cover any of the Collateral
except to the extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination statements (Form UCC-3)
or such other termination statements as shall be required by local law
fully executed for filing);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests intended to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement have
been taken.
5.11 Subsidiaries Guaranty. On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Guaranty in the form of Exhibit I (as modified, amended or supplemented from
time to time, the "Subsidiaries Guaranty").
5.12 Financial Statements; Pro Forma Financial Statements;
Projections. On or prior to the Initial Borrowing Date, the Administrative
Agent shall have received true and correct copies of the historical financial
statements, the pro forma financial statements and the Projections referred to
in Sections 7.05(a) and (e), which historical financial statements, pro forma
financial statements and Projections shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
5.13 Solvency Certificate; Insurance Certificates. On the Initial
Borrowing Date, the Administrative Agent shall have received:
(i) a solvency certificate from the chief financial officer of the
Borrower in the form of Exhibit J; and
(ii) certificates of insurance complying with the requirements of
Section 8.03 for the business and properties of the Borrower and its
Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent and naming the Collateral Agent as an additional
insured and as loss payee, and stating that such insurance shall not be
canceled without at least 30 days prior written notice by the insurer to
the Collateral Agent.
5.14 Senior Subordinated Note Compliance. (a) On the Initial Borrowing
Date, the Administrative Agent shall have received a certificate from the
Borrower's chief financial officer demonstrating in reasonable detail (and
showing the financial calculations therefor) that
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the full amount of the Loans being incurred on the Initial Borrowing Date may
be incurred in accordance with, and will not violate the provisions of, Section
4.12 of the Senior Subordinated Note Indenture.
(b) On the Initial Borrowing Date, the Borrower shall have delivered
to the trustee under the Senior Subordinated Note Indenture and to the
Administrative Agent the officers' certificate contemplated by the
parenthetical in clause (vi) of the final sentence of the definition of "Senior
Debt" contained in the Senior Subordinated Note Indenture.
5.15 Fees, etc. On the Initial Borrowing Date, the Borrower shall have
paid to the Administrative Agent and each Lender all costs, fees and expenses
(including, without limitation, legal fees and expenses) payable to the
Administrative Agent and such Lender to the extent then due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Lender to make Loans (including Loans made on the Initial Borrowing
Date), and the obligation of the Issuing Lender to issue Letters of Credit, is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a).
Prior to the making of each Swingline Loan, the Swingline Lender shall have
received the notice referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the Issuing Lender shall have received a Letter of Credit Request
meeting the requirements of Section 2.03(a).
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Section 5 (with
respect to Credit Events on the Initial Borrowing Date) and in this Section 6
(with respect to Credit Events on or after the Initial Borrowing Date) and
applicable to such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient
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counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, the
Borrower makes the following representations, warranties and agreements, in
each case after giving effect to the Transaction, all of which shall survive
the execution and delivery of this Agreement and the Notes and the making of
the Loans and the issuance of the Letters of Credit, with the occurrence of
each Credit Event on or after the Initial Borrowing Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the
Initial Borrowing Date and on the date of each such other Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).
7.01 Organizational Status. Each of the Borrower and each of its
Subsidiaries (other than an Inactive Subsidiary) (i) is a duly organized and
validly existing corporation, partnership or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or limited liability company
power and authority, as the case may be, to own its property and assets and to
transact the business in which it is engaged and presently proposes to engage
and (iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the ownership, leasing or operation of its
property or the conduct of its business requires such qualifications except for
failures to be so qualified which, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
7.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority, as the case may
be, to execute, deliver and perform the terms and provisions of each of the
Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such
Documents. Each Credit Party has duly executed and delivered each of the
Documents to which it is party, and each of such Documents constitutes its
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will conflict with or result in
any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the property or assets of the Borrower
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or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, in each case to which the Borrower or any of
its Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
certificate or articles of incorporation or by-laws (or equivalent
organizational documents) of the Borrower or any of its Subsidiaries.
7.04 Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except for (x) the
filing of UCC-1 financing statements and Mortgages to perfect the security
interest created under the Security Agreement and the Mortgages, as applicable,
and (y) those that have otherwise been obtained or made on or prior to the
Initial Borrowing Date and which remain in full force and effect on the Initial
Borrowing Date), or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of any Document or
(ii) the legality, validity, binding effect or enforceability of any such
Document.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) (i) The audited consolidated balance sheets
of the Borrower for its fiscal years ended on December 31, 1998 and December
31, 1997 and the unaudited consolidated balance sheet of the Borrower for its
fiscal quarter ended on March 31, 1999, and the related audited or unaudited,
as applicable, consolidated statements of income, cash flows and shareholders'
equity of the Borrower for the fiscal years or three-month period ended on such
dates, as the case may be, copies of which have been furnished to the Lenders
prior to the Initial Borrowing Date, present fairly in all material respects
the consolidated financial position of the Borrower at the dates of such
balance sheets and the consolidated results of the operations of the Borrower
for the periods covered thereby. All of the foregoing financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied (except, in the case of the aforementioned three-month
interim financial statements, for normal year-end audit adjustments and the
absence of footnotes).
(ii) The audited balance sheet of Donnelley for its fiscal year ended
on December 31, 1998 and the unaudited balance sheet of Donnelley for its
fiscal quarter ended on March 31, 1999, and the related audited or unaudited,
as applicable, statements of income, cash flows and shareholders equity of
Donnelley for the fiscal year or three-month period ended on such dates, as the
case may be, copies of which have been furnished to the Lenders prior to the
Initial Borrowing Date, present fairly in all material respects the financial
position of Donnelley at the dates of such balance sheets and the results of
the operations of Donnelley for the periods covered thereby. All of the
foregoing financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied (except, in the case of the
aforementioned three-month interim financial statements, for normal year-end
audit adjustments and the absence of footnotes.)
(iii) The pro forma consolidated balance sheet of the Borrower as of
March 31, 1999 (after giving effect to the Transaction and the financing
therefor), and the related pro forma
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consolidated statements of income and cash flows of the Borrower for the twelve
month period ended on March 31, 1999 (after giving effect to the Transaction
and the financing therefor and assuming that the Transaction had occurred on
April 1, 1998), copies of which have been furnished to the Lenders prior to the
Initial Borrowing Date, present fairly in all material respects the pro forma
consolidated financial position of the Borrower as of March 31, 1999 and the
pro forma consolidated results of the operations of the Borrower for the period
covered thereby. All of the foregoing pro forma financial statements have been
prepared on a basis consistent with the historical financial statements of the
Borrower set forth in the clause (a)(i) of this Section 7.05.
(iv) After giving effect to the Transaction (but for this purpose
assuming that the Transaction and the related financing had occurred prior to
December 31, 1998), since December 31, 1998, there has been no change in the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or any of its Subsidiaries that has
had, or could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(b) At the time of delivery thereof pursuant to Section 8.01(j), the
audited balance sheets of Donnelley for (i) its fiscal quarter ended on
December 31, 1996, (ii) its fiscal year ended on December 31, 1997 and (iii)
the six-month period ended on June 30, 1999, and the related statements of
income, cash flows and shareholders' equity of Donnelley for the fiscal
quarter, fiscal year or six-month period ended on such dates, as the case may
be, present fairly in all material respects the financial position of Donnelley
at the date of such balance sheets and the results of the operations of
Donnelley for the periods covered thereby. At the time of delivery of such
financial statements, the same will have been prepared in accordance with the
generally accepted accounting principles consistently applied. In addition,
none of the foregoing financial statements will contain any material and
adverse differences from the corresponding unaudited financial information for
the respective periods which were delivered to the Lenders prior to the Initial
Borrowing Date.
(c) On and as of the Initial Borrowing Date and after giving effect to
the Transaction and to all Indebtedness (including the Loans) being incurred or
assumed and Liens created by the Borrower and its Subsidiaries in connection
therewith (i) the sum of the assets, at a fair valuation, of each of the
Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as
a whole will exceed its debts; (ii) each of the Borrower on a stand-alone basis
and the Borrower and its Subsidiaries taken as a whole has not incurred and
does not intend to incur, and does not believe that it will incur, debts beyond
its ability to pay such debts as such debts mature; and (iii) each of the
Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as
a whole will have sufficient capital with which to conduct its business. For
purposes of this Section 7.05(c), "debt" means any liability on a claim, and
"claim" means (a) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (b) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts
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and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(d) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Initial Borrowing Date no
liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, could reasonably be expected to be material to the Borrower and its
Subsidiaries taken as a whole. As of the Initial Borrowing Date, the Borrower
does not know of any basis for the assertion against it or any of its
Subsidiaries of any liability or obligation of any nature whatsoever that is
not fully disclosed in the financial statements delivered pursuant to Section
7.05(a) which, either individually or in the aggregate, could reasonably be
expected to be material to the Borrower and its Subsidiaries taken as a whole.
(e) On and as of the Initial Borrowing Date, the Projections delivered
to the Administrative Agent and the Lenders prior to the Initial Borrowing Date
have been prepared in good faith and are based on reasonable assumptions, and
there are no statements or conclusions in the Projections which are based upon
or include information known to the Borrower to be misleading in any material
respect or which fail to take into account material information known to the
Borrower regarding the matters reported therein. On the Initial Borrowing Date,
the Borrower believes that the Projections are reasonable and attainable, it
being recognized by the Lenders, however, that projections as to future events
are not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results and
that the differences may be material.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Borrower, threatened (i) with respect to the
Transaction or any Document, (ii) with respect to any material Indebtedness of
the Borrower or any of its Subsidiaries or (iii) that are, either individually
or in the aggregate, reasonably likely to have a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Documents) for purposes of or in connection with
this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the Term
Loans will be used by the Borrower (i) to effect the Acquisition and (ii) to
pay fees and expenses related to the Transaction.
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(b) All proceeds of the Revolving Loans and the Swingline Loans shall
be used for the working capital and general corporate purposes of the Borrower
and its Subsidiaries; provided that up to, but no more than, $15,000,000 of
Revolving Loans and Swingline Loans in the aggregate may be used for the
purposes described in clause (a) of this Section 7.08, although no more than
$5,000,000 of such proceeds in the aggregate may be so used on the Initial
Borrowing Date.
(c) No part of any Credit Event (or the proceeds thereof) will be used
to purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of the Borrower and each of its
Subsidiaries has filed all federal and state income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all taxes and assessments payable by it which have become due, except for
immaterial taxes and assessments and for those contested in good faith and
adequately disclosed and fully provided for on the financial statements of the
Borrower and its Subsidiaries in accordance with generally accepted accounting
principles. Each of the Borrower and each of its Subsidiaries has at all times
paid, or has provided adequate reserves (in the good faith judgment of the
management of the Borrower) for the payment of, all federal, state, local and
foreign income taxes applicable for all prior fiscal years and for the current
fiscal year to date. There is no action, suit, proceeding, investigation,
audit, or claim now pending or, to the knowledge of the Borrower threatened, by
any authority regarding any taxes relating to the Borrower or any of its
Subsidiaries that either individually or in the aggregate could reasonably be
expected to result in a material liability to the Borrower or any of its
Subsidiaries.
7.10 Compliance with ERISA. (i) Schedule 2 of the Disclosure Letter
sets forth, as of the Initial Borrowing Date, each Plan. Each Plan (and each
related trust, insurance contract or fund) is in substantial compliance with
its terms and with all applicable laws, including, without limitation, ERISA
and the Code; each Plan (and each related trust, if any) which is intended to
be qualified under Section 401(a) of the Code has received a determination
letter from the Internal Revenue Service to the effect that it meets the
requirements of Sections 401(a) and 501(a) of the Code; no Reportable Event has
occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has any
material Unfunded Current Liability; no Plan which is subject to Section 412 of
the Code or Section 302 of ERISA has any material accumulated funding
deficiency, within the meaning of such sections of the Code or ERISA, or has
applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; all contributions required to be made with
respect to a Plan have been timely made; neither the Borrower nor any
Subsidiary of the Borrower nor any ERISA Affiliate has incurred any material
liability (including any indirect, contingent or secondary liability) to or on
account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
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or 4975 of the Code or expects to incur any such material liability under any
of the foregoing sections with respect to any Plan; no condition exists which
presents a material risk to the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate of incurring a material liability to or on account of a
Plan pursuant to the foregoing provisions of ERISA and the Code; no proceedings
have been instituted to terminate or appoint a trustee to administer any Plan
which is subject to Title IV of ERISA; no action, suit, proceeding, hearing,
audit or investigation with respect to the administration, operation or the
investment of assets of any Plan (other than routine claims for benefits) is
pending or, to the Borrower's knowledge, expected or threatened; using
actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of the Borrower and
its Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer
plans (as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $500,000; each group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate has at all times been operated in material compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code; no lien imposed under the Code or ERISA on the assets of the Borrower or
any Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to
arise on account of any Plan; and the Borrower and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in material
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All material
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither the Borrower nor any of its Subsidiaries has incurred
any material obligation in connection with the termination of or withdrawal
from any Foreign Pension Plan. The present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension Plan, determined
as of the end of the Borrower's recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed in any
material respect the current value of the assets of such Foreign Pension Plan
allocable to such benefit liabilities.
7.11 The Security Documents. (a) The provisions of the Security
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, has a fully perfected first lien on, and
security interest in, all right, title and interest in all of the Security
Agreement Collateral described therein, subject to no other Liens other than
Permitted Liens. The recordation of (x) the Grant of Security Interest in U.S.
Patents and (y) the Grant of Security Interest in U.S. Trademarks in the
respective form attached to the Security Agreement, in each case in the United
States Patent and Trademark Office, together with filings on Form UCC-1 made
pursuant to the Security Agreement, will create, as may be perfected by such
filings and recordation, a perfected security interest in the United States
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trademarks and patents covered by the Security Agreement, and the recordation
of the Grant of Security Interest in U.S. Copyrights in the form attached to
the Security Agreement with the United States Copyright Office, together with
filings on Form UCC-1 made pursuant to the Security Agreement, will create, as
may be perfected by such filings and recordation, a perfected security interest
in the United States copyrights covered by the Security Agreement.
(b) The security interests created in favor of the Collateral Agent,
as Pledgee, for the benefit of the Secured Creditors, under the Pledge
Agreement constitute first priority perfected security interests in the Pledge
Agreement Collateral described in the Pledge Agreement, subject to no security
interests of any other Person. No filings or recordings are required in order
to perfect (or maintain the perfection or priority of) the security interests
created in the Pledge Agreement Collateral under the Pledge Agreement.
(c) If and when a Mortgage is created, each such Mortgage creates, as
security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and mortgage lien on the respective
Mortgaged Property in favor of the Collateral Agent (or such other trustee as
may be required or desired under local law) for the benefit of the Secured
Creditors, superior to and prior to the rights of all third persons (except
that the security interest and mortgage lien created on such Mortgaged Property
may be subject to the Permitted Encumbrances related thereto) and subject to no
other Liens (other than Liens permitted under Section 9.01 related thereto).
7.12 Representations and Warranties in the Documents. All
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations
and warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date.
7.13 Properties. All Real Property owned or leased by the Borrower or
any of its Subsidiaries as of the Initial Borrowing Date, and the nature of the
interest therein, is correctly set forth on Schedule 1 of the Disclosure
Letter. Each of the Borrower and each of its Subsidiaries has good and
marketable title to all material properties owned by it, including all property
reflected in Schedule of the Borrower and Donnelley and in the most recent
historical balance sheets of the Borrower and Donnelley referred to in Section
7.05(a) (except as sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business or as permitted by the terms of this
Agreement), free and clear of all Liens, other than Permitted Liens.
7.14 Capitalization. On the Initial Borrowing Date, the authorized
capital stock of the Borrower shall consist of (i) 220,000,000 shares of Class
A common stock, $.0025 par value per share, (ii) 75,000,000 shares of Class B
common stock, $.0025 par value per share, and (iii) 5,000,000 shares of
preferred stock, $.0025 par value per share, of which no shares of such
preferred stock shall be issued and outstanding. All outstanding shares of the
capital stock of the Borrower have been duly and validly issued and are fully
paid and non-assessable. The
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Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreement providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock, except (i) as set forth
in any Shareholders' Agreement as in effect on the Initial Borrowing Date, (ii)
for options, warrants and rights to purchase shares of the Borrower's common
stock or Qualified Preferred Stock which may be issued from time to time and
(iii) for any Indebtedness that may be issued or incurred from time to time
under Section 9.04(xii) which may be convertible into shares of the Borrower's
common stock.
7.15 Subsidiaries. As of the Initial Borrowing Date, the Borrower has
no Subsidiaries other than those Subsidiaries listed on Schedule 3 of the
Disclosure Letter. Schedule 3 of the Disclosure Letter correctly sets forth, as
of the Initial Borrowing Date, (i) the percentage ownership (direct or
indirect) of the Borrower in each class of capital stock or other equity of
each of its Subsidiaries and also identifies the direct owner hereof and (ii)
the jurisdiction of organization of each such Subsidiary.
7.16 Compliance with Statutes, etc. Each of the Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including, without limitation, applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. Neither the Borrower nor any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.19 Environmental Matters. (a) Each of the Borrower and each of its
Subsidiaries is in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There are no
pending or, to the knowledge of the Borrower, threatened Environmental Claims
against the Borrower or any of its Subsidiaries or any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries (including any
such claim arising out of the ownership, lease or operation by the Borrower or
any of its Subsidiaries of any Real Property formerly owned by the Borrower or
any of its Subsidiaries but no longer owned, leased or operated by the Borrower
or any of its Subsidiaries). There are no facts, circumstances, conditions or
occurrences with respect to the business or operations of the Borrower or any
of its Subsidiaries, or any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries (including, to the knowledge of the
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Borrower, any Real Property formerly owned, leased or operated by the Borrower
or any of its Subsidiaries but no longer owned, leased or operated by the
Borrower or any of its Subsidiaries) or, to the knowledge of the Borrower, any
property adjoining or adjacent to any such Real Property that could be
reasonably expected (i) to form the basis of an Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries or (ii) to cause any Real
Property owned, leased or operated by the Borrower or any of its Subsidiaries
to be subject to any restrictions on the ownership, lease, occupancy or
transferability of such Real Property by the Borrower or any of its
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries where such
generation, use, treatment, storage or transportation has violated or could
reasonably be expected to violate any Environmental Law or give rise to an
Environmental Claim. Hazardous Materials have not at any time been Released on
or from any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries where such Release has violated or could reasonably be
expected to violate any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section 7.19, the
representations and warranties made in this Section 7.19 shall not be untrue
unless the effect of any or all conditions, violations, claims, restrictions,
failures and noncompliances of the types described above could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.20 Labor Relations. Neither the Borrower nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to,
either individually or in the aggregate, have a Material Adverse Effect. There
is (i) no unfair labor practice complaint pending against the Borrower or any
of its Subsidiaries or, to the knowledge of the Borrower, threatened against
any of them, before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to
the knowledge of the Borrower, threatened against any of them, (ii) no strike,
labor dispute, slowdown or stoppage pending against the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries and (iii) no union representation question
exists with respect to the employees of the Borrower or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
7.21 Patents, Licenses, Franchises and Formulas. Each of the Borrower
and each of its Subsidiaries owns or has the right to use all the domestic and
foreign patents, trademarks, permits, service marks, trade names, copyrights,
licenses, franchises, proprietary information (including, but not limited to,
rights in computer programs, databases and data collections) and formulas, or
rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, necessary for the present conduct
of its business, without any
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known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected, either individually or in the
aggregate, to result in a Material Adverse Effect.
7.22 Indebtedness. Schedule 4 of the Disclosure Letter sets forth a
true and complete list of all Indebtedness (including Contingent Obligations)
of the Borrower and its Subsidiaries as of the Initial Borrowing Date and which
is to remain outstanding after giving effect to the Transaction (excluding the
Loans, the Letters of Credit and the Senior Subordinated Notes, the "Existing
Indebtedness"), in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any Credit Party or any of its
Subsidiaries which directly or indirectly guarantees such debt.
7.23 Transaction. At the time of consummation thereof, the Transaction
shall have been consummated in all material respects in accordance with the
terms of the respective Documents and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to consummate the
Transaction have been obtained, given, filed or taken and are or will be in
full force and effect (or effective judicial relief with respect thereto has
been obtained) (other than immaterial consents relating to the Acquisition).
All applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action being
taken by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the Transaction. Additionally, at the time of the
consummation thereof, there does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the Transaction, or
the occurrence of any Credit Event or the performance by any Credit Party of
its obligations under the Documents to which it is party. All actions taken by
each Credit Party pursuant to or in furtherance of the Transaction have been
taken in all material respects in compliance with the respective Documents and
all applicable laws.
7.24 Insurance. Schedule 5 of the Disclosure Letter sets forth a true
and complete listing of all insurance maintained by the Borrower and its
Subsidiaries as of the Initial Borrowing Date, with the amounts insured (and
any deductibles) set forth therein.
7.25 Year 2000. All Information Systems and Equipment are either Year
2000 Compliant, or any reprogramming, remediation or any other corrective
action, including the internal testing of all such Information Systems and
Equipment, will be completed by October 31, 1999, except to the extent that the
failure to be Year 2000 Compliant could not reasonably be expected to have a
Material Adverse Effect. Further, to the extent that any such reprogramming,
remediation or other corrective action is required, the cost thereof (as well
as the cost of the reasonably foreseeable consequences of the failure to become
Year 2000 Compliant) to the Borrower and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of other systems or equipment)
could not reasonably be expected to (x) result in a Default or an Event of
Default or (y) have a Material Adverse Effect.
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7.26 Senior Subordinated Notes. The subordination provisions contained
in the Senior Subordinated Notes and in the other Senior Subordinated Note
Documents are enforceable against the Borrower and the holders of the Senior
Subordinated Notes, and all Obligations are within the definition of "Senior
Debt" included in such subordination provisions.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings
(in each case together with interest thereon), Fees and all other Obligations
(other than indemnities described in Section 13.13 which are not then due and
payable) incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Lender:
(a) Monthly Reports. Within 30 days after the end of each fiscal month
of the Borrower (commencing with its fiscal month ending on July 31, 1999), the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal month and the related consolidated statements of income and
retained earnings and statement of cash flows for such fiscal month and for the
elapsed portion of the fiscal year ended with the last day of such fiscal
month, in each case setting forth comparative figures for the corresponding
fiscal month in the prior fiscal year and comparable budgeted figures for such
fiscal month, all of which shall be certified by the chief financial officer of
the Borrower that they fairly present in all material respects in accordance
with generally accepted accounting principles the financial condition of the
Borrower and its Subsidiaries as of the dates indicated and the results of
their operations for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes.
(b) Quarterly Financial Statements. Within 50 days after the close of
the first three quarterly accounting periods in each fiscal year of the
Borrower (commencing with its quarterly accounting period ending on June 30,
1999), (i) the consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such quarterly accounting period and the related consolidated
statements of income and retained earnings and statement of cash flows for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the related periods in the prior fiscal
year, all of which shall be certified by the chief financial officer of the
Borrower that they fairly present in all material respects in accordance with
generally accepted accounting principles the financial condition of the
Borrower and its Subsidiaries as of the dates indicated and the results of
their operations for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes, and (ii) management's discussion and
analysis of the important operational and financial developments during such
quarterly accounting period (it being understood that any management's
discussion and analysis set forth in the Borrower's Form 10-Q for such
quarterly accounting period and delivered to the Lenders shall satisfy the
provisions of this clause (ii)).
(c) Annual Financial Statements. Within 100 days after the close of
each fiscal year of the Borrower, (i) the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained
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earnings and statement of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified by KPMG Peat
Marwick LLP or such other independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative Agent,
together with a report of such accounting firm stating that in the course of
its regular audit of the financial statements of the Borrower and its
Subsidiaries, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm obtained no knowledge of any Default
or an Event of Default relating to financial and accounting matters which has
occurred and is continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof, and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal year (it
being understood that any management's discussion and analysis set forth in the
Borrower's Form 10-K for such quarterly accounting period and delivered to the
Lenders shall satisfy the provisions of this clause (ii)).
(d) Management Letters. Promptly after the Borrower's or any of its
Subsidiaries' receipt thereof, a copy of any "management letter" received from
its certified public accountants and management's response thereto.
(e) Budgets. No later than 30 days following the first day of each
fiscal year of the Borrower, a budget in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income, sources and uses
of cash and balance sheets) prepared by the Borrower (i) for each of the twelve
months of such fiscal year prepared in detail and (ii) for each of the
immediately three succeeding fiscal years prepared in summary form, in each
case setting forth, with appropriate discussion, the principal assumptions upon
which such budgets are based.
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(b) and (c), a certificate of
the chief financial officer of the Borrower certifying on behalf of the
Borrower that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of Default
has occurred and is continuing, specifying the nature and extent thereof, which
certificate shall (i) set forth in reasonable detail the calculations required
to establish whether the Borrower and its Subsidiaries were in compliance with
the provisions of Sections 4.02(e), 4.02(f) (to the extent delivered with the
financial statements required by Section 8.01(c)), 4.02(g), 9.02(v), 9.03(iii),
9.04, 9.05 and 9.07 through 9.10, inclusive, at the end of such fiscal quarter
or year, as the case may be, (ii) if delivered with the financial statements
required by Section 8.01(c), set forth in reasonable detail the amount of (and
the calculations required to establish the amount of) Excess Cash Flow for the
respective Excess Cash Payment Period, and (iii) commencing with the delivery
of the financial statements in respect of the Borrower's fiscal quarter ending
on December 31, 1999, the Applicable Margin for Tranche A Term Loans, Revolving
Loans and Swingline Loans for the Margin Reduction Period commencing with the
delivery of the respective financial statements.
(g) Notice of Default or Litigation. Promptly upon, and in any event
within five Business Days after, any principal, senior or executive officer of
the Borrower obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or an
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Event of Default and (ii) any litigation or governmental investigation or
proceeding pending (x) against the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect, (y) with
respect to any material Indebtedness of the Borrower or any of its Subsidiaries
or (z) with respect to any Document.
(h) Other Reports and Filings. Promptly after the filing or delivery
thereof, copies of all financial information, proxy materials and reports, if
any, which the Borrower or any of its Subsidiaries shall publicly file with the
Securities and Exchange Commission or any successor thereto (the "SEC") or
deliver to holders (or any trustee, agent or other representative therefor) of
its material Indebtedness pursuant to the terms of the documentation governing
such Indebtedness.
(i) Environmental Matters. Promptly after any principal, senior or
executive officer of the Borrower obtains knowledge thereof, notice of one or
more of the following environmental matters, unless such environmental matters
could not, either individually or when aggregated with all other such
environmental matters, be reasonably expected to have a Material Adverse
Effect:
(i) any pending or threatened Environmental Claim against the Borrower
or any of its Subsidiaries or any Real Property owned, leased or operated
by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries that
(a) results in noncompliance by the Borrower or any of its Subsidiaries
with any applicable Environmental Law or (b) could be expected to form the
basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries that could be
expected to cause such Real Property to be subject to any restrictions on
the ownership, lease, occupancy, use or transferability by the Borrower or
any of its Subsidiaries of such Real Property under any Environmental Law;
and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency; provided that in any event the Borrower shall
deliver to each Lender all notices received by the Borrower or any of its
Subsidiaries from any government or governmental agency under, or pursuant
to, CERCLA which identify the Borrower or any of its Subsidiaries as
potentially responsible parties for redemption costs or which otherwise
notify the Borrower or any of its Subsidiaries of potential liability
under CERCLA.
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All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's or such Subsidiary's response thereto.
(j) Certain Audited Financial Statements. Concurrently with the
delivery of same pursuant to Section 6.9 of the Acquisition Agreement (but in
no event later than 75 days following the Initial Borrowing Date), copies of
the audited financial statements for Donnelley in respect of its fourth fiscal
quarter ended on December 31, 1996, its fiscal year ended on December 31, 1997
and the six-month period ended on June 30, 1999.
(k) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
8.02 Books, Records and Inspections; Annual Meetings. (a) The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and accounts in which entries sufficient to prepare the financial statements
required to be delivered pursuant to this Agreement in conformity with
generally accepted accounting principles and all requirements of law shall be
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 officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, under guidance of officers of the Borrower or
such Subsidiary, any of the properties of the Borrower or such Subsidiary, and
to examine the books of account of the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the Borrower or such Subsidiary with, and
be advised as to the same by, its and their officers and independent
accountants, all upon reasonable prior notice and at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or such
Lender may reasonably request.
(b) At a date to be mutually agreed upon between the Administrative
Agent and the Borrower occurring on or prior to the 120th day after the close
of each fiscal year of the Borrower, the Borrower will, at the request of the
Administrative Agent, hold a meeting with all of the Lenders at which meeting
shall be reviewed the financial results of the Borrower and its Subsidiaries
for the previous fiscal year and the budgets presented for the current fiscal
year of the Borrower.
8.03 Maintenance of Property; Insurance. (a) The Borrower will, and
will cause each of its Subsidiaries to, (i) keep all material property
necessary to the business of the Borrower and its Subsidiaries in reasonably
good working order and condition, ordinary wear and tear and obsolescence
excepted, (ii) maintain with financially sound and reputable insurance
companies insurance on all such property in at least such amounts and against
at least such risks as is consistent and in accordance with industry practice
for companies similarly situated owning similar properties in the same general
areas in which the Borrower or any of its Subsidiaries operates, and (iii)
furnish to the Administrative Agent, together with each set of financial
statements delivered pursuant to Section 8.01(c), full information as to the
insurance carried.
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(b) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at all times keep its property insured in favor of the
Collateral Agent, and all policies or certificates (or certified copies
thereof) with respect to such insurance (and any other insurance maintained by
the Borrower and/or such Subsidiary Guarantors) (i) shall be endorsed to the
Collateral Agent's satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee
and/or additional insured), (ii) shall state that such insurance policies shall
not be canceled without at least 30 days' prior written notice thereof by the
respective insurer to the Collateral Agent, (iii) shall provide that the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent and the other Secured Creditors, (iv) shall
contain the standard non-contributing mortgage clause endorsement in favor of
the Collateral Agent with respect to hazard liability insurance, (v) shall,
except in the case of public liability insurance, provide that any losses shall
be payable notwithstanding (A) any foreclosure or other proceeding relating to
the insured properties or (B) any change in the title to or ownership or
possession of the insured properties and (vi) shall be deposited with the
Collateral Agent.
(c) If the Borrower or any of its Subsidiaries shall fail to insure
its property in accordance with this Section 8.03, or if the Borrower or any of
its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent shall have the
right (but shall be under no obligation) to procure such insurance and the
Borrower agrees to reimburse the Administrative Agent for all reasonable costs
and expenses of procuring such insurance.
8.04 Existence; Franchises. The Borrower will, and will cause each of
its Subsidiaries (other than Inactive Subsidiaries) to, do or cause to be done,
all things necessary to preserve and keep in full force and effect its
existence and its material rights, franchises, licenses and patents; provided,
however, that nothing in this Section 8.04 shall prevent (i) sales of assets
and other transactions by the Borrower or any of its Subsidiaries in accordance
with Section 9.02 or (ii) the withdrawal by the Borrower or any of its
Subsidiaries of its qualification as a foreign corporation in any jurisdiction
where such withdrawal could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.06 Compliance with Environmental Laws. (a) The Borrower will comply,
and will cause each of its Subsidiaries to comply, with all Environmental Laws
and permits applicable to, or required by, the ownership, lease or use of its
Real Property now or hereafter owned, leased or operated by the Borrower or any
of its Subsidiaries, will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or
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cause to be kept all such Real Property free and clear of any Liens imposed
pursuant to such Environmental Laws, except such noncompliances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
generated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance in all material respects with all applicable
Environmental Laws and as reasonably required in connection with the normal
operation, use and maintenance of the business or operations of the Borrower or
any of its Subsidiaries.
(b) At the reasonable written request of the Administrative Agent or
the Required Lenders, which request shall specify in reasonable detail the
basis therefor, at any time and from time to time, the Borrower will provide,
at the sole expense of the Borrower, an environmental site assessment report
concerning any Real Property owned, leased or operated by the Borrower or any
of its Subsidiaries, prepared by an environmental consulting firm reasonably
approved by the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property, provided that
(i) unless the Lenders or the Administrative Agent has received any notice of
the type described in Section 8.01(i) or (ii) the Lenders have exercised any of
the remedies pursuant to the last paragraph of Section 10, such request may not
be made more than once every two years in respect of any parcel of Real
Property. If the Borrower fails to provide same within 90 days after such
request was made, the Administrative Agent may order the same, the cost of
which shall be borne by the Borrower and the Borrower shall grant and hereby
grant to the Administrative Agent and the Lenders and their respective agents
access to such Real Property and specifically grant the Administrative Agent
and the Lenders an irrevocable non-exclusive license, subject to the rights of
tenants, to undertake such an assessment at any reasonable time upon reasonable
notice to the Borrower, all at the sole expense of the Borrower.
8.07 ERISA. As soon as possible and, in any event, within ten (10) days
after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, the Borrower
will deliver to each of the Lenders a certificate of the chief financial
officer of the Borrower setting forth in reasonable detail information as to
such occurrence and the action, if any, that the Borrower, such Subsidiary or
such ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower, the
Subsidiary, the ERISA Affiliate, the PBGC or any other governmental agency, a
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has
previously delivered to the Lenders a certificate and notices (if any)
concerning such event pursuant to the next clause hereof); that a contributing
sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title
IV of ERISA is subject to the advance reporting requirement of PBGC Regulation
Section 4043.61 (without regard to subparagraph (b)(1) thereof), and an event
described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation
Section 4043
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is reasonably expected to occur with respect to such Plan within the following
30 days; that an accumulated funding deficiency, within the meaning of Section
412 of the Code or Section 302 of ERISA, has been incurred or an application
may be or has been made for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a Plan
has been or may be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that a Plan has an Unfunded Current Liability; that
proceedings may be or have been instituted to terminate or appoint a trustee to
administer a Plan which is subject to Title IV of ERISA; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate will or may incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or
with respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that the
Borrower or any Subsidiary of the Borrower may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan or any Foreign
Pension Plan. The Borrower will deliver to each of the Lenders copies of any
records, documents or other information that must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA. Upon the request of the
Administrative Agent or any Lender, the Borrower will also deliver to the
Administrative Agent or such Lender a complete copy of the annual report (on
Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions
and other supporting statements, certifications, schedules and information)
required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Lenders pursuant to the first sentence
hereof, copies of annual reports and any records, documents or other
information required to be furnished to the PBGC or any other governmental
agency, and any material notices received by the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate with respect to any Plan or Foreign Pension
Plan shall be delivered to the Lenders no later than ten (10) days after the
date such annual report has been filed with the Internal Revenue Service or
such records, documents and/or information has been furnished to the PBGC or
any other governmental agency or such notice has been received by the Borrower,
the respective Subsidiary or the ERISA Affiliate, as applicable. The Borrower
and each of its Subsidiaries shall insure that all Foreign Pension Plans
administered by it or into which it makes payments obtains or retains (as
applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all
applicable laws except where the failure to do any of the foregoing could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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8.08 End of Fiscal Years; Fiscal Quarters. The Borrower will cause (i)
its fiscal year to end on the last day of one of the fiscal quarters set forth
in clause (ii) below and (ii) each of its fiscal quarters to end on March 31,
June 30, September 30 and December 31 of each year.
8.09 Performance of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
8.10 Payment of Taxes. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims for sums that have become due and payable
which, if unpaid, might become a Lien not otherwise permitted under Section
9.01(i); provided that neither the Borrower nor any of its Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim which is
immaterial or is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
8.11 Interest Rate Protection. No later than 90 days following the
Initial Borrowing Date, the Borrower will enter into (and thereafter maintain)
Interest Rate Protection Agreements mutually agreeable to the Borrower and the
Administrative Agent, with a term of at least three years, establishing a fixed
or maximum interest rate acceptable to the Administrative Agent in respect of
that notional amount of Indebtedness as would be required to ensure that at
least 50% of the aggregate principal amount of all long-term Indebtedness of
the Borrower at such time bears interests at a fixed or maximum interest rate.
8.12 Additional Security; Further Assurances. (a) The Borrower will,
and will cause each of its Domestic Subsidiaries (other than an Inactive
Subsidiary) and, to the extent required by Section 8.15, each of its Foreign
Subsidiaries to, grant to the Collateral Agent security interests and Mortgages
in such assets and properties of the Borrower and such Subsidiaries as are not
covered by the original Security Documents, and as may be reasonably requested
from time to time by the Required Lenders (collectively, the "Additional
Security Documents"). All such security interests and Mortgages shall be
granted pursuant to documentation reasonably satisfactory in form and substance
to the Administrative Agent and shall constitute valid and enforceable
perfected security interests and Mortgages superior to and prior to the rights
of all third Persons and subject to no other Liens except for Permitted Liens.
The Additional Security Documents or instruments related thereto shall have
been duly recorded or filed in such manner and in such places as are required
by law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent required to be granted pursuant to the Additional Security
Documents and all taxes, fees and other charges payable in connection therewith
shall have been paid in full.
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(b) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports, landlord waivers and other assurances or instruments
and take such further steps relating to the Collateral covered by any of the
Security Documents as the Collateral Agent may reasonably require. Furthermore,
the Borrower will cause to be delivered to the Collateral Agent such opinions
of counsel, title insurance and other related documents as may be reasonably
requested by the Administrative Agent to assure itself that this Section 8.12
has been complied with.
(c) If the Administrative Agent or the Required Lenders reasonably
determine that they are required by law or regulation to have appraisals
prepared in respect of the Real Property of the Borrower and its Subsidiaries
constituting Collateral, the Borrower will, at its own expense, provide to the
Administrative Agent appraisals which satisfy the applicable requirements of
the Real Estate Appraisal Reform Amendments of the Financial Institution
Reform, Recovery and Enforcement Act of 1989, as amended, and which shall
otherwise be in form and substance reasonably satisfactory to the
Administrative Agent.
(d) The Borrower agrees that each action required above by this
Section 8.12 shall be completed as soon as possible, but in no event later than
90 days after such action is either requested to be taken by the Administrative
Agent or the Required Lenders or required to be taken by the Borrower and/or
its Subsidiaries pursuant to the terms of this Section 8.12; provided that, in
no event will the Borrower or any of its Subsidiaries be required to take any
action, other than using its best efforts, to obtain consents from third
parties with respect to its compliance with this Section 8.12.
8.13 Information Systems and Equipment. The Borrower will, and will
cause each of its Subsidiaries to, (i) ensure that its Information Systems and
Equipment are at all times after October 31, 1999 Year 2000 Compliant, except
insofar as the failure to do so could not reasonably be expected to have a
Material Adverse Effect, and (ii) notify the Administrative Agent and each
Lender promptly upon detecting any failure of its Information Systems and
Equipment to be so Year 2000 Compliant. In addition, the Borrower will, and
will cause each of its Subsidiaries to, provide the Administrative Agent and
any Lender with such information about the Borrower's or such Subsidiaries'
year 2000 computer readiness (including, without limitation, information as to
contingency plans, budgets and testing results) as the Administrative Agent or
any Lender shall reasonably request.
8.14 Use of Proceeds. The Borrower will use the proceeds of the Loans
only as provided in Section 7.08.
8.15 Foreign Subsidiaries Security. If, following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, the Borrower
does not within 30 days after a request from the Administrative Agent or the
Required Lenders deliver evidence, in form and substance
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reasonably satisfactory to the Administrative Agent, with respect to any
Foreign Subsidiary of the Borrower which has not already had all of its stock
pledged pursuant to the Pledge Agreement that (i) a pledge of 66-2/3% or more
of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, (ii) the entering into by such Foreign
Subsidiary of a security agreement in substantially the form of the Security
Agreement and (iii) the entering into by such Foreign Subsidiary of a guaranty
in substantially the form of the Subsidiaries Guaranty, in any such case could
reasonably be expected to cause (I) any undistributed earnings of such Foreign
Subsidiary as determined for Federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary's United States parent for Federal
income tax purposes or (II) other Federal income tax consequences to the Credit
Parties having a Material Adverse Effect, then in the case of a failure to
deliver the evidence described in clause (i) above, that portion of such
Foreign Subsidiary's outstanding capital stock not theretofore pledged pursuant
to the Pledge Agreement shall be promptly pledged to the Collateral Agent for
the benefit of the Secured Creditors pursuant to the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), and in the
case of a failure to deliver the evidence described in clause (ii) above, such
Foreign Subsidiary shall promptly execute and deliver the Security Agreement
and Pledge Agreement (or another security agreement or pledge agreement in
substantially similar form, if needed), granting the Secured Creditors a
security interest in all of such Foreign Subsidiary's assets and securing the
Obligations of the Borrower under the Credit Documents and under any Interest
Rate Protection Agreement or Other Hedging Agreement and, in the event the
Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary, the
obligations of such Foreign Subsidiary thereunder, and in the case of a failure
to deliver the evidence described in clause (iii) above, such Foreign
Subsidiary shall promptly execute and deliver the Subsidiaries Guaranty (or
another guaranty in substantially similar form, if needed), guaranteeing the
Obligations of the Borrower under the Credit Documents and under any Interest
Rate Protection Agreement or Other Hedging Agreement, in each case to the
extent that the entering into of the Security Agreement, Pledge Agreement or
Subsidiaries Guaranty is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.15 to
be in form and substance reasonably satisfactory to the Administrative Agent.
8.16 InfoSpace Stock. As soon as the Borrower shall be contractually
permitted to sell the InfoSpace Stock, but in no event later than August 15,
1999, the Borrower will sell all of the InfoSpace Stock held by the Borrower or
any of its Subsidiaries, which sale shall be for cash and at fair market value
and 100% of the Net Sale Proceeds therefrom shall be applied to repay
outstanding Term Loans as required by Section 4.02(e).
8.17 Margin Stock. In the event that the Borrower or any other Credit
Party holds any Margin Stock that is required to be pledged pursuant to the
Pledge Agreement, the Borrower will duly execute and deliver to each Lender an
appropriately completed Form U-1 or Form G-3 referred to in Regulation U.
8.18 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.18 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and its Wholly-Owned Subsidiaries may from time to
time effect Permitted Acquisitions, so long as (in
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each case except to the extent the Required Lenders otherwise specifically
agree in writing in the case of a specific Permitted Acquisition): (i) no
Default or Event of Default shall have occurred and be continuing at the time
of the consummation of the proposed Permitted Acquisition or immediately after
giving effect thereto; (ii) the Borrower shall have given to the Administrative
Agent and the Lenders at least 10 Business Days' prior written notice of any
Permitted Acquisition; (iii) calculations are made by the Borrower of
compliance with the financial covenants contained in Sections 9.08, 9.09 and
9.10 for the Test Period (taken as one accounting period) most recently ended
prior to the date of such Permitted Acquisition for which financial statements
are available (each, a "Calculation Period"), on a Pro Forma Basis as if the
respective Permitted Acquisition (as well as all other Permitted Acquisitions
theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period, and such recalculations
shall show that such financial covenants would have been complied with if the
Permitted Acquisition had occurred on the first day of such Calculation Period;
(iv) all representations and warranties contained herein and in the other
Credit Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Permitted Acquisition (both before and after giving
effect thereto), unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date; (v) the aggregate consideration
(including, without limitation, (I) the aggregate principal amount of any
Indebtedness assumed, incurred or issued in connection therewith, (II) the fair
market value (as determined in good faith by the Board of Directors of the
Borrower) of any common stock or Qualified Preferred Stock of the Borrower
issued as part of the purchase price therefor (provided that no Default or
Event of Default under Section 10.10 would result therefrom) and (III) the
aggregate amount paid and to be paid pursuant to any earn-out, non-compete or
deferred compensation or purchase price arrangements) for any such proposed
Permitted Acquisition shall not exceed either (A) $15,000,000 or (B) when added
to the aggregate consideration paid for all other Permitted Acquisitions
consummated during such fiscal year, $25,000,000 (or $20,000,000 in the case of
the period from the Initial Borrowing Date through December 31, 1999), although
the provisions of this clause (v) shall not prohibit the Borrower or a
Wholly-Owned Domestic Subsidiary thereof from exercising the Hogan Option in
accordance with the terms thereof and for a purchase price not exceeding
$30,000,000; (vi) immediately after giving effect to each Permitted Acquisition
(and all payments to be made in connection therewith), the Total Unutilized
Revolving Loan Commitment shall equal or exceed the lesser of (A) $10,000,000
or (B) when added to the aggregate amount of unrestricted cash and Cash
Equivalents held by the Borrower and its Wholly-Owned Domestic Subsidiaries,
$15,000,000; (vii) the aggregate consideration paid in connection with all
Permitted Acquisitions in which the Person or assets so acquired had more than
15% of their assets or annual revenues outside of the United States (as
determined from the most recently available financial information for such
Person or assets) does not exceed $10,000,000 in any fiscal year of the
Borrower; and (viii) the Borrower shall have delivered to the Administrative
Agent and each Lender an officer's certificate executed by a senior financial
officer of the Borrower, certifying to the best of such officer's knowledge,
compliance with the requirements of preceding clauses (i) through (vii),
inclusive, and containing the calculations (in reasonable detail) (A) required
by the preceding clauses (iii), (v), (vi) and (vii) and (B) necessary to
establish the Acquired EBITDA of the Acquired Entity or Business acquired
pursuant to such Permitted Acquisition for the most
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recently ended 12 month period for which financial statements are available for
such Acquired Entity or Business, which calculations shall be reasonably
approved by the Administrative Agent.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, all capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to (and to the
extent required by) the Pledge Agreement.
(c) The Borrower will cause each Subsidiary which is formed to effect,
or is acquired pursuant to, a Permitted Acquisition to comply with, and to
execute and deliver, all of the documentation as and to the extent required by,
Sections 8.12 and 9.15, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower that the certifications by the
Borrower pursuant to Section 8.18(a) are true and correct and that all
conditions thereto have been satisfied and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty shall be
deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 7 and 10.
8.19 Certain Post-Closing Actions. Within 90 days following the
Initial Borrowing Date, (i) the Borrower will use its reasonable best efforts
to deliver to the Administrative Agent landlord waivers with respect to those
Leaseholds of the Borrower or any of its Subsidiaries designated on Schedule 1
to the Disclosure Letter as requiring a landlord waiver, which landlord waivers
shall be in form and substance reasonably satisfactory to the Administrative
Agent and (ii) the Borrower shall have paid in full (or cause to have been paid
in full) the item of Existing Indebtedness set forth on Schedule 4 of the
Disclosure Letter that is owed to the State of Connecticut and in connection
therewith shall have terminated (or cause to have been terminated) the security
interest securing such Existing Indebtedness as specified on Schedule 6 to the
Disclosure Letter.
SECTION 9. Negative Covenants. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings
(in each case, together with interest thereon), Fees and all other Obligations
(other than any indemnities described in Section 13.13 which are not then due
and payable) incurred hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing
of any financing statement under the UCC or any other
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similar notice of Lien under any similar recording or notice statute; provided
that the provisions of this Section 9.01 shall not prevent the creation,
incurrence, assumption or existence of the following (Liens described below are
herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's
or such Subsidiary's property or assets or materially impair the use
thereof in the operation of the business of the Borrower or such
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule 6 of the
Disclosure Letter, but only to the respective date, if any, set forth in
such Schedule 6 for the removal, replacement and termination of any such
Liens, plus renewals, replacements and extensions of such Liens to the
extent set forth on such Schedule 6, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal,
replacement or extension and (y) any such renewal, replacement or
extension does not encumber any additional assets or properties of the
Borrower or any of its Subsidiaries;
(iv) Liens created pursuant to the Security Documents;
(v) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(vi) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized
Lease Obligations are permitted by Section 9.04(iv), provided that (x)
such Liens only serve to secure the payment of Indebtedness arising under
such Capitalized Lease Obligation and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any
other asset of the Borrower or any Subsidiary of the Borrower;
(vii) Liens placed upon (x) equipment or machinery acquired after the
Initial Borrowing Date and used in the ordinary course of business of the
Borrower or any of its Subsidiaries at the time of the acquisition thereof
by the Borrower or any such Subsidiary or within 90 days thereafter to
secure Indebtedness incurred to pay all or a portion of the purchase price
thereof or to secure Indebtedness incurred solely for the purpose of
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financing the acquisition of any such equipment or machinery or
extensions, renewals or replacements of any of the foregoing for the same
or a lesser amount or (y) Real Property acquired or constructed after the
Initial Borrowing Date and used in the ordinary course of business of the
Borrower or any of its Subsidiaries at the time of the acquisition or
construction thereof by the Borrower or any of its Subsidiaries or within
180 days thereafter to secure Indebtedness incurred to pay all or a
portion of the purchase price or construction cost thereof or to secure
Indebtedness incurred solely for the purpose of financing the acquisition
or construction of any such Real Property or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided that (i) the Indebtedness secured by all such Liens described in
this clause (vii) is permitted by Section 9.04(iv) and (y) in all events,
the Lien encumbering the asset so acquired or constructed does not
encumber any other asset of the Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and other
similar charges or encumbrances, and minor title deficiencies, in each
case not securing Indebtedness and not materially interfering with the
conduct of the business of the Borrower or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement filings
regarding operating leases;
(x) Liens arising out of the existence of judgments or awards in
respect of which the Borrower or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review and in respect of
which there shall have been secured a subsisting stay of execution pending
such appeal or proceedings, provided that the aggregate amount of all cash
and the fair market value of all other property subject to such Liens does
not exceed $5,000,000 at any time outstanding;
(xi) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits;
(xiii) Liens securing the performance of bids, tenders, leases and
contracts in the ordinary course of business, statutory obligations,
surety bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business and consistent with past
practice (exclusive of obligations in respect of the payment for borrowed
money), provided that the aggregate amount of all cash and the fair market
value of all other property subject to all Liens permitted by this clause
(xiii) shall not at any time exceed $1,500,000;
(xiv) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such
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Subsidiary is acquired pursuant to a Permitted Acquisition, provided that
(x) any Indebtedness that is secured by such Liens is permitted to exist
under Section 9.04(ix), and (y) such Liens are not incurred in connection
with, or in contemplation or anticipation of, such Permitted Acquisition
and do not attach to any other asset of the Borrower or any of its
Subsidiaries;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xvi) Liens which constitute rights of set-off of a customary nature
or bankers' Liens with respect to amounts on deposit, whether arising by
operation of law or by contract, in connection with arrangements entered
into with banks in the ordinary course of business;
(xvii) Liens on insurance proceeds securing the payment of financed
insurance premiums; and
(xviii) Permitted Encumbrances.
In connection with the granting of Liens of the type described in clauses (vi)
and (vii) of this Section 9.01 by the Borrower or any of its Subsidiaries, the
Administrative Agent and the Collateral Agent shall be authorized to take any
actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject
to such Liens).
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part
of its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time (unless such
agreement relates to an action otherwise permitted by this Section 9.02, or to
the extent that the respective action is not otherwise permitted by this
Section 9.02 (and the Loans will not be repaid in full, and all Commitments
terminated, at the time of the consummation of the respective action), such
agreement expressly provides that the consent of the requisite percentage of
Lenders hereunder is required to be obtained in connection therewith)), except
that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be
permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales of
inventory and license intellectual property in the ordinary course of
business;
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(iii) each of the Borrower and its Subsidiaries may sell obsolete,
uneconomic or worn-out equipment or materials in the ordinary course of
business;
(iv) the Borrower may sell the InfoSpace Stock in accordance with
Section 8.16;
(v) each of the Borrower and its Subsidiaries may sell other assets
(other than the capital stock of any Subsidiary Guarantor), so long as (v)
no Default or Event of Default then exists or would result therefrom, (w)
each such sale is in an arm's-length transaction and the Borrower or the
respective Subsidiary receives at least fair market value (as determined
in good faith by the Borrower or such Subsidiary, as the case may be), (x)
the total consideration received by the Borrower or such Subsidiary is at
least 75% cash and is paid at the time of the closing of such sale, (y)
the Net Sale Proceeds therefrom are applied and/or reinvested as (and to
the extent) required by Section 4.02(e) and (z) the aggregate amount of
the proceeds received from all assets sold pursuant to this clause (v)
shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vi) Investments may be made to the extent permitted by Section 9.05;
(vii) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property (so long as any such lease does not create a
Capitalized Lease Obligation except to the extent permitted by Section
9.04(iv));
(viii) each of the Borrower and its Subsidiaries may sell or discount,
in each case without recourse and in the ordinary course of business,
accounts receivable arising in the ordinary course of business, but only
in connection with the compromise or collection thereof and not as part of
any financing transaction;
(ix) each of the Borrower and its Subsidiaries may grant leases or
subleases to other Persons not materially interfering with the conduct of
the business of the Borrower or any of its Subsidiaries;
(x) any Subsidiary of the Borrower (i) may be merged or consolidated
with or into the Borrower or liquidated so long as the Borrower is the
surviving corporation of such merger or consolidation or receives the
assets of such Subsidiary upon such liquidation and (ii) may transfer its
assets to the Borrower or to any Subsidiary Guarantor;
(xi) any Subsidiary of the Borrower may be merged or consolidated with
or into any other Subsidiary of the Borrower or liquidated so long as (i)
in the case of any (x) such merger or consolidation involving a Subsidiary
Guarantor, a Subsidiary Guarantor is the surviving corporation of such
merger or consolidation or (y) such liquidation involving a Subsidiary
Guarantor, a Subsidiary Guarantor receives the assets of such Subsidiary
upon such liquidation and (ii) in the case of any (x) such merger or
consolidation involving a Wholly-Owned Subsidiary of the Borrower, in
addition to the requirements of preceding clause (i)(x), a Wholly-Owned
Subsidiary is the surviving
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corporation of such merger or consolidation or (y) such liquidation, in
addition to the requirements of preceding clause (i)(y), a Wholly-Owned
Subsidiary receives the assets of such Subsidiary upon such liquidation;
(xii) Permitted Acquisitions may be made to the extent permitted by
Section 8.18; and
(xiii) the Acquisition shall be permitted.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than to the Borrower or a Subsidiary
thereof), such Collateral shall be sold free and clear of the Liens created by
the Security Documents, and the Administrative Agent and the Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
9.03 Dividends. The Borrower will not, and will not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to the
Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash
Dividends to its shareholders generally so long as the Borrower or its
respective Subsidiary which owns the equity interest in the Subsidiary
paying such Dividends receives at least its proportionate share thereof
(based upon its relative holding of the equity interest in the Subsidiary
paying such Dividends and taking into account the relative preferences, if
any, of the various classes of equity interests of such Subsidiary);
(iii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the Borrower
may repurchase outstanding shares of its common stock (or options to
purchase such common stock) following the death, disability or termination
of employment of officers, directors or employees of the Borrower or any
of its Subsidiaries, provided that the aggregate amount of Dividends paid
by the Borrower pursuant to this clause (iii) shall not exceed $500,000 in
any fiscal year of the Borrower;
(iv) the Borrower may pay regularly scheduled Dividends on its
Qualified Preferred Stock pursuant to the terms thereof solely through the
issuance of additional shares of such Qualified Preferred Stock rather
than in cash; and
(v) the Borrower may redeem its outstanding preferred stock purchase
rights issued under the Borrower's stockholder's rights plan in an
aggregate amount not to exceed $500,000.
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9.04 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Existing Indebtedness outstanding on the Initial Borrowing Date
and listed on Schedule 4 of the Disclosure Letter, without giving effect
to any subsequent extension, renewal or refinancing thereof except to the
extent set forth on such Schedule 4, provided that the aggregate principal
amount of the Indebtedness to be extended, renewed or refinanced does not
increase from that amount outstanding at the time of any such extension,
renewal or refinancing;
(iii) Indebtedness under Interest Rate Protection Agreements entered
into with respect to other Indebtedness permitted under this Section 9.04;
(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations (to the extent permitted pursuant to Section
9.07) and purchase money Indebtedness described in Section 9.01(vii),
provided that in no event shall the sum of the aggregate principal amount
of all Capitalized Lease Obligations and purchase money Indebtedness
permitted by this clause (iv) exceed $10,000,000 at any time outstanding;
(v) intercompany Indebtedness among the Borrower and its Subsidiaries
to the extent permitted by Sections 9.05(xi), (xiii), (xiv), (xv) and
(xvi);
(vi) Indebtedness consisting of guaranties by the Borrower and its
Subsidiaries of Indebtedness of the Borrower and its Subsidiaries
otherwise permitted to be incurred under this Section 9.04 (other than in
respect of the Senior Subordinated Notes), in each case only so long as
the giving of such guaranty does not require a Subsidiary of the Borrower
to guaranty the Borrower's obligations in respect of the Senior
Subordinated Notes;
(vii) Indebtedness under Other Hedging Agreements providing protection
against fluctuations in currency values in connection with the Borrower's
or any of its Subsidiaries' operations so long as management of the
Borrower or such Subsidiary, as the case may be, has determined that the
entering into of such Other Hedging Agreements are bona fide hedging
activities and are not for speculative purposes;
(viii) Indebtedness of the Borrower under the Senior Subordinated
Notes and the other Senior Subordinated Note Documents in an aggregate
principal amount not to exceed $106,000,000 (as reduced by any repayments
of principal thereof);
(ix) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted
Acquisition of an asset securing such Indebtedness), provided that (x)
such Indebtedness was not incurred in connection with,
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or in anticipation or contemplation of, such Permitted Acquisition, (y)
such Indebtedness does not constitute debt for borrowed money (other than
debt for borrowed money incurred in connection with industrial revenue or
industrial development bond financings), it being understood and agreed
that Capitalized Lease Obligations and purchase money Indebtedness of the
type described in Section 9.01(vii) shall not constitute debt for borrowed
money for purposes of this clause (y), and (z) at the time of such
Permitted Acquisition, such Indebtedness does not exceed 15% of the total
value of the assets of the Subsidiary so acquired, or of the asset so
acquired, as the case may be;
(x) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, so long as such
Indebtedness not otherwise constituting Indebtedness permitted under this
Section 9.04 is extinguished within two Business Days of the incurrence
thereof;
(xi) Indebtedness in respect of bid, performance, advance payment or
surety bonds entered into in the ordinary course of business and
consistent with past practices in an aggregate amount not to exceed
$1,500,000 at any time outstanding; and
(xii) so long as no Default or Event of Default then exists or would
result therefrom, additional unsecured Indebtedness incurred by the
Borrower and its Subsidiaries in an aggregate principal amount not to
exceed $10,000,000 at any one time outstanding.
9.05 Advances, Investments and Loans. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, lend money or
credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that during any time when Revolving Loans or
Swingline Loans are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Domestic
Subsidiaries shall not exceed $10,000,000 for any period of five
consecutive Business Days;
(iii) the Borrower and its Subsidiaries may hold the Investments held
by them on the Initial Borrowing Date and described on Schedule 7 of the
Disclosure Letter,
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provided that any additional Investments made with respect thereto shall
be permitted only if independently justified under the other provisions of
this Section 9.05;
(iv) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective employees so long as
the aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and
advances) shall not exceed $500,000;
(vi) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
common stock of the Borrower so long as no cash is paid by the Borrower or
any of its Subsidiaries to such officers or employees in connection with
the acquisition of any such obligations;
(vii) the Borrower and its Subsidiaries may enter into Interest Rate
Protection Agreements to the extent permitted by Section 9.04(iii);
(viii) the Borrower and its Subsidiaries may enter into Other Hedging
Agreement to the extent permitted by Section 9.04(vii);
(ix) Permitted Acquisitions shall be permitted in accordance with
Section 8.18;
(x) the Borrower and its Subsidiaries may acquire and hold promissory
notes and other non-cash consideration issued by the purchaser of assets
in connection with a sale of such assets to the extent permitted by
Sections 9.02(v) and (xii);
(xi) the Borrower and the Subsidiary Guarantors may make Intercompany
Loans between or among one another, so long as each Intercompany Loan
shall be evidenced by an Intercompany Note that is pledged to the
Collateral Agent pursuant to the Pledge Agreement;
(xii) the Borrower may make equity contributions to the capital of the
Subsidiary Guarantors and the Subsidiary Guarantors may make equity
contributions to the capital of their respective Subsidiaries which are
Subsidiary Guarantors, provided that the Borrower may not contribute a
material portion of its non-cash assets to the Subsidiary Guarantors;
(xiii) the Borrower and the Subsidiary Guarantors may make
Intercompany Loans and/or cash equity contributions to Wholly-Owned
Foreign Subsidiaries of the Borrower for the purpose of enabling such
Wholly-Owned Foreign Subsidiaries to consummate a Permitted Acquisition or
to make Capital Expenditures so long as (x) each
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such Investment that is made as an Intercompany Loan shall be evidenced by
an Intercompany Note that is pledged to the Collateral Agent pursuant to
the Pledge Agreement, (y) no more than $1,000,000 of such Investments in
the aggregate may be made in any fiscal year of the Borrower for Permitted
Acquisitions and (z) no more than $1,000,000 of such Investments in the
aggregate may be made in any fiscal year of the Borrower for Capital
Expenditures;
(xiv) the Borrower and its Wholly-Owned Subsidiaries may make
additional Intercompany Loans and/or cash equity contributions to their
respective Wholly-Owned Foreign Subsidiaries for the purpose of enabling
such Subsidiaries to make an Investment permitted by clause (xvi) of this
Section 9.05 so long as (x) each such Investment that is made as an
Intercompany Loan shall be evidenced by an Intercompany Note that is
pledged to the Collateral Agent pursuant to the Pledge Agreement and (y)
no more than $1,000,000 of such Investments in the aggregate may be made;
(xv) Wholly-Owned Foreign Subsidiaries of the Borrower may make
intercompany loans (x) between or among one another and (y) to the
Borrower or any Subsidiary Guarantor so long as each such Intercompany
Loan made to the Borrower or a Subsidiary Guarantor shall contain (and
shall be subject to) the subordination provisions described in Exhibit M;
and
(xvi) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower and its Subsidiaries may make additional
Investments so long as the aggregate amount of all such Investments made
pursuant to this clause (xvi) does not exceed $25,000,000 (determined
without regard to any write-downs or write-offs thereof).
9.06 Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would reasonably be obtained by
the Borrower or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that the following in
any event shall be permitted:
(i) Dividends may be paid to the extent provided in Section 9.03;
(ii) loans may be made and other transactions may be entered into by
the Borrower and its Subsidiaries to the extent permitted by Sections
9.02, 9.04 and 9.05;
(iii) customary fees may be paid to non-officer directors of the
Borrower and its Subsidiaries;
(iv) the Borrower and its Subsidiaries may enter into, and may make
payments under, employment agreements, employee benefits plans, stock
option plans, indemnification provisions and other similar compensatory
arrangements with officers,
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employees and directors of the Borrower and its Subsidiaries in the
ordinary course of business;
(v) transactions exclusively between or among the Borrower and any of
its Wholly-Owned Subsidiaries or exclusively between or among such
Wholly-Owned Subsidiaries, provided that such transactions are not
otherwise prohibited by the Credit Documents;
(vi) any agreement as in effect as of the Initial Borrowing Date or
any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so
long as any such amendment or replacement agreement is not more
disadvantageous to the Lenders in any material respect than the original
agreement as in effect on the Initial Borrowing Date; and
(vii) transactions with Annapurna Corporation aggregating not more
than $500,000 in any fiscal year of the Borrower.
9.07 Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
(i) during the period from the Initial Borrowing Date through and including
December 31, 1999, the Borrower and its Subsidiaries may make Capital
Expenditures so long as the aggregate amount of all such Capital Expenditures
does not exceed $20,000,000 and (ii) during any fiscal year of the Borrower set
forth below (taken as one accounting period), the Borrower and its Subsidiaries
may make Capital Expenditures so long as the aggregate amount of all such
Capital Expenditures does not exceed in any fiscal year of the Borrower set
forth below the amount set forth opposite such fiscal year below:
<TABLE>
<CAPTION>
Fiscal Year Ending On Amount
--------------------- ------
<S> <C>
December 31, 2000 $25,000,000
December 31, 2001 $26,000,000
December 31, 2002 $27,000,000
December 31, 2003 $28,000,000
December 31, 2004 $21,000,000
December 31, 2005 $21,000,000
December 31, 2006 $21,000,000
</TABLE>
From and after the consummation of any Permitted Acquisition, each of the
Capital Expenditure amounts set forth above in this clause (a) shall be
increased by an amount equal to 25% of the Acquired EBITDA of the respective
Acquired Entity or Business acquired in each such Permitted Acquisition for the
most recently ended 12 month period for which financial statements are
available for such Acquired Entity or Business (as certified in the respective
officer's certificate delivered pursuant to clause (viii) of Section 8.18(a)),
provided that the Capital Expenditure amount for the fiscal year in which such
Permitted Acquisition is consummated shall only be increased by the amount set
forth above in this sentence multiplied
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by a fraction the numerator of which is the number of days remaining in such
fiscal year and the denominator of which is 365.
(b) In addition to the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year of the Borrower (before giving
effect to any increase in such permitted Capital Expenditure amount pursuant to
this clause (b)) is greater than the amount of Capital Expenditures actually
made by the Borrower and its Subsidiaries during such fiscal year, the lesser
of (x) such excess and (y) 25% of the applicable permitted scheduled Capital
Expenditure amount as set forth in such clause (a) above may be carried forward
and utilized to make Capital Expenditures in the immediately succeeding fiscal
year, provided that no amounts once carried forward pursuant to this Section
9.07(b) may be carried forward to any fiscal year thereafter and such amounts
may only be utilized after the Borrower and its Subsidiaries have utilized in
full the permitted Capital Expenditure amount for such fiscal year as set forth
in the table in clause (a) above (without giving effect to any increase in such
amount pursuant to this clause (b)).
(c) In addition to the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures with the amount of Net Sale Proceeds received by
the Borrower or any of its Subsidiaries from any Asset Sale so long as such Net
Sale Proceeds are reinvested in Capital Expenditures within 180 days following
the date of such Asset Sale to the extent such Net Sale Proceeds are not
otherwise required to be applied to repay outstanding Term Loans pursuant to
Section 4.02(e) or reduce the Total Revolving Loan Commitment pursuant to
Section 3.03(e), as the case may be.
(d) In addition to the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures with the amount of Net Insurance Proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event so
long as such Net Insurance Proceeds are used to replace or restore any
properties or assets in respect of which such Net Insurance Proceeds were paid
within 180 days following the date of receipt of such Net Insurance Proceeds
from such Recovery Event to the extent such Net Insurance Proceeds are not
otherwise required to be applied to repay outstanding Term Loans pursuant to
Section 4.02(g) or reduce the Total Revolving Loan Commitment pursuant to
Section 3.03(e), as the case may be.
(e) In addition to the foregoing, the Borrower and its Wholly-Owned
Subsidiaries may consummate Permitted Acquisitions in accordance with the
requirements of Section 8.18.
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter of the Borrower set forth below to be less
than the ratio set forth opposite such fiscal quarter below:
<TABLE>
<CAPTION>
Fiscal Quarter Ending On Ratio
------------------------ -----
<S> <C>
September 30, 1999 3.00:1.00
December 31, 1999 3.00:1.00
</TABLE>
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<TABLE>
<S> <C>
March 31, 2000 3.00:1.00
June 30, 2000 3.00:1.00
September 30, 2000 3.00:1.00
December 31, 2000 3.25:1.00
March 31, 2001 3.25:1.00
June 30, 2001 3.25:1.00
September 30, 2001 3.25:1.00
December 31, 2001 and the last
day of each fiscal quarter of the
Borrower thereafter 3.50:1.00
</TABLE>
9.09 Maximum Consolidated Leverage Ratio. The Borrower will not permit
the Consolidated Leverage Ratio at any time during a period set forth below to
be greater than the ratio set forth opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Initial Borrowing Date through and including June 4.00:1.00
29, 2000
June 30, 2000 through and including September 29, 3.75:1.00
2000
September 30, 2000 through and including December 3.50:1.00
30, 2000
December 31, 2000 through and including June 29, 3.25:1.00
2001
June 30, 2001 through and including December 30, 3.00:1.00
2001
Thereafter 2.75:1.00
</TABLE>
9.10 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ending on the last day of a fiscal
quarter of the Borrower set forth below to be less than the amount set forth
opposite such fiscal quarter below:
<TABLE>
<CAPTION>
Fiscal Quarter Ending On Amount
------------------------ ------
<S> <C>
September 30, 1999 $80,000,000
December 31, 1999 $80,000,000
March 31, 2000 $82,500,000
June 30, 2000 $85,000,000
</TABLE>
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<TABLE>
<CAPTION>
Fiscal Quarter Ending On Amount
------------------------ ------
<S> <C>
September 30, 2000 $87,500,000
December 31, 2000 $90,000,000
March 31, 2001 $90,000,000
June 30, 2001 $90,000,000
September 30, 2001 $92,500,000
December 31, 2001 $95,000,000
March 31, 2002 $95,000,000
June 30, 2002 $95,000,000
September 30, 2002 $97,500,000
December 31, 2002 and the last day of each fiscal
quarter of the Borrower thereafter $100,000,000
</TABLE>
From and after the consummation of any Permitted Acquisition, each of
the amounts set forth above in this Section 9.10 shall be increased by an
amount equal to 80% of the Acquired EBITDA of the respective Acquired Entity or
Business acquired in each such Permitted Acquisition for the most recently
ended 12 month period for which financial statements are available for such
Acquired Entity or Business (as certified in the respective officer's
certificate delivered pursuant to clause (viii) of Section 8.18(a)), provided
that each of the amounts set forth above in this Section 9.10 in respect of
each Test Period ending prior to the 12 month anniversary of such Permitted
Acquisition shall only be increased by the product of 80% of such Acquired
EBITDA multiplied by a fraction the numerator of which is the number of days
between the date of the consummation of such Permitted Acquisition and the last
day of each such Test Period and the denominator of which is 365.
9.11 Limitation on Voluntary Payments and Modifications of Certain
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements, etc. (a) The Borrower will not, and will not permit
any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption or acquisition for value of, or any
prepayment or redemption as a result of any asset sale, change of control
or similar event of (including in each case, without limitation, by way of
depositing with the trustee with respect thereto or any other Person money
or securities before due for the purpose of paying when due), any Senior
Subordinated Notes;
(ii) amend or modify, or permit the amendment or modification of, any
provision of any Senior Subordinated Note Document;
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(iii) amend, modify or change its certificate or articles of
incorporation (including, without limitation, by the filing or
modification of any certificate or articles of designation) or by-laws (or
the equivalent organizational documents) or any agreement entered into by
it with respect to its capital stock (including any Shareholders'
Agreement), or enter into any new agreement with respect to its capital
stock, unless such amendment, modification, change or other action
contemplated by this clause (iii) could not reasonably be expected to be
adverse to the interests of the Lenders in any material respect;or
(iv) amend, modify or change any provision of any Acquisition
Document, unless such amendment, modification or change could not
reasonably be expected to be adverse to the interests of the Borrower, any
of its Subsidiaries or the Lenders in any material respect (it being
understood that in no event shall the Borrower or any of its Subsidiaries
reduce the term of, or reduce the royalty payments to be paid under, the
Consumer Database License Agreement or the Business Database License
Agreement).
(b) Neither the Borrower nor any of its Subsidiaries shall designate
any Indebtedness, other than the Obligations, as "Designated Senior Debt" for
purposes of the Senior Subordinated Notes.
9.12 Limitation on Certain Restrictions on Subsidiaries. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
Subsidiary of the Borrower or (c) transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the Senior Subordinated Note
Documents, (iv) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or any Subsidiary of
the Borrower, (v) customary provisions restricting assignment of any licensing
agreement (in which the Borrower or such Subsidiary is the licensee) or other
contract entered into by the Borrower or any Subsidiary of the Borrower in the
ordinary course of business, (vi) any instrument governing Indebtedness
described in Section 9.04(ix), which restriction is not applicable to any
Person, or the property or assets of any Person, other than the Person or the
properties or assets acquired pursuant to any such Permitted Acquisition, (vii)
agreements existing on the Initial Borrowing Date to the extent and in the
manner such agreements are in effect on the Initial Borrowing Date, (viii) any
agreement for the sale or disposition of capital stock or assets of any
Subsidiary, provided that such encumbrances and restrictions are only
applicable to such Subsidiary or assets, as applicable, and any such sale or
disposition is made in compliance with Section 9.02, and (ix) restrictions on
the transfer of any asset subject to a Lien permitted by Section 9.01(v), (vi)
or (vii).
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9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will
not, and will not permit any of its Subsidiaries to, issue (i) any preferred
stock other than Qualified Preferred Stock of the Borrower or (ii) any
redeemable common stock other than common stock that is redeemable at the sole
option of the Borrower or such Subsidiary, as the case may be.
(b) The Borrower will not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except (i)
for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) to qualify directors to the extent
required by applicable law, (iv) for issuances to the Borrower or a
Wholly-Owned Subsidiary thereof or (v) for issuances by newly created or
acquired Subsidiaries in accordance with the terms of this Agreement.
9.14 Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than the business engaged in by
the Borrower and its Subsidiaries as of the Initial Borrowing Date and
reasonable extensions thereof and other businesses that are complimentary or
reasonably related thereto. Notwithstanding anything to the contrary contained
in this Agreement, the Borrower will not permit any Inactive Subsidiary to
engage in any business activities, to have any material liabilities or to own
assets with an aggregate value in excess of $250,000.
9.15 Limitation on Creation of Subsidiaries. The Borrower will not,
and will not permit any of its Subsidiaries to, establish, create or acquire
after the Initial Borrowing Date any Subsidiary, provided that the Borrower and
its Wholly-Owned Subsidiaries shall be permitted to establish, create or, to
the extent permitted by this Agreement, acquire Wholly-Owned Subsidiaries and,
to the extent permitted by Section 9.05(xvi) and the definition of "Permitted
Acquisition", non-Wholly-Owned Subsidiaries, so long as (i) the equity
interests of each such new Subsidiary (to the extent owned by a Credit Party)
is pledged pursuant to, and to the extent required by, the Pledge Agreement,
(ii) each such new Domestic Subsidiary (and, to the extent required by Section
8.15, each such new Foreign Subsidiary) executes a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement, and
(iii) each such new Domestic Subsidiary (and, to the extent required by Section
8.15, each such new Foreign Subsidiary), to the extent requested by the
Administrative Agent or the Required Lenders, takes all actions required
pursuant to Section 8.12. In addition, each such new Domestic Subsidiary (and,
to the extent required by Section 8.15, each such new Foreign Subsidiary) shall
execute and deliver, or cause to be executed and delivered, all other relevant
documentation of the type described in Section 5 as such new Subsidiary would
have had to deliver if such new Subsidiary were a Credit Party on the Initial
Borrowing Date.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
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10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any interest on any Loan or Note, any Unpaid Drawing or any Fees or any
other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered to the Administrative Agent or any Lender
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
10.03 Covenants. The Borrower or any of its Subsidiaries shall (i)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 8.01(g)(i), 8.08, 8.14, 8.16, 8.17, 8.18 or
Section 9 or (ii) default in the due performance or observance by it of any
other term, covenant or agreement contained in this Agreement or any other
Credit Document (other than those set forth in Sections 10.01 and 10.02) and
such default shall continue unremedied for a period of 30 days after written
notice thereof to the defaulting party by the Administrative Agent or the
Required Lenders; or
10.04 Default Under Other Agreements. (i) The Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (ii) any
Indebtedness (other than the Obligations) of the Borrower or any of its
Subsidiaries shall be declared to be (or shall become) due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof, provided that it shall not be a Default
or an Event of Default under this Section 10.04 unless the aggregate principal
amount of all Indebtedness as described in preceding clauses (i) and (ii) is at
least $5,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
the Borrower or any of its Subsidiaries, and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Borrower or
any of its Subsidiaries, or the Borrower or any of its Subsidiaries commences
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Subsidiaries, or there is commenced against the Borrower or any of its
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Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to
occur with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower or any Subsidiary of the Borrower has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans, a "default" within the meaning of
Section 4219(c)(5) of ERISA shall occur with respect to any Plan, any
applicable law, rule or regulation is adopted, changed or interpreted, or the
interpretation or administration thereof is changed, in each case after the
date hereof, by any governmental authority or agency or by any court (a "Change
of Law"), or, as a result of a Change in Law, an event occurs following a
Change in Law, with respect to or otherwise affecting any Plan; (b) there shall
result from any such event or events the imposition of a lien, the granting of
a security interest, or a liability or a material risk of incurring a
liability; and (c) such lien, security interest or liability, individually
and/or in the aggregate, in the reasonable opinion of the Required Lenders, has
had, or could reasonably be expected to have, a Material Adverse Effect; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and
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Lien on, all of the Collateral (other than an immaterial portion thereof), in
favor of the Collateral Agent, superior to and prior to the rights of all third
Persons (except as permitted by Section 9.01), and subject to no other Liens
(except as permitted by Section 9.01); or
10.08 Subsidiaries Guaranty. At any time after the execution and
delivery thereof, the Subsidiaries Guaranty or any provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor, or any
Subsidiary Guarantor or any Person acting by or on behalf of such Subsidiary
Guarantor shall deny or disaffirm such Subsidiary Guarantor's obligations under
the Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$5,000,000; or
10.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Lenders, shall by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its
claims against any Credit Party (provided that, if an Event of Default
specified in Section 10.05 shall occur with respect to the Borrower, the result
which would occur upon the giving of written notice by the Administrative Agent
as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without
any other notice of any kind; (ii) declare the principal of and any accrued
interest in respect of all Loans and the Notes and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; (iii) terminate any Letter
of Credit which may be terminated in accordance with its terms; (iv) direct the
Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
upon the occurrence of an Event of Default specified in Section 10.05 with
respect to the Borrower, it will pay) to the Collateral Agent at the Payment
Office such additional amount of cash or Cash Equivalents, to be held as
security by the Collateral Agent, as is equal to the aggregate Stated Amount of
all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Collateral Agent, all of the Liens and security
interests created pursuant to the Security Documents; and (vi) apply any cash
collateral held by the Administrative Agent pursuant to Section 4.02 to the
repayment of the Obligations.
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SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Acquired EBITDA" of any Acquired Entity or Business acquired pursuant
to a Permitted Acquisition shall mean the consolidated "EBITDA" of such
Acquired Entity or Business calculated on a basis consistent with the
calculation of Consolidated EBITDA under this Agreement and reasonably approved
by the Administrative Agent.
"Acquired Entity or Business" shall have the meaning provided in the
definition of "Permitted Acquisition."
"Acquisition" shall mean the Acquisition of DM Holdings by the
Borrower pursuant to the merger of Hugo Acquisition with and into DM Holdings
in accordance with the terms of the Acquisition Agreement.
"Acquisition Agreement" shall mean the Agreement and Plan of
Reorganization, dated as of May 28, 1999, among the Borrower, FDC, FD
Management, DM Holdings, DMHI and Donnelley, as amended from time to time in
accordance with the terms thereof and hereof, including the Disclosure
Schedules to such Acquisition Agreement.
"Acquisition Documents" shall mean the Acquisition Agreement, the
Consumer Database License Agreement, the Business Database License Agreement,
the Services Agreement, the Interim Services Agreement, the Hogan Database
License Agreement, the Hogan Option Agreement, the DecisionScope Services
Agreement, the Assignment and Marketing Agreement, the Covenant Not to Compete
and all other agreements and documents relating to the Acquisition.
"Additional Security Documents" shall have the meaning provided in
Section 8.12.
"Adjusted Consolidated Net Income" shall mean, for any period,
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense)
and net non-cash losses which were included in arriving at Consolidated Net
Income for such period, less the amount of all net non-cash gains and non-cash
credits which were included in arriving at Consolidated Net Income for such
period.
"Adjustment Factor" shall mean $12,400,000, which amount represents
the projected normalized cost saving adjustments to be achieved by the Borrower
as part of the Transaction.
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"Adjusted Consolidated Working Capital" shall mean, at any time,
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power (i)
to vote 10% or more of the securities having ordinary voting power for the
election of directors of such corporation or (ii) to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise; provided that
neither the Administrative Agent nor any Lender (nor any affiliate thereof)
shall be considered an Affiliate of the Borrower or any Subsidiary thereof.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Applicable Margin" shall mean: (a) with respect to Tranche A Term
Loans, Revolving Loans and Swingline Loans, from and after any Start Date to
and including the corresponding End Date, the respective percentage per annum
set forth below under the respective Type of Tranche A Term Loans, Revolving
Loans or Swingline Loans and opposite the respective Level (i.e., Level 1,
Level 2, Level 3 or Level 4, as the case may be) indicated to have been
achieved on the applicable Test Date for such Start Date (as shown on the
respective officer's certificate delivered pursuant to Section 8.01(f) or the
first proviso below):
<TABLE>
<CAPTION>
Tranche A Term Loans, Tranche A Term
Revolving Loans Loans and
and Swingline Loans Revolving Loans
Consolidated maintained as maintained as
Level Leverage Ratio Base Rate Loans Eurodollar Loans
----- -------------- --------------- ----------------
<S> <C> <C> <C>
1 Less than 2.25:1.00 1.25% 2.25%
2 Greater than or equal
to 2.25:1.00
but less than 3.00:1.00 1.50% 2.50%
</TABLE>
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<TABLE>
<S> <C> <C> <C>
3 Greater than or equal
to 3.00:1.00
but less than 3.75:1.00 1.75% 2.75%
4 Greater than or equal
to 3.75:1.00 2.00% 3.00%
</TABLE>
; provided, however, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(b) or (c)
(accompanied by the officer's certificate required to be delivered pursuant to
Section 8.01(f) showing the applicable Consolidated Leverage Ratio on the
relevant Test Date) on or prior to the respective date required by such
Sections, then Level 4 pricing shall apply until such time, if any, as the
financial statements required as set forth above and the accompanying officer's
certificate have been delivered showing the pricing for the respective Margin
Reduction Period is at a level which is less than Level 4 (it being understood
that, in the case of any late delivery of the financial statements and
officer's certificate as so required, the Applicable Margin, if any, shall
apply only from and after the date of the delivery of the complying financial
statements and officer's certificate); provided further, that Level 4 pricing
shall apply at any time when any Default or Event of Default is in existence.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence (other than the second proviso thereof), Level 3 pricing shall apply
for the period from the Initial Borrowing Date to but not including the date
which is the first Start Date after the Borrower's fiscal quarter ending on
December 31, 1999; and
(b) with respect to Tranche B Term Loans maintained as (i) Base Rate
Loans, a percentage per annum equal to 2.50%, and (ii) Eurodollar Loans, a
percentage per annum equal to 3.50%.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person (including by way of
redemption by such Person) other than to the Borrower or a Wholly-Owned
Subsidiary of the Borrower of any asset (including, without limitation, any
capital stock or other securities of, or equity interests in, another Person)
other than sales of assets pursuant to Sections 9.02(ii), (iii), (viii) and
(ix).
"Assignment and Assumption Agreement" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Assignment and Marketing Agreement" shall mean the Assignment and
Marketing Agreement, dated as of July 23, 1999, between First Data Resources
and Donnelley.
"B Lenders" shall have the meaning provided in Section 4.02(j).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean, at any time, the higher of (i) the Prime
Lending Rate at such time and (ii) 1/2 of 1% in excess of the Federal Funds
Rate at such time.
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"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
other Loan designated or deemed designated as such by the Borrower at the time
of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Lenders having Commitments of the respective Tranche (or
from the Swingline Lender in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case of
Eurodollar Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"Business Database License Agreement" shall mean the Database License
Agreement, dated as of July 23, 1999, between the Borrower and First Data
Resources.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall
be in New York, New York a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and
between banks in the New York interbank Eurodollar market.
"Calculation Period" shall have the meaning provided in Section
8.18(a).
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, (i) the
amount of Capitalized Lease Obligations incurred by such Person and (ii) the
amount of all consumer database costs and software development costs which are
capitalized.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations of such Person which, under generally accepted
accounting principles, are or will be required to be capitalized on the books
of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (ii) marketable direct obligations
issued by the District of Columbia or any state of the United States or any
political
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subdivision of the District of Columbia or any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Services or Moody's Investors
Service, Inc., (iii) Dollar denominated time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company having, a long-term unsecured debt rating
of at least "A" or the equivalent thereof from Standard & Poor's Ratings
Services or "A2" or the equivalent thereof from Moody's Investors Service, Inc.
with maturities of not more than one year from the date of acquisition by such
Person, (iv) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iii) above, (v)
commercial paper issued by any Person incorporated in the United States rated
at least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or
at least P-1 or the equivalent thereof by Moody's Investors Service, Inc. and
in each case maturing not more than one year after the date of acquisition by
such Person, (vi) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i)
through (v) above, and (vii) in the case of any Foreign Subsidiary, (A) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof) having maturities of not more than one year from the date of
acquisition or (B) obligations of the type and maturity described in clauses
(iii), (iv) or (v) above of foreign obligors, which obligations or obligors (or
the parents of such obligors) have ratings described in such clauses or
equivalent ratings from comparable foreign rating agencies.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) any Person or "group" (within the
meaning of Sections 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Effective Date), other than a Permitted Holder, shall (A) have
acquired beneficial ownership of 30% or more on a fully diluted basis of the
voting and/or economic interest in the Borrower's capital stock or (B) obtained
the power (whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall cease to consist
of a majority of Continuing Directors or (iii) any "change of control" under,
and as defined in, the Senior Subordinated Note Indenture shall occur.
"Change of Law" shall have the meaning provided in Section 10.06.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of
this Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
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"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant
to Section 4.02 or 10.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.05.
"Commitment" shall mean any of the commitments of any Lender, i.e.,
whether the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries at such time.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Subsidiaries at such
time, but excluding the current portion of any Indebtedness under this
Agreement and the current portion of any other long-term Indebtedness which
would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income for such period before consolidated interest expense of the Borrower and
its Subsidiaries and provision for taxes for such period and without giving
effect to (x) any extraordinary gains or losses and (y) any gains or losses
from sales of assets other than from sales of inventory sold in the ordinary
course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto (without duplication) (i) the
amount of all amortization of intangibles and depreciation that were deducted
in arriving at Consolidated EBIT for such period, (ii) the amount of all
expenses incurred in connection with the Transaction for such period to the
extent that same were deducted in arriving at Consolidated EBIT for such period
and (iii) the amount of all non-cash charges related to, and incurred in
connection with, a Permitted Acquisition during such period to the extent that
same were deducted in arriving at Consolidated EBIT for such period (but only
to the extent that neither the Borrower nor any of its Subsidiaries will be
required to make a cash payment in respect thereof in a future period); it
being understood that in determining the Consolidated Leverage Ratio only,
Consolidated EBITDA for any period shall be calculated on a Pro Forma Basis to
give effect to any Person or assets acquired during such period pursuant to a
Permitted Acquisition and not subsequently sold or otherwise disposed of by the
Borrower or any of its Subsidiaries during such period.
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"Consolidated Indebtedness" shall mean, at any time, the principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such time;
provided that for purposes of this definition, the amount of Indebtedness in
respect of Interest Rate Protection Agreements and Other Hedging Agreements
shall be at any time the unrealized net loss position, if any, of the Borrower
and/or its Subsidiaries thereunder on a marked-to-market basis determined no
more than one month prior to such time.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease Obligations of the
Borrower and its Subsidiaries representing the interest factor for such period;
provided that the amortization of deferred financing, legal and accounting
costs with respect to this Agreement shall be excluded from Consolidated
Interest Expense to the extent same would otherwise have been included therein.
"Consolidated Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness at such time to Consolidated EBITDA for the Test
Period then most recently ended.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis (after any deduction for minority interests), provided that
(i) in determining Consolidated Net Income, the net income of any other Person
which is not a Subsidiary of the Borrower or is accounted for by the Borrower
by the equity method of accounting shall be included only to the extent of the
payment of cash dividends or cash distributions by such other Person to the
Borrower or a Subsidiary thereof during such period, (ii) the net income of any
Subsidiary of the Borrower shall be excluded to the extent that the declaration
or payment of cash dividends or similar distributions by that Subsidiary of
that net income is not at the date of determination permitted by operation of
its charter or any agreement, instrument or law applicable to such Subsidiary
and (iii) the net income (or loss) of any other Person acquired by such
specified Person or a Subsidiary of such Person in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded.
"Consumer Database License Agreement" shall mean the Amended and
Restated Database License Agreement, dated as of July 23, 1999, between
Donnelley and First Data Resources.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or
intended to guarantee any Indebtedness, leases, dividends or other obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation
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or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the
Initial Borrowing Date and each other director if such director's nomination
for election to the Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors. "Covenant Not to Compete" shall
mean, collectively, (i) the Covenant Not to Compete, dated as of July 23, 1999,
by FDC in favor of the Borrower, and (ii) the Amended and Restated Covenant Not
to Compete, dated as of July 23, 1999, by Donnelley in favor of First Data
Resources.
"Credit Documents" shall mean this Agreement, the Disclosure Letter
and, after the execution and delivery thereof pursuant to the terms of this
Agreement, each Note, the Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
"DecisionScope Services Agreement" shall mean the DecisionScope
Services Agreement, dated as of July 23, 1999, between First Data Resources and
Donnelley.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Disclosure Letter" shall mean the Disclosure Letter of even date
herewith delivered by the Borrower to the Administrative Agent and the Lenders.
"Dividend" shall mean, with respect to any Person, that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or
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authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders, partners
or members as such, or redeemed, retired, purchased or otherwise acquired,
directly or indirectly, for a consideration any shares of any class of its
capital stock or any partnership or membership interests outstanding on or
after the Effective Date (or any options or warrants issued by such Person with
respect to its capital stock or other equity interests), or set aside any funds
for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock or any partnership or membership interests of
such Person outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock or other
equity interests). Without limiting the foregoing, "Dividends" with respect to
any Person shall also include all payments made or required to be made by such
Person with respect to any stock appreciation rights, plans, equity incentive
or achievement plans or any similar plans or setting aside of any funds for the
foregoing purposes.
"DMHI" shall mean Donnelley Marketing Holdings, Inc., a Delaware
corporation.
"DM Holdings" shall mean DM Holdings, Inc., a Delaware corporation.
"Documents" shall mean the Credit Documents and the Acquisition
Documents.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower that
is incorporated under the laws of the United States or any State thereof.
"Donnelley" shall mean Donnelley Marketing, Inc., a Delaware
corporation.
"Donnelley EBITDA" shall mean the actual "EBITDA" of Donnelley on a
stand-alone basis for the six-month period ended on June 30, 1999 as derived
from the audited June 30, 1999 six month financial statements of Donnelley
delivered pursuant to Section 8.01(j); provided, however, for purposes of
clause (i) of the proviso to the definition of "Test Period", "Donnelley
EBITDA" shall mean the actual "EBITDA" of Donnelley on a stand-alone basis for
the twelve month period ended on June 30, 1999.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund that
invests in loans or any other "accredited investor" (as defined in Regulation D
of the Securities Act), but in any event excluding the Borrower and its
Subsidiaries.
"Employee Benefit Plans" shall have the meaning provided in Section
5.05.
"Employment Agreements" shall have the meaning provided in Section
5.05.
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"End Date" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" (i) within the meaning of Section
414(b), (c), (m) or (o) of the Code or (ii) as a result of the Borrower or a
Subsidiary of the Borrower being or having been a general partner of such
person.
"Eurodollar Loan" shall mean each Loan (other than any Swingline Loan)
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to first-class
banks in the New York interbank Eurodollar market by BTCo for Dollar deposits
of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of BTCo with maturities comparable to
the Interest Period applicable to such Eurodollar Loan
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commencing two Business Days thereafter as of 11:00 A.M. (New York time) on the
date which is two Business Days prior to the commencement of such Interest
Period, divided (and rounded upward to the nearest 1/16 of 1%) by (b) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period and (ii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day
to the last day of such period, minus (b) the sum of (i) the aggregate amount
of all Capital Expenditures made by the Borrower and its Subsidiaries during
such period (other than Capital Expenditures to the extent financed with equity
proceeds, capital stock, Asset Sale proceeds, insurance proceeds or
Indebtedness), (ii) the aggregate amount of all Permitted Acquisitions made by
the Borrower and its Subsidiaries during such period (other than Permitted
Acquisitions to the extent financed with equity proceeds, capital stock, Asset
Sale proceeds, insurance proceeds or Indebtedness), (iii) the aggregate amount
of permanent principal payments of Indebtedness for borrowed money of the
Borrower and its Subsidiaries during such period (other than (A) repayments to
the extent made with Asset Sale proceeds, equity proceeds, capital stock,
insurance proceeds or Indebtedness and (B) repayments of Loans, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow if such
repayments were (x) required as a result of a Scheduled Repayment under Section
4.02(b) or (y) made as a voluntary prepayment with internally generated funds
(but in the case of a voluntary prepayment of Revolving Loans or Swingline
Loans, only to the extent accompanied by a voluntary reduction to the Total
Revolving Loan Commitment)) and (iv) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such period.
"Excess Cash Payment Date" shall mean the date occurring 100 days
after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending on December 31, 2000).
"Excess Cash Payment Period" shall mean, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal
year of the Borrower.
"Existing Indebtedness" shall have the meaning provided in Section
7.22.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.05.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"FDC" shall mean First Data Corporation, a Delaware corporation.
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"FD Management" shall mean First Data Information Management Group,
Inc., a Delaware corporation.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"First Data Resources" shall mean First Data Resources, Inc., a
Delaware corporation.
"First Data Technologies" shall mean First Data Technologies, Inc., a
Delaware corporation.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States by the Borrower or any one or more of its
Subsidiaries primarily for the benefit of employees of the Borrower or such
Subsidiaries residing outside the United States, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower which
is not a Domestic Subsidiary.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contains
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Hogan" shall mean Hogan Information Services, Inc., a Delaware
corporation.
"Hogan Database License Agreement" shall mean the Database License
Agreement, dated as of July 23, 1999, between Hogan and Donnelley.
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"Hogan Option" shall mean the option of the Borrower to acquire Hogan
in accordance with the terms and conditions of the Hogan Option Agreement.
"Hogan Option Agreement" shall mean the Option Agreement, dated as of
July 23, 1999, between the Borrower and FDC.
"Hugo Acquisition" shall mean Hugo Acquisition Corporation, a Delaware
corporation.
"Inactive Subsidiary" shall mean each of Direct Magi Inc. and DBA FL
Inc., each a New Jersey corporation and a Wholly-Owned Domestic Subsidiary of
the Borrower.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit, bankers' acceptances and similar obligations issued for the account of
such Person and all unpaid drawings in respect of such letters of credit,
bankers' acceptances and similar obligations, (iii) all Indebtedness of the
types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person (provided that, if the
Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount equal to the
fair market value of the property to which such Lien relates as determined in
good faith by such Person), (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
obligations of such Person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person, and (vii) all
obligations under any Interest Rate Protection Agreement, any Other Hedging
Agreement or under any similar type of agreement. Notwithstanding the
foregoing, Indebtedness shall not include trade payables and accrued expenses
incurred by any Person in accordance with customary practices and in the
ordinary course of business of such Person.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Borrower or any of its
Subsidiaries, including through third-party service providers, and which, in
whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their business.
"InfoSpace Stock" shall mean any and all shares of the capital stock
of InfoSpace.com Inc., a Delaware corporation.
"Initial Borrowing Date" shall mean the date occurring on or after the
Effective Date on which the initial Borrowing of Loans occurs.
"Intercompany Loan" shall mean each intercompany loan or advance
between or among the Borrower and its Subsidiaries or between or among
Subsidiaries of the Borrower.
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"Intercompany Note" shall mean a promissory note, in the form of
Exhibit L or in such other form as is reasonably acceptable to the
Administrative Agent, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Interim Services Agreement" shall mean the Transitional
Administrative Services Agreement, dated as of July 23, 1999, between FDC and
the Borrower.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Lender" shall mean BTCo.
"L/C Supportable Obligations" shall mean (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers compensation,
surety bonds and other similar statutory obligations and (ii) such other
obligations of the Borrower or any of its Subsidiaries as are reasonably
acceptable to the Issuing Lender and otherwise permitted to exist pursuant to
the terms of this Agreement (other than obligations in respect of the Senior
Subordinated Notes).
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I,
as well as any Person that becomes a "Lender" hereunder pursuant to Section
1.13 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.04(c) or (ii) a Lender having notified in
writing the Borrower and/or the Administrative Agent that such Lender does not
intend to comply with its obligations under Section 1.01(a), 1.01(b), 1.01(c),
1.01(e) or 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
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"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings in respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Revolving Loan and each Swingline Loan.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, as defined in, this
Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.05.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Reduction Period" shall mean each period which shall commence
on the date occurring after the Initial Borrowing Date upon which respective
officer's certificate is delivered pursuant to Section 8.01(f) and which shall
end on the date of actual delivery of the next officer's certificates pursuant
to section 8.01(f) or the latest date on which such next officer's certificate
is required to be so delivered.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the business, operations, properties, assets, liabilities, condition (financial
or otherwise) or prospects of (x) the Borrower or of the Borrower and its
Subsidiaries taken as a whole and (y) with respect to representations and
warranties made on the Initial Borrowing Date, also on Donnelley or (ii) a
material adverse effect (x) on the Transaction, (y) on the rights or remedies
of the Lenders or the Administrative Agent hereunder or under any other Credit
Document or (z) on the ability of any Credit Party to perform its obligations
to the Lenders or the Administrative Agent hereunder or under any other Credit
Document.
"Maturity Date" shall mean, with respect to any Tranche of Loans, the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.
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"Maximum Swingline Amount" shall mean $3,000,000.
"Minimum Borrowing Amount" shall mean (i) for Term Loans, $5,000,000,
(ii) for Revolving Loans, $500,000 and (iii) for Swingline Loans, $100,000.
"Mortgage" shall mean a mortgage, leasehold mortgage, deed of trust,
leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or
similar security instrument.
"Mortgaged Property" shall mean any Real Property owned or leased by
the Borrower or any Subsidiary Guarantor which is encumbered (or required to be
encumbered) by a Mortgage.
"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Equity Proceeds" shall mean, with respect to each issuance or
sale of any equity by any Person or any capital contribution to such Person,
the cash proceeds (net of underwriting discounts and commissions and other
reasonable costs associated therewith) received by such Person from the
respective sale or issuance of its equity or from the respective capital
contribution. The term "Net Equity Proceeds" also shall include the amount of
Net Debt Proceeds received by the Borrower from the issuance or incurrence of
Indebtedness for borrowed money under Section 9.04(xii) which is convertible
into shares of the Borrower's capital stock, although such Net Equity Proceeds
shall not be considered to be received by the Borrower until such conversion
occurs.
"Net Insurance Proceeds" shall mean, with respect to any Recovery
Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with such Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such sale of assets, net of the reasonable costs of such sale
(including fees and commissions, payments of unassumed liabilities relating to
the assets sold and required payments of any Indebtedness (other than
Indebtedness secured pursuant to the Security Documents) which is secured by
the respective assets which were sold), and the incremental taxes paid or
payable as a result of such Asset Sale.
"Non-Compete Agreements" shall have the meaning provided in Section
5.05.
"Non-Defaulting Lender" and "Non-Defaulting RL Lender" shall mean and
include each Lender or RL Lender, as the case may be, other than a Defaulting
Lender.
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"Note" shall mean each Tranche A Term Note, each Tranche B Term Note,
each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, 130 Liberty Street, New York, New York
10006, Attention: Jennifer Laino or such other office or person as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to the Administrative
Agent, the Collateral Agent, the Issuing Lender, the Swingline Lender or any
Lender pursuant to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, 130 Liberty Street, New York, New York
10006, or such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean the acquisition by the Borrower or
a Wholly-Owned Subsidiary thereof of assets constituting a business, division
or product line of any Person not already a Subsidiary of the Borrower or of
100% of the capital stock of any such Person (including way of merger), which
Person shall, as a result of such stock acquisition, become a Wholly-Owned
Subsidiary of the Borrower (or shall be merged with and into a Wholly-Owned
Subsidiary of the Borrower) (such assets or Person are referred to as an
"Acquired Entity or Business"), provided that (in each case) (A) the
consideration paid by the Borrower or such Wholly-Owned Subsidiary consists
solely of cash (including proceeds of Loans), the issuance or incurrence of
Indebtedness otherwise permitted by Section 9.04, the issuance of common stock
of the Borrower or Qualified Preferred Stock of the Borrower to the extent no
Default or Event of Default exists pursuant to Section 10.10 or would result
therefrom and the assumption/ acquisition of any Indebtedness (calculated at
face value) which is permitted to remain outstanding in accordance with the
requirements of Section 9.04, (B) in the case of the acquisition of 100% of the
capital stock of any Person (including way of merger), such Person shall own no
capital stock of any other Person (other de minimis amounts) unless either (x)
such Person owns 100% of the capital stock of such other Person or (y) (1) such
Person and/or its
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Wholly-Owned Subsidiaries own at least 80% of the consolidated assets of such
Person and its Subsidiaries and (2) any non-Wholly Owned Subsidiary of such
Person was non-Wholly Owned prior to the date of such Permitted Acquisition of
such Person, (C) the Acquired Entity or Business acquired pursuant to the
respective Permitted Acquisition is in a business permitted by Section 9.14 and
(D) all applicable requirements of Sections 8.18, 9.02 and 9.15 applicable to
Permitted Acquisitions are satisfied. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, an acquisition which does not
otherwise meet the requirements set forth above in the definition of "Permitted
Acquisition" shall constitute a Permitted Acquisition if, and to the extent,
the Required Lenders agree in writing that such acquisition shall constitute a
Permitted Acquisition for purposes of this Agreement.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the respective mortgage
title insurance policy delivered with respect thereto, all of which exceptions
must be acceptable to the Administrative Agent in its reasonable discretion.
"Permitted Holders" shall mean Vinod Gupta and his spouse, their
lineal descendants and adopted children and spouses of their lineal descendants
and adopted children, any foundation controlled by any of the foregoing
persons, any trusts for the benefit of any of the foregoing persons and any
Affiliates of the foregoing persons.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.09.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer. BTCo may make commercial loans or other loans at rates
of interest at, above or below the Prime Lending Rate.
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"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (x) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred (and the proceeds thereof applied) on the first
day of the relevant Calculation Period, (y) the permanent repayment of any
Indebtedness (other than revolving Indebtedness) after the first day of the
relevant Calculation Period as if such Indebtedness had been retired or
redeemed on the first day of the relevant Calculation Period and (z) the
Permitted Acquisition, if any, then being consummated as well as any other
Permitted Acquisition consummated after the first day of the relevant
Calculation Period and on or prior to the date of the respective Permitted
Acquisition then being effected, with the following rules to apply in
connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or
to finance Permitted Acquisitions) incurred or issued after the first day
of the relevant Calculation Period (whether incurred to finance a
Permitted Acquisition, to refinance Indebtedness or otherwise) shall be
deemed to have been incurred or issued (and the proceeds thereof applied)
on the first day of the respective Calculation Period and remain
outstanding through the date of determination and (y) (other than
revolving Indebtedness) permanently retired or redeemed after the first
day of the relevant Calculation Period shall be deemed to have been
retired or redeemed on the first day of the respective Calculation Period
and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the
rates which would have been applicable thereto during the respective
period when same was deemed outstanding, in the case of floating rate
Indebtedness (although interest expense with respect to any Indebtedness
for periods while same was actually outstanding during the respective
period shall be calculated using the actual rates applicable thereto while
same was actually outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Permitted Acquisition for the periods
described above, taking into account factually supportable and
identifiable cost savings and expenses which would otherwise be accounted
for as an adjustment pursuant to Article 11 of Regulation S-X under the
Securities Act, as if such cost savings or expenses were realized on the
first day of the respective period.
"Projections" shall mean the projections, dated June 22, 1999, which
were prepared by or on behalf of the Borrower in connection with the
Transaction and delivered to the Administrative Agent and the Lenders prior to
the Initial Borrowing Date.
"Qualified Preferred Stock" shall mean any preferred stock of the
Borrower so long as the terms of any such preferred stock (v) do not contain
any mandatory put, redemption,
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repayment, sinking fund or other similar provision, except upon the occurrence
of a change of control (the definition of which shall be no more restrictive
than that set forth in the Senior Subordinated Note Indenture) so long as the
terms thereof do not require any such redemption or other action unless (and
until) all Obligations have been paid in full and the Total Commitment and all
Letters of Credit have been terminated or the requisite consents under this
Agreement have been obtained to permit such redemption or other action, (w) do
not require the cash payment of dividends to the extent that the payment
thereof would not be permitted at such time pursuant to this Agreement, (x) do
not contain any operating or financial maintenance covenants, (y) do not grant
the holders thereof any voting rights (prior to the conversion into common
stock of the Borrower, if applicable) except for (I) voting rights required to
be granted to such holders under applicable law and (II) limited customary
voting rights on fundamental matters such as mergers, consolidations, sales of
all or substantially all of the assets of the Borrower, or liquidations
involving the Borrower, and (z) are otherwise reasonably satisfactory to the
Administrative Agent.
"Quarterly Payment Date" shall mean the last Business Day of each
December, March, June and September occurring after the Initial Borrowing Date,
commencing on September 30, 1999.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable (i)
by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
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"Release" shall mean the disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or
migrating, into or upon any land or water or air, or otherwise entering into
the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding
Swingline Loans and (y) Letter of Credit Outstandings) represent at least a
majority of the sum of (i) all outstanding Term Loans of Non-Defaulting Lenders
and (ii) the Total Revolving Loan Commitment less the Revolving Loan
Commitments of all Defaulting Lenders (or after the termination thereof, the
sum of the then total outstanding Revolving Loans of Non-Defaulting Lenders and
the aggregate RL Percentages of all Non-Defaulting Lenders of the total (x)
outstanding Swingline Loans and (y) Letter of Credit Outstandings at such
time).
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may be (x) reduced from time to
time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant to Section 1.13
or 13.04(b).
"Revolving Loan Maturity Date" shall mean June 30, 2004.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"RL Lender" shall mean each Lender with a Revolving Loan Commitment or
with outstanding Revolving Loans.
"RL Percentage" of any RL Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such RL Lender at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, provided that if the RL
Percentage of any RL Lender is to be determined after the Total Revolving Loan
Commitment has been terminated, then the RL Percentages of such RL Lender shall
be determined immediately prior (and without giving effect) to such
termination.
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"Scheduled Repayment" shall mean a Tranche A Term Loan Scheduled
Repayment or a Tranche B Term Loan Scheduled Repayment, as the case maybe.
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term in the
respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 5.10.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Document" shall mean and include each of the Security
Agreement, the Pledge Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Security Document.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Note Indenture, the Senior Subordinated Notes and each other
document or agreement relating to the issuance of the Senior Subordinated
Notes.
"Senior Subordinated Note Indenture" shall mean the Indenture, dated
as of June 18, 1998, by and between the Borrower and State Street Bank and
Trust Company of California, N.A., as trustee.
"Senior Subordinated Notes" shall mean the Borrower's 9-1/2% Senior
Subordinated Notes due 2008.
"Services Agreement" shall mean the Services Agreement, dated as of
July 23, 1999, between First Data Technologies and Donnelley.
"Shareholders' Agreements" shall have the meaning provided in Section
5.05.
"Start Date" shall mean, with respect to any Margin Reduction Period,
the first day of such Margin Reduction Period.
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"Stated Amount" of each Letter of Credit shall mean, at any time, the
maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.11.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary of the
Borrower (other than an Inactive Subsidiary) and, to the extent required by
Section 8.15, each Foreign Subsidiary of the Borrower.
"Supermajority Lenders" shall mean (i) in the case of references to
holders of Tranche A Term Loans, those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if (x)
all outstanding Obligations (other than those with respect to Tranche A Term
Loans) under this Agreement were repaid in full and all Commitments with
respect to such other Obligations were terminated and (y) the text "at least a
majority" contained in such definition were changed to "at least 66-2/3%" and
(ii) in cases where references are to holders of Tranche B Term Loans, those
Non-Defaulting Lenders which would constitute the Required Lenders under, and
as defined in, this Agreement if (x) all outstanding Obligations (other than
those relating to Tranche B Term Loans) under this Agreement were repaid in
full and all Commitments with respect to such other Obligations were terminated
and (y) the text "at least a majority" contained in such definition were
changed to "at least 66-2/3%".
"Swingline Expiry Date" shall mean that date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean BTCo.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean that date upon which the Administrative
Agent determines (and notifies the Borrower) that the primary syndication (and
resultant addition of Persons as Lenders pursuant to Section 13.04(b)) has been
completed.
"Tax Sharing Agreements" shall have the meaning provided in Section
5.05.
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"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each Tranche A Term Loan and each Tranche B
Term Loan.
"Test Date" shall mean, with respect to any Start Date, the last day
of the most recent fiscal quarter of the Borrower ended immediately prior to
such Start Date.
"Test Period" shall mean each period of four consecutive fiscal
quarters of the Borrower then last ended (in each case taken as one accounting
period); provided, however, for purposes of determining compliance with
Sections 9.08, 9.09 and 9.10 for any Test Period ending on or prior to June 30,
2000, the following rules shall apply:
(i) solely for purposes of determining compliance with
Section 9.09 for the period from the Initial Borrowing Date through
but not including September 30, 1999, Consolidated EBITDA shall be the
sum of (I) the actual Consolidated EBITDA of the Borrower and its
Subsidiaries for the nine-month period ended on June 30, 1999
multiplied by 4/3 (II) the Donnelley EBITDA for the twelve month
period ended on June 30, 1999 and (III) 100% of the Adjustment Factor;
(ii) Consolidated EBITDA for the Test Period ending on
September 30, 1999 shall be the sum of (I) the actual Consolidated
EBITDA of the Borrower and its Subsidiaries for the twelve-month
period ending on September 30, 1999, (II) the Donnelley EBITDA for the
six-month period ended on June 30, 1999 multiplied by 3/2, and (III)
100% of the Adjustment Factor;
(iii) Consolidated EBITDA for the Test Period ending on
December 31, 1999 shall be the sum of (I) the actual Consolidated
EBITDA of the Borrower and its Subsidiaries for the twelve-month
period ending on December 31, 1999, (II) the Donnelley EBITDA for the
six-month period ended on June 30, 1999 and (III) 75% of the
Adjustment Factor;
(iv) Consolidated EBITDA for the Test Period ending on March
31, 2000 shall be the sum of (I) the actual Consolidated EBITDA of the
Borrower and its Subsidiaries for the twelve-month period ending on
March 31, 2000, (II) the Donnelley EBITDA for the six-month period
ended on June 30, 1999 divided by 2 and (III) 50% of the Adjustment
Factor;
(v) Consolidated EBITDA for the Test Period ending on June
30, 2000 shall be the sum of (I) the actual Consolidated EBITDA of the
Borrower and its Subsidiaries for the twelve-month period ending on
June 30, 2000 and (II) 25% of the Adjustment Factor; and
(vi) Consolidated Interest Expense for any portion of a Test
Period ended prior to the Initial Borrowing Date shall be determined
on a basis consistent
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with the definition of "Pro Forma Basis" as if the Transaction had
occurred on October 1, 1998.
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Lenders.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Revolving Loan Commitments of each of the Lenders.
"Total Tranche A Term Loan Commitment" shall mean , at any time, the
sum of the Tranche A Term Loan Commitments of each of the Lenders at such time.
"Total Tranche B Term Loan Commitment" shall mean, at any time, the
sum of the Tranche B Term Loan Commitments of each of the Lenders at such time.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Revolving Loan Commitment
then in effect less (y) the sum of the aggregate principal amount of all
Revolving Loans and Swingline Loans then outstanding plus the then aggregate
amount of all Letter of Credit Outstandings.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being four separate Tranches, i.e.,
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and Swingline
Loans.
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name on Schedule I directly below the
column entitled "Tranche A Term Loan Commitment," as the same may be (x)
terminated pursuant to Sections 3.03 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant to Sections
1.13 and/or 13.04(b).
"Tranche A Term Loan Maturity Date" shall mean June 30, 2004.
"Tranche A Term Loan Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the aggregate
principal amount of all Tranche A Term Loans outstanding at such time and the
denominator of which is equal to the aggregate principal amount of all Term
Loans outstanding at such time.
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B Term Loan" shall have the meaning provided in Section
1.01(b).
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"Tranche B Term Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name on Schedule I directly below the
column entitled "Tranche B Term Loan Commitment," as the same may be (x)
terminated pursuant to Sections 3.03 and/or 10 or (y) adjusted from time to time
as a result of assignments to or from such Lender pursuant to Sections 1.13
and/or 13.04(b).
"Tranche B Term Loan Maturity Date" shall mean June 30, 2006.
Tranche B Term Loan Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the aggregate
principal amount of all Tranche B Term Loans outstanding at such time and the
denominator of which is equal to the aggregate principal amount of all Term
Loans outstanding at such time.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Transaction" shall mean, collectively, (i) the Acquisition, (ii) the
entering into of the Credit Documents and the incurrence of Loans on the
Initial Borrowing Date and (iii) the payment of all fees and expenses in
connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan determined on a plan termination basis in accordance with
actuarial assumptions at such time consistent with those prescribed by the PBGC
for purposes of Section 4044 of ERISA, exceeds the market value of all plan
assets allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contribution).
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Revolving Loan Commitment" shall mean, with respect to any
Lender at any time, such Lender's Revolving Loan Commitment at such time less
the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans made by such Lender at such time and (ii) such Lender's RL Percentage of
the Letter of Credit Outstandings at such time.
"Waivable Mandatory Repayment" shall have the meaning provided in
Section 4.02(j).
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"Wholly-Owned Domestic Subsidiary" shall mean each Domestic Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Foreign Subsidiary" shall mean each Foreign Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest
at such time.
"Year 2000 Compliant" shall mean that all of the Borrower's and its
Subsidiaries' Information Systems and Equipment accurately process date data
(including, but not limited to, calculating, comparing and sequencing) before,
during and after the year 2000, as well as same and multi-century dates, or
between the years 1999 and 2000, taking into account all leap years, including
the fact that the year 2000 is a leap year, and further, that when used in
combination with, or interfacing with, Information Systems and Equipment of any
other Person, shall accurately accept, release and exchange date data, and
shall in all material respects continue to function in the same manner as it
performs today and shall not otherwise impair the accuracy or functionality of
the Borrower's or any of its Subsidiaries' Information Systems and Equipment.
SECTION 12. The Administrative Agent
12.01 Appointment. The Lenders hereby irrevocably designate BTCo as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" also shall include BTCo in its capacity as Collateral Agent pursuant to
the Security Documents) to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on their behalf under the
provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of their respective duties hereunder by or
through its officers, directors, agents, employees or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents. Neither the Administrative Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for
any action taken or omitted by them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this
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Agreement or any other Credit Document a fiduciary relationship in respect of
any Lender or the holder of any Note; and nothing in this Agreement or in any
other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Administrative Agent any obligations in respect
of this Agreement or any other Credit Document except as expressly set forth
herein or therein.
12.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Lender and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower or any of its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the Borrower or any of its Subsidiaries or the existence
or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required
Lenders; and the Administrative Agent shall not incur liability to any Lender
by reason of so refraining. Without limiting the foregoing, neither any Lender
nor the holder of any Note shall have any right of action whatsoever against
the Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders.
12.05 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent.
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12.06 Indemnification. To the extent the Administrative Agent (or any
affiliate thereof) is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent (and any
affiliate thereof) in proportion to their respective "percentage" as used in
determining the Required Lenders (determined as if there were no Defaulting
Lenders) for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
12.07 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans, or issue or participate in Letters of
Credit, under this Agreement, the Administrative Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lender," "Required Lenders", "Majority Lenders," "Supermajority Lenders,"
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its respective
individual capacities. The Administrative Agent and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
investment banking, trust or other business with, or provide debt financing,
equity capital or other services (including financial advisory services) to,
any Credit Party or any Affiliate of any Credit Party (or any Person engaged in
a similar business with any Credit Party or any Affiliate thereof) as if they
were not performing the duties specified herein, and may accept fees and other
consideration from any Credit Party or any Affiliate of any Credit Party for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The Administrative
Agent may resign from the performance of all its respective functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Lenders. Such resignation shall
take effect upon the appointment of a successor Administrative Agent pursuant
to clauses (b) and (c) below or as otherwise provided below.
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(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder
or thereunder who shall be a commercial bank or trust company reasonably
acceptable to the Borrower which acceptance shall not be unreasonably withheld
or delayed (provided that the Borrower's approval shall not be required if an
Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed, provided that the Borrower's consent shall not be required if an Event
of Default then exists), shall then appoint a successor Administrative Agent
who shall serve as Administrative Agent hereunder or thereunder until such
time, if any, as the Required Lenders appoint a successor Administrative Agent
as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required
Lenders appoint a successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including,
without limitation, the reasonable fees and disbursements of White & Case LLP
and of the Administrative Agent's consultants) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and, after the occurrence of an
Event of Default, each of the Lenders in connection with the enforcement of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings
(including, in each case without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent and,
after the occurrence of an Event of Default, counsel for each of the Lenders);
(ii) pay and hold the Administrative Agent and each of the Lenders harmless
from and against any and all present and future stamp, excise and other similar
documentary taxes with respect to the foregoing matters and save the
Administrative Agent and each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to the Administrative Agent or such Lender) to
pay such taxes; and (iii) indemnify the Administrative Agent and each Lender,
and each of their respective officers, directors, employees, representatives,
agents, affiliates, trustees and
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investment advisors from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto and whether or not such
investigation, litigation or other proceeding is brought by or on behalf of any
Credit Party) related to the entering into and/or performance of this Agreement
or any other Credit Document or the use of any Letter of Credit or the proceeds
of any Loans hereunder or the consummation of the Transaction or any other
transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned, leased or at any time operated by the Borrower or any of
its Subsidiaries, the generation, storage, transportation, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries at any
location, whether or not owned, leased or operated by the Borrower or any of
its Subsidiaries, the non-compliance of any Real Property with foreign,
federal, state and local laws, regulations, and ordinances (including
applicable permits thereunder) applicable to any Real Property, or any
Environmental Claim asserted against the Borrower, any of its Subsidiaries or
any Real Property owned, leased or at any time operated by the Borrower or any
of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified (as determined by a court of competent jurisdiction in a
final and non-appealable decision)). To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent or any Lender set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, the Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent and each Lender is hereby authorized at any
time or from time to time, without presentment, demand, protest or other notice
of any kind to any Credit Party or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by the Administrative Agent or such Lender (including, without
limitation, by branches and agencies of such Lender wherever located) to or for
the credit or the account of any Credit Party against and on account of the
Obligations and liabilities of the Credit Parties to the Administrative Agent
or such Lender under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Lender pursuant to Section 13.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Lender shall have made any demand
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hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule II;
and if to the Administrative Agent, at the Notice Office; or, as to any Credit
Party or the Administrative Agent, at such other address as shall be designated
by such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a
written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telexed, telecopied, or
cabled or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
13.04 Benefit of Agreement; Assignments; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, the Borrower may not assign or transfer any of its rights, obligations
or interest hereunder without the prior written consent of the Lenders and,
provided further, that, although any Lender may transfer, assign or grant
participations in its rights hereunder, such Lender shall remain a "Lender" for
all purposes hereunder (and may not transfer or assign all or any portion of
its Commitments hereunder except as provided in Sections 1.13 and 13.04(b)) and
the transferee, assignee or participant, as the case may be, shall not
constitute a "Lender" hereunder and, provided further, that no Lender shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section
13.07(a) shall not constitute a reduction in the rate of interest or Fees
payable hereunder), or increase the amount of the participant's participation
over the amount thereof then in effect (it being understood that a waiver of
any Default or Event of Default or of a mandatory reduction in the Total
Commitment shall not constitute a change in the terms of such participation,
and that an increase in any Commitment (or the available portion thereof) or
Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans or Letters of Credit
hereunder in which such participant is participating. In the case of any such
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participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant's rights against such
Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its
Commitments and related outstanding Obligations (or, if the Commitments with
respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to (i) its parent company and/or any affiliate of such Lender which
is at least 50% owned by such Lender or its parent company or to one or more
Lenders or (ii) in the case of any Lender that is a fund that invests in loans,
any other fund that invests in loans and is managed or advised by the same
investment advisor of such Lender or by an Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least $5,000,000
in the aggregate for the assigning Lender or assigning Lenders, of such
Commitments and related outstanding Obligations (or, if the Commitments with
respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to one or more Eligible Transferees (treating any fund that invests
in loans and any other fund that invests in loans and is managed or advised by
the same investment advisor of such fund or by an Affiliate of such investment
advisor as a single Eligible Transferee), each of which assignees shall become
a party to this Agreement as a Lender by execution of an Assignment and
Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments and/or outstanding Loans, as the
case may be, of such new Lender and of the existing Lenders, (ii) upon the
surrender of the relevant Notes by the assigning Lender (or, upon such
assigning Lender's indemnifying the Borrower for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued, at the
Borrower's expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Loans, as the case may be, (iii) the consent of the Administrative
Agent and, so long as no Default or Event of Default then exists, the consent
of the Borrower, shall (in each case) be required in connection with any
assignment to an Eligible Transferee pursuant to clause (y) above (each of
which consents shall not be unreasonably withheld or delayed), (iv) the
Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Lender, the payment of a non-refundable assignment
fee of $3,500 and (v) no such transfer or assignment will be effective until
recorded by the Administrative Agent on the Register pursuant to Section 13.15.
To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Lender shall be relieved of its obligations hereunder with respect to
its assigned Commitments and outstanding Loans. At the time of each assignment
pursuant to this Section 13.04(b) to a Person which is not already a Lender
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall, to the extent legally entitled to do so,
provide to the Borrower the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Lender's Commitments
and related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of
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such assignment, result in increased costs under Section 1.10, 2.06 or 4.04
from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Lender which is a fund may
pledge all or any portion of its Loans and Notes to its trustee in support of
its obligations to its trustee. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Administrative Agent, the Collateral Agent, the Issuing Lender or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower or any other
Credit Party and the Administrative Agent, the Collateral Agent, the Issuing
Lender or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein or in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, the Issuing Lender or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Collateral Agent, the Issuing Lender or any Lender to
any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligation then owed
and due to such Lender bears to the total of such Obligation then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the
respective Credit Party to
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such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Lenders, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations; Accounting Terms. (a) The financial
statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lenders); provided that, except as otherwise specifically
provided herein, all computations of Excess Cash Flow, and all computations and
all definitions used in determining compliance with Sections 9.07 through 9.10,
inclusive, shall utilize accounting principles and policies in conformity with
those used to prepare the latest audited historical financial statements of the
Borrower referred to in Section 7.05(a).
(b) All computations of interest, Commitment Commission and other Fees
hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day; except that
in the case of Letter of Credit Fees, the last day shall be included) occurring
in the period for which such interest, Commitment Commission or Fees are
payable; provided that interest in respect of Base Rate Loans determined by
reference to the Prime Lending Rate shall be made on the basis of a year of 365
or 366 days, as the case may be, for the actual number of days occurring in the
period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN
THE CITY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER, AND AGREES
NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT
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DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURISDICTION OVER THE BORROWER. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND
HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which the Borrower, the Administrative Agent and each
of the Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Administrative
Agent at the Notice Office or, in the case of the Lenders, shall have given to
the Administrative Agent telephonic (confirmed in writing), written
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or telex notice (actually received) at such office that the same has been
signed and mailed to it. The Administrative Agent will give the Borrower and
each Lender prompt written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) (with Obligations being directly affected in the case of following
clause (i)), (i) extend the final scheduled maturity of any Loan or Note or
extend the stated expiration date of any Letter of Credit beyond the Revolving
Loan Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with the waiver of applicability
of any post-default increase in interest rates), or reduce the principal amount
thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 13.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i)), (ii) release all or substantially all of the Collateral (except as
expressly provided in the Credit Documents) under all the Security Documents,
(iii) amend, modify or waive any provision of this Section 13.12 (except for
technical amendments with respect to additional extensions of credit pursuant
to this Agreement which afford the protections to such additional extensions of
credit of the type provided to the Term Loans and the Revolving Loan
Commitments on the Effective Date), (iv) reduce the percentage specified in the
definition of Required Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Effective Date) or (v) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
or termination shall (1) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase of the Commitment of such Lender), (2) without the consent of the
Issuing Lender, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (3) without the
consent of the Swingline Lender, alter the Swingline Lender's rights or
obligations with respect to Swingline Loans, (4) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 12 or any
other provision as same relates to the rights or obligations of the
Administrative Agent, (5) without the consent of Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (6) except in cases where additional extensions of term loans
are being afforded substantially the
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<PAGE> 115
same treatment afforded to the Term Loans pursuant to this Agreement as
originally in effect, without the consent of the Majority Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below (or without the consent of
the Majority Lenders of each Tranche in the case of an amendment to the
definition of Majority Lenders), amend the definition of Majority Lenders or
alter the required application of any prepayments or repayments (or commitment
reduction), as between the various Tranches, pursuant to Section 4.01(a) or
4.02 (excluding Section 4.02(b)) (although the Required Lenders may waive, in
whole or in part, any such prepayment, repayment or commitment reduction, so
long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be
made is not altered), or (7) reduce the amount of, or extend the date of, any
Tranche A Term Loan Scheduled Repayment without the consent of Supermajority
Lenders holding Tranche A Term Loans, or reduce the amount, or extend the date
of, any Tranche B Term Loan Scheduled Repayment without the consent of the
Supermajority Lenders holding Tranche B Term Loans, or amend the definition of
Supermajority Lenders without the consent of the Supermajority Lenders holding
both Tranche A Term Loans and Tranche B Term Loans (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Supermajority Lenders on substantially the same basis as the extensions of Term
Loans and Revolving Loan Commitments are included on the Effective Date).
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A)
or (B) below, to either (A) replace each such non-consenting Lender or Lenders
with one or more Replacement Lenders pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Lenders consents to the
proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Lender's Commitments and/or repay each Tranche of outstanding
Loans of such Lender in accordance with Sections 3.02(b) and/or 4.01(b),
provided that, unless the Commitments that are terminated, and Loans repaid,
pursuant to preceding clause (B) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B) the Required Lenders (determined after giving effect to the proposed
action) shall specifically consent thereto, provided further, that in any event
the Borrower shall not have the right to replace a Lender, terminate its
Commitments or repay its Loans solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.
-114-
<PAGE> 116
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.06
or 4.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the
respective transfer).
13.15 Register. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.15, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Lender shall
surrender the Note (if any) evidencing such Loan, and thereupon one or more new
Notes in the same aggregate principal amount shall be issued to the assigning
or transferor Lender and/or the new Lender at the request of any such Lender.
The Borrower agrees to indemnify the Administrative Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature which may
be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of
this Section 13.16, each Lender agrees that it will use its reasonable efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Lender if such Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 13.16 to the same extent as
such Lender) any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Lenders in writing as confidential, provided that any Lender may disclose any
such information (i) as has become generally available to the public other than
by virtue of a breach of this Section 13.16(a) by the respective Lender, (ii)
as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body
-115-
<PAGE> 117
having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(iii) as may be required or appropriate in respect to any summons or subpoena
or in connection with any litigation, (iv) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (v) to the
Administrative Agent or the Collateral Agent and (vi) to any prospective or
actual transferee or participant in connection with any contemplated transfer
or participation of any of the Notes or Commitments or any interest therein by
such Lender, provided that such prospective transferee agrees to be bound by
the confidentiality provisions contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such
Lender any information related to the Borrower or any of its Subsidiaries
(including, without limitation, any non-public customer information regarding
the creditworthiness of the Borrower and its Subsidiaries), provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender.
13.17 Certain Agreements with respect to the Senior Subordinated
Notes. (a) The Borrower hereby (A) represents and warrants that (i)
$165,000,000 of Term Loans may be incurred under this Agreement on the Initial
Borrowing Date in reliance on the proviso to Section 4.12 of the Senior
Subordinated Note Indenture, and (ii) $30,000,000 of Revolving Loans, Swingline
Loans and Letters of Credit in the aggregate incurred pursuant to the Total
Revolving Loan Commitment as in effect on the Initial Borrowing Date may be
incurred and outstanding from time to time in reliance on clause (ii) of the
definition of "Permitted Indebtedness" contained in the Senior Subordinated
Note Indenture and (B) agrees that it will not take any position contrary to
the representations and warranties set forth in preceding clause (A).
(b) The Borrower hereby represents and warrants that this Agreement
constitutes the "Credit Facility" under, and as defined in, the Senior
Subordinated Note Indenture.
* * *
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<PAGE> 118
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
5711 South 86th Circle INFOUSA INC.
Omaha, Nebraska 68127
Attn: Chief Financial Officer
Telephone No.: (402) 593-4500 By
Telecopier No.: (402) 331-1505 --------------------------------------
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
--------------------------------------
Title:
<PAGE> 119
US BANK NATIONAL ASSOCIATION
By
--------------------------------------
Title:
<PAGE> 120
UNION BANK OF CALIFORNIA, N.A.
By
--------------------------------------
Title:
<PAGE> 121
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Tranche A Term Loan Tranche B Term Loan Revolving Loan
Lender Commitment Commitment Commitment
- ------ ------------------- ------------------- --------------
<S> <C> <C> <C>
Bankers Trust Company $40,197,369.00 $ 96,250,000.00 $18,552,631.00
US Bank National $17,105,263.00 $ 0 $ 7,894,737.00
Association
Union Bank of California, $ 7,697,368.00 $ 3,750,000.00 $ 3,552,632.00
N.A.
-------------- --------------- --------------
TOTAL: $65,000,000.00 $100,000,000.00 $30,000,000.00
</TABLE>
<PAGE> 122
SCHEDULE II
LENDER ADDRESSES
<TABLE>
<CAPTION>
Lender Address
- ------ -------
<S> <C>
Bankers Trust Company 130 Liberty Street
New York, New York 10006
Attn: Paddy Dowling
Tel. No.: (212) 250-1703
Fax No.: (212) 250-7218
Union Bank of California, N.A. 445 South Figueroa Street
18th Floor
Los Angeles, California 90071
Attn: Hagop V. Jazmadarian
Tel. No.: (213) 236-5562
Fax No.: (213) 236-7636
US Bank National Association 8800 West Center Road
Omaha, Nebraska 68124
Attn: Kevin Munro
Tel. No.: (402) 399-2728
Fax No.: (402) 399-2711
</TABLE>
<PAGE> 123
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Amount and Terms of Credit............................................................................1
1.01 The Commitments....................................................................................1
1.02 Minimum Amount of Each Borrowing...................................................................4
1.03 Notice of Borrowing................................................................................4
1.04 Disbursement of Funds..............................................................................5
1.05 Notes..............................................................................................6
1.06 Conversions........................................................................................7
1.07 Pro Rata Borrowings................................................................................8
1.08 Interest...........................................................................................8
1.09 Interest Periods...................................................................................9
1.10 Increased Costs, Illegality, etc..................................................................10
1.11 Compensation......................................................................................12
1.12 Change of Lending Office..........................................................................12
1.13 Replacement of Lenders............................................................................13
SECTION 2. Letters of Credit....................................................................................14
2.01 Letters of Credit.................................................................................14
2.02 Maximum Letter of Credit Outstandings; Final Maturities...........................................15
2.03 Letter of Credit Requests; Minimum Stated Amount..................................................15
2.04 Letter of Credit Participations...................................................................16
2.05 Agreement to Repay Letter of Credit Drawings......................................................17
2.06 Increased Costs...................................................................................18
SECTION 3. Commitment Commission; Fees; Reductions of Commitment................................................19
3.01 Fees..............................................................................................19
3.02 Voluntary Termination of Unutilized Revolving Loan Commitments....................................20
3.03 Mandatory Reduction of Commitments................................................................21
SECTION 4. Prepayments; Payments; Taxes.........................................................................21
4.01 Voluntary Prepayments.............................................................................21
4.02 Mandatory Repayments and Commitment Reductions....................................................22
4.03 Method and Place of Payment.......................................................................27
4.04 Net Payments......................................................................................28
SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date..................................30
5.01 Execution of Agreement; Disclosure Letter; Notes..................................................30
5.02 Officer's Certificate.............................................................................30
</TABLE>
(i)
<PAGE> 124
<TABLE>
<CAPTION>
Page
----
<S> <C>
5.03 Opinions of Counsel...............................................................................30
5.04 Corporate Documents; Proceedings; etc.............................................................30
5.05 Plans; Shareholders' Agreements; Management Agreements; Employment
Agreements; Non-Compete Agreements; Collective Bargaining
Agreements; Tax Sharing Agreements; Existing Indebtedness Agreements...........................31
5.06 Consummation of the Transaction...................................................................32
5.07 Adverse Change, etc...............................................................................32
5.08 Litigation........................................................................................33
5.09 Pledge Agreement..................................................................................33
5.10 Security Agreement................................................................................33
5.11 Subsidiaries Guaranty.............................................................................34
5.12 Financial Statements; Pro Forma Financial Statements; Projections.................................34
5.13 Solvency Certificate; Insurance Certificates......................................................34
5.14 Senior Subordinated Note Compliance...............................................................34
5.15 Fees, etc.........................................................................................34
SECTION 6. Conditions Precedent to All Credit Events............................................................34
6.01 No Default; Representations and Warranties........................................................35
6.02 Notice of Borrowing; Letter of Credit Request.....................................................35
SECTION 7. Representations, Warranties and Agreements...........................................................35
7.01 Organizational Status.............................................................................36
7.02 Power and Authority...............................................................................36
7.03 No Violation......................................................................................36
7.04 Approvals.........................................................................................36
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc..............37
7.06 Litigation........................................................................................39
7.07 True and Complete Disclosure......................................................................39
7.08 Use of Proceeds; Margin Regulations...............................................................39
7.09 Tax Returns and Payments..........................................................................39
7.10 Compliance with ERISA.............................................................................40
7.11 The Security Documents............................................................................41
7.12 Representations and Warranties in the Documents...................................................42
7.13 Properties........................................................................................42
7.14 Capitalization....................................................................................42
7.15 Subsidiaries......................................................................................42
7.16 Compliance with Statutes, etc.....................................................................42
7.17 Investment Company Act............................................................................43
7.18 Public Utility Holding Company Act................................................................43
7.19 Environmental Matters.............................................................................43
7.20 Labor Relations...................................................................................44
7.21 Patents, Licenses, Franchises and Formulas........................................................44
7.22 Indebtedness......................................................................................44
</TABLE>
(ii)
<PAGE> 125
<TABLE>
<CAPTION>
Page
----
<S> <C>
7.23 Transaction.......................................................................................44
7.24 Insurance.........................................................................................45
7.25 Year 2000.........................................................................................45
7.26 Senior Subordinated Notes.........................................................................45
SECTION 8. Affirmative Covenants................................................................................45
8.01 Information Covenants.............................................................................45
(a) Monthly Reports...........................................................................45
(b) Quarterly Financial Statements............................................................46
(c) Annual Financial Statements...............................................................46
(d) Management Letters........................................................................46
(e) Budgets...................................................................................46
(f) Officer's Certificates....................................................................47
(g) Notice of Default or Litigation...........................................................47
(h) Other Reports and Filings.................................................................47
(i) Environmental Matters.....................................................................47
(j) Certain Audited Financial Statements......................................................48
(k) Other Information.........................................................................48
8.02 Books, Records and Inspections; Annual Meetings...................................................48
8.03 Maintenance of Property; Insurance................................................................49
8.04 Existence; Franchises.............................................................................49
8.05 Compliance with Statutes, etc.....................................................................50
8.06 Compliance with Environmental Laws................................................................50
8.07 ERISA.............................................................................................51
8.08 End of Fiscal Years; Fiscal Quarters..............................................................52
8.09 Performance of Obligations........................................................................52
8.10 Payment of Taxes..................................................................................52
8.11 Interest Rate Protection..........................................................................52
8.12 Additional Security; Further Assurances...........................................................52
8.13 Information Systems and Equipment.................................................................53
8.14 Use of Proceeds...................................................................................54
8.15 Foreign Subsidiaries Security.....................................................................54
8.16 InfoSpace Stock...................................................................................54
8.17 Margin Stock......................................................................................54
8.18 Permitted Acquisitions............................................................................55
8.19 Certain Post-Closing Actions......................................................................56
SECTION 9. Negative Covenants...................................................................................56
9.01 Liens.............................................................................................56
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc............................................59
9.03 Dividends.........................................................................................61
9.04 Indebtedness......................................................................................62
9.05 Advances, Investments and Loans...................................................................63
9.06 Transactions with Affiliates......................................................................65
</TABLE>
(iii)
<PAGE> 126
<TABLE>
<CAPTION>
Page
----
<S> <C>
9.07 Capital Expenditures..............................................................................66
9.08 Consolidated Interest Coverage Ratio..............................................................67
9.09 Maximum Consolidated Leverage Ratio...............................................................68
9.10 Minimum Consolidated EBITDA.......................................................................68
9.11 Limitation on Voluntary Payments and Modifications of Certain
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements, etc..................................................................69
9.12 Limitation on Certain Restrictions on Subsidiaries................................................70
9.13 Limitation on Issuance of Capital Stock...........................................................70
9.14 Business..........................................................................................71
9.15 Limitation on Creation of Subsidiaries............................................................71
SECTION 10. Events of Default...................................................................................71
10.01 Payments.........................................................................................71
10.02 Representations, etc.............................................................................71
10.03 Covenants........................................................................................71
10.04 Default Under Other Agreements...................................................................72
10.05 Bankruptcy, etc..................................................................................72
10.06 ERISA............................................................................................72
10.07 Security Documents...............................................................................73
10.08 Subsidiaries Guaranty............................................................................73
10.09 Judgments........................................................................................73
10.10 Change of Control................................................................................74
SECTION 11. Definitions and Accounting Terms....................................................................74
11.01 Defined Terms....................................................................................74
SECTION 12. The Administrative Agent...........................................................................100
12.01 Appointment.....................................................................................100
12.02 Nature of Duties................................................................................100
12.03 Lack of Reliance on the Administrative Agent....................................................101
12.04 Certain Rights of the Administrative Agent......................................................101
12.05 Reliance........................................................................................101
12.06 Indemnification.................................................................................102
12.07 The Administrative Agent in its Individual Capacity.............................................102
12.08 Holders.........................................................................................102
12.09 Resignation by the Administrative Agent.........................................................102
SECTION 13. Miscellaneous......................................................................................103
13.01 Payment of Expenses, etc........................................................................103
13.02 Right of Setoff.................................................................................104
13.03 Notices.........................................................................................104
13.04 Benefit of Agreement; Assignments; Participations...............................................105
13.05 No Waiver; Remedies Cumulative..................................................................107
</TABLE>
(iv)
<PAGE> 127
<TABLE>
<CAPTION>
Page
----
<S> <C>
13.06 Payments Pro Rata...............................................................................107
13.07 Calculations; Computations; Accounting Terms....................................................108
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL..........................108
13.09 Counterparts....................................................................................109
13.10 Effectiveness...................................................................................109
13.11 Headings Descriptive............................................................................109
13.12 Amendment or Waiver; etc........................................................................109
13.13 Survival........................................................................................111
13.14 Domicile of Loans...............................................................................111
13.15 Register........................................................................................111
13.16 Confidentiality.................................................................................112
13.17 Certain Agreements with respect to the Senior Subordinated Notes................................113
</TABLE>
SCHEDULE I Commitments
SCHEDULE II Lender Addresses
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Tranche A Term Note
EXHIBIT B-2 Tranche B Term Note
EXHIBIT B-3 Revolving Note
EXHIBIT B-4 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Wilson Sonsini Goodrich & Rosati
EXHIBIT E-2 Opinion of Winthrop, Stimson, Putnam & Roberts
EXHIBIT F Officers' Certificate
EXHIBIT G Pledge Agreement
EXHIBIT H Security Agreement
EXHIBIT I Subsidiaries Guaranty
EXHIBIT J Solvency Certificate
EXHIBIT K Assignment and Assumption Agreement
EXHIBIT L Intercompany Note
EXHIBIT M Subordination Provisions
(v)
<PAGE> 1
EXHIBIT 2.4
LIST BRIEFLY IDENTIFYING THE CONTENTS OF ALL OMITTED SCHEDULES TO THE
CREDIT AGREEMENT
Defined terms used herein have the meaning attributed to them in the Credit
Agreement.
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit A - Notice of Borrowing: form of notice to be given by the
Borrower to request a Borrowing under the Credit Agreement.
Exhibit B-1 - Tranche A Term Note: form of promissory note evidencing
Borrower's obligation to pay principal of, and interest on,
the Tranche A Term Loans.
Exhibit B-2 - Tranche B Term Note: form of promissory note evidencing
Borrower's obligation to pay principal of, and interest on,
the Tranche B Term Loans.
Exhibit B-3 - Revolving Note: form of promissory note evidencing
Borrower's obligation to pay principal of, and interest on,
the Revolving Loans.
Exhibit B-4 - Swingline Note: form of promissory note evidencing
Borrower's obligation to pay principal of, and interest on,
the Swingline Loans.
Exhibit C - Letter of Credit Request: form of written notice to be given
by Borrower if it desires that a Letter of Credit be issued
for its account.
Exhibit D - Section 4.04(b)(ii) Certificate: form of a certificate to
be issued by a Lender certifying that it is not a "bank" as
such term is used in Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended.
Exhibit E-1 - Opinion of Wilson Sonsini Goodrich & Rosati: form of opinion
of Wilson Sonsini Goodrich & Rosati to be issued at the
closing.
Exhibit E-2 - Opinion of Winthrop, Stimson, Putnam & Roberts: form of
opinion of Winthrop, Stimson, Putnam & Roberts to be issued
at the closing.
Exhibit F - Officer's Certificate: form of a statement of an officer of
the Borrower certifying as to incumbency, certificate of
incorporation, by-laws, board resolutions and bring down of
the representations and warranties.
Exhibit G - Pledge Agreement: form of pledge agreement by and among the
Borrower, certain Subsidiaries and Bankers Trust Company as
Collateral Agent for the benefit of the Lenders whereby the
Borrower and such subsidiaries pledge the accounts to which
any collateral may be credited, securities, limited
liability company interests, partnership interests, security
entitlements, financial assets and all proceeds of the
foregoing owned by the Borrower or those subsidiaries from
time to time, to the Lenders.
</TABLE>
-7-
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit H - Security Agreement: form of security agreement by and among
the Borrower, certain Subsidiaries and Bankers Trust Company
as Collateral Agent for the benefit of the Lenders, whereby
the Borrower and such subsidiaries grant a security interest
in any receivables, contract and contract rights, inventory,
equipment, trademarks, patents, copyrights, computer
programs (including all intellectual property rights
therein) and all other proprietary information (including
trade secret rights), all other goods, general intangibles,
investment property, permits, chattel paper, documents,
instruments and other assets (including cash), cash
collateral accounts and all other bank accounts and all
proceeds of the foregoing, now existing or from time to time
acquired by the Borrower or those subsidiaries to Bankers
Trust Company for the benefit of the Lenders.
Exhibit I - Subsidiaries Guarantee: form of guarantee issued by certain
Subsidiaries to the Lenders whereby each such subsidiary
guarantees certain obligations of the Borrower under certain
Credit Documents.
Exhibit J - Solvency Certificate: form of certificate to be issued by
the Chief Financial Officer of the Borrower certifying
certain aspects of the Borrowers financial situation.
Exhibit K - Assignment and Assumption Agreement: form of agreement
whereby a Lender may assign its commitments and outstanding
loans to a replacement lender.
Exhibit L - Intercompany Note: form of promissory note to evidence
intercompany loans which may be made between or among the
Borrower or its Subsidiaries.
Exhibit M - Subordination Provisions: form of provisions providing that
a certain note of the undersigned payor to be attached to
the provisions are subordinated to any Senior Indebtedness
of such payor.
</TABLE>
-8-
<PAGE> 1
EXHIBIT 99.1
CONTACT:
VINOD GUPTA - Chairman & CEO
PHONE: (402)593-4511 o FAX: (402)339-0265
E-MAIL: [email protected]
LAUREL GOTTESMAN - Cameron Associates
PHONE: (212)245-8800 o FAX: (212)245-4165
E-MAIL: [email protected]
SHELLY VAUGHN - Director, Investor Relations
PHONE: (402)593-4511 o FAX: (402)339-0265
E-MAIL: [email protected]
infoUSA COMPLETES PURCHASE OF DONNELLEY MARKETING
FIRST DATA CORPORATION'S PRESIDENT AND COO JOINS infoUSA BOARD
(OMAHA, NE) -- infoUSA (NASDAQ: IUSAA) (NASDAQ: IUSAB) announced today that it
had completed its purchase of Donnelley Marketing, a division of First Data
Corporation (NYSE: FDC), for approximately $200 million in cash. Donnelley
Marketing has been in operation for over 75 years, and is a leading consumer
database and database marketing company with annual revenues of approximately
$90 million. The company also announced the appointment Charles Fote, president
and chief operating officer of First Data Corporation, to its board of
directors.
"Donnelley Marketing adds a new dimension to our existing business and enables
us to provide more products and services to our two million plus customers,"
stated Vinod Gupta, chairman and chief executive officer of infoUSA. "This
business combination has created one of the world's premier marketing
information and services companies, blending Donnelley's significant presence in
consumer database and database marketing operations with infoUSA's comprehensive
business database. The merger makes for an exciting opportunity to create
complete solutions that combine business and consumer content and database
marketing services for our customers."
Fote said, "This new relationship makes strategic sense for each of the
companies, and, most important, our clients." As part of the transaction, First
Data will become a major customer of infoUSA's. "Information continues to be an
important part of First Data's overall strategy to provide value-added services
to clients. By combining the complementary database services of Donnelley
Marketing with infoUSA, and developing a long-term partnership with infoUSA, we
are enhancing our access and ability to use information on our client's behalf,"
remarked Fote.
-9-
<PAGE> 2
InfoUSA, founded in 1972, is the leading provider of business and consumer
information products and database marketing services. The infoUSA databases
power the directory services of the top traffic-generating Internet sites
including InfoSpace (Nasdaq: INSP), Yahoo! (Nasdaq: YHOO), Microsoft (Nasdaq:
MSFT) and AOL (Nasdaq: AOL). The company has partnership agreements with several
Internet companies, including Mapquest.com (Nasdaq: MQST), DoubleClick (Nasdaq:
DCLK), Network Solutions (Nasdaq: NSOL), USWeb/CKS (Nasdaq: USWB), Dell (Nasdaq:
Dell) and Zip2 (a division of Compaq). Nearly two million customers use the
products and services for direct marketing, telemarketing, marketing planning,
lead generation, sales planning, customer analysis and credit reference.
Headquarters are located at 5711 South 86th Circle, PO Box 27347 Omaha, Neb.,
68127-0347. infoUSA Inc. can be contacted at (402)593-4500.
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