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EXHIBIT 10.10
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REVOLVING CREDIT AGREEMENT
dated as of July __, 1997
among
CHOICEPOINT INC.,
THE LENDERS LISTED HEREIN,
and
WACHOVIA BANK, N.A.
as Administrative Agent,
and
SUNTRUST BANK, ATLANTA
as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS; CONSTRUCTION......................................
Section 1.01. Definitions.............................................................
Section 1.02. Accounting Terms and Determination......................................
Section 1.03. Other Definitional Terms................................................
Section 1.04. Exhibits and Schedules..................................................
ARTICLE II. SYNDICATED LOANS, BID RATE LOANS
AND SWING LINE LOANS...........................................
Section 2.01. Description of Revolving Credit Facilities; Use of Proceeds.............
Section 2.02. Syndicated Loans........................................................
Section 2.03. Syndicated Notes; Repayment of Principal................................
Section 2.04. Voluntary Reduction of Syndicated Loan Commitments......................
Section 2.05. Bid Rate Loans..........................................................
Section 2.06. Swing Line Loans........................................................
Section 2.07. Increase of Syndicated Loan Commitments.................................
Section 2.08. Funding Notices.........................................................
ARTICLE III. GENERAL LOAN TERMS.............................................
Section 3.01. Disbursement of Funds...................................................
Section 3.02. Interest ...............................................................
Section 3.03. Interest Periods........................................................
Section 3.04. Fees ...............................................................
Section 3.05. Voluntary Prepayments of Borrowings.....................................
Section 3.06. Payments, etc...........................................................
Section 3.07. Interest Rate Not Ascertainable, etc....................................
Section 3.08. Illegality..............................................................
Section 3.09. Increased Costs.........................................................
Section 3.10. Lending Offices.........................................................
Section 3.11. Funding Losses..........................................................
Section 3.12. Assumptions Concerning Funding of Eurodollar Advances...................
Section 3.13. Apportionment of Payments...............................................
Section 3.14. Sharing of Payments, Etc................................................
Section 3.15. Benefits to Guarantors..................................................
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ARTICLE IV. CONDITIONS TO BORROWINGS.......................................
Section 4.01. Conditions Precedent to Initial Loans...................................
Section 4.02. Conditions to All Loans.................................................
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................
Section 5.01. Corporate Existence; Compliance with Law................................
Section 5.02. Corporate Power; Authorization..........................................
Section 5.03. Enforceable Obligations.................................................
Section 5.04. No Contractual or Legal Bar.............................................
Section 5.05. No Material Litigation or Investigations................................
Section 5.06. Investment Company Act, Etc.............................................
Section 5.07. Margin Regulations......................................................
Section 5.08. Compliance with Environmental Laws......................................
Section 5.09. Insurance...............................................................
Section 5.10. No Default..............................................................
Section 5.11. No Burdensome Restrictions..............................................
Section 5.12. Taxes ..................................................................
Section 5.13. Subsidiaries............................................................
Section 5.14. Financial Statements....................................................
Section 5.15. ERISA ..................................................................
Section 5.16. Possession of Franchises, Licenses, Etc.................................
Section 5.17. Patents, Trademarks, Licenses, Etc......................................
Section 5.18. Ownership of Property...................................................
Section 5.19. Financial Condition.....................................................
Section 5.20. Labor Matters...........................................................
Section 5.21. Payment or Dividend Restrictions........................................
Section 5.22. Outstanding Indebtedness ...............................................
Section 5.23. Disclosure..............................................................
ARTICLE VI. AFFIRMATIVE COVENANTS..........................................
Section 6.01. Corporate Existence, Etc................................................
Section 6.02. Compliance with Laws, Etc...............................................
Section 6.03. Payment of Taxes and Claims, Etc........................................
Section 6.04. Keeping of Books........................................................
Section 6.05. Visitation, Inspection, Etc.............................................
Section 6.06. Insurance; Maintenance of Properties....................................
Section 6.07. Reporting Covenants.....................................................
Section 6.08. Financial Covenants.....................................................
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Section 6.09. Additional Credit Parties...............................................
Section 6.10. Intellectual Property...................................................
ARTICLE VII. NEGATIVE COVENANTS.............................................
Section 7.01. Liens ...............................................................
Section 7.02. Guarantees..............................................................
Section 7.03. Mergers, Consolidations.................................................
Section 7.04. Asset Sales.............................................................
Section 7.05. Debt of Subsidiaries ...................................................
Section 7.06. Investments, Loans, Etc.................................................
Section 7.07. Sale and Leaseback Transactions.........................................
Section 7.08. Transactions with Affiliates............................................
Section 7.09. ERISA ...............................................................
Section 7.10. Additional Negative Pledges.............................................
Section 7.11. Changes in Business.....................................................
Section 7.12. Limitation on Payment Restrictions Affecting Consolidated
Companies...............................................................
Section 7.13. Actions Under Certain Documents.........................................
Section 7.14. Change in Fiscal Year...................................................
ARTICLE VIII. EVENTS OF DEFAULT..............................................
Section 8.01. Payments................................................................
Section 8.02. Covenants Without Notice................................................
Section 8.03. Other Covenants.........................................................
Section 8.04. Representations.........................................................
Section 8.05. Non-Payments of Other Indebtedness......................................
Section 8.06. Defaults Under Other Agreements.........................................
Section 8.07. Bankruptcy..............................................................
Section 8.08. Money Judgment..........................................................
Section 8.09. Change in Control of Borrower...........................................
Section 8.10. Default Under Other Credit Documents....................................
Section 8.11. Attachments.............................................................
ARTICLE IX. THE AGENTS.....................................................
Section 9.01. Appointment of Administrative Agent.....................................
Section 9.02. Appointment of Documentation Agent......................................
Section 9.03. Nature of Duties of Agents..............................................
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Section 9.04. Lack of Reliance on the Agents..........................................
Section 9.05. Certain Rights of the Agents............................................
Section 9.06. Reliance by the Agents..................................................
Section 9.07. Indemnification of the Agents...........................................
Section 9.08. The Agents in their Individual Capacities...............................
Section 9.09. Holders of Notes........................................................
Section 9.10. Successor Agents........................................................
ARTICLE X. MISCELLANEOUS..................................................
Section 10.01. Notices ...............................................................
Section 10.02. Amendments, Etc.........................................................
Section 10.03. No Waiver; Remedies Cumulative..........................................
Section 10.04. Payment of Expenses, Etc................................................
Section 10.05. Right of Setoff.........................................................
Section 10.06. Benefit of Agreement....................................................
Section 10.07. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.........
Section 10.08. Independent Nature of Lenders' Rights...................................
Section 10.09. Counterparts............................................................
Section 10.10. Effectiveness; Survival.................................................
Section 10.11. Severability............................................................
Section 10.12. Independence of Covenants...............................................
Section 10.13. Headings Descriptive; Entire Agreement..................................
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SCHEDULES
SCHEDULE 5.13 Organization and Ownership of Subsidiaries
SCHEDULE 5.22 Outstanding Indebtedness
SCHEDULE 7.01 Existing Liens
EXHIBITS
EXHIBIT A - Form of Syndicated Note
EXHIBIT B - Form of Bid Facility Note
EXHIBIT C - Form of Swing Line Note
EXHIBIT D - Bid Request
EXHIBIT E - Bid Request Invite
EXHIBIT F - Bid Rate Bid
EXHIBIT G - Bid Rate Accept/Reject Letter
EXHIBIT H - Form of Guaranty Agreement
EXHIBIT I - Form of Contribution Agreement
EXHIBIT J - Form of Closing Certificate
EXHIBIT K - Form of Opinion
EXHIBIT L - Form of Assignment and Acceptance Agreement
EXHIBIT M - Form of Compliance Certificate
EXHIBIT N - Information Sheet
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT made and entered into as of
July __, 1997, by and among CHOICEPOINT INC., a Georgia corporation
("Borrower"), WACHOVIA BANK, N.A., a national banking association ("Wachovia"),
SUNTRUST BANK, ATLANTA, a Georgia banking corporation ("SunTrust"), the other
banks and lending institutions listed on the signature pages hereof, and any
assignees of Wachovia, SunTrust, or such other banks and lending institutions
which become "Lenders" as provided herein (Wachovia, SunTrust, and such other
banks, lending institutions and assignees are referred to collectively herein as
the "Lenders"), WACHOVIA BANK, N.A., in its capacity as Administrative Agent for
the Lenders and each successor Administrative Agent for such Lenders as may be
appointed from time to time pursuant to Article IX hereof (the "Administrative
Agent"), and SUNTRUST BANK, ATLANTA, in its capacity as Documentation Agent for
the Lenders and each successor Documentation Agent for such Lenders as may be
appointed from time to time pursuant to Article IX hereof (the "Documentation
Agent");
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders extend to
Borrower a $250,000,000 revolving credit facility, and the Lenders are willing
to extend such revolving credit facility, on the terms and subject to the
conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Borrower, the Lenders, the Administrative
Agent and the Documentation Agent agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"Administrative Agent" shall mean Wachovia Bank, N.A., a
national banking association, and any successor Administrative Agent appointed
pursuant to Section 9.10.
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under (i) the Syndicated Loans, which Advances
shall be made or outstanding as Base Rate Advances or Eurodollar Advances, as
the case may be, (ii) the Bid Rate
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Loans, which Advances shall be made or outstanding as Bid Rate Advances, and
(iii) the Swing Line Loans, which Advances shall be made or outstanding as Swing
Rate Advances.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indi rectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agents" shall mean, collectively, the Administrative Agent
and the Documentation Agent.
"Agreement" shall mean this Revolving Credit Agreement, as
amended, modified, restated, or supplemented from time to time.
"Applicable Commitment Percentage" shall mean the percentage
designated on the chart set forth below based on Borrower's ratio of Funded Debt
to Consolidated EBITDA, measured quarterly, effective in the second fiscal
quarter immediately following the date of delivery of the Compliance Certificate
to the Administrative Agent:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO COMMITMENT PERCENTAGE
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Greater than 3.0:1.0 .20%
Less than or Equal to 3.0:1.0
and Greater than 2.5:1.0 .15%
Less than or Equal to 2.50:1.0
and Greater than 2.0:1.0 .125%
Less than or Equal to 2.0:1.0
but Greater than 1.5:1.0 .11%
Less than or Equal to 1.5:1.0
but Greater than 1.0:1.0 .10%
Less than or Equal to 1.0:1.0 .09%
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For purposes of the foregoing, (i) the Applicable Commitment Percentage on the
Closing Date is 0.11% and shall remain 0.11% through and including December 31,
1997 (By way of example, as of the first day of the fourth fiscal quarter of
Borrower, the Applicable Commitment Percentage shall be calculated based upon
the ratio of Funded Debt to Consolidated EBITDA of Borrower reported in the
Compliance Certificate delivered by the Borrower for the first fiscal quarter of
such fiscal year of Borrower.); and (ii) if the Borrower fails to provide the
Compliance Certificate and related financial statements required by Section 6.07
within the applicable time period set forth therein, the Applicable Commitment
Percentage shall be adjusted to .20% on the first day of the following fiscal
quarter until such Compliance Certificate and related financial statements are
delivered.
"Applicable Margin" shall mean the percentage designated on
the chart set forth below based on Borrower's ratio of Funded Debt to
Consolidated EBITDA, measured quarterly, effective in the second fiscal quarter
immediately following the date of delivery of the Compliance Certificate to the
Administrative Agent:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
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Greater than 3.0:1.0 0.45%
Less than or Equal to 3.0:1.0
and Greater than 2.5:1.0 0.375%
Less than or Equal to 2.5:1.0
and Greater than 2.0:1.0 0.275%
Less than or Equal to 2.0:1.0
and Greater than 1.5:1.00 0.24%
Less than or Equal to 1.5:1.0
but Greater than 1.0:1.0 0.20%
Less than or Equal to 1.0:1.0 0.16%
For purposes of the foregoing, (i) the Applicable Margin on the Closing Date is
0.24% and shall remain 0.24% through and including December 31, 1997 (By way of
example, as of the first day of the fourth fiscal quarter of Borrower, the
Applicable Margin shall be calculated based upon the ratio of Funded Debt to
Consolidated EBITDA of Borrower reported in the Compliance Certificate delivered
by the Borrower for the first fiscal quarter of such fiscal year of Borrower.);
and (ii) if the Borrower fails to provide the Compliance Certificate and related
financial
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statements required by Section 6.07 within the applicable time period set forth
therein, the Applicable Margin shall be adjusted to .45% on the first day of the
following fiscal quarter until such Compliance Certificate and related financial
statements are delivered.
"Arrangement Fee" shall mean the arrangement fee previously
agreed in writing by Borrower and the Documentation Agent.
"Asset Sale" shall mean any sale or other disposition (or a
series of related sales or other dispositions), including without limitation,
loss, damage, destruction or taking to the extent not covered by insurance, by
any Consolidated Company to any Person other than a Consolidated Company, of any
property or asset (including Capital Stock but excluding the issuance and sale
by Borrower of its own Capital Stock), other than sales or other dispositions
made in the ordinary course of business of any Consolidated Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of Exhibit L.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. ss. 101 et seq.).
"Base Rate" shall mean the higher of (with any change in the
Base Rate to be effective as of the date of change of either of the following
rates):
(a) the rate which the Administrative Agent so
denominates and sets from time to time to be its prime lending rate, as
in effect from time to time, and
(b) the Federal Funds Rate, as in effect from time to
time, plus one-half of one percent (0.50%) per annum.
The Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers; the
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding
as (i) a Syndicated Loan bearing interest based on the Base Rate or (ii) an
Advance bearing interest at the rate agreed upon between Borrower and the
Lenders pursuant to Section 3.07, Section 3.08 or Section 3.09.
"Bid Accept/Reject Letter" shall mean a notification made by
Borrower pursuant to Section 2.07 substantially in the form of Exhibit G.
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"Bid Facility Note" shall mean a promissory note of Borrower
payable to the order of any Lender, in substantially the form of Exhibit B
hereto, evidencing the maximum aggregate principal indebtedness of Borrower to
such Lender with respect to outstanding Bid Rate Advances made by such Lender
pursuant to this Agreement, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Bid Rate" shall mean, as to any Bid Rate Bid made by a
Syndicated Lender pursuant to Section 2.07, the fixed rate of interest per annum
offered by the Lender making the Bid Rate Bid for the relevant Interest Period.
"Bid Rate Advance" shall mean an Advance made by a Syndicated
Lender to Borrower pursuant to the bidding procedure described in Section 2.07.
"Bid Rate Bid" shall mean an offer by a Lender to make a Bid
Rate Loan pursuant to Section 2.07.
"Bid Rate Facility" shall mean the credit facility being made
available by the Syndicated Lenders to Borrower as described in Section 2.07.
"Bid Rate Loan" shall mean a Borrowing made up of Advances by
all of those Lenders whose Bid Rate Bids have been accepted by Borrower pursuant
to the same Bid Request under the bidding procedure described in Section 2.07
for the same Interest Period and interest rate (with the understanding that two
Bid Rate Loans may be made pursuant to a single Bid Request).
"Bid Request" shall mean a request made by Borrower pursuant
to Section 2.07 substantially in the form of Exhibit D.
"Borrower" shall mean ChoicePoint Inc., a Georgia corporation,
and its successors.
"Borrowing" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest Period or
the continuation or conversion of an existing Borrowing or Borrowings in whole
or in part.
"Business Day" shall mean any day which is neither a Saturday
or Sunday nor a legal holiday on which banks are required or authorized to close
in Atlanta, Georgia.
"Capital Stock" shall mean, with respect to any Person, all
capital stock of such Person, whether voting or nonvoting, including common
stock and preferred stock of such Person.
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"CDB/Infotek" shall mean CDB/Infotek, a California
corporation.
"Change in Control Provision" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Borrower evidencing debt or a commitment
to extend loans in excess of $5,000,000 which requires, or permits the holder(s)
of such Indebtedness of Borrower to require that such Indebtedness of Borrower
be redeemed, repurchased, defeased, prepaid or repaid, either in whole or in
part, or the maturity of such Indebtedness of Borrower to be accelerated in any
respect, as a result of a change in ownership of the Capital Stock of Borrower
or voting rights with respect thereto.
"Closing Date" shall mean the date on or before July __, 1997
on which the initial Loans are made or deemed to have been made hereunder and
the conditions set forth in Section 4.01 are satisfied or waived in accordance
with Section 10.02.
"Commitment" shall mean (i) for any Syndicated Lender at any
time, its Syndicated Loan Commitment, and (ii) for the Swing Line Lender at any
time, its Swing Line Commitment, in each case as the context may require.
"Compliance Certificate" shall have the meaning set forth in
Section 6.07(c).
"Consolidated Companies" shall mean, collectively, Borrower
and all of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of
Borrower, an amount equal to (A) the sum for such fiscal period of Consolidated
Net Income (Loss) and, to the extent deducted in determining such Consolidated
Net Income (Loss), provisions for (i) taxes based on income and (ii)
Consolidated Interest Expense, minus (B) any items of gain (or plus any items of
loss) which were included in determining such Consolidated Net Income (Loss) and
were (x) not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (y) the result of any sale of assets, or (z)
resulting from minority investments, together in the case of (x), (y) or (z),
any related provision for taxes included in Consolidated Net Income (Loss) with
respect thereto, plus (C) non-recurring non-cash charges, including without
limitation, accruals related to any acquisition and earnouts incurred in
connection with any acquisition to the extent not paid in cash.
"Consolidated EBITDA" shall mean, for any four fiscal-quarter
period of Borrower, an amount equal to the sum of (A) Consolidated EBIT plus (B)
depreciation and amortization expense to the extent deducted in determining
Consolidated Net Income (Loss), plus (C) without duplication, the sum of the
following items to the extent not included in Consolidated EBITDA for such
period:
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(1) the net income (or net loss) for such four fiscal-quarter
period of any Person which became a Subsidiary during such period (a
"New Subsidiary");
(2) the net income (or net loss) derived during such four
fiscal-quarter period from any assets acquired by any Consolidated
Company during such period ("New Assets");
(3) the sum of (x) taxes based on income, (y) Consolidated
Interest Expense and (z) depreciation and amortization expense, in each
case to the extent deducted in determining net income of any New
Subsidiary or derived from any New Assets during such four
fiscal-quarter period, minus any items of gain (or plus any items of
loss) which were included in determining such net income and were (aa)
not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (bb) the result of any sale of
assets, or (cc) resulting from minority investments, together in the
case of (aa), (bb) or (cc), any related provision for taxes included in
such net income with respect thereto; and
(4) non-recurring non-cash charges of any New Subsidiary or
derived from any New Assets during such four fiscal-quarter period,
including without limitation, accruals related to any acquisition and
earnouts incurred in connection with any acquisition to the extent not
paid in cash.
"Consolidated EBITR" shall mean, for any fiscal period of
Borrower, an amount equal to the sum of Consolidated EBIT plus Consolidated
Rental Expense for such period.
"Consolidated Fixed Charges" shall mean, for any fiscal period
of Borrower, the sum of (A) Consolidated Interest Expense, plus (B) Consolidated
Rental Expense, plus (C) dividends and distributions on Capital Stock paid in
cash during such fiscal period by Borrower or any other Consolidated Company,
but excluding the one-time dividend paid by Borrower to Equifax as of the
Spin-Off Date and any repurchases of Capital Stock of Borrower made on a non-pro
rata basis.
"Consolidated Interest Expense" shall mean, for any fiscal
period of Borrower, total interest expense of the Consolidated Companies
(including without limitation, interest expense attributable to capitalized
leases in accordance with GAAP, all commissions, discounts and other fees and
charges owed with respect to bankers acceptance financing, and total interest
expense (whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of the Consolidated Companies for
such period (taken as a single
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accounting period), but excluding therefrom (to the extent otherwise included
therein) the income of any Consolidated Company to the extent that the
declaration or payment of dividends or similar distributions by such
Consolidated Company of that income is not at the time permitted by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation; provided that the foregoing exclusion
shall not apply to CDB/Infotek so long as there is at least $1 of outstanding
intercompany debt owed by CDB/Infotek to another Consolidated Company.
"Consolidated Net Worth" shall mean, as of any date of
determination, shareholders' equity of Borrower, determined on a consolidated
basis in conformity with GAAP.
"Consolidated Rental Expense" shall mean, for any fiscal
period of Borrower, the operating lease expense of the Consolidated Companies
determined in accordance with GAAP for leases with an initial term greater than
one year, as disclosed in the notes to Borrower's consolidated financial
statements of the Consolidated Companies, determined on a consolidated basis in
accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"Credit Documents" shall mean, collectively, this Agreement,
the Notes, the Guaranty Agreements, and all other documents, instruments,
certificates and opinions executed and delivered in connection with the
foregoing.
"Credit Parties" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who from time to time executes a
supplement to the Guaranty Agreements with respect to all or any portion of the
Obligations.
"Default" shall mean any condition or event which, with notice
or lapse of time or both, would constitute an Event of Default.
"Documentation Agent" shall mean SunTrust Bank, Atlanta, a
Georgia banking corporation, and any successor Documentation Agent appointed
pursuant to Section 9.10 hereof.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"Environmental Laws" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health and
safety, relating to (i) emissions,
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discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance, petroleum including crude
oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law into the environment (including
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law, and (iii) underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom, such Environmental
Laws to include, without limitation (i) the Clean Air Act (42 U.S.C. ss. 7401 et
seq.), (ii) the Clean Water Act (33 U.S.C. ss. 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. ss. 9601 et seq.), and
(vi) all applicable national and local laws or regulations with respect to
environmental control (including applicable laws of the Federal Republic of
Germany or any applicable international agreements).
"Equifax" shall mean Equifax Inc., a Georgia corporation.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group of
which that Person is a member and which is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding
as a Syndicated Loan bearing interest based on LIBOR.
"Eurodollar Business Day" shall mean a Business Day on which
trading is carried on by and between banks in deposits of Dollars in the London
interbank market.
"Eurodollar Reserve Percentage" shall mean, for any Bank which
is a member bank of the Federal Reserve System, on any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement for such Bank in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Advances is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to the United States
residents).
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"Event of Default" shall have the meaning provided in Article
VIII.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean, with respect to any Person,
Chief Executive Officer, President, Chief Financial Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer and any Person holding
comparable offices or duties.
"Facility" or "Facilities" shall mean the credit facilities
made available to the Borrower pursuant to the Syndicated Loan Commitments, the
Swing Line Commitment, and the Bid Rate Facility, as the context may indicate.
"Facility Fee" shall have the meaning assigned to such term in
Section 3.04.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, 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.
"Fixed Charge Coverage Ratio" shall mean, as of the last day
of any fiscal quarter of Borrower, the ratio of (A) Consolidated EBITR to (B)
Consolidated Fixed Charges, in each case calculated with respect to the
immediately preceding four fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or arrangement
maintained by any Foreign Subsidiary which, under applicable local law, is
required to be funded through a trust or other funding vehicle, but shall not
include any benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company that
is organized under the laws of a jurisdiction other than the United States of
America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized leases,
outstandings under asset securitization vehicles, conditional sales contracts
and similar title retention debt instruments, including any current maturities
of the foregoing, which by its terms matures more than one year from the date of
any calculation thereof or which is renewable or extendable at the option of the
obligor to a date beyond one year from such date. The calculation of Funded Debt
shall include
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(i) all Funded Debt of the Consolidated Companies, plus (ii) all Funded Debt of
other Persons to the extent guaranteed by a Consolidated Company, to the extent
supported by a letter of credit issued for the account of a Consolidated
Company, or as to which and to the extent which a Consolidated Company or its
assets otherwise have become liable for payment thereof, plus (iii) the
redemption amount with respect to the stock of the Borrower required to be
redeemed during the next succeeding twelve months at the option of the holder or
its Subsidiaries. Notwithstanding the foregoing, "Funded Debt" shall exclude the
Lease Documents and all operating lease obligations.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, _______________________
and all other Material Subsidiaries formed, acquired or existing after the
Closing Date, but excluding (i) all Foreign Subsidiaries and (ii) CDB/Infotek so
long as it is not directly or indirectly wholly owned by other Consolidated
Companies. [TO BE PROVIDED BY CHOICEPOINT]
"Guaranty" shall mean any contractual obligation, contingent
or otherwise, of a Person with respect to any Indebtedness or other obligation
or liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreements" shall mean, collectively, (i) the
Guaranty Agreement, dated as of even date herewith, executed by each of the
Guarantors in favor of the Lenders and the Agents, substantially in the form of
Exhibit H, as the same may be amended, restated or supplemented from time to
time and (ii) the Contribution Agreement, dated as of even date herewith,
executed by each of the Guarantors and the Borrower in favor of the Lenders and
the
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Agents, substantially in the form of Exhibit I, as the same may be amended,
restated or supple mented from time to time.
"Hazardous Substances" shall have the meaning assigned to that
term in the Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986.
"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all rental obligations under leases required
to be capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof to the extent required to be disclosed in such Person's
financial statements in accordance with GAAP.
"Information Sheet" shall mean the Information Sheet attached
hereto as Exhibit N.
"Interest Period" shall mean (i) as to any Eurodollar
Advances, the interest period selected by Borrower pursuant to Section 3.03(a),
(ii) as to any Bid Rate Advances, the interest period requested by Borrower and
agreed to by the participating Lenders pursuant to Section 3.03(b), and (iii) as
to any Swing Rate Advances, the interest period requested by Borrower and agreed
to by the Swing Line Lender pursuant to Section 2.08(c).
"Investment" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, Capital Stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person. Each Investment shall be valued as of the date made; provided
that any Investment or portion of an Investment consisting of Debt shall be
valued at the outstanding principal balance thereof as of the date of
determination.
"Lease Documents" shall mean, collectively, (i) that certain
Lease Agreement, dated as of ____________, by and between Borrower as lessee and
SunTrust Banks, Inc., as lessor, pursuant to which the Borrower has leased its
office building, (ii) that certain Master Agreement, dated as of __________, by
and among Borrower as lessee, SunTrust Banks, Inc., as
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lessor and SunTrust Bank, Atlanta, as Agent, and (iii) all other documents,
instruments and agreements executed in connection therewith.
"Lender" or "Lenders" shall mean SunTrust, Wachovia the other
banks and lending institutions listed on the signature pages hereof, and each
assignee thereof, if any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the
Administrative Agent with respect to each Type of Loan.
"LIBOR" shall mean, for any Interest Period, with respect to
Eurodollar Advances under the Syndicated Loan Commitments, the offered rate for
deposits in Dollars, for a period comparable to the Interest Period and in an
amount comparable to the Administrative Agent's portion of such Advances,
appearing on Telerate Page 3750 as of 11:00 AM (London, England time) on the day
that is two Eurodollar Business Days prior to the first day of the Interest
Period. If two or more of such rates appear on such Telerate Page, the rate
shall be the arithmetic mean of such rates. If the foregoing rate is unavailable
from Telerate for any reason, then such rate shall be determined by the
Administrative Agent from the Reuters Screen LIBO Page or, if such rate is also
unavailable on such service, then on any other interest rate reporting service
of recognized standing designated in writing by the Administrative Agent to
Borrower and the other Lenders; in any such case rounded, if necessary, to the
next higher 1/100 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest,
lien, charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title retention
agreement.
"Loans" shall mean, collectively, the Syndicated Loans, the
Bid Rate Loans and the Swing Line Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
"Margin Stock" shall have the meaning set forth in the Margin
Regulations.
"Materially Adverse Effect" shall mean any materially adverse
change in (i) the business, assets, liabilities, financial condition or results
of operations of the Consolidated Companies, taken as a whole, (ii) the ability
of Borrower to perform its obligations under this
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Agreement, or (iii) the ability of the other Credit Parties (taken as a whole)
to perform their respective obligations under the Credit Documents.
"Material Subsidiary" shall mean each Subsidiary of Borrower,
now existing or hereafter established or acquired, that at any time prior to the
Maturity Date (i) has or acquires assets which constitute fifteen percent (15%)
or more of the Total Assets or (ii) accounts for or produces fifteen percent
(15%) or more of Consolidated EBITDA during the most recently completed fiscal
year of Borrower.
"Maturity Date" shall mean the earlier of (i) July __, 2002,
and (ii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically be come due and payable pursuant to the
provisions of Article VIII.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Syndicated Notes, the
Bid Facility Notes and the Swing Line Note.
"Notice of Borrowing" shall have the meaning provided in
Section 2.06(a).
"Notice of Continuation/Conversion" shall have the meaning
provided in Section 2.08(b).
"Obligations" shall mean all amounts owing to either Agent or
any Lender pursuant to the terms of this Agreement or any other Credit Document,
including without limitation, all Loans (including all principal and interest
payments due thereunder), fees, expenses, indemnification and reimbursement
payments, indebtedness, liabilities, and obligations of the Credit Parties,
direct or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"Payment Office" shall mean the office specified as the
"Payment Office" for the Administrative Agent on the signature page of the
Administrative Agent, or such other location as to which the Administrative
Agent shall have given written notice to Borrower and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted
by Section 7.01.
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"Person" shall mean any individual, limited liability company,
partnership, firm, corporation, association, joint venture, trust or other
entity, or any government or political subdivision or agency, department or
instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits, but shall exclude any Foreign Plan.
"Pro Rata Share" shall mean, with respect to each of the
Syndicated Loan Commitments of each Syndicated Lender and each Syndicated Loan
to be made by and each payment (including, without limitation, any payment of
principal, interest or fees) to be made to each such Lender, the percentage
designated as such Lender's Pro Rata Share of such Commitments, such Loans or
such payments, as applicable, set forth under the name of such Lender on the
respective signature page for such Lender, as such percentage may change based
upon amendments, assignments or reductions made pursuant to this Agreement.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Required Lenders" shall mean at any time prior to the
termination of the Syndicated Loan Commitments, Lenders holding at least 60% of
the then aggregate amount of the Syndicated Loan Commitments, or, following the
termination of the Syndicated Loan Commitments hereunder, Lenders holding at
least 60% of the sum of the aggregate outstanding Syndicated Loans.
"Requirement of Law" for any person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reuters Screen" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuters Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Solvent" shall mean, as to Borrower or any Guarantor at any
time, that (i) each of the fair value and the present fair saleable value of
such Person's assets (including any rights of subrogation or contribution to
which such Person is entitled, under any of the Loan
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Documents or otherwise) is greater than such Person's debts and other
liabilities (including contingent, unma tured and unliquidated debts and
liabilities) and the maximum estimated amount required to pay such debts and
liabilities as such debts and liabilities mature or otherwise become payable;
(ii) such Person is able and expects to be able to pay its debts and other
liabilities (including, without limitation, contingent, unmatured and
unliquidated debts and liabilities) as they mature; and (iii) such Person does
not have unreasonably small capital to carry on its business as conducted and as
proposed to be conducted.
"SpinOff" shall mean the spinoff of stock of the Borrower by
Equifax to shareholders of Equifax.
"SpinOff Date" shall mean the date on which the SpinOff is
consummated.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"Swing Line Advance" shall mean a Borrowing pursuant to
Section 2.08 consisting of a Swing Line Loan made by the Swing Line Lender to
Borrower on the same date and interest rate basis.
"Swing Line Borrowing" shall mean a Borrowing consisting or to
consist of a Swing Line Advance.
"Swing Line Borrowing Notice" shall mean the notice given by
Borrower to the Administrative Agent requesting a Swing Line Advance as provided
in Section 2.08(c).
"Swing Line Commitment" shall mean the commitment of the Swing
Line Lender to make Swing Line Loans in an aggregate principal amount at any
time outstanding not to exceed $10,000,000.
"Swing Line Facility" shall mean the credit facility described
in Section 2.08.
"Swing Line Lender" shall mean Wachovia or any successor
Lender extending to Borrower the Swing Line Commitment hereunder.
"Swing Line Loans" shall mean, collectively, the loans made to
Borrower by the Swing Line Lender pursuant to Section 2.08.
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"Swing Line Note" shall mean the promissory note evidencing
the Swing Line Loans substantially in the form of Exhibit C and duly completed
in accordance with the terms hereof.
"Swing Rate" shall mean the rate of interest specified by the
Swing Line Lender to Borrower as being applicable to a Swing Line Loan requested
by Borrower pursuant to Section 2.08(c).
"Swing Rate Advance" shall mean an Advance made or outstanding
as a Swing Line Loan bearing interest based on the Swing Rate as provided in
Section 3.02.
"Swing Rate Quote" shall mean an offer by the Swing Line
Lender to make a Swing Line Loan to Borrower at the Swing Rate specified therein
for the interest period to be applicable to the Swing Line Loan as specified
therein, pursuant to Section 2.08(c).
"Syndicated Advance" shall mean a Borrowing pursuant to
Section 2.02 consisting of the aggregate amount of Syndicated Loans made by the
Syndicated Lenders to Borrower at the same time, on the same interest rate basis
and, if made as a Eurodollar Advance, for the same Interest Period.
"Syndicated Borrowing" shall mean a Borrowing consisting or to
consist of a Syndicated Advance.
"Syndicated Facility" shall mean the credit facility made
available by the Syndicated Lenders to Borrower as described in Section 2.02(a).
"Syndicated Lenders" shall mean, collectively, the Lenders
extending the Syndicated Loan Commitments to Borrower pursuant to Section
2.02(a).
"Syndicated Loan Commitments" shall mean, at any time for any
Syndicated Lender, the amount of such commitment set forth opposite such
Syndicated Lender's name on the signature pages of this Agreement, as the same
may be increased or decreased from time to time as a result of any reduction
thereof pursuant to Section 2.04, any assignment thereof pursuant to Section
10.06, or any amendment thereof pursuant to Section 10.02.
"Syndicated Loans" shall mean, collectively, the loans made to
Borrower by the Syndicated Lenders pursuant to Section 2.02.
"Syndicated Notes" shall mean, collectively, the promissory
notes evidencing the Syndicated Loans in the form attached hereto as Exhibit A
duly completed in accordance with the terms hereof, either as originally
executed or as hereafter amended, modified or substituted.
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"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or any
state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Dow ▇▇▇▇▇
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the Consolidated
Companies, determined in accordance with GAAP.
"Type" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances, Eurodollar Advances, Bid Rate Advances and Swing Rate Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, all financial
statements required to be delivered hereunder shall be prepared, and all
financial records shall be maintained in accordance with, GAAP, except that
financial records of Foreign Subsidiaries may be maintained in accordance with
generally accepted accounting principles in effect from time to time in the
jurisdiction of organization of such Foreign Subsidiary; provided, however, that
compliance with the financial covenants and calculations set forth in Section
6.08, Article VII and elsewhere herein, and in the definitions used in such
covenants and calculations, shall be calculated, made and applied in accordance
with GAAP and such generally accepted accounting principles in such foreign
jurisdictions, as the case may be, as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the financial statements
referred to in Section 5.14 unless and until Borrower and the Required Lenders
enter into an agreement with respect thereto in accordance with Section 10.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule, Exhibit and like references are
to this Agreement unless otherwise specified. Any of the terms defined in
Section 1.01 may, unless the context otherwise requires, be used in the singular
or the plural depending on the reference.
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SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II.
SYNDICATED LOANS, BID RATE LOANS AND SWING LINE LOANS
SECTION 2.01. DESCRIPTION OF REVOLVING CREDIT FACILITIES; USE
OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set
forth, (i) the Syndicated Lenders hereby establish in favor of Borrower a
revolving credit facility pursuant to which such Syndicated Lenders agree to
make Syndicated Loans to Borrower in accordance with Section 2.02, (ii) each
Syndicated Lender may, in its sole discretion, submit bids to make Bid Rate
Loans to Borrower in accordance with Section 2.07 and (iii) the Swing Line
Lender hereby establishes in favor of Borrower a swing line credit facility
pursuant to which the Swing Line Lender agrees to make Swing Line Loans to
Borrower in accordance with Section 2.08 provided, however, that (i) in no event
may the aggregate principal amount of all outstanding Loans exceed at any time
the total Syndicated Loan Commitments from time to time in effect and (ii) in no
event shall the outstanding principal amount of the Syndicated Loans of each
Syndicated Lender exceed each Syndicated Lender's Pro Rata Share of the
Syndicated Loan Commitments.
(b) The proceeds of the Syndicated Loans, the Bid Rate Loans
and the Swing Line Loans shall be used as working capital and for other general
corporate purposes of Borrower and its Consolidated Subsidiaries, including
without limitation, acquisitions of the assets of, or the Capital Stock of, any
other Person.
(c) At no time shall the number of outstanding Borrowings
comprised of Eurodollar Advances and Bid Rate Advances exceed eight.
SECTION 2.02. SYNDICATED LOANS.
(a) Subject to and upon the terms and conditions herein set
forth (including the limitation set forth in Section 2.01), each Syndicated
Lender severally agrees to make to Borrower, from time to time on and after the
Closing Date, but prior to the Maturity Date, Syndicated Loans in an aggregate
principal amount outstanding at any time not to exceed an amount equal to such
Syndicated Lender's Syndicated Loan Commitment. Borrower shall be entitled to
repay and reborrow Syndicated Loans in accordance with the provisions, and
subject to the limitations, set forth herein (including the limitation set forth
in Section 2.01).
(b) Each Syndicated Loan shall, at the option of Borrower, be
made or continued as, or converted into, part of one or more Borrowings that
shall consist entirely of Base
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Rate Advances or Eurodollar Advances. The aggregate principal amount of each
Borrowing of Syndicated Loans shall be not less than $5,000,000 or a greater
integral multiple of $500,000, provided that each Borrowing of Syndicated Loans
comprised of Base Rate Advances shall be not less than $1,000,000 or a greater
integral multiple of $100,000.
SECTION 2.03. SYNDICATED NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Syndicated Loans to each Syndicated Lender shall be evidenced
by the records of the Administrative Agent and such Lender and by the Syndicated
Note payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(b) All outstanding principal amounts under the Syndicated
Loan Commitments shall be due and payable in full on the Maturity Date.
SECTION 2.04. VOLUNTARY REDUCTION OF SYNDICATED LOAN
COMMITMENTS. Upon at least three (3) Business Days' prior written notice
(promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to terminate the unutilized Syndicated
Loan Commitments, in part or in whole, provided that (i) any such termination
shall apply to proportionately and permanently reduce the Syndicated Loan
Commitments of each of the Syndicated Lenders, and (ii) any partial termination
pursuant to this Section 2.03 shall be in an amount of at least $5,000,000 and
integral multiples of $1,000,000. Any portion of the Syndicated Loan Commitments
terminated pursuant to this Section 2.04 may not be reinstated.
SECTION 2.05. INCREASE OF SYNDICATED LOAN COMMITMENTS.
(a) Borrower may, at any time by written notice to the
Syndicated Lenders, request that the Syndicated Loan Commitments be increased up
to an amount not to exceed $300,000,000 in the aggregate (the "Requested
Commitment Amount") on a pro rata basis based on the Pro Rata Shares of the
Syndicated Lenders. No Syndicated Lender (or any successor thereto) shall have
any obligation to increase its Syndicated Loan Commitment or its other
obligations under this Agreement and the other Credit Documents, and any
decision by a Syndicated Lender to increase its Syndicated Loan Commitment shall
be made in its sole discretion independently from any other Syndicated Lender or
the Agents. Within fifteen (15) Business Days from each Syndicated Lender's
receipt of such request from the Borrower, each Syndicated Lender shall notify
the Documentation Agent in writing of whether or not it will agree to increase
its Syndicated Loan Commitment and by what amount it will agree to increase its
Syndicated Loan Commitment, up to its Pro Rata Share of the Requested Commitment
Amount.
(b) In the event that the aggregate amount to which the
Syndicated Lenders are willing to increase their Syndicated Loan Commitments is
less than the Requested
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Commitment Amount based on the written notices delivered by the Syndicated
Lenders to the Documentation Agent, the Documentation Agent shall first offer to
the Syndicated Lenders who have agreed to increase their Syndicated Loan
Commitments the opportunity to further increase their Syndicated Loan
Commitments up to an amount equal to the Requested Commitment Amount. Such
Syndicated Lenders shall promptly respond in writing to the Documentation Agent
of whether or not it will agree to further increase its Syndicated Loan
Commitment and by what amount it will agree to further increase its Syndicated
Loan Commitment. Within five (5) Business Days after receipt of all responses
from such Syndicated Lenders, the Documentation Agent shall inform the Borrower
and all Syndicated Lenders in writing of the amount by which each Syndicated
Lender will increase its Syndicated Loan Commitment.
(c) In the event that the aggregate amount to which the
Syndicated Lenders are willing to increase their Syndicated Loan Commitments is
less than the Requested Commitment Amount based on the notice from the
Documentation Agent to the Borrower and all Syndicated Lenders, the Borrower
shall have the right, within sixty days (60) after receipt of such notice from
the Documentation Agent, to obtain commitments from new banks or financial
institutions in an aggregate amount such that the existing Syndicated Loan
Commitments, plus the aggregate principal amount by which the Syndicated Lenders
are willing to increase their Syndicated Loan Commitments, plus the aggregate
principal amount of the new commitments by the new banks or financial
institutions does not exceed the Requested Commitment Amount; provided, however,
that (1) the new banks or financial institutions must be acceptable to the
Agents in their sole discretion, which acceptance will not be unreasonably
withheld or delayed, and (2) the new banks or financial institutions must become
parties to this Agreement pursuant to a joinder agreement in form and substance
satisfactory to the Agents and the Required Lenders, pursuant to which (x) they
shall be granted all of the rights that existing Lenders have under this
Agreement and the other Credit Documents and (y) they shall assume the same
liabilities and obligations that the existing Lenders have under this Agreement.
SECTION 2.06. SYNDICATED LOAN FUNDING NOTICES.
(a) Whenever Borrower desires to obtain a Syndicated Loan with
respect to the Syndicated Loan Commitments (other than one resulting from a
conversion or continuation pursuant to Section 2.06(b)), it shall give the
Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of Borrowing"), such Notice
of Borrowing to be given prior to 11:00 AM (Atlanta, Georgia time) at its
Payment Office (x) three Eurodollar Business Days prior to the requested date of
such Borrowing in the case of Eurodollar Advances, and (y) on the date of such
Borrowing (which shall be a Business Day) in the case of a Borrowing consisting
of Base
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Rate Advances. Notices received after 11:00 AM shall be deemed received on the
next Business Day. Each Notice of Borrowing shall be irrevocable and shall
specify the aggregate principal amount of the Borrowing, the date of Borrowing
(which shall be a Business Day), and whether the Borrowing is to consist of Base
Rate Advances or Eurodollar Advances and (in the case of Eurodollar Advances)
the interest period to be applicable thereto.
(b) Whenever Borrower desires to convert all or a portion of
an outstanding Borrowing under the Syndicated Loan Commitments, consisting of
Base Rate Advances into one or more Borrowings consisting of Eurodollar
Advances, or to continue outstanding a Borrowing consisting of Eurodollar
Advances for a new Interest Period, it shall give the Administrative Agent at
least three Eurodollar Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each such Borrowing to be converted into or
continued as Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 AM (Atlanta, Georgia
time) on the date specified at the Payment Office of the Administrative Agent.
Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the Advances are
being converted into or continued as Eurodollar Advances and the Interest Period
applicable thereto. If, upon the expiration of any Interest Period in respect of
any Borrowing, Borrower shall have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long
as any Default or Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon expiration of the current
Interest Period) Eurodollar Advances unless the Administrative Agent and each of
the Syndicated Lenders shall have otherwise consented in writing. No conversion
of any Borrowing of Eurodollar Advances shall be permitted except on the last
day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Administrative Agent may act
without liability upon the basis of telephonic notice believed by the
Administrative Agent in good faith to be from Borrower prior to receipt of
written confirmation. In each such case, Borrower hereby waives the right to
dispute the Administrative Agent's records of the terms of such telephonic
notice, absent manifest error.
(d) The Administrative Agent shall promptly give each
Syndicated Lender notice by telephone (confirmed in writing) or by telex,
telecopy or facsimile transmission of the matters covered by the notices given
to the Administrative Agent pursuant to this Section 2.06 with respect to the
Syndicated Loan Commitments.
SECTION 2.07. BID RATE LOANS. Subject to and upon the terms
and conditions herein set forth (including the limitation set forth in Section
2.01), Borrower may request, and each Syndicated Lender, in its sole discretion,
may agree to make, Bid Rate Advances in accordance with the following procedure:
(a) In order to request Bid Rate Bids, Borrower shall telecopy
to the Administrative Agent a duly completed Bid Request in the form of Exhibit
D attached hereto
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(which may request not more than two Bid Rate Bids), to be received by the
Administrative Agent not later than 11:00 A.M. (Atlanta, Georgia time) at least
one Business Day prior to the Business Day of the proposed Bid Rate Loan or
Loans; provided that, such Bid Request shall not be deemed to have been received
by the Administrative Agent in a timely manner unless Borrower shall also have
notified the Administrative Agent by telephone (excluding voice mail
notification) of such Bid Request by the time specified above. A Bid Request
that does not conform substantially to the format of Exhibit D may be rejected
in the Administrative Agent's sole discretion, and the Administrative Agent
shall notify Borrower of such rejection by telecopy not later than 12:00 Noon
(Atlanta, Georgia time) on the date of receipt. Such request shall in each case
refer to this Agreement and specify (i) the date of such Borrowing or Borrowings
(which shall be a Business Day) and (ii) the aggregate principal amount thereof
which shall be in a minimum principal amount of $5,000,000 and in an integral
multiple of $500,000, and (iii) the Interest Period with respect thereto.
Promptly after its receipt of a Bid Request that is not rejected as aforesaid,
the Administrative Agent shall invite by telecopy (substantially in the form set
forth in Exhibit E attached hereto) the Syndicated Lenders to bid, on the terms
and conditions of this Agreement, to make Bid Rate Advances pursuant to the Bid
Request.
(b) Each Syndicated Lender may, in its sole discretion, make
one or more Bid Rate Bids (but not more than two) to Borrower responsive to a
Bid Request. Each Bid Rate Bid by a Syndicated Lender must be received by the
Administrative Agent via telecopy, substan tially in the form of Exhibit F
attached hereto, not later than 12:00 Noon (Atlanta, Georgia time) one Business
Day prior to the Business Day of the proposed Bid Rate Loan. Multiple bids (not
to exceed two per Syndicated Lender) will be accepted by the Administrative
Agent. Bid Rate Bids that do not conform substantially to the format of Exhibit
F may be rejected by the Administrative Agent acting in consultation with
Borrower, and the Administrative Agent shall notify the Syndicated Lender making
such nonconforming bid of such rejection as soon as practicable. Each Bid Rate
Bid shall refer to this Agreement and specify (i) the principal amount (which
shall be in a minimum principal amount of $5,000,000 and in an integral multiple
of $500,000 and which may equal the entire principal amount of the Bid Rate Loan
requested by Borrower) of the Bid Rate Advance or Advances that the Syndicated
Lender is willing to make to Borrower, (ii) the Bid Rate or Rates at which the
Syndicated Lender is prepared to make the Bid Rate Advance or Advances, and
(iii) the Interest Period and the last day thereof. If any Syndicated Lender
shall elect not to make a Bid Rate Bid, such Syndicated Lender shall so notify
the Administrative Agent via telecopy by the time specified above for submitting
a Bid Rate Bid; provided, however, that failure by any Syndicated Lender to give
such notice shall not cause such Syndicated Lender to be obligated to make any
Bid Rate Advance as part of such Bid Rate Loan. A Bid Rate Bid submit ▇▇▇ by a
Syndicated Lender pursuant to this paragraph (b) shall be irrevocable (absent
manifest error).
(c) The Administrative Agent shall promptly notify Borrower by
telecopy of all the Bid Rate Bids made, the Bid Rate and the principal amount of
each Bid Rate Advance in respect of which a Bid Rate Bid was made and the
identity of the Syndicated Lender that made
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each bid. The Administrative Agent shall send a copy of all Bid Rate Bids to
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.07.
(d) Borrower may, in its sole and absolute discretion, subject
only to the provisions of this paragraph (d), accept or reject any Bid Rate Bid
referred to in paragraph (c) above. Borrower shall notify the Administrative
Agent by telephone, confirmed by telecopy in the form of a Reject Letter,
whether and to what extent it has decided to accept or reject any of or all the
bids referred to in paragraph (c) above not later than 1:00 P.M. (Atlanta,
Georgia time) on the Business Day of the proposed Bid Rate Loan; provided,
however, that (i) the failure by Borrower to give such notice shall be deemed to
be a rejection of all the bids referred to in paragraph (c) above, (ii) Borrower
shall not accept a bid made at a particular Bid Rate if Borrower has decided to
reject a bid made at a lower Bid Rate, and if two or more Syndicated Lenders
have bid the same Bid Rate, the Borrower shall accept all bids made at such Bid
Rate, subject to allocation on a pro rata basis, if necessary, pursuant to
clause (iv) below, (iii) the aggregate amount of the Bid Rate Bids accepted by
Borrower shall not exceed the principal amount specified in the Bid Request,
(iv) if Borrower shall accept a bid or bids made at a particular Bid Rate but
the amount of such bid or bids shall cause the total amount of bids to be
accepted by Borrower to exceed the amount specified in the Bid Request, then
Borrower shall accept a portion of such bid or bids in an amount equal to the
amount specified in the Bid Request less the amount of all other Bid Rate Bids
accepted with respect to such Bid Request, which acceptance, in the case of
multiple bids at the same Bid Rate, shall be made pro rata in accordance with
the amount of each such bid at such Bid Rate, and (v) except pursuant to clause
(iv) above, no bid shall be accepted for a Bid Rate Loan unless such Bid Rate
Loan is in a minimum principal amount of $5,000,000 and an integral multiple of
$500,000; provided further, however, that if a Bid Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) above, such Bid
Loan may be for a minimum of $500,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $500,000 in a manner which shall be in the discretion of
Borrower. A notice given by Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Syndicated Lender whether or not its Bid Rate Bid has been accepted (and
if so, in what amount and at what Bid Rate) and shall notify each Syndicated
Lender as to the amount, Interest Period and Bid Rate of each Bid Rate Bid
accepted by Borrower by telecopy sent by the Administrative Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Bid Rate Loan in respect of which its bid has
been accepted.
(f) Borrower shall not submit a Bid Request more than twice in
any seven day period.
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(g) If the Administrative Agent shall elect to submit a Bid
Rate Bid in its capacity as a Syndicated Lender, it shall submit such bid
directly to Borrower one half of an hour earlier than the earliest time at which
the other Syndicated Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) The Bid Rate Advances of each Syndicated Lender shall be
evidenced by its Bid Facility Note and shall be due and payable in full on the
Maturity Date unless sooner accelerated pursuant to Article VIII hereof.
SECTION 2.08. SWING LINE LOANS.
(a) Subject to and upon the terms and conditions herein set
forth (including the limitation set forth in Section 2.01), the Swing Line
Lender agrees to make to Borrower, from time to time prior to the Maturity Date,
Swing Line Loans in an aggregate principal amount outstanding at any time not to
exceed the Swing Line Commitment then in effect. Borrower shall be entitled to
repay and reborrow Swing Line Loans in accordance with the provisions, and
subject to the limitations, set forth herein (including the limitation set forth
in Section 2.01).
(b) Each Swing Line Loan shall be made as a Swing Rate
Advance.
(c) Whenever Borrower desires to make a Swing Line Borrowing,
it shall give the Swing Line Lender (with a copy to the Administrative Agent,
unless the Administrative Agent is also the Swing Line Lender) prior written
notice (or telephonic notice promptly confirmed in writing) of such Swing Line
Borrowing (each a "Swing Line Borrowing Notice") prior to 11:00 a.m. (Atlanta,
Georgia time) on the date of such Swing Line Borrowing. Each Swing Line
Borrowing Notice shall specify the aggregate principal amount of the Swing Line
Borrowing, the date of such Swing Line Borrowing (which shall be a Business Day)
and the interest period to be applicable thereto. Prior to 12:00 noon (Atlanta,
Georgia time) on such date, the Swing Line Lender shall furnish Borrower (with a
copy to the Administrative Agent, unless the Administrative Agent is also the
Swing Line Lender) with a quotation of the interest rate being offered with
respect to such Swing Line Borrowing (the "Swing Rate Quote") by telephone
(promptly confirmed in writing) or by facsimile transmission. Borrower shall
immediately inform the Swing Line Lender (with a copy to the Administrative
Agent, unless the Administrative Agent is also the Swing Line Lender) of its
decision as to whether to accept the Swing Rate Quote and to confirm the Swing
Line Borrowing (which may be done by telephone, promptly confirmed in writing,
and which decision shall be irrevocable).
(d) Borrower's obligations to pay the principal of, and
interest on, the Swing Line Loans shall be evidenced by the records of the
Administrative Agent and the Swing Line Lender and by the Swing Line Note
payable to the Swing Line Lender (or the assignor of such Swing Line Lender)
completed in conformity with this Agreement.
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(e) The outstanding principal amount under each Swing Line
Loan shall be due and payable in full on the Maturity Date.
(f) At any time on the request of the Swing Line Lender, each
Syndicated Lender other than the Swing Line Lender shall purchase a
participating interest in all outstanding Swing Line Loans in an amount equal to
its Pro Rata Share (based upon on its respective Syndicated Loan Commitment) of
such Swing Line Loans, and the Swing Line Lender shall furnish each Syndicated
Lender with a certificate evidencing such participating interest. Such purchase
shall be made on the third Business Day after such request is made; provided,
however, that unless an Event of Default has occurred and is continuing on the
date such request is made, the purchase of a participating interest in any Swing
Line Loan outstanding as a Swing Rate Advance shall not be required to be made
until the expiration of the current interest period in effect for such Swing
Line Loan. On the date of such required purchase, each Syndicated Lender will
immediately transfer to the Swing Line Lender, in immediately available funds,
the amount of its participation. Whenever, at any time after the Swing Line
Lender has received from any such Syndicated Lender the funds for its
participating interest in a Swing Line Loan, the Administrative Agent receives
any payment on account thereof, the Administrative Agent will distribute to such
Syndicated Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Syndicated Lender's participating interest was outstanding and
funded); provided, however, that if such payment received by the Administrative
Agent is required to be returned, such Syndicated Lender will return to the
Administrative Agent any portion thereof previously distributed by the
Administrative Agent to it. Each Syndicated Lender's obligation to purchase such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Syndicated Lender or
any other Person may have against the Swing Line Lender requesting such purchase
or any other Person for any reason whatsoever, (ii) the occurrence or
continuation of a Default or an Event of Default or the termination of any of
the Commitments, (iii) any adverse change in the condition (financial or
otherwise) of Borrower, any of its Consolidated Subsidiaries, or any other
Person, (iv) any breach of this Agreement by Borrower, any other Borrower, or
any other Lender, or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided, however, that no such
obligation shall exist (A) to the extent that the aggregate Swing Line Loans
were advanced in excess of the Swing Line Commitment then in effect, or in
excess of the limitation set forth in Section 2.01, or (B) with respect to any
Swing Line Loan where the Swing Line Lender actually advanced to Borrower net
proceeds from the Swing Line Loan (and therefore was not refunding a previous
Swing Line Loan) at a time when (x) the Swing Line Lender had actual knowledge
that an Event of Default had occurred and then existed, and (y) the Required
Lenders had not agreed to waive such Event of Default for purposes of funding
such Swing Line Loan.
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ARTICLE III.
GENERAL LOAN TERMS
SECTION 3.01. DISBURSEMENT OF FUNDS.
(a) No later than 12:00 Noon (Atlanta, Georgia time) on the
date of each Syndicated Loan pursuant to the Syndicated Loan Commitments (other
than one resulting from a conversion or continuation pursuant to Section
2.06(b)), each Lender will make available its Pro Rata Share of such Syndicated
Loan in immediately available funds at the Payment Office of the Administrative
Agent. The Administrative Agent will make available to Borrower the aggregate of
the amounts (if any) so made available by the Syndicated Lenders to the
Administrative Agent no later than 2:00 P.M. (Atlanta, Georgia time) by
crediting such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, effecting a wire transfer of such
amounts to an account specified by Borrower, by the close of business on such
Business Day. In the event that the Syndicated Lenders do not make such amounts
available to the Administrative Agent by the time prescribed above, but such
amount is received later that day, such amount may be credited to Borrower in
the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(b) No later than 12:00 Noon (Atlanta, Georgia time) on the
date of each Bid Rate Loan, the Syndicated Lenders participating in such Bid
Rate Loan will make available the amount of its Bid Rate Advance in immediately
available funds at the Payment Office of the Administrative Agent on the date of
such Bid Rate Loan. The Administrative Agent will make available to Borrower the
aggregate of the amounts (if any) so made available by the Syndicated Lenders to
the Administrative Agent no later than 2:00 P.M. (Atlanta, Georgia time) by
crediting such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, effecting a wire transfer of such
amounts to an account specified by Borrower, by the close of business on such
Business Day. In the event that the Syndicated Lenders do not make such amounts
available to the Administrative Agent by the time prescribed above, but such
amount is received later that day, such amount may be credited to Borrower in
the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(c) No later than 2:00 p.m. (Atlanta, Georgia time) on the
date of each Swing Line Loan, the Swing Line Lender will make available the
principal amount of the Swing Line Loan available to Borrower by crediting such
amount to Borrower's demand deposit account maintained with the Swing Line
Lender.
(d) Unless the Administrative Agent shall have been notified
by any Syndicated Lender prior to the date of a Syndicated Loan Borrowing or a
Bid Rate Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of such Borrowing to be made on such
date, the Administrative Agent may assume that
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such Lender has made such amount available to the Administrative Agent on such
date and the Administrative Agent may make available to Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify Borrower, and Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve any Syndicated
Lender from its obligation to fund its Syndicated Loan Commitment or Bid Rate
Loans hereunder or to prejudice any rights which Borrower may have against any
Syndicated Lender as a result of any default by such Lender hereunder.
(e) All Syndicated Loans under the Syndicated Loan Commitments
shall be loaned by the Lenders on the basis of their Pro Rata Share of the
Syndicated Loan Commitments. All Bid Rate Loans shall be loaned by the
Syndicated Lenders participating therein in accordance with their respective pro
rata shares thereof as determined in accordance with Section 2.07 with respect
to each Bid Rate Loan. All Swing Line Loans shall be loaned by the Swing Line
Lender in accordance with Section 2.08. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and 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 fund its Commitments or Bid Rate Loans
hereunder.
SECTION 3.02. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of Syndicated Loans from the respective dates such principal
amounts were advanced to maturity (whether by acceleration, notice of prepayment
or otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For Eurodollar Advances--The relevant LIBOR
plus the Applicable Margin; or
(b) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Bid Rate Loans made to Borrower from the respective
dates such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at the Bid Rate established for such Loan
pursuant to Section 2.07;
(c) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Swing Line Loans made to Borrower from the respective
dates such principal
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amounts were advanced to maturity (whether by acceleration, notice of prepayment
or otherwise) at the Swing Rate established for such Loan pursuant to Section
2.08;
(d) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Loans, and all other overdue
amounts owing hereunder, shall bear interest from each date that such amounts
are overdue:
(i) in the case of overdue principal and
interest with respect to all Loans outstanding as Eurodollar Advances
and Bid Rate Advances, at the rate otherwise applicable for the
then-current Interest Period plus an additional two percent (2.0%) per
annum; thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and
interest with respect to all other Loans outstanding as Base Rate
Advances and Swing Rate Advances, and all other Obligations hereunder
(other than Loans), at a rate equal to the applicable Base Rate plus an
additional two percent (2.0%) per annum;
(e) Interest on each Loan shall accrue from and including the
date of such Loan to but excluding the date of any repayment thereof; provided
that, if a Loan is repaid on the same day made, one day's interest shall be paid
on such Loan. Interest on all Base Rate Advances and Swing Rate Advances shall
be payable quarterly in arrears on the last calendar day of each calendar
quarter in each year. Interest on all outstanding Eurodollar Advances and Bid
Rate Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Interest Periods in excess of three
months (in the case of Eurodollar Advances), on each day which occurs every 3
months, as the case may be, after the initial date of such Interest Period.
Interest on all Loans shall be payable on any conversion of any Advances
comprising such Loans into Advances of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of prepayment or
otherwise) and, after maturity, on demand; and
(f) The Administrative Agent, upon determining LIBOR for any
Interest Period, shall promptly notify by telephone (confirmed in writing) or in
writing Borrower and the other Syndicated Lenders. Any such determination shall,
absent manifest error, be final, conclusive and binding for all purposes.
SECTION 3.03. INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of Eurodollar Advances, Borrower shall select an
Interest Period to be applicable to such Eurodollar Advances, which Interest
Period shall be either a 1, 2, 3 or 6 month period.
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(b) In connection with the making of each Bid Rate Loan,
Borrower shall request an Interest Period to be applicable thereto, which
Interest Period shall be for a minimum of seven (7) days and a maximum of one
hundred eighty (180) days, which request may be accepted or rejected by the
Lenders as provided in Section 2.07 hereof.
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any
Borrowing of Eurodollar Advances shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing
consisting of Base Rate Advances) and each Interest Period occurring
thereafter in respect of a continuation of such Borrowing shall
commence on the day on which the immediately preceding Interest Period
expires;
(ii) If any Interest Period would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if any
Interest Period in respect of Eurodollar Advances would otherwise
expire on a day that 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;
(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period shall, subject to part (iv) below, expire on the last Business
Day of such calendar month; and
(iv) No Interest Period with respect to the Loans
shall extend beyond the Maturity Date.
SECTION 3.04. FEES.
(a) Borrower shall pay to the Administrative Agent, for the
account of and distribution of the respective Pro Rata Share to each Lender
(subject to the last sentence hereof), a facility fee (the "Facility Fee") for
the period commencing on the Closing Date to and including the Maturity Date,
computed at a rate equal to the Applicable Commitment Percentage per annum
multiplied by the aggregate principal amount of the Syndicated Loan Commitments
of the Lenders, such fee being payable quarterly in arrears on the date which is
five days following the last day of each fiscal quarter of Borrower and on the
Maturity Date.
(b) On the Closing Date and on each anniversary of the Closing
Date prior to the Maturity Date, Borrower shall pay to the Administrative Agent
and the Documentation Agent such fees for their respective services in the
respective amounts as previously agreed in writing by Borrower with the
Administrative Agent and the Documentation Agent, respectively.
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SECTION 3.05. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings at any time
in whole, or from time to time in part, in amounts aggregating $1,000,000 or any
greater integral multiple of $100,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment, together with, in the case of Eurodollar Advances and Bid Rate
Advances, all compensation payments pursuant to Section 3.11 if such prepayment
is made on a date other than the last day of the Interest Period applicable
thereto. Each such optional prepayment shall be applied in accordance with
Section 3.05(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended prepayment of
the Loans not less than two Business Days prior to any prepayment of Borrowings.
Such notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment, the Administrative Agent shall promptly notify each Lender of the
contents of such notice and of such Lender's share of such prepayment (provided
that notices of prepayments of Bid Rate Loans shall only be given to the Lenders
participating therein).
(c) Borrower, when providing notice of prepayment pursuant to
Section 3.05(b), may designate the Types of Advances and the specific Borrowing
or Borrowings which are to be prepaid provided that each prepayment made
pursuant to a single Borrowing shall be applied pro rata among the Advances
comprising such Borrowing. In the absence of a designation by Borrower, the
Administrative Agent shall, subject to the foregoing, make such designation in
its sole discretion. All voluntary prepayments shall be applied to the payment
of interest on the Borrowings prepaid before application to principal.
SECTION 3.06. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other than the
payments specified in clause (ii) below, shall be made without defense, set-off
or counterclaim to the Administrative Agent not later than 12:00 Noon (Atlanta,
Georgia time ) on the date when due and shall be made in Dollars in immediately
available funds at its Payment Office.
(b) (i) All such payments shall be made free and clear of
and without deduction or withholding for any Taxes in respect of this Agreement,
the Notes or other Credit Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder (but excluding, except as
provided in paragraph (iii) hereof, any Taxes imposed on the overall net income
of the Lenders pursuant to the laws of the jurisdiction in which the principal
executive office or appropriate Lending Office of such Lender is located). If
any Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every net
payment of all amounts due hereunder and under
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the Notes and other Credit Documents, after withholding or deduction for or on
account of any such Taxes (including additional sums payable under this Section
3.06), will not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority in
accordance with applicable law. Borrower will furnish to the Administrative
Agent and each Lender, within 30 days after the date the payment of any Taxes is
due pursuant to applicable law, certified copies of tax receipts evidencing such
payment by Borrower. Borrower will indemnify and hold harmless the
Administrative Agent and each Lender and reimburse the Administrative Agent and
each Lender upon written request for the amount of any Taxes so levied or
imposed and paid by the Administrative Agent or Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or the
Administrative Agent, absent manifest error, shall be final, conclusive and
binding for all purposes.
(ii) Each Lender that is organized under the laws of
any jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Administrative Agent, on the Closing Date and otherwise prior to the time it
becomes a Lender hereunder, two copies of either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service Form 1001 or any successor forms
thereto (wherein such Lender claims entitlement to complete exemption from or
reduced rate of U.S. Federal withholding tax on interest paid by Borrower
hereunder) and to provide to Borrower and the Administrative Agent a new Form
4224 or Form 1001 or any successor forms thereto if any previously delivered
form is found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form.
(iii) Borrower shall also reimburse the
Administrative Agent and each Lender, upon written request, for any Taxes
imposed (including, without limitation, Taxes imposed on the overall net income
of the Administrative Agent or Lender or its applicable Lending Office pursuant
to the laws of the jurisdiction in which the principal executive office or the
applicable Lending Office of the Administrative Agent or Lender is located) as
the Administrative Agent or Lender shall determine are payable by the
Administrative Agent or Lender in respect of amounts paid by or on behalf of
Borrower to or on behalf of the Administrative Agent or Lender pursuant to
paragraph (i) hereof.
(c) Subject to Section 3.03(ii), 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 thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees 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)
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occurring in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed), except that interest on Base Rate
Advances shall be computed on the basis of a year of 365/366 days for the actual
number of days. Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but excluding the date of
the repayment or conversion thereof. Interest on Swing Rate Advances shall be
calculated based on the Swing Rate from and including the date of such Loan to
but excluding the date of the repayment or conversion thereof. Interest on
Eurodollar Advances and Bid Rate Advances shall be calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Each determination by the Administrative Agent of an interest
rate or fee hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all purposes.
(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to Borrower, constitute
payment to the Lenders under this Agreement.
SECTION 3.07. INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Administrative Agent shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that on any date for determining LIBOR
for any Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Administrative Agent's
position in such market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
LIBOR then, and in any such event, the Administrative Agent shall forthwith give
notice (by telephone confirmed in writing) to Borrower and to the Lenders, of
such determination and a summary of the basis for such determination. Until the
Administrative Agent notifies Borrower that the circumstances giving rise to the
suspension described herein no longer exist, the obligations of the Lenders to
make or permit portions of the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be suspended, and
such affected Advances shall bear interest at the Base Rate (or at such other
rate of interest per annum as Borrower and each of the Administrative Agent and
the Lenders shall have agreed to in writing).
SECTION 3.08. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to Borrower
and to the
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Administrative Agent of such determination and a summary of the basis for such
determination (which notice the Administrative Agent shall promptly transmit to
the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of Eurodollar
Advances, bearing interest at the Base Rate (or at such other rate of interest
per annum as Borrower and each of the Administrative Agent and the Lenders shall
have agreed to in writing), which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing, and (ii) if the affected
Eurodollar Advance or Advances are then outstanding, Borrower shall immediately,
or if permitted by applicable law, no later than the date permitted thereby,
upon at least one Business Day's written notice to the Administrative Agent and
the affected Lender, convert each such Advance into an Advance or Advances of a
different Type with an Interest Period ending on the date on which the Interest
Period applicable to the affected Eurodollar Advances expires, 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 3.08(b).
SECTION 3.09. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(1) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect to its
Eurodollar Advances, or its obligation to make Eurodollar Advances, or
the basis of taxation of payments to any Lender of the principal of or
interest on its Eurodollar Advances or its obligation to make
Eurodollar Advances shall have changed (except for changes in the tax
on the overall net income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such Lender's principal
executive office or applicable Lending Office is located); or
(2) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender's applicable
Lending Office shall be imposed or deemed applicable or any other
condition affecting its Eurodollar Advances, or its obligation to make
Eurodollar Advances shall be imposed on any Lender or its applicable
Lending Office or the London interbank market;
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and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances, or
there shall be a reduction in the amount received or receivable by such Lender
or its applicable Lending Office, or
(ii) in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material;
then, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Borrower (with a copy of such notice and demand to the
Administrative Agent), Borrower shall pay to the Administrative Agent for the
account of such Lender within five Business Days after the date of such notice
and demand, additional amounts sufficient to indemnify such Lender against such
increased cost or reduced yield. A certificate as to the amount of such
increased cost or reduced yield submitted to Borrower and the Administrative
Agent by such Lender in good faith and accompanied by a statement prepared by
such Lender describing in reasonable detail the basis for and calculation of
such increased cost, shall, except for manifest error, be final, conclusive and
binding for all purposes.
In addition, if at any time a Euro-Dollar Reserve Percentage
greater than 0% is imposed on any Bank, the Borrower shall pay to such Bank
additional interest on the unpaid principal amount of the Eurodollar Advances of
such Bank until such principal amount is paid in full at an interest rate per
annum equal at all times to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
LIBOR for such Eurodollar Advance for such Interest Period by (ii) 1.00 minus
the Euro-Dollar Reserve Percentage, payable on each date on which interest is
payable on such Eurodollar Advance. Such additional interest, if any, shall be
determined by such Lender and notified to the Borrower through the
Administrative Agent.
(b) If any Lender shall advise the Administrative Agent that
at any time, because of the circumstances described in clauses (x) or (y) in
Section 3.09(a) or any other circumstances beyond such Lender's reasonable
control arising after the date of this Agreement affecting such Lender or the
London interbank market or such Lender's position in such markets,
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LIBOR as determined by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lender of funding its Eurodollar Advances, then, and in
any such event:
(i) the Administrative Agent shall forthwith
give notice (by telephone confirmed in writing) to Borrower and to the
other Lenders of such advice;
(ii) Borrower's right to request and such
Lender's obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be immediately suspended; and
(iii) such Lender shall make an Advance as part of
the requested Borrowing of Eurodollar Advances, as the case may be,
bearing interest at the Base Rate (or at such other rate of interest
per annum as Borrower and each of the Administrative Agent and the
Lenders shall have agreed to in writing), which Base Rate Advance
shall, for all other purposes, be considered part of such Borrowing.
(c) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to this Section
3.09 no later than 60 days after the event giving rise to the claim for
indemnification or compensation occurs. In the event that any Lender or
Administrative Agent fails to give Borrower notice within the time limitations
prescribed in the foregoing sentence, Borrower shall not have any obligation to
pay such claim for compensation or indemnification.
SECTION 3.10. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate an alternate Lending Office with respect to any of its Eurodollar
Advances affected by the matters or circumstances described in Sections 3.06(b),
3.07, 3.08 or 3.09 to reduce the liability of Borrower or avoid the results
provided thereunder, so long as such designation is not materially
disadvantageous to such Lender as determined by such Lender, which determination
if made in good faith, shall be conclusive and binding on all parties hereto.
Nothing in this Section 3.10 shall affect or postpone any of the obligations of
Borrower or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with respect
to the closing of its lending offices in the United States such that any
withholdings or deductions and additional payments with respect to Taxes may be
required to be made by Borrower thereafter pursuant to Section 3.06(b), such
Lender shall use reasonable efforts to furnish Borrower notice thereof as soon
as practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge
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Borrower from its obligations to such Lender pursuant to Section 3.06(b) or
otherwise result in any liability of such Lender.
SECTION 3.11. FUNDING LOSSES. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances or Bid
Rate Advances), in either case to the extent not recoverable by such Lender in
connection with a re-employment of such funds and including loss of anticipated
profits, which the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a borrowing of, or conversion to or continuation of,
Eurodollar Advances or Bid Rate Advances to Borrower does not occur on the date
specified therefor in a Notice of Borrowing, Bid Request or Notice of
Conversion/Continuation, (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
3.08(b)) of any Eurodollar Advances or Bid Rate Advances by Borrower occurs on a
date which is not the last day of an Interest Period applicable thereto, or
(iii) if, for any reason, Borrower defaults in its obligation to repay its
Eurodollar Advances when required by the terms of this Agreement. In no
circumstance will Borrower be responsible for losses (other than adminstrative
costs) where interest rates have increased as of the date of determination of
funding losses hereunder.
SECTION 3.12. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article III
shall be made as though that Lender had actually funded its relevant Eurodollar
Advances through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such Eurodollar Advances in an amount equal
to the amount of the Eurodollar Advances and having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar Advances
from an offshore office of that Lender to a domestic office of that Lender in
the United States of America; provided however, that each Lender may fund each
of its Eurodollar Advances in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this
Article III.
SECTION 3.13. APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Loans and payments in respect of the
Facility Fee shall be apportioned among all outstanding Commitments and Loans to
which such payments relate, proportionately to the Lenders' respective pro rata
portions of such Commitments and outstanding Loans. The Administrative Agent
shall promptly distribute to each Lender at its Payment Office set forth beside
its name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Administrative
Agent.
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SECTION 3.14. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its pro rata
portion of payments or reductions on account of such obligations obtained by all
the Lenders (other than, prior to the termination of the Commitments, payments
of principal, interest and fees with respect to the Bid Rate Loans which are
payable solely to the Lenders participating therein), such Lender shall
forthwith (i) notify each of the other Lenders and Administrative Agent of such
receipt, and (ii) purchase from the other Lenders such participations in the
affected obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional costs,
but without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 3.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation.
SECTION 3.15. BENEFITS TO GUARANTORS. In consideration of the
execution and delivery by the Guarantors of the Guaranty Agreements, Borrower
agrees, subject to the terms hereof, to make extensions of credit hereunder
available to the Guarantors.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder is subject to the satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS. On the
Closing Date, all obligations of Borrower hereunder incurred prior to such date
(including, without limitation, Borrower's obligations to pay the Arrangement
Fee and all agency fees due and payable to the Agents on the Closing Date as
previously agreed with Borrower), shall have been paid in full, and the
Documentation Agent shall have received the following, in form and substance
reasonably satisfactory in all respects to the Lenders and (except for the
Notes) in sufficient number for each Lender:
(a) the duly executed counterparts of this Agreement;
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(b) the duly executed Syndicated Notes, the duly executed Bid
Facility Notes and the duly executed Swing Line Note;
(c) the duly executed Guaranty Agreements;
(d) a duly executed certificate of Borrower, in substantially
the form of Exhibit J attached hereto and appropriately completed, certifying
that (i) the representations and warranties set forth in Article 5 hereof are
true and correct on and as of such date with the same effect as though made on
and as of such date, (ii) Borrower and the Guarantors are in compliance with all
the terms and provisions set forth in this Agreement and the other Credit
Documents on their respective parts to be observed or performed, (iii) on the
Closing Date, and after giving effect to the consummation of the SpinOff, no
Default or Event of Default, will have occurred or be continuing and (iv) as of
the Closing Date, there has been no materially adverse change in the financial
condition of the Borrower and its Subsidiaries as reflected in the pro forma
financial statements delivered to the Agents prior to the Closing Date;
(e) a duly executed solvency certificate of Borrower and the
Guarantors, in form and substance satisfactory to the Lenders;
(f) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable the
execution, delivery and performance of the Credit Documents;
(g) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, and (ii) the
bylaws or comparable governing documents of such entities;
(h) certified copies of the certificate or articles of
incorporation of each Credit Party certified by the Secretary of State or the
Secretary or Assistant Secretary of such Credit Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation or organization of such
Credit Party;
(i) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the Credit
Parties, in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, authorizations, filings and orders
shall be in full force and effect and all applicable waiting periods shall have
expired;
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(j) a certificate of the chief executive officer of the
Borrower (x) certifying that (1) all conditions to the consummation of the
SpinOff, including without limitation the obtaining of a ruling from the
Internal Revenue Service that the SpinOff may be completed without causing the
recognition of Federal income tax to Equifax, the Borrower or the shareholders
of the Borrower, have been satisfied or waived with the prior written consent of
the Lenders, other than the funding of the initial Loans under this Agreement,
and (2) immediately following the funding of the initial Loans, the SpinOff will
be completed, substantially as projected and on substantially the terms set
forth in the Form S1 filed with the Securities and Exchange Commission, and (y)
attaching true and correct copies of all documents, agreements and other
instruments executed and delivered in connection with the SpinOff;
(k) certificates of insurance issued on behalf of insurers of
Borrower and the Guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by Borrower and the
Guarantors;
(l) the favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel to the Credit Parties, substantially in the form of Exhibit K-1
addressed to the Agents and each of the Lenders and the favorable opinion of
in-house general counsel to the Credit Parties, substantially in the form of
Exhibit K-2 addressed to the Agents and each of the Lenders;
(m) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of the
Credit Documents shall be reasonably satisfactory in form and substance to the
Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS. At the time of the
making of all Loans (before as well as after giving effect to such Loans and to
the proposed use of the proceeds thereof), the following conditions shall have
been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained
herein 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 Loans; and
(c) the Loans to be made and the use of proceeds thereof shall
not contravene, violate or conflict with, or involve the Administrative Agent or
any Lender in a violation of, the Margin Regulations or any other material law,
rule, injunction, or regulation, or determination of any court of law or other
governmental authority applicable to Borrower.
Each request for a new Borrowing and the acceptance by
Borrower of the proceeds thereof (but not the continuation or conversion of an
existing Borrowing) shall constitute a representation and warranty by Borrower,
as of the date of the Loans comprising
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such Borrowing, that the applicable conditions specified in Sections 4.01 and
4.02 have been satisfied or waived in writing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all other Consolidated Companies)
represents and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each
of the Credit Parties is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation. Each of
the Credit Parties (i) has the corporate power and authority and the legal right
to own and operate its property and to conduct its business, (ii) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership of property or the conduct of its business
requires such qualification, and (iii) is in compliance with all Requirements of
Law, except where the failure to duly qualify or to comply with applicable
Requirements of Law would not have a Materially Adverse Effect.
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the
Credit Parties has the corporate power and authority to make, deliver and
perform the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of such
Credit Documents. No consent or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit Party, or
the validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings which have been
made or obtained.
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement and each
other Credit Document has been duly authorized, executed and delivered by the
respective Credit Parties, and this Agreement and each other Credit Document
constitute legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their re
spective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 5.04. NO CONTRACTUAL OR LEGAL BAR. The execution,
delivery and performance by the Borrower and each Guarantor of the Credit
Documents to which it is a party (a) will not contravene any material provision
of any Requirement of Law, (b) will not conflict with or be inconsistent with or
result in any breach of, or constitute a default under, any Contractual
Obligations of any Consolidated Company that would result in liability to any
Credit
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Party of $500,000 or more in the aggregate or otherwise result in a Materially
Adverse Effect, (c) will not violate any provision of the certificate of
incorporation (or equivalent thereof) or bylaws (or equivalent thereof) of the
Borrower or any Guarantor, (d) will not require the consent, approval or
authorization of any governmental or non-governmental authority or Person and
(e) will not result in the creation of any Lien upon the assets or properties of
the Borrower and its Subsidiaries, other than those Liens permitted under
Section 7.01.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. No
litigation, investigations or proceedings of or before any courts, tribunals,
arbitrators or governmental authorities are pending or, to the knowledge of
Borrower, threatened by or against any of the Consolidated Companies, or against
any of their respective properties or rights, existing or future (a) with
respect to any Credit Document or any of the transactions contemplated hereby or
thereby, or (b) which, if adversely determined, would reasonably be expected to
have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the
Consolidated Companies is an "investment company" or a company "controlled" by
an "investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of the Consolidated Companies
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed, guarantee such
indebtedness, or pledge its assets to secure such indebtedness, as contemplated
hereby or by any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of
any of the Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Consolidated Companies have received no notices of
claims or potential liability under, and are in compliance with, all applicable
Environmental Laws, where such claims and liabilities under, and failures to
comply with, such statutes, regulations, rules, ordinances, laws or licenses,
would reasonably be expected to result in penalties, fines, claims or other
liabilities to the Consolidated Companies having a Materially Adverse Effect.
(b) None of the Consolidated Companies has received any notice
of violation, or notice of any action, either judicial or administrative, from
any governmental authority (whether United States or foreign) relating to the
actual or alleged violation of any Environmental Law, including, without
limitation, any notice of any actual or alleged spill, leak, or other release of
any Hazardous Substance, waste or hazardous waste by any Consolidated Company or
its employees or agents, or as to the existence of any contamination on any
properties owned by any Consolidated Company, where any such violation, spill,
leak, release or
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contamination would reasonably be expected to result in penalties, fines, claims
or other liabilities to the Consolidated Companies having a Materially Adverse
Effect.
(c) The Consolidated Companies have obtained all necessary
governmental permits, licenses and approvals which are material to the
operations conducted on their respective properties, including without
limitation, all required material permits, licenses and approvals for (i) the
emission of air pollutants or contaminants, (ii) the treatment or pretreatment
and discharge of waste water or storm water, (iii) the treatment, storage,
disposal or generation of hazardous wastes, (iv) the withdrawal and usage of
ground water or surface water, and (v) the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Credit Parties currently maintain
insurance with respect to their respective properties and businesses, with
financially sound and reputable insurers, having coverages against losses or
damages of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance being the types, and in amounts no
less than those amounts which are, customary for such companies under similar
circumstances; provided, however, that the Company may self insure in amounts
satisfactory to management, subject to the provisions of Section 6.06(a). The
Consolidated Companies have paid all material amounts of insurance premiums now
due and owing with respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies
is in default under or with respect to any material Contractual Obligation in
any respect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. None of the
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has had or would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.12. TAXES. Each of the Consolidated Companies has
filed or caused to be filed all declarations, reports and tax returns which are
required to have been filed, and has paid all taxes, custom duties, levies,
charges and similar contributions ("taxes" in this Section 5.12) shown to be due
and payable on said returns or on any assessments made against it or its
properties, and all other taxes, fees or other charges imposed on it or any of
its properties by any governmental authority (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided in its books or where the aggregate sum of taxes unpaid is less than
$500,000); and no tax liens have been filed and, to the knowledge of Borrower,
no claims are being asserted with respect to any such taxes, fees or other
charges.
SECTION 5.13. SUBSIDIARIES. Schedule 5.13 accurately describes
as of the Closing Date (1) the complete name of each Subsidiary of the Borrower,
(2) the jurisdiction of incorporation or organization of each Subsidiary of the
Borrower, (3) the ownership of all issued
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and outstanding Capital Stock of each Subsidiary of the Borrower and (4) whether
such Subsidiary is a Material Subsidiary. Except as disclosed on Schedule 5.13,
Borrower has no Subsidiaries and neither Borrower nor any Subsidiary is a joint
venture partner or general partner in any partnership. Each of the Subsidiaries
that is not a Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, is duly
qualified to transact business in every jurisdiction where the failure to so
qualify would have a Materially Adverse Effect, and has all corporate powers and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now as now conducted in each case where the failure to
have the same would have a Materially Adverse Effect.
SECTION 5.14. FINANCIAL STATEMENTS. The unaudited pro forma
balance sheet of the Consolidated Companies as of March 31, 1997 (after giving
effect to the SpinOff), setting forth the pro forma financial position of the
Consolidated Companies, a copy of which has been delivered to the Lenders,
fairly presents, on a pro forma basis, in conformity with generally accepted
accounting principles, the financial position of the Consolidated Companies as
of such date and time. The Consolidated Companies do not have any material
contingent obligations, contingent liabilities or other obligations which are
not reflected in the balance sheet referenced above (the "Pro Forma Financial
Statements"). Since March 31, 1997, there have been no changes with respect to
the Consolidated Companies which has had or would reasonably be expected to have
a Materially Adverse Effect.
SECTION 5.15. ERISA.
(a)(1) Identification of Plans. (A) None of the Consolidated
Companies nor any of their respective ERISA Affiliates maintains or contributes
to, or has during the past two years maintained or contributed to, any Plan that
is subject to Title IV of ERISA other than the Equifax Inc. U.S. Retirement
Income Plan, and (B) none of the Consolidated Companies maintains or contributes
to any Foreign Plan other than the Equifax Europe (U.K.) Ltd. Pension Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained by
the Consolidated Companies have at all times been maintained, by their terms and
in operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan maintained
or contributed to by such Consolidated Company or any ERISA Affiliate thereof,
including without limitation, any tax or penalty under Title I or Title IV of
ERISA or under Chapter 43 of the Tax Code, or any tax or penalty resulting from
a loss of deduction under Sections 404, or 419 of the Tax Code, where the
failure to comply with such laws, and such taxes and penalties, together with
all other liabilities referred to in this Section 5.15 (taken as a whole), would
in the aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans maintained or contributed to by such Consolidated Companies or any
of their ERISA Affiliates, including
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without limitation, any liabilities arising from Titles I or IV of ERISA, other
than obligations to fund benefits under an ongoing such Plan and to pay current
contributions, expenses and premiums with respect to such Plans or Foreign
Plans, where such liabilities, together with all other liabilities referred to
in this Section 5.15 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to
any Plan which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed by any of them under the terms of each Plan and applicable law, and
(b) required to be paid as expenses by any of them (including PBGC or other
premiums) of each Plan, where the failure to pay such amounts (when taken as a
whole, including any penalties attributable to such amounts) would have a
Materially Adverse Effect. No Plan maintained by a Consolidated Company subject
to Title IV of ERISA has an "amount of unfunded benefit liabilities" (as defined
in Section 4001(a)(18) of ERISA, determined as if such Plan terminated on any
date on which this representation and warranty is deemed made, in any amount
which, together with all other liabilities referred to in this Section 5.15
(taken as a whole), would have a Materially Adverse Effect if such amount were
then due and payable. The Consolidated Companies are subject to no liabilities
with respect to post-retirement medical benefits other than those accrued on
Borrower's financial statements.
(b) With respect to any Foreign Plan, reasonable reserves have
been established in accordance with prudent business practice or where required
by ordinary accounting practices in the jurisdiction where the Foreign
Subsidiary maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after giving effect to
any reserves for such liabilities, with respect to such Foreign Plans, together
with all other liabilities referred to in this Section 5.15 (taken as a whole),
would not have a Materially Adverse Effect.
SECTION 5.16. POSSESSION OF FRANCHISES, LICENSES, ETC. Each
of the Consolidated Companies possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, that are necessary in any material respect for the
ownership, maintenance and operation of its properties and assets, and none of
the Consolidated Companies is in violation of any thereof in any material
respect.
SECTION 5.17. PATENTS, TRADEMARKS, LICENSES, ETC. (i) The
Consolidated Companies have obtained and hold in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions, which are necessary for the
operation of their respective businesses as presently conducted and where the
result of a failure to obtain and hold such patents, trademarks, service marks,
trade names, copyrights, licenses and other such rights would have a Materially
Adverse Effect, and (ii) to the best of Borrower's knowledge, no product,
process, method, service or other item presently sold
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by or employed by any Consolidated Company in connection with such business
infringes any patents, trademark, service ▇▇▇▇, trade name, copyright, license
or other right owned by any other person and there is not presently pending, or
to the knowledge of Borrower, threatened, any claim or litigation against or
affecting any Consolidated Company contesting such Person's right to sell or use
any such product, process, method, substance or other item where the result of
such failure to obtain and hold such benefits or such infringement would have a
Materially Adverse Effect.
SECTION 5.18. OWNERSHIP OF PROPERTY. Each Consolidated Company
has good and marketable fee simple title to or a valid leasehold interest in all
of its real property and good title to, or a valid leasehold interest in, all of
its other material assets, as such properties are reflected in the most recent
financial statements (including the Pro Forma Financial Statements) delivered by
Borrower to the Administrative Agent, other than properties disposed of in the
ordinary course of business since such date or as otherwise permitted by the
terms of this Agreement, subject to no Lien or title defect of any kind, except
Liens permitted under Section 7.01. The Consolidated Companies enjoy peaceful
and undisturbed possession under all of their respective leases.
SECTION 5.19. FINANCIAL CONDITION. On the Closing Date and
after giving effect to the transactions contemplated by this Agreement, the
Guaranty Agreements and the other Credit Documents, including without
limitation, the use of the proceeds of the Loans as provided in Section 2.01(b),
each of the Credit Parties is Solvent.
SECTION 5.20. LABOR MATTERS. The Consolidated Companies have
experienced no strikes, labor disputes, slow downs or work stoppages due to
labor disagreements which have had, or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge of Borrower, there are no
such strikes, disputes, slow downs or work stoppages threatened against any
Consolidated Company which if they occurred, would reasonably be expected to
have a Materially Adverse Effect. The hours worked and payment made to employees
of the Consolidated Companies have not been in violation in any material respect
of the Fair Labor Standards Act (in the case of Consolidated Companies that are
not Foreign Subsidiaries) or any other applicable law dealing with such matters.
All payments due from the Consolidated Companies, or for which any claim may be
made against the Consolidated Companies, on account of wages and employee health
and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies in all jurisdictions
where the failure to pay or accrue such liabilities would reasonably be expected
to have a Materially Adverse Effect.
SECTION 5.21. PAYMENT OR DIVIDEND RESTRICTIONS. None of the
Consolidated Companies is party to or subject to any agreement or understanding
restricting or limiting the payment of any dividends or other distributions by
any such Consolidated Company, other than CDB/Infotek.
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SECTION 5.22. OUTSTANDING INDEBTEDNESS. Schedule 5.22 lists
all outstanding Indebtedness of the Consolidated Companies as of the Closing
Date. There exists no default under the provisions of any instrument evidencing
or securing Indebtedness of the Borrower or any of its Subsidiaries or of any
agreement otherwise relating thereto which has had or would reasonably be
expected to have a Material Adverse Effect.
SECTION 5.23. DISCLOSURE. No representation or warranty
contained in this Agreement (including the Schedules attached hereto) or in any
other document furnished from time to time pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
herein or therein not misleading in any material respect as of the date made or
deemed to be made. There is no fact known to Borrower which is having, or is
reasonably expected to have, a Materially Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid, Borrower will (unless waived in writing by the
Required Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence (except for mergers, divestitures and consolidations permitted
pursuant to Section 7.03), and except where the failure to be so qualified would
reasonably be expected to have a Materially Adverse Effect, its qualification to
do business as a foreign corporation in all jurisdictions where it conducts
business or other activities making such qualification necessary.
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause
each of its Subsidiaries to comply with, all Requirements of Law (including,
without limitation, the Environmental Laws, ERISA and employee benefit laws) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations
would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto or the
aggregate sum of taxes unpaid is less than $500,000.
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SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. (a) Prior to the
occurrence of a Default, permit, and cause each of its Subsidiaries to permit,
any representative of any Lender at such Lender's expense after reasonable
notice during regular business hours (which date of visit shall be mutually
agreed upon but shall not be later than 2 weeks after the date requested by such
Lender) to visit and inspect, in the company of any of the Executive Officers or
their designees and their independent public accountants, any of their
respective properties, and to examine and make abstracts from any of their
respective books and records and to discuss with any of the Executive Officers
the respective affairs, finances and accounts of the Borrower and its
Subsidiaries. Prior to the occurrence of a Default, each Lender shall be
entitled to no more than two (2) such visits and inspections per year.
(b) After the occurrence of a Default, permit, and cause each
of its Subsidiaries to permit, any representative of any Lender at the
Borrower's expense to visit and inspect, in the company of any of the Executive
Officers or their designees and their independent public accountants, any of
their respective properties, and to examine and make abstracts from any of their
respective books and records and to discuss with any of the Executive Officers
the respective affairs, finances and accounts of the Borrower and its
Subsidiaries.
(c) To cooperate and assist, and to cause each of its
Subsidiaries to cooperate and assist, in such visits and inspections set forth
in paragraphs (a) and (b) above in this Section, in each case at such reasonable
times and as often as may reasonably be desired; provided, however, that (i) in
no event shall any Lender have access to information prohibited by law, and (ii)
in the event any Lender desires to inspect confidential matters (which matters
shall in no event include financial information and data of the Borrower or its
Subsidiaries or other information the Lenders may require in order to determine
compliance this Agreement) under this Section, such Lender shall executed a
confidentiality agreement relating to such matters, which agreement shall
contain reasonable terms acceptable to such Lender and its counsel.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such amounts as
are customary for such companies under similar circumstances; provided, however,
that the Credit Parties may self-insure in amounts satisfactory to management.
Upon the request of the Administrative Agent, Borrower shall file with the
Administrative Agent a detailed list of such insurance then in effect stating
the names of the insurance companies, the limits of liability of insurance, the
date of expiration thereof, the Property and risks covered
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thereby and the insured with respect thereto, and, within 60 days after notice
in writing from the Administrative Agent, obtain such additional insurance as
the Required Lenders may reasonably request as a result of a material change in
the circumstances or conditions affecting Borrower's business specifically or
its type of business generally, provided that such additional insurance is
available at a commercially reasonable cost.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 6.06 shall prevent Borrower from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of its
business or the business of any Consolidated Company.
(c) Maintain in full force and effect all material patents,
trademarks, service marks, trade names, copyrights, licenses and other such
rights, free from burdensome restrictions, which are necessary for the operation
of the businesses of the Consolidated Companies as presently conducted, where
the result of failure to obtain and hold such benefits would have a Materially
Adverse Effect.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in
any event within 105 days after the end of each fiscal year of
Borrower, balance sheets of the Consolidated Companies as at the end of
such year, presented on a consolidated basis, and the related
statements of income, and cash flows of the Consolidated Companies for
such fiscal year, presented on a consolidated basis, setting forth in
each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and accompanied by a report thereon of the
independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern
and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at
the end of such fiscal year on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies
for such fiscal year in accordance with GAAP and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(b) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the end of each fiscal quarter of
Borrower (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such
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quarter presented on a consolidated basis and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of Borrower's
fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and
accompanied by a certification by the chief financial officer of
Borrower that such financial statements fairly present in all material
respects the financial condition of the Consolidated Companies as at
the end of such fiscal quarter on a consolidated basis, and the results
of operations and statements of cash flows of the Consolidated
Companies for such fiscal quarter and such portion of Borrower's fiscal
year, in accordance with GAAP consistently applied (subject to normal
year-end audit adjustments and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a) and (b)
above, a certificate (with supporting details) of the chief financial
officer of Borrower substantially in the form of Exhibit M attached
hereto (the "Compliance Certificate") (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists no
Event of Default and no Default under this Agreement, or if there
exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such
fiscal year or such fiscal quarter with Sections 6.08, 7.01, 7.04 and
7.05;
(d) Auditor's Statement. Together with the financial
statements required pursuant to subsection (a) above, a statement of
the accountants who prepared the report referred to therein, to the
effect that, nothing has come to their attention which would cause them
to believe that a Default or Event of Default existed as of the date of
such financial statements, or if there existed a Default or Event of
Default, specifying the nature thereof;
(e) Notice of Default. Promptly, and no later than five (5)
Business Days after any Executive Officer of Borrower has notice or
knowledge of the occurrence of an Event of Default or a Default, a
certificate of the chief financial officer of Borrower specifying the
nature thereof and the proposed response thereto;
(f) Litigation and Investigations. Promptly, and no later than
ten (10) Business Days after any Executive Officer of Borrower has
notice or knowledge thereof, notice of the institution of or any
material adverse development in any material action, suit or proceeding
or any governmental investigation or any arbitration, before any court
or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property of
any thereof, or the threat of any such action, suit, proceeding,
investigation or arbitration;
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(g) Environmental Notices. Promptly, and no later than ten
(10) Business Days after any Executive Officer of Borrower has notice
or knowledge thereof, notice of any actual or alleged violation, or
notice of any action, claim or request for information, either judicial
or administrative, from any governmental authority relating to any
actual or alleged claim, notice of potential responsibility under or
violation of any Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any waste, petroleum product, or
hazardous waste or Hazardous Substance by any Consolidated Company
which could result in a Materially Adverse Effect;
(h) ERISA. (A)(i) Promptly, and no later than ten (10)
Business Days after any Executive Officer of Borrower has notice or
knowledge thereof, with respect to any Plan maintained or contributed
to by any Consolidated Company or any ERISA Affiliate thereof, or any
trust established thereunder, notice of a "reportable event" described
in Section 4043 of ERISA and the regulations issued from time to time
thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations); or
(B) any other event which could subject any Consolidated Company to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404 or 419 of the Tax Code, or any tax,
penalty or liability under any Requirement of Law applicable to any
Foreign Plan, where any such taxes, penalties or liabilities could
result in a Material Adverse Effect;
(ii) Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan maintained or contributed
to by any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof concerning
the intent of the PBGC or any other governmental authority to terminate
a Plan maintained or contributed to by such Company or ERISA Affiliate
thereof which is subject to Title IV of ERISA, to impose any liability
on such Company or ERISA Affiliate under Title IV of ERISA or Chapter
43 of the Tax Code;
(iv) Upon the request of the Administrative
Agent, promptly upon the filing thereof with the Internal Revenue
Service ("IRS") or the Department of Labor ("DOL"), a copy of IRS Form
5500 or annual report for each Plan maintained or contributed to by any
Consolidated Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA;
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(v) Upon the request of the Administrative
Agent, but no more frequently than twice each calendar year, (A) true
and complete copies of any and all documents, government reports and
IRS determination or opinion letters or rulings for any Plan maintained
or contributed to by any Consolidated Company from the IRS, PBGC or
DOL, filed within the preceding 12 months, (B) any reports filed with
the IRS, PBGC or DOL with respect to a Plan maintained or contributed
to by the Consolidated Companies or any ERISA Affiliate thereof filed
within the preceding 12 months, or (C) a current statement of
withdrawal liability for each Multiemployer Plan contributed to by any
Consolidated Company or any ERISA Affiliate thereof;
(B) Promptly, and no later than give (5) Business
Days after any Executive Officer has notice of knowledge thereof,
notice that (i) any material contributions to any Foreign Plan have not
been made by the required due date for such contribution and such
default cannot immediately be remedied, (ii) any Foreign Plan is not
funded to the extent required by the law of the jurisdiction whose law
governs such Foreign Plan based on the actuarial assumptions reasonably
used at any time, or (iii)] a material change is anticipated to any
Foreign Plan that may have a Materially Adverse Effect.
(i) Liens. Promptly, and no later than five (5) Business Days
after any Executive Officer of Borrower has notice or knowledge
thereof, notice of the filing of any federal statutory Lien, tax or
other state or local government Lien or any other Lien affecting their
respective properties, other than those Liens expressly permitted by
Section 7.01;
(j) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by Borrower to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other statements
made available generally to the public containing material developments
in the business or financial condition of Borrower and the other
Consolidated Companies;
(k) New Material Subsidiaries. Within 30 days after the
formation, acquisition or existence of any new Material Subsidiary, or
any other event resulting in the creation of a new Material Subsidiary,
or the domestication of any Foreign Subsidiary, notice of the formation
or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it
will be engaged, and such other information as the Administrative Agent
may request;
(l) Default under Other Debt. Immediately upon its receipt
thereof, copies of any notice received by the Borrower or any other
Consolidated Company from the
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holder(s) of Indebtedness of the Consolidated Companies (or from any
trustee, agent, attorney, or other party acting on behalf of such
holder(s)) in an amount which, in the aggregate, exceeds $5,000,000,
where such notice states or claims the existence or occurrence of any
default or event of default with respect to such Indebtedness under the
terms of any indenture, loan or credit agreement, debenture, note, or
other document evidencing or governing such Indebtedness; and
(m) Other Information. With reasonable promptness, any other
information as the Administrative Agent on behalf of any Lender may
reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. (i) Maintain as of the last
day of each fiscal quarter of 1997 and 1998, a Fixed Charge Coverage Ratio,
calculated for the fiscal quarter then ended and the immediately preceding three
fiscal quarters, equal to or greater than 2.0:1.0, and (ii) maintain as of the
last day of each fiscal quarter of 1999 and thereafter, a Fixed Charge Coverage
Ratio, calculated for the fiscal quarter then ended and the immediately
preceding three fiscal quarters, equal to or greater than 2.5:1.0.
(b) Funded Debt to Consolidated EBITDA. Maintain as of the
last day of each fiscal quarter, a maximum ratio of Funded Debt to Consolidated
EBITDA, calculated for the fiscal quarter then ended and the immediately
preceding three fiscal quarters, of less than or equal to 3.5:1.0.
SECTION 6.09. ADDITIONAL CREDIT PARTIES. If at any time a U.S.
Subsidiary that is not a Credit Party becomes a Material Subsidiary, Borrower
shall cause such subsidiary to execute and deliver to the Documentation Agent a
supplement to each of the Guaranty Agreements in the forms attached thereto,
together with related documents with respect to such new Subsidiary of the kind
described in Section 4.01 (e), (f), (g), (h), (i) and (p), all in form and
substance satisfactory to the Documentation Agent and the Required Lenders.
SECTION 6.10. INTELLECTUAL PROPERTY. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its rights,
franchises, and licenses, and its patents and copyrights (for the scheduled
duration thereof), trademarks, trade names, and service marks, necessary or
desirable in the normal conduct of its business, except where the failure to
maintain such rights, franchises, and licenses, patents, copyrights trademarks,
trade names, and service marks would reasonably be expected to have a Materially
Adverse Effect.
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ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid shall remain outstanding, Borrower will not and will
not permit any Subsidiary to (unless waived in writing by the Required Lenders):
SECTION 7.01. LIENS. Create, incur, assume or suffer to exist
any Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the Closing Date and disclosed on
Schedule 7.01;
(b) Liens on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any refi nancing thereof, provided that such
Lien does not extend to any other property and further provided that
the amount of Indebtedness secured by such Liens does not exceed
$10,000,000 in aggregate principal amount at any one time outstanding;
(c) Liens for taxes not yet due and payable, and Liens for
taxes which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(f) zoning, easements and restrictions on the use of real
property which do not materially impair the use of such property;
(g) Liens arising under ERISA;
(h) rights in property reserved or vested in any governmental
authority which do not materially impair the use of such property;
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(i) Liens on assets of newly acquired Subsidiaries which were
in existence at the time of acquisition and not created in
contemplation thereof;
(j) Liens granted under the Lease Documents;
(k) Liens (other than those permitted by paragraphs (a)
through (j) of this Section 7.01) securing Indebtedness in an aggregate
principal amount outstanding at any time not to exceed fifteen percent
(15%) of the Consolidated Net Worth of the Consolidated Companies as of
the last day of the immediately preceding fiscal quarter of the
Borrower.
SECTION 7.02. GUARANTIES. Create, incur, assume, guarantee,
suffer to exist or otherwise become liable on or with respect to, directly or
indirectly, any Guaranties other than:
(a) endorsements of instruments for deposit or collection in
the ordinary course of business;
(b) guarantees of Indebtedness owned by any Consolidated
Company to another Consolidated Company;
(c) Guaranties of Indebtedness to the extent such Indebtedness
is permitted under Section 6.08(b).
SECTION 7.03. MERGERS, CONSOLIDATIONS. Merge or consolidate
with any other Person, except that the foregoing restrictions shall not be
applicable to:
(a) mergers or consolidations of (x) any Subsidiary with any
other Subsidiary which is a Guarantor or (y) any Subsidiary with
Borrower; or
(b) mergers or consolidations in which any Person engaged in
businesses in which Borrower is engaged as of the Closing Date or
substantially related thereto merges or consolidates with Borrower or
any of its Subsidiaries where the surviving corporation is Borrower or
such Subsidiary;
provided that before and after giving effect to any such merger or
consolidations and any Funded Debt incurred by the Borrower or such Subsidiary
in connection with such merger or consolidation, (x) Borrower is and will be in
compliance with Section 6.08 hereof and if the consideration paid by Borrower or
such Subsidiary in connection with such merger or consolidation is greater than
$75,000,000, Borrower has delivered pro forma financial covenants calculations
demonstrating such compliance, in such detail and using such form of
presentation of historical and forecasted financial information as may be
satisfactory to the Agents (based on the projected Fixed Charges or Funded Debt,
as the case may be, for the immediately succeeding
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four fiscal quarters (including Fixed Charges incurred as a result of the
incurrence of any such Funded Debt) and the historical Consolidated EBIT
(including the Consolidated EBIT of such Person)); (y) no other Default or Event
of Default exists hereunder; and (z) if the surviving Person is a Material
Subsidiary, it promptly complies with Section 6.09 hereof, if applicable;
SECTION 7.04. ASSET SALES. Sell, lease or otherwise dispose of
its accounts, property, stock of its Subsidiaries or other assets; provided,
however, that the foregoing restrictions on Asset Sales shall not be applicable
to:
(a) sales, leases, transfers or dispositions of assets of any
Consolidated Company to the Borrower or any Guarantor;
(b) sales of inventory in the ordinary course of business and
unneeded, worn out or obsolete equipment;
(c) sales of accounts receivable (or of undivided ownership
interests therein) pursuant to the asset securitization facilities;
(d) Asset Sales comprised of assets of any Consolidated
Company where, on the date of execution of a binding obligation to make
such Asset Sale, the assets which are the subject of the proposed Asset
Sale, together with all other such Asset Sales of the Consolidated
Companies during the current fiscal year of Borrower, did not generate
ten percent (10%) or more of Consolidated EBITDA for the immediately
preceding fiscal year of Borrower;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(c) or (d) above shall be permitted if any Default or Event of Default exists at
the time of such transaction or would exist as a result of such transaction.
SECTION 7.05 INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments other than:
(a) Investments in the stock of Subsidiaries of Borrower
existing as of the Closing Date or existing as Subsidiaries of Borrower
immediately prior to the making of such Investment, and Investments in
the form of loans and advances by the Borrower to any Guarantor;
(b) Investments in the stock or other assets of any other
Person that is engaged in a business permitted by Section 7.10 hereof;
provided, that after giving effect to such Investment and any Funded
Debt incurred by the Borrower or such Subsidiary in connection with
making such Investment, (x) Borrower is and will be in compliance with
Section 6.08 hereof and if the Investment is greater than $75,000,000,
the Borrower has delivered pro forma financial covenants calculations
demonstrating such compliance, in
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such detail and using such form of presentation of historical and
forecasted financial infor mation as may be satisfactory to the Agents;
(y) no other Default or Event of Default exists hereunder (based on the
projected Fixed Charges or Funded Debt, as the case may be, for the
immediately succeeding four fiscal quarters (including Fixed Charges
incurred a result of the incurrence of any such Funded Debt) and the
historical Consolidated EBIT (including the Consolidated EBIT of such
Person)); and (z) as a result of such Investment, such Person becomes a
Subsidiary of Borrower, and promptly complies with Section 6.09 if it
becomes a Material Subsidiary of Borrower;
(c) marketable direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United States or any
agency thereof, in each case supported by the full faith and credit of
the United States and maturing within one year from the date of
creation thereof;
(d) Investments received in settlement of Indebtedness created
in the ordinary course of business, and the endorsement of negotiable
instruments in the ordinary course of business;
(e) commercial paper issued by corporations, each of which has
a consolidated net worth of not less than $500,000,000, and conducts a
substantial portion of its business in the United States of America,
maturing no more than 365 days from the date of acquisition thereof and
having as at any date of determination a rating of P-1, P-2 or P-3 from
Standard & Poor's or a rating of ▇-▇, ▇-▇ or A-3 from Moody's;
(f) money market or similar depository accounts, certificates
of deposit or bankers acceptances, in each case redeemable upon demand
or maturing within one year from the date of acquisition thereof,
issued by commercial banks incorporated under the laws of the United
States of America or any state thereof or the District of Columbia,
provided (x) each such bank has at any date of determination combined
capital and surplus of not less than $1,000,000,000 and a rating of its
long-term debt of at least A by Standard & Poor's or at least A by
Moody's or a long-term deposit rating of at least A issued by Standard
& Poor's or at least A issued by Moody's, (y) the aggregate amount of
all such certificates of deposit issued by such bank are fully insured
at all times by the Federal Deposit Insurance Company;
(g) Loans and advances to officers and employees of the
Consolidated Companies made in the ordinary course of business;
(h) Investments in joint ventures in an aggregate amount
during any fiscal year of Borrower not to exceed an amount equal to ten
percent (10%) of Borrower's Consolidated Net Worth as of the end of the
immediately preceding fiscal year of Borrower; and
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(i) Investments (other than those permitted by paragraphs (a)
through (h) above) in an aggregate amount during any fiscal year of
Borrower not to exceed an amount equal to five (5%) percent of
Borrower's Consolidated Net Worth as of the end of the immediately
preceding fiscal year of Borrower.
SECTION 7.07 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES. Enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Subsidiary that is directly or
indirectly wholly owned by the Credit Parties), other than on terms and
conditions substantially as favorable to such Consolidated Company as would be
obtained by such Consolidated Company at the time in a comparable arm's-length
transaction with a Person other than an Affiliate; and
SECTION 7.09. ERISA. (a) Take or fail to take any action with
respect to any Plan maintained or contributed to by any Consolidated Company or,
with respect to its ERISA Affiliates, any Plans which are subject to Title IV of
ERISA or to continuation health care re quirements for group health plans under
Section 4980B of the Tax Code, including without limitation (i) establishing any
such Plan, (ii) amending any such Plan (except where required to comply with
applicable law), (iii) terminating or withdrawing from any such Plan, or (iv)
incurring an amount of unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA, or any withdrawal liability under Title IV of ERISA with
respect to any such Plan, or any unfunded liabilities under any Foreign Plan,
without first obtaining the written approval of the Required Lenders, where such
actions or failures could result in a Material Adverse Effect; or
(b) Permit a Plan or Foreign Plan maintained or contributed to by a
Consolidated Company or a Plan subject to Title IV of ERISA of any of its ERISA
Affiliates:
(i) to fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan or
Foreign Plan, Section 412 of the Tax Code or Section 302 of ERISA for
any plan year or a waiver of such standard is sought or granted with
respect to such Plan or Foreign Plan under applicable law, the terms of
such Plan or Foreign Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
(ii) to be terminated or the subject of termination
proceedings under applicable law or the terms of such Plan or Foreign
Plan; or
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(iii) to require a Consolidated Company to provide security
under applicable law, the terms of such Plan or Foreign Plan, Section
401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) to result for any reason, in a liability (including
without limitation, withdrawal liability) to a Consolidated Company
under applicable law, the terms of such Plan or Foreign Plan, or Title
IV of ERISA;
if the result from any such failure, waiver, termination or other event a
liability to the PBGC (or any similar Person with respect to any Foreign Plan),
a Plan or any other Person that would have a Materially Adverse Effect.
SECTION 7.10. ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than the prohibitions and restrictions
contained in this Agreement.
SECTION 7.11. CHANGES IN BUSINESS. Enter into any business
which is substantially different from that presently conducted by the
Consolidated Companies taken as a whole immediately prior to the SpinOff from
Equifax, which includes providing risk management and fraud prevention
information and related technology solutions to the property and casualty
insurance industry, life and health insurance industry and other industries,
(including, without limitation, (1) providing automated and traditional
underwriting and claim information services to assist U.S. insurance companies
in assessing the insurability of individuals and property and the validity of
insurance claims, (2) providing background investigations, (3) performing
paramedical exams, (4) furnishing access to motor vehicles reports, (5)
maintaining a database of claims histories, (5) providing claim verification and
investigative services to both the property and casualty and the life and health
insurance markets, (6) providing pre-employment background investigations,
pre-employment and regulatory compliance drug testing services and public record
information to other corporate and government organizations), unless such
business is a strategic extension of the business of the Consolidated Companies
immediately prior to the SpinOff.
SECTION 7.12. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions to
Borrower or any other Subsidiary on such Consolidated Company's stock, provided
that this provision shall not affect CBD/Infotek's payment of dividends or
distributions on its stock to Borrower, or (ii) pay any indebtedness owed to
Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents.
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SECTION 7.13. ACTIONS UNDER CERTAIN DOCUMENTS. Without the
prior written consent of the Agents and the Required Lenders, modify, amend or
supplement the Lease Documents to (i) increase the principal amount of the
indebtedness thereunder or the lease payments required thereunder, (ii) increase
the interest rate thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or average life of
the indebtedness or lease obligations outstanding thereunder or make the
requirement of prepayment more onerous, or (iv) make any more onerous any other
provision thereof.
SECTION 7.14. CHANGES IN FISCAL YEAR. Change the calculation
of the fiscal year of the Borrower.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Borrower shall fail to make promptly
when due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Borrower shall fail to make within five
(5) Business Days after the due date thereof any payment of interest, fee or
other amount payable hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Borrower shall fail to
observe or perform any covenant or agreement (i) contained in Section 7.09 and,
if capable of being remedied, such failure shall remain unremedied for fifteen
(15) days after the earlier of (A) an Executive Officer's obtaining knowledge
thereof, (ii) contained in Section 7.05 and, if capable of being remedied, such
failure shall remain unremedied for ten (10) days after the earlier of (A) an
Executive Officer's obtaining knowledge thereof, or (B) written notice thereof
shall have been given to Borrower by any Agent or any Lender, or (iii) contained
in Sections 2.01(b), 6.01, 6.05, 6.07(e), 6.08, or 7.03.
SECTION 8.03. OTHER COVENANTS. Borrower shall fail to observe
or perform any covenant or agreement contained in this Agreement, other than
those referred to in Sections 8.01 and 8.02, and, if capable of being remedied,
such failure shall remain unremedied for thirty (30) days after the earlier of
(i) an Executive Officer of Borrower's obtaining knowledge thereof, or (ii)
written notice thereof shall have been given to Borrower by any Agent or any
Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty
made or deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any
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certificate or other document submitted to the Agents or the Lenders by any such
Person pursuant to the terms of this Agreement or any other Credit Document,
shall be incorrect in any material respect when made or deemed to be made or
submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any
Consolidated Company shall fail to observe or perform within any applicable
grace period any covenants or agreements contained in any agreements or
instruments relating to any of its Indebtedness exceeding $5,000,000 in the
aggregate, or any other event shall occur if the effect of such failure or other
event is to accelerate, or to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Borrower or any other Consolidated
Company shall commence a voluntary case concerning itself under the Bankruptcy
Code or applicable foreign bankruptcy laws; or an involuntary case for
bankruptcy is commenced against any Consolidated Company 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) or
similar official under applicable foreign bankruptcy laws is appointed for, or
takes charge of, all or any substantial part of the property of any Consolidated
Company; or any Consolidated Company commences proceedings of its own bankruptcy
or to be granted a suspension of payments or 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 any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company 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 any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
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SECTION 8.08. MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $5,000,000 not covered by insurance or otherwise
having a Materially Adverse Effect shall be rendered against Borrower or any
other Consolidated Company and such judgment or order shall continue unsatisfied
and in effect for a period of 60 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 8.09. CHANGE IN CONTROL OF BORROWER. (i) Any "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) other than employees of the Borrower (either directly or through a
retirement or employee benefit plan), shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than twenty-five percent (25%) of the shares
of the outstanding common stock of Borrower entitled to vote for members of
Borrower's board of directors, or (ii) any event or condition shall occur or
exist which, pursuant to the terms of any Change in Control Provision, requires
or permits the holder(s) of Indebtedness of any Consolidated Company to require
that such Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in any
respect.
SECTION 8.10. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There
shall exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of Borrower or any other Credit Party, or at any time it is or becomes unlawful
for Borrower or any other Credit Party to perform or comply with its obligations
under any Credit Document, or the obligations of Borrower or any other Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on Borrower or any such Credit Party; or
SECTION 8.11. ATTACHMENTS. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated Company
with an aggregate value (based upon the greater of the book value of such assets
as established in accordance with GAAP or the fair market value of such assets
as determined in good faith by such Consolidated Company) exceeding $5,000,000
in aggregate and is not removed, suspended or enjoined within 60 days of the
same being made or any suspension or injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, with the consent of the
Required Lenders, and upon the written (including telecopied) or telex request
of the Required Lenders, shall, by written notice to Borrower, take any or all
of the following actions, without prejudice to the rights of either Agent, any
Lender or the holder of any Note to enforce its claims against Borrower or any
other Credit Party: (i) declare all Commitments terminated, whereupon the pro
rata Commitments of each Lender shall terminate immediately and any commitment
fee shall forthwith become due and payable without any other notice of any kind;
and (ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder, to
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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 Borrower; provided, that, if an Event of Default specified in
Section 8.07 shall occur, the result which would occur upon the giving of
written notice by the Administrative Agent to any Credit Party, as specified in
clauses (i) and (ii) above, shall occur automatically without the giving of any
such notice; and (iii) exercise any rights or remedies under the Security
Documents.
ARTICLE IX.
THE ADMINISTRATIVE AGENT AND THE DOCUMENTATION AGENT
SECTION 9.01. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender
hereby designates Wachovia as Administrative Agent to administer all matters
concerning the Loans and to act as herein specified. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of a Note
shall be deemed irrevocably to authorize, the Administrative Agent to take such
actions on its behalf under the provisions of this Agreement, the other Credit
Documents, and all 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 its duties
hereunder by or through its agents or employees.
SECTION 9.02. APPOINTMENT OF DOCUMENTATION AGENT. Each Lender
hereby designates SunTrust as Documentation Agent and acknowledges that it shall
have no duties under this Agreement or any other Credit Document whatsoever
except as explicitly set forth herein. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the ac ceptance of a Note shall be
deemed irrevocably to authorize, the Documentation Agent to take such actions on
its behalf under the provisions of this Agreement, the other Credit Documents,
and all 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 Documentation Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Documentation Agent may perform any of its duties hereunder by or through
its agents or employees.
SECTION 9.03. NATURE OF DUTIES OF AGENTS. The Agents shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Agents nor any of their
respective officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful misconduct. The duties
of the Agents shall be ministerial and administrative in nature; the Agents
shall not have by reason of this Agreement a fiduciary relationship in respect
of any Lender; and nothing in this Agreement,
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express or implied, is intended to or shall be so construed as to impose upon
any Agent any obligations in respect of this Agreement or the other Credit
Documents except as expressly set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENTS.
(a) Independently and without reliance upon either Agent, each
Lender, 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 Credit Parties in connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the creditworthiness of the
Credit Parties, and, except as expressly provided in this Agreement, neither
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender 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.
(b) Neither Agent shall be responsible to any Lender 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,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements or any other documents contemplated hereby or thereby, or
the financial condition of the Credit Parties, or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement, the Notes, the Guaranty Agreements
or the other documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or the existence or possible existence of any
Default or Event of Default.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENTS. If either Agent
shall request instructions from the Required Lenders with respect to any action
or actions (including the failure to act) in connection with this Agreement,
such Agent shall be entitled to refrain from such act or taking such act, unless
and until such Agent shall have received instructions from the Required Lenders;
and such Agent shall not incur liability in any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against either Agent as a result of such Agent's acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
SECTION 9.06. RELIANCE BY THE AGENTS. The Agents 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, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Agents may
consult with legal counsel (including counsel for any Credit Party), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
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SECTION 9.07. INDEMNIFICATION OF THE AGENTS. To the extent
either Agent is not reimbursed and indemnified by the Credit Parties, each
Lender will reimburse and indemnify such Agent, ratably according to the
respective amounts of the Loans outstanding under all Facilities (or if no
amounts are outstanding, ratably in accordance with the aggregate Commitments),
in either case, for and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in performing its duties hereunder, in any way relating to or arising out
of this Agreement or the other Credit Documents; provided that no Lender shall
be liable to either Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct.
SECTION 9.08. THE AGENTS IN THEIR INDIVIDUAL CAPACITIES. With
respect to its obligation to lend under this Agreement, the Loans made by it and
the Notes issued to it, each Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Each Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agents 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 or transfer thereof 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 or assignee of such Note or of any Note or Notes
issued in exchange therefor.
SECTION 9.10. SUCCESSOR AGENTS.
(a) Each Agent may resign at any time by giving written notice
thereof to the Lenders and Borrower and may be removed at any time with or
without cause by the Required Lenders; provided, however, neither Agent may
resign or be removed until a successor Administrative Agent or Documentation
Agent, as the case may be, has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Administrative Agent or Documentation
Agent, as the case may be, with the consent of the Borrower so long as no
Default or Event of Default has occurred and is continuing, which consent shall
not be unreasonably withheld or delayed. If no
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successor Administrative Agent or Documentation Agent, as the case may be shall
have been so appointed by the Required Lenders with the consent of the Borrower,
and shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent or Documentation Agent, as the case may be, which
shall be a bank which maintains an office in the United States, or a commercial
bank organized under the laws of the United States of America or any State
thereof, or any Affiliate of such bank, having a combined capital and surplus of
at least $100,000,000.
(b) Upon the acceptance of any appointment as the
Administrative Agent or the Documentation Agent, as the case may be, hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Administrative Agent or Documentation Agent, as the case may be, the provisions
of this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Agent under this Agreement.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Agents and Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; provided that notices to the Agents shall
not be effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by Borrower and the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that no amendment, waiver
or consent shall, unless in writing and signed by Borrower and all the Lenders
do any of
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the following: (i) waive any of the conditions specified in Section 4.01 or
4.02, (ii) increase the Commitments or other contractual obligations to Borrower
under this Agreement, (iii) reduce the principal of, or interest on, the Notes
or any fees hereunder, (iv) postpone any date fixed for the payment in respect
of principal of, or interest on, the Notes or any fees hereunder, (v) change the
percentage of the Syndicated Loan Commitments or of the aggregate unpaid
principal amount of the Notes, or the number or identity of Lenders which shall
be required for the Lenders or any of them to take any action hereunder, (vi)
agree to release any Guarantor from its obligations under any Guaranty
Agreement, (vii) modify the definition of "Required Lenders," or (viii) modify
this Section 10.02. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing and signed by Borrower and the Agents in
addition to the Lenders required hereinabove to take such action, affect the
rights or duties of the Agents under this Agreement or under any other Credit
Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of the Agents, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document, and
no course of dealing between any Credit Party and the Agents, any Lender or the
holder of any Note shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right or remedy hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Agents, any Lender or the holder of any Note would otherwise have. No
notice to or demand on any Credit Party not re quired hereunder or under any
other Credit Document 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 Agents, the Lenders or the holder of any Note to any
other or further action in any circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Borrower shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-pocket costs
and expenses of both Agents in the administration (both before and
after the execution hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights and duties of
the Agents and the Lenders with respect thereto) of, and in connection
with the preparation, execution and delivery of, preservation of rights
under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto
(including, without limitation, the reasonable fees actually incurred
and disbursements of counsel for the Agents), and in the case of
enforcement of this Agreement or any Credit Document after an Event of
Default, all such reasonable, out-of-pocket costs and expenses
(including, without limitation, the
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reasonable fees actually incurred and disbursements of counsel), for
both Agents and the Lenders;
(ii) subject, in the case of certain Taxes, to
the applicable provisions of Section 3.06(b), pay and hold each of the
Agents and the Lenders harmless from and against any and all present
and future stamp, documentary, and other similar Taxes with respect to
this Agreement, the Notes and any other Credit Documents, any
collateral described therein, or any payments due thereunder, and save
each of the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such
Taxes; and
(iii) indemnify the Agents and each Lender, and
their respective officers, directors, employees, representatives and
agents from, and hold each of them harmless against, any and all costs,
losses, liabilities, claims, damages or expenses incurred by any of
them (whether or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any investigation,
litigation or other proceeding related to any actual or proposed use of
the proceeds of any of the Loans or any Credit Party's entering into
and performing of the Agreement, the Notes, or the other Credit
Documents, including, without limitation, the reasonable fees actually
incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct;
(iv) without limiting the indemnities set forth
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost
of investigating or defending any claim and whether or not such claim
is ultimately defeated, and whether such claim arose before, during or
after any Credit Party's ownership, operation, possession or control of
its business, property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any
compromise or settlement by the Indemnitee or Indemnitees to the
holders of any such claim), lawsuits, liabilities, obligations,
actions, judgments, suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination or destruction
of natural resources), penalties and fines of any kind or nature
whatsoever (including without limitation in all cases the reasonable
fees actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws
based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee under
this Agreement, any other Credit Document or any related documents.
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If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a Note may
have under applicable law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such Lender or such holder
has made any demand or any Credit Party's obligations are matured, have the
right to appropriate and apply to the payment of any Credit Party's obligations
hereunder and under the other Credit Documents, all deposits of any Credit Party
(general or special, time or demand, provisional or final) then or thereafter
held by and other indebtedness or property then or thereafter owing by such
Lender or other holder to any Credit Party, whether or not related to this
Agreement or any transaction hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
(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 that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for
the account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of any
of its Commitments and the Loans at the time owing to it and the Notes held by
it) to any other Lender or any financial institution; provided, however, that
(i) the Agents and Borrower must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed) unless
such assignment is to an Affiliate of the assigning Lender or, in the case of
Borrower, unless an Event of Default has occurred and is continuing, (ii) the
amount of the Commitments or Loans of the assigning Lender subject to each
assignment (determined as of the date the assignment and acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 and in intervals of $5,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $3,000, (iv) no Lender may make more than two (2) assignments
to any Person which is not then a Lender or affiliate thereof (unless a Default
or Event of Default has occurred and is continuing) and (v) if the assignee
Lender is not a United States citizen or resident (or the assignee Lender is
filing as a foreign corporation, partnership, estate or trust), the assignee
Lender delivers the Internal Revenue Service Form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service, to the
Borrower
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and the Administrative Agent, as required by Section 3.06(b)(ii) of this
Agreement. Borrower shall not be responsible for such processing and recordation
fee or any costs or expenses incurred by any Lender or the Administrative Agent
in connection with such assignment. From and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, the assignee thereunder shall be
a party hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement.
Within five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes to the order of such assignee in a principal amount equal to the
applicable Commitments assumed by it pursuant to such Assignment and Acceptance
and new Note or Notes to the assigning Lender in the amount of its retained
Commitment or Commitments. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower or the
Agents, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it and the Notes held by it),
provided, however, that (i) no Lender may sell a participa tion in its aggregate
Commitments (after giving effect to any permitted assignment hereof) in an
amount in excess of fifty percent (50%) of such aggregate Commitments, except
that sales of participations to an Affiliate of such Lender shall not be
included in such calculation and no such maximum amount shall be applicable to
any such participation sold at any time there exists an Event of Default
hereunder, (ii) such Lender's obligations under this Agreement shall remain
unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (iv) the
participating bank or other entity shall not be entitled to the benefit (except
through its selling Lender) of the cost protection provisions contained in
Article III of this Agreement, and (v) Borrower, the Agents and other Lenders
shall continue to deal solely and directly with each Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents, and such Lender shall retain the sole right to enforce the
obligations of Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provisions of this Agreement. Any Lender selling a
participation hereunder shall provide prompt written notice to Borrower of the
name of such participant.
(f) Any Lender may at any time assign or pledge all or any
portion of its rights in this Agreement and the Notes issued to it to a Federal
Reserve Bank.
(g) If (i) any Taxes referred to in Section 3.06(b) have been
levied or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result thereof, or
(ii) any Lender shall make demand for payment of increased costs or reduced rate
of return pursuant to Section 3.09 or any Lender
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determines that LIBOR is unascertainable or illegal pursuant to Section 3.07 or
Section 3.08, or any Lender makes a claim for increased costs pursuant to
Section 3.08, then and in such event, upon request from Borrower delivered to
such Lender and the Administrative Agent, such Lender shall assign, in
accordance with the provisions of Section 10.06(c), all of its rights and
obligations under this Agreement and the other Credit Documents to another
Lender or another financial institution selected by Borrower and acceptable to
the Agents, which acceptance will not be unreasonably withheld or delayed, in
consideration for the payment by such assignee to the Lender of the principal
of, and interest on, the outstanding Loans accrued to the date of such
assignment, and the assumption of such Lender's Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions of this
Agreement or the other Credit Documents accrued to the date of such assignment;
provided, however, Lenders subject to this Section 10.06 shall be treated in a
substantially identical manner.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR
COURT OF ▇▇▇▇▇▇ COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR
OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(C) BORROWER HEREBY IRREVOCABLY DESIGNATES [CSC/PRENTICE HALL,
INC.,] AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON BEHALF
OF BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY DOCUMENT
RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH
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PROCESS SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL
AGENT AND BY THE SERVER OF SUCH PROCESS BY MAIL TO BORROWER AT ITS ADDRESS SET
FORTH OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE SUCH
COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS 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 BORROWER AT ITS SAID ADDRESS,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of any Lender, any
holder of a Note or any Credit Party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Borrower in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 10.09. 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.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the same
to the Documentation Agent pursuant to Section 10.01 or, in the case of the
Lenders, shall have given to the Documentation Agent written or telex notice
(actually received) that the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 3.06(b), 3.09,
3.11, 3.12 and 10.04 hereof shall survive the payment in full of the Notes and
all other Obligations after the Maturity Date. All representations and
warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement, the other Credit Documents, and such other
agreements and documents, the making of the Loans hereunder, and the execution
and delivery of the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or
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in part, in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.13. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. 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. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and to be delivered in Atlanta, Georgia, by their
duly authorized officers as of the day and year first above written.
Address for Notices: CHOICEPOINT INC.
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ --------------------------------
Name:
Title:
Attn: ____________
Attest:
Telephone: ----------------------------
Telecopy: Name:
Title:
[CORPORATE SEAL]
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Address for Notices: WACHOVIA BANK, N.A.,
------------------- AS ADMINISTRATIVE AGENT
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇. By:
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ --------------------------------
Name:
Title:
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Address for Notices: SUNTRUST BANK, ATLANTA,
------------------- AS DOCUMENTATION AGENT
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attn: Mr. J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ --------------------------------
Name:
Title:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Payment Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Address for Notices: WACHOVIA BANK, N.A.
-------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ --------------------------------
Name:
Title:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office and Payment Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SYNDICATED LOAN COMMITMENT: $60,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 24%
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Address for Notices: SUNTRUST BANK, ATLANTA
-------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attention: Mr. J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ --------------------------------
Name:
Title:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Lending Office and Payment Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SYNDICATED LOAN COMMITMENT: $60,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 24%
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Address for Notices: FIRST UNION NATIONAL BANK OF
------------------- GEORGIA
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attention: Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇ --------------------------------
Name:
Title:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office and Payment Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SYNDICATED LOAN COMMITMENT: $40,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 16%
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Address for Notices: BANK OF AMERICA NT & SA
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ --------------------------------
Name:
Title:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office and Payment Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SYNDICATED LOAN COMMITMENT: $35,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 14%
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Address for Notices: CIBC, INC.
-------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
Attention: ________________ --------------------------------
Name:
Title:
Telephone No.: ___________________
Telecopy No.: ___________________
Lending Office and Payment Office:
__________________________
__________________________
SYNDICATED LOAN COMMITMENT: $30,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 12%
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Address for Notices: FIRST CHICAGO/NBD
-------------------
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ By:
Attention: ________________ --------------------------------
Name:
Title:
Telephone No.: ___________________
Telecopy No.: ____________________
Lending Office and Payment Office:
_______________________
_______________________
SYNDICATED LOAN COMMITMENT: $25,000,000
PRO RATA SHARE OF
SYNDICATED LOAN COMMITMENTS: 10%
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