EXHIBIT 10(j)
CREDIT AGREEMENT
dated as of
29 December 1999
among
ACXIOM CORPORATION
The Lenders Party Hereto,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as the agent and a co-administrative agent
and
MERCANTILE BANK, N.A.,
as a co-administrative agent,
with
BANK OF AMERICA, N.A.,
as syndication agent,
and
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA,
BANK ONE, NA,
WACHOVIA BANK, N.A.
and
SUNTRUST BANK, NASHVILLE, N.A.
as co-agents,
CHASE SECURITIES INC.,
as sole book manager and a co-lead arranger
and
BANC OF AMERICA SECURITIES LLC,
as a co-lead arranger
TABLE OF CONTENTS
ARTICLE I. Definitions.......................................................1
SECTION 1.01. Defined Terms..............................................1
SECTION 1.02. Classification of Loans and Borrowings.....................17
SECTION 1.03. Terms Generally............................................17
SECTION 1.04. Accounting Terms; GAAP.....................................17
ARTICLE II. The Credits......................................................17
SECTION 2.01. Commitments................................................17
SECTION 2.02. Loans and Borrowings.......................................18
SECTION 2.03. Requests for Borrowings....................................18
SECTION 2.04. Swingline Loans............................................19
SECTION 2.05. Letters of Credit..........................................20
SECTION 2.06. Funding of Borrowings......................................24
SECTION 2.07. Interest Elections.........................................24
SECTION 2.08. Termination and Reduction of Revolving Commitments;
Extension of Maturity Date...............................26
SECTION 2.09. Repayment of Loans; Evidence of Debt.......................27
SECTION 2.10. Prepayment of Loans........................................27
SECTION 2.11. Fees.......................................................28
SECTION 2.12. Interest...................................................29
SECTION 2.13. Alternate Rate of Interest.................................30
SECTION 2.14. Increased Costs............................................30
SECTION 2.15. Break Funding Payments.....................................31
SECTION 2.16. Taxes......................................................32
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs..............................................33
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.............35
SECTION 2.19. Increase of Revolving Commitments..........................35
ARTICLE III. Representations and Warranties..................................36
SECTION 3.01. Organization; Powers.......................................36
SECTION 3.02. Authorization; Enforceability..............................37
SECTION 3.03. Governmental Approvals; No Conflicts.......................37
SECTION 3.04. Financial Condition; No Material Adverse Change............37
SECTION 3.05. Properties.................................................38
SECTION 3.06. Litigation and Environmental Matters.......................38
SECTION 3.07. Compliance with Laws and Agreements........................39
SECTION 3.08. Investment and Holding Company Status......................39
SECTION 3.09. Taxes......................................................39
SECTION 3.10. ERISA......................................................39
SECTION 3.11. Disclosure.................................................39
SECTION 3.12. Subsidiaries...............................................40
SECTION 3.13. Insurance..................................................40
SECTION 3.14. Labor Matters..............................................40
SECTION 3.15. Solvency...................................................40
SECTION 3.16. Senior Indebtedness........................................40
SECTION 3.17. Year 2000..................................................41
SECTION 3.18. Margin Securities..........................................41
ARTICLE IV. Conditions.......................................................41
SECTION 4.01. Effective Date.............................................41
SECTION 4.02. Each Credit Event..........................................42
ARTICLE V. Affirmative Covenants.............................................42
SECTION 5.01. Financial Statements and Other Information.................43
SECTION 5.02. Notices of Material Events.................................44
SECTION 5.03. Existence; Conduct of Business.............................44
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SECTION 5.04. Payment of Obligations.....................................45
SECTION 5.05. Maintenance of Properties..................................45
SECTION 5.06. Insurance..................................................45
SECTION 5.07. Casualty and Condemnation..................................45
SECTION 5.08. Books and Records; Inspection and Audit Rights.............45
SECTION 5.09. Compliance with Laws.......................................45
SECTION 5.10. Use of Proceeds and Letters of Credit......................46
SECTION 5.11. Additional Subsidiaries; Additional Guarantors.............46
SECTION 5.12. Further Assurances.........................................46
SECTION 5.13. Compliance with Agreements.................................47
ARTICLE VI. Negative Covenants...............................................47
SECTION 6.01. Indebtedness; Certain Equity Securities....................47
SECTION 6.02. Liens......................................................49
SECTION 6.03. Fundamental Changes........................................50
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions..51
SECTION 6.05. Asset Sales; Equity Issuances..............................53
SECTION 6.06. Sale and Leaseback Transactions............................54
SECTION 6.07. Hedging Agreements.........................................54
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness......54
SECTION 6.09. Transactions with Affiliates...............................55
SECTION 6.10. Restrictive Agreements.....................................55
SECTION 6.11. Amendment of Organizational Documents......................56
SECTION 6.12. Subordinated Debt Documents................................56
SECTION 6.13. Senior Note Documents......................................56
SECTION 6.14. Change in Fiscal Year......................................57
ARTICLE VII. Financial Covenants.............................................57
SECTION 7.01. Consolidated Tangible Net Worth............................57
SECTION 7.02. Leverage Ratio.............................................59
SECTION 7.03. Fixed Charge Coverage......................................60
SECTION 7.04. Asset Coverage.............................................61
ARTICLE VIII. Events of Default..............................................62
ARTICLE IX. Agent............................................................64
ARTICLE X. Miscellaneous.....................................................66
SECTION 10.01. Notices...................................................66
SECTION 10.02. Waivers; Amendments.......................................66
SECTION 10.03. Expenses; Indemnity; Damage Waiver........................67
SECTION 10.04. Successors and Assigns....................................69
SECTION 10.05. Survival..................................................71
SECTION 10.06. Counterparts; Integration; Effectiveness..................71
SECTION 10.07. Severability..............................................72
SECTION 10.08. Right of Setoff...........................................72
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process.................................................72
SECTION 10.10. WAIVER OF JURY TRIAL......................................73
SECTION 10.11. Headings..................................................73
SECTION 10.12. Confidentiality...........................................73
SECTION 10.13. Maximum Interest Rate.....................................74
SECTION 10.14. Intercompany Subordination................................75
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EXHIBITS:
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Borrower's Counsel
EXHIBIT C - Form of Subsidiary Guaranty
EXHIBIT D - Form of Increased Commitment Supplement
SCHEDULES:
SCHEDULE 2.01 - Commitments
SCHEDULE 3.12 - Subsidiaries
SCHEDULE 6.01 - Existing Indebtedness and Preferred Equity Interests
SCHEDULE 6.02 - Existing Liens
SCHEDULE 6.04 - Existing Investments
SCHEDULE 6.10 - Existing Restrictions
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") dated as of December 29, 1999,
is among ACXIOM CORPORATION, a Delaware Corporation, the LENDERS party hereto,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as the agent and as a
co-administrative agent and MERCANTILE BANK, N.A., as a co-administrative agent,
and BANK OF AMERICA, N.A., as syndication agent.
The parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accumulated Total Assets" has the meaning specified in Section 6.05.
"Acquiring Company" has the meaning specified in Section 6.04.
"Adjusted EBITDA" has the meaning specified in Section 7.02.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Questionnaire" means an administrative questionnaire
in a form supplied by the Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agent" means Chase Bank of Texas, National Association, as agent for
the Lenders hereunder.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Percentage" means, at any time and with respect to any
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment at such time. If the Revolving Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon
the Revolving Commitments most recently in effect, giving effect to any
assignments.
"Applicable Rate" means, for any day (a) with respect to any ABR Loan
or Eurodollar Loan or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"ABR Spread", "Eurodollar Spread" or "Commitment Fee Rate", as the case may be,
opposite the category in the table below which corresponds with the actual
Leverage Ratio as of the most recent determination date; provided that until the
first date that the Applicable Rate is determined as set forth below in this
definition, the "Applicable Rate" shall be the applicable rate per annum set
forth below in Category 3:
================================================================================
Leverage Ratio ABR Spread Eurodollar Spread Commitment
Fee Rate
================================================================================
Category 1 0.00% 1.00% 0.225%
less than
0.50 to 1.00
--------------------------------------------------------------------------------
Category 2 0.00% 1.25% 0.250%
great than or equal
to 0.50 to 1.00
but less than
1.00 to 1.00
--------------------------------------------------------------------------------
Category 3 0.00% 1.50% 0.300%
greater than
1.00 to 1.00
but less than
1.50 to 1.00
--------------------------------------------------------------------------------
Category 4 0.25% 1.75% 0.375%
greater than or
equal to
1.50 to 1.00
--------------------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) beginning with the fiscal quarter ended June 30, 2000
and (ii) each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on and including
the date of delivery to the Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; provided that the Leverage Ratio shall
be deemed to be in Category 4 (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Agent or at the request
of the Required Lenders if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Agent to be representative of the cost of
such insurance to the Lenders.
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"Asset Value" has the meaning specified in Section 7.04.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Agent, in the form of Exhibit A
or any other form approved by the Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Acxiom Corporation, a Delaware corporation.
"Borrowing" means Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York, New York, Houston, Texas, or Dallas,
Texas are authorized or required by law to remain closed; provided that, when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"Capital Expenditures" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of Sections 13(d) or 14(d) the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Equity Interests representing more than 20% of either the
aggregate ordinary voting power or the aggregate equity value represented by the
issued and outstanding Equity Interests in Borrower; or (b) the acquisition of
direct or indirect Control of the Borrower by any Person or group; or (c) any
"Change of Control" as defined in the Subordinated Debt Documents.
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"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Co-Administrative Agents" means Chase Bank of Texas, National
Association and Mercantile Bank, N.A.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Concentration Test" has the meaning specified in Section 5.11.
"Consolidated Net Income" has the meaning specified in Section 7.01.
"Consolidated Tangible Net Worth " has the meaning specified in Section
7.01.
"Consolidated Total Assets" means, with respect to any Person and at
any time, all amounts which in conformity with GAAP would be included as assets
on a consolidated balance sheet of such Person.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Current Maturity Date" has the meaning specified in Section 2.08(b).
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means all the matters disclosed in the Borrower's
reports to the securities and Exchange Commission on form 10-Q for the quarterly
period ended September 30, 1999 and on form 10-K for the fiscal year ended March
31, 1999.
"Dispositions" has the meaning set forth in Section 6.05.
"Dollar Amount" means, as of any date of determination, (a) in the case
of any amount denominated in dollars, such amount, and (b) in the case of any
amount denominated in other currency, the amount of dollars which is equivalent
to such amount of other currency as of such date, determined by using the Spot
Rate on the date two (2) Business Days prior to such date.
"dollars" or "$" refers to lawful money of the United States of America.
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"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of the United States of America, any state thereof or the District of
Columbia.
"EBITDA" has the meaning specified in Section 7.02.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Forward Agreement" means the Synthetic Purchase Agreement
governed by that certain International Swap Dealers Association, Inc. Master
Agreement entered into between Borrower and Chase Bank of Texas, National
Association in December of 1999, as the same may be amended or otherwise
modified from time to time.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person and any
option, warrant or other right relating thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
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administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning specified in Article VIII.
"Excluded Subsidiary " means any Foreign Subsidiary and any Subsidiary
who is not a party to the Subsidiary Guaranty.
"Excluded Subsidiary Loan and Guaranty Amount" has the meaning
specified in Section 6.01(a)(iii).
"Excluded Subsidiary Loan and Guaranty Limit" has the meaning specified
in Section 6.01(a)(iii).
"Excluded Taxes" means, with respect to the Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.16(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).
"Extension Request" has the meaning specified in Section 2.08(b).
"Federal Funds Effective Rate" means (i) for the first day of an ABR
Borrowing or Swingline Loan, the rate per annum which is the average of the
rates on the offered side of the Federal funds market quoted by three interbank
Federal funds brokers, selected by the Agent, at approximately the time the
Borrower requests such Borrowing or Swingline Loan, for dollar deposits in
immediately available funds, for a period and in an amount, comparable to the
principal amount of such ABR Borrowing or Swingline Loan, as the case may be,
and (ii) for each day of such ABR Borrowing or Swingline Loan thereafter, or for
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any other amount hereunder which bears interest at the Alternative Base Rate or
the Federal Funds Effective Rate, the rate per annum which is the average of the
rates on the offered side of the Federal funds market quoted by three interbank
Federal funds brokers, selected by the Agent, at approximately 2:00 p.m. New
York City time on such day for dollar deposits in immediately available funds,
for a period and in an amount, comparable to the principal amount of such ABR
Borrowing, Swingline Loan or other amount, as the case may be; in the case of
both clauses (i) and (ii), as determined by the Agent and rounded upwards, if
necessary, to the nearest 1/100 of 1%.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" has the meaning specified in Section 7.03.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness, or other obligation (including any
obligations under an operating lease) of such Person or any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation (including the lessor under an operating lease)
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
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"Guarantor" means Acxiom CDC, Inc., Acxiom/Direct Media, Inc.,
Acxiom/May & ▇▇▇▇, Inc., Acxiom RM-Tools, Inc., Acxiom/Woodland Hills Data
Center, Inc. and each other Subsidiary who becomes a guarantor under the
Subsidiary Guaranty in accordance with Section 5.11.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement,
security hedging agreement, other interest, currency or security exchange rate
or commodity price hedging arrangement, any Synthetic Purchase Agreement or any
other derivative instrument.
"Increased Commitment Supplement" has the meaning specified in Section
2.19.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
obligations of others secured by (or for which the holder of such obligations
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed (provided that for purposes of this clause (f)
the amount of any such Indebtedness shall be deemed not to exceed the higher of
the market value or the book value of such assets), (g) all Guarantees by such
Person of obligations of others (including Guarantees of operating leases), (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty, (j) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances, (k) indebtedness in respect of
mandatory redemption or mandatory dividend rights on Equity Interests but
excluding dividends payable solely in additional Equity Interests, (l) all
obligations of such Person, contingent or otherwise, for the payment of money
under any noncompete, consulting or similar agreement entered into with the
seller of a Target or any other similar arrangements providing for the deferred
payment of the purchase price for an acquisition permitted hereby or an
acquisition consummated prior to the date hereof, (m) all obligations of such
Person under any Hedging Agreement, (n) all obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which lease
is required or is permitted to be classified and accounted for as an operating
lease under GAAP but which is intended by the parties thereto for tax,
bankruptcy, regulatory, commercial law, real estate law and all other purposes
as a financing arrangement, and (o) all other amounts (other than accruals,
deferred revenue and deferred taxes) which are required by GAAP to be included
as liabilities on a consolidated balance sheet of such Person. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
-8-
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. The amount of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement (including, without limitation, the obligations arising under the
Equity Forward Agreement) shall, at any time of determination and for all
purposes under this Agreement, be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time giving effect to
current market conditions notwithstanding any contrary treatment in accordance
with GAAP. The deferred purchase price of property or services to be paid
through earnings of the purchaser to the extent such amount is not characterized
as liabilities in accordance with GAAP shall not be Indebtedness.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated December 1999 relating to the Borrower and the credit facility established
by this Agreement.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December commencing the first such
date after the Effective Date, (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the first day of
such Interest Period, and (c) with respect to any Swingline Loan, the day that
such Loan is required to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Issuing Bank" means Chase Bank of Texas, National Association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.05(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
-9-
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, on any date, the ratio of Total Indebtedness to
Adjusted EBITDA then most recently calculated in accordance with Section 7.02.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of Chase Bank of Texas, National Association in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Subsidiary Guaranty and all
other certificates, agreements and other documents or instruments now or
hereafter executed and/or delivered pursuant to or in connection with this
Agreement or the Subsidiary Guaranty and any and all amendments, modifications,
supplements, renewals, extensions or restatements thereof.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Borrower and the
-10-
Subsidiaries taken as a whole, (b) the ability of the Borrower or any Guarantor
to perform any of its obligations under any Loan Document or (c) the validity,
enforceability or collectibility of the Revolving Loans or the ability of the
Agent and the Lenders to enforce a material provision of any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit) of any one or more of, the Borrower and the Subsidiaries in
an aggregate principal amount exceeding a Dollar Amount equal to $5,000,000.
"Maturity Date" means December 29, 2002, or such later date as may be
requested by the Borrower and approved by the Lenders in accordance with Section
2.08(b).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"New Lender" has the meaning specified in Section 2.19.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 120 days
and are not being enforced or are being contested in compliance with Section
5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
-11-
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Significant Subsidiary;
(g) Liens arising from filing UCC financing statements
regarding leases permitted by this Agreement;
(h) leases or subleases of equipment to customers in the
ordinary course of business;
(i) leases or subleases entered into by Borrower or a
Subsidiary in good faith with respect to its property not used in its business
and which do not materially interfere with the ordinary conduct of business of
the Borrower or any Significant Subsidiary; and
(j) Liens incurred by Borrower with the consent of the
Required Lenders;
provided that the term "Permitted Encumbrances" shall not include any Lien
described in clauses (a) through (h) above that secures Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; and (d)
fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
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"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Chase Bank of Texas, National Association as its prime rate
in effect at its principal office in Houston, Texas; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"Prior Assets" has the meaning specified in Section 7.02.
"Prior Company" has the meaning specified in Section 7.02.
"Prior Target" has the meaning specified in Section 7.02.
"Purchase Price" means, as of any date of determination and with
respect to a proposed acquisition, the purchase price to be paid for the Target
or its assets, including all cash consideration paid (whether classified as
purchase price, noncompete or consulting payments or otherwise), the value of
all other assets to be transferred by the purchaser in connection with such
acquisition to the seller (including any stock issued to the seller) all valued
in accordance with the applicable purchase agreement and the outstanding
principal amount of all Indebtedness of the Target or the seller assumed or
acquired in connection with such acquisition.
"Register" has the meaning specified in Section 10.04.
"Rejecting Lender" has the meaning specified in Section 2.08(b).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures and unused Revolving Commitments representing 51% of the sum of the
total Revolving Exposures and unused Revolving Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
the Borrower or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any Equity Interests in the Borrower or any Subsidiary (including any
dividend, other distribution or other payment in respect of Equity Interests
under a Synthetic Purchase Agreement).
"Revolving Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Revolving Commitments in accordance with the terms of this
Agreement.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Revolving Commitment is set forth on Schedule 2.01, or
-13-
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The initial aggregate amount of
the Lenders' Revolving Commitments is $275,000,000.
"Revolving Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans and its
LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means advances made pursuant to Section 2.01.
"S&P" means Standard & Poor's.
"Senior Debt" has the meaning specified in Section 7.04.
"Senior Notes" means the following senior notes of the Borrower:
(a) the 6.92% Senior Notes due March 30, 2007 in the original
aggregate amount of $30,000,000; and
(b) 9.75% Senior Notes due May 1, 2000.
"Senior Note Documents" means the indentures or note purchase
agreements under which the Senior Notes have been issued and all other
instruments, agreements and other documents evidencing or governing the Senior
Notes or providing for any Guarantee or other right in respect thereof.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary (i) whose Consolidated Total Assets equals or exceeds five percent
(5%) of the Consolidated Total Assets of the Borrower, or (ii) whose
Consolidated Net Income for the most recently completed four fiscal quarters
equals or exceeds five percent (5%) of the Borrower's Consolidated Net Income
for such period. In calculating Consolidated Net Income under the foregoing
clause for a four fiscal quarter period, if the Borrower or a Subsidiary
acquires the assets of a Target either directly or through a merger, the
Consolidated Net Income of the Target for such four fiscal quarter period
attributable to the time prior to the acquisition shall be added to the
Consolidated Net Income of the Borrower or such Subsidiary, as applicable.
"Spot Rate" means, with respect to any day, the rate determined on such
date on the basis of the offered exchange rates, as reflected in the foreign
currency exchange rate display of Telerate System, Incorporated at or about
10:00 a.m. (Dallas, Texas time), to purchase dollars with the other applicable
currency, provided that, if at least two such offered rates appear on such
display, the rate shall be the arithmetic mean of such offered rates and, if no
such offered rates are so displayed, the Spot Rate shall be determined by the
Agent on the basis of the arithmetic mean of such offered rates as determined by
the Agent in accordance with its normal practice.
-14-
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Agent is subject (a) with respect to the
Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over
$100,000 with maturities approximately equal to three months and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subject Period" has the meaning set forth in Section 7.02.
"Subordinated Debt" means the Borrower's and Acxiom/May & ▇▇▇▇, Inc.'s
5.25% convertible subordinated notes due 2003 in the aggregate principal amount
of $115,000,000 and the Indebtedness represented thereby.
"Subordinated Debt Documents" means the indenture under which the
Subordinated Debt is issued and all other instruments, agreements and other
documents evidencing or governing the Subordinated Debt or providing for any
Guarantee or other right in respect thereof.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranty" means the Guaranty Agreement in substantially the
form of Exhibit "C" hereto, executed by certain Subsidiaries for the benefit of
the Agent and the Lenders, as the same may be amended or otherwise modified.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means Chase Bank of Texas, National Association, in
its capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
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"Synthetic Airplane Lease Facility" means the synthetic lease
arrangement under which a lessor has committed to purchase (for an aggregate
purchase price not to exceed $2,250,000) and lease to the Borrower a
Dassault-Breguet, Model Falcon 10 Aircraft and related components under an
aircraft lease agreement entered into by the Borrower on or about December 29,
1999.
"Synthetic Equipment Lease Facility" means the synthetic lease
arrangement under which a lessor has committed to purchase and lease to the
Borrower up to $100,000,000 of equipment under a master lease agreement entered
into by the Borrower on September 30, 1999.
"Synthetic Purchase Agreement" means any agreement pursuant to which
the Borrower or a Subsidiary is or may become obligated to make any payment (i)
in connection with the purchase by any third party of any Equity Interest or
subordinated Indebtedness or (ii) the amount of which is determined by reference
to the price or value at any time of any Equity Interest or subordinated
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of the
Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to
be a Synthetic Purchase Agreement.
"Synthetic Real Property Lease" means a synthetic lease arrangement
under which a lessor has or will commit to purchase and lease to the Borrower or
a Subsidiary the real property owned by Borrower consisting of two city blocks
bounded by ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and Commerce Street in
downtown Little Rock, Arkansas for an aggregate purchase price not to exceed
$35,000,000.
"Target" means a Person who is to be acquired or whose assets are to be
acquired in a transaction permitted by Section 6.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the Agent
from three negotiable certificate of deposit dealers of recognized standing
selected by it.
"Total Indebtedness" has the meaning set forth in Section 7.02.
"Transferring Subsidiary " has the meaning set forth in Section 6.04.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
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"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally.
The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the
Co-Administrative Agents that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II.
The Credits
SECTION 2.01. Commitments.
Subject to the terms and conditions set forth herein, each Revolving
Lender agrees to make advances to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Revolving Lender's Revolving Exposure exceeding such Revolving
-17-
Lender's Revolving Commitment. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow under this Section 2.01.
SECTION 2.02. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans of the same Type made by the Revolving Lenders ratably in
accordance with their respective Revolving Commitments except as may otherwise
be required by Section 2.19. The failure of any Revolving Lender to make any
Revolving Loan required to be made by it shall not relieve any other Revolving
Lender of its obligations hereunder; provided that the Revolving Commitments of
the Revolving Lenders are several and no Revolving Lender shall be responsible
for any other Revolving Lender's failure to make Revolving Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith; provided that all Borrowings made on the Effective Date
must be made as ABR Borrowings. Each Revolving Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Revolving Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$250,000 and not less than $2,000,000. At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $1,000,000; provided that an ABR
Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Revolving Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each
Swingline Loan shall be in an amount that is an integral multiple of $25,000 and
not less than $50,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of 10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall
not be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for Borrowings.
To request a Revolving Borrowing, the Borrower shall notify the Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., Dallas, Texas time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
10:00 a.m., Dallas, Texas time, on the day of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Agent of a written Borrowing
Request in a form approved by the Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of such Borrowing;
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(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Agent shall advise each Revolving Lender of the details thereof and
of the amount of such Revolving Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender
agrees to make advances to the Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $30,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender
of such request by telephone (confirmed by telecopy) not later than 12:00 noon,
Dallas, Texas time, on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The Swingline Lender
shall make each Swingline Loan available to the Borrower by means of a credit to
the general deposit account of the Borrower with the Swingline Lender or by wire
transfer, automated clearing house debit or interbank transfer to such other
account, accounts or Persons as may be designated from time to time by the
Borrower (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank) by 3:00 p.m., Dallas, Texas time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the Agent not later than
12:00 noon, Dallas, Texas time, on any Business Day require the Revolving
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Revolving Lenders will participate. Promptly upon
receipt of such notice, the Agent will give notice thereof to each Revolving
Lender, specifying in such notice such Revolving Lender's Applicable Percentage
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of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Agent, for the account of the Swingline Lender, such Revolving Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Revolving Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Agent shall notify the Borrower of any participations in
any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower
(or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Agent; any such amounts received by
the Agent shall be promptly remitted by the Agent to the Revolving Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, the Borrower
may request the issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank and the Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
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warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $40,000,000 and (ii) the total
Revolving Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close
of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) (provided that any Letter of
Credit with a one-year term may provide for the renewal thereof for additional
one-year periods not to extend past the date in clause (ii) below) and (ii) the
date that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action
on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the account of the Issuing Bank,
such Revolving Lender's Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Borrower on the date due as provided
in paragraph (e) of this Section, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each Revolving Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect
of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by
paying to the Agent an amount equal to such LC Disbursement not later than 12:00
noon, Dallas, Texas time, on the date that such LC Disbursement is made, if the
Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,
Dallas, Texas time, on such date, or, if such notice has not been received by
the Borrower prior to such time on such date, then not later than 12:00 noon,
Dallas, Texas time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., Dallas, Texas time, on
the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Agent shall notify each Revolving Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof and
such Revolving Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such Revolving
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
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obligations of the Revolving Lenders), and the Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly
following receipt by the Agent of any payment from the Borrower pursuant to this
paragraph, the Agent shall distribute such payment to the Issuing Bank or, to
the extent that Revolving Lenders have made payments pursuant to this paragraph
to reimburse the Issuing Bank, then to such Revolving Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None of
the Co-Administrative Agents, the Lenders, the Issuing Bank, or any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank. The foregoing provisions of this clause (f) shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
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payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for
each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.12(d) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Revolving Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any
time by written agreement among the Borrower, the Agent, the replaced Issuing
Bank and the successor Issuing Bank. The Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the account
of the replaced Issuing Bank pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term "Issuing Bank" shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Agent
or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Agent, in the
name of the Agent and for the benefit of the Lenders, an amount in cash equal to
the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VIII. Each such deposit shall be held by the Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement.
The Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
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the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Required Lenders) be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings.
(a) Each Revolving Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Dallas, Texas time, to the account of the Agent most recently designated
by it for such purpose by notice to the Revolving Lenders; provided that
Swingline Loans shall be made as provided in Section 2.04. The Agent will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained with the Agent
or by wire transfer, automated clearing house debit or interbank transfer to
such other account, accounts or Persons designated by the Borrower in the
applicable Borrowing Request; provided that ABR Revolving Loans made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Agent to the Issuing Bank.
(b) Unless the Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Agent such Lender's share of such Borrowing, the Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Agent, then the
applicable Lender and the Borrower severally agree to pay to the Agent forthwith
on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Effective Rate and a rate determined by the
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
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(b) To make an election pursuant to this Section, the Borrower shall notify the
Agent of such election by telephone by the time that a Borrowing Request would
be required under Section 2.03 if the Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Agent of a written Interest Election Request in a form approved by the Agent and
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02 and paragraph (f) of this
Section:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the Agent shall
advise each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
(f) A Revolving Borrowing may not be converted to or continued as a Eurodollar
Borrowing if after giving effect thereto the Interest Period therefor would
commence before and end after a date on which any principal of the Loans is
scheduled to be repaid.
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SECTION 2.08. Termination and Reduction of Revolving Commitments; Extension
of Maturity Date.
(a) Unless previously terminated, the Revolving Commitments shall terminate on
the Maturity Date.
(b) By written notice sent to the Co-Administrative Agents (which the Agent
shall promptly distribute to the Lenders), the Borrower may request that the
then effective Maturity Date (the "Current Maturity Date") be extended to a date
one year from the then Current Maturity Date (an "Extension Request"). An
Extension Request may be delivered by the Borrower to the Co-Administrative
Agents at any time prior to the date which is 90 days prior to the then Current
Maturity Date when no Default exists. Within 45 days of the receipt by the Agent
of an Extension Request, each Lender shall provide the Agent and the Borrower
with a written consent to, or a rejection of, the Borrower's Extension Request.
The decision whether to accept or reject an Extension Request shall be made by
each Lender in its sole discretion based on such information as it may deem
necessary and no Lender shall have any obligation to agree to any extension of
the then Current Maturity Date. The failure of a Lender to respond to any
Extension Request within such 45-day period shall be deemed a rejection of such
request. If all the Lenders consent to an Extension Request, the Maturity Date
shall be the date one year from the then Current Maturity Date as specified in a
notice from the Agent. If Lenders holding 25% or less of the Revolving Exposures
and unused Revolving Commitments reject an Extension Request (the "Rejecting
Lenders"), then the Borrower may take one of the following actions: (i) by
written notice to each Rejecting Lender and the Agent, delivered prior to the
then Current Maturity Date, terminate the Revolving Commitment of each Rejecting
Lender if simultaneously with such termination the Borrower pays to each
Rejecting Lender all amounts owed by the Borrower to such Rejecting Lender
hereunder or (ii) cause each Rejecting Lender to assign its interest in the
Agreement to a new Lender who will consent to the Extension Request under the
terms of Section 2.18(b) on or before the then Current Maturity Date. If the
Borrower consummates either of the foregoing actions on or before the then
Current Maturity Date, then the Maturity Date shall be the date one year from
the then Current Maturity Date as specified in a notice from the Agent.
(c) The Borrower may at any time terminate, or from time to time reduce, the
Revolving Commitments; provided that (i) each reduction of the Revolving
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $10,000,000 and (ii) the Borrower shall not terminate or reduce
the Revolving Commitments if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.10, the sum of the Revolving Exposures
would exceed the total Revolving Commitments.
(d) The Borrower shall notify the Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Revolving Commitments shall be permanent. Each reduction of the Revolving
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Commitments shall be made ratably among the Lenders in accordance with their
respective Revolving Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Maturity Date, and (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity
Date and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i) the amount of
each Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c)
of this Section shall be prima facie evidence of the existence and amounts of
the obligations recorded therein; provided that the failure of any Lender or the
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Agent. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part without premium or penalty except for
amounts paid in accordance with Section 2.15, subject to the requirements of
this Section.
(b) In the event and on such occasion that the sum of the Revolving Exposures
exceeds the total Revolving Commitments, the Borrower shall prepay Revolving
Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding,
deposit cash collateral in an account with the Agent pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.
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(c) Prior to any optional or mandatory prepayment of Borrowings hereunder, the
Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph
(d) of this Section.
(d) The Borrower shall notify the Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., Dallas, Texas time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., Dallas, Texas time, on the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, Dallas, Texas time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal amount
of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Revolving Commitments
as contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice (other than a notice relating
solely to Swingline Loans), the Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees.
(a) The Borrower agrees to pay to the Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Rate on the average daily
unused amount of the Revolving Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which such
Revolving Commitment terminates. Accrued commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Revolving Commitments terminate, commencing on the
first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees, the Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Agent for the account of each Lender a
participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate as interest on Eurodollar Borrowings on
the average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such Lender
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ceases to have any LC Exposure, and (ii) to the Issuing Bank, for its own
account, a fronting fee, which shall accrue at the rate of 1/8 % per annum on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders entitled thereto. Except in the case of
errors in payment which have been confirmed by Agent, fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) The Swingline Loans shall bear interest at the Federal Funds Effective Rate
in effect from day to day plus 1.75%.
(d) Notwithstanding the foregoing, if any principal of or interest on any Loan
or any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Borrowings as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan and upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and
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(iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Agent, and such determination shall be
conclusive absent manifest error. The Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the
Agent in determining any interest rates pursuant to this Section 2.12.
SECTION 2.13. Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Agent determines (which determination shall be conclusive absent
manifest error) that through no fault of the Agent adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period;
or
(b) the Agent is advised by the Required Lenders that the Adjusted LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to the
Lenders (as certified by such Required Lenders in a written certificate
delivered to Agent and Borrower setting forth in detail the reasons for such
Required Lenders' position) of making or maintaining their Loans included in
such Borrowing for such Interest Period;
then the Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.
SECTION 2.14. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
or
(ii) impose on any Lender or the Issuing Bank or the London interbank market
any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
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Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth (i) the amount
or amounts (including a description of the method of calculating such amount or
amounts), necessary to compensate such Lender or the Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section and (ii) the applicable Change in Law and other facts that give rise to
such amount or amounts shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's or the Issuing Bank's right to demand such compensation; provided that
the Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments.
In the event of (a) the payment of any principal of any Eurodollar Loan other
than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default or as a result of the operation of Section 2.18),
(b) the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue
or prepay any Revolving Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.10(d) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.08 or
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
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for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower, shall set forth the method of calculating such amount or
amounts and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes.
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder or under any other Loan Document shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) each recipient of each such payment
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agent, each Lender, the Issuing Bank, and
any other party hereto within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Agent, such
Lender, the Issuing Bank or other party hereto, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Bank, or by the Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall set forth in
reasonable detail the origin and amount of the payments to be due under this
Section 2.16 (c) and such certificate shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Agent the original or a certified copy of a receipt issued by such Governmental
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Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Agent.
(e) If a Lender, the Issuing Bank or Agent shall become aware that it is
entitled to claim a refund from a Governmental Authority specifically in respect
of Indemnified Taxes or Other Taxes as to which it has been indemnified by a
Borrower, or with respect to which a Borrower has paid additional amounts,
pursuant to this Section 2.16, it shall promptly notify Borrower of the
availability of such refund claim and shall, within 30 days after receipt of a
request by Borrower, make a claim to such Governmental Authority for such refund
at Borrower's expense. If a Lender, the Issuing Bank or any Agent receives a
refund (including pursuant to a claim for refund made pursuant to the preceding
sentence) specifically in respect of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Borrower or with respect to which Borrower had
paid additional amounts pursuant to this Section 2.16, it shall within 30 days
from the date of such receipt pay over such refund to Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by Borrower under
this Section 2.16 with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of such Lender, Issuing
Bank or Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that
Borrower, upon the request of such Lender, Issuing Bank or Agent, agrees to
repay the amount paid over to Borrower (plus penalties, interest or other
charges) to such Lender, Issuing Bank or Agent in the event such Lender, Issuing
Bank or Agent is required to repay such refund to such Governmental Authority.
(f) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder or
under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, Dallas, Texas time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the
Agent at its offices in New York, New York, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 and the other
clauses of this Section 2.17 shall be made directly to the Persons entitled
thereto and payments pursuant to other Loan Documents shall be made to the
Persons specified therein. The Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
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the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Agent
to pay fully all amounts of principal, unreimbursed LC Disbursements, interest
and fees then due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Agent for the account of the Lenders or
the Issuing Bank hereunder that the Borrower will not make such payment, the
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Agent
in accordance with banking industry rules on interbank compensation.
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(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 10.03(c), then
the Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder or if a Lender fails
to consent to an Extension Request, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Agent (and, if a Revolving Commitment is being assigned,
the Issuing Bank and Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder (including any amounts due under Section 2.15 other than
in connection with an assignment resulting from a Lender's default in its
obligations to fund Loans), from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts), (iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.16 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments, and (iv) in the case of any such assignment under the terms of Section
2.08(b) resulting from the rejection of an Extension Request, such assignment
will result in the consent by all Lenders to such Extension Request. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.19. Increase of Revolving Commitments.
By written notice sent to the Agent (which the Agent shall promptly distribute
to the Lenders), the Borrower may request an increase of the aggregate amount of
the Revolving Commitments (i) by an aggregate amount equal to any integral
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multiple of $5,000,000 and not less than $10,000,000 and (ii) by an aggregate
amount not to exceed $25,000,000; provided that (i) no Default shall have
occurred and be continuing, (ii) the aggregate amount of the Revolving
Commitments shall not have been reduced, nor shall the Borrower have given
notice of any such reduction under Section 2.08(c), and (iii) the aggregate
amount of the Revolving Commitments shall not previously have been increased
pursuant to this Section 2.19. Within 10 days after such request has been given,
each Lender shall notify the Agent, whether or not, in the exercise of its sole
discretion, it is willing to increase its Revolving Commitment by an amount
equal to its pro rata share (calculated based on its Revolving Commitment then
in existence) of the requested increase (each Lender having no obligation to do
so). The Agent shall promptly notify the Borrower and each other Lender of each
Lender's decision. Any Lender that does not so notify the Agent within such
period shall be deemed to have decided not to be willing to increase its
Revolving Commitment. If one or more of the Lenders is not willing to so
increase its Revolving Commitment, then within 15 days after the Borrower's
original request has been given, with notice to the Agent and the other Lenders,
another one or more financial institutions, each as approved by the Borrower and
the Agent (a "New Lender"), may commit to provide an amount equal to the
aggregate amount of the requested increase that will not be provided by the
existing Lenders (the "Increase Amount"); provided, that the Revolving
Commitment of each New Lender shall be at least $5,000,000 and the maximum
number of New Lenders shall be three (3). Upon receipt of notice from the Agent
to the Lenders and the Borrower that the Lenders, or sufficient Lenders and New
Lenders, have agreed to commit to an aggregate amount equal to the Increase
Amount (or such lesser amount as the Borrower shall agree, which shall be at
least $10,000,000 and an integral multiple of $5,000,000 in excess thereof),
then: provided that no Default exists at such time or after giving effect to the
requested increase, the Borrower, the Agent and the Lenders willing to increase
their respective Revolving Commitments and the New Lenders (if any) shall
execute and deliver an Increased Commitment Supplement (herein so called) in the
form attached hereto as Exhibit "D". If all existing Lenders shall not have
provided their pro rata portion of the requested increase, on the effective date
of the Increased Commitment Supplement the Borrower shall request a borrowing
hereunder which shall be made only by the Lenders who have increased their
Revolving Commitment and, if applicable, the New Lenders. The proceeds of such
borrowing shall be utilized by the Borrower to repay the Lenders who did not
agree to increase their Revolving Commitments, such borrowing and repayments to
be in amounts sufficient so that after giving effect thereto, the Revolving
Loans shall be held by the Lenders pro rata according to their respective
Revolving Commitments.
ARTICLE III.
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers.
Each of the Borrower and each Significant Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
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SECTION 3.02. Authorization; Enforceability.
The Loan Documents to be entered into by the Borrower and each Guarantor are
within their respective corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes, and each other
Loan Document to which the Borrower or any of the Guarantors is to be a party,
when executed and delivered, will constitute, a legal, valid and binding
obligation of, the Borrower or such Guarantor (as the case may be), enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts.
The execution, performance and delivery of the Loan Documents by the Borrower
and the Guarantors (a) do not require any consent or approval of, registration
or filing with (other than the inclusion of this Agreement as an exhibit to
routine filings under the Securities Exchange Act of 1934), or any other action
by, any Governmental Authority, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of the Significant Subsidiaries or any order of any Governmental
Authority, (c) will not violate in any material respect or result in a material
default under any indenture, agreement or other instrument (including, without
limitation, the Subordinated Debt Documents and the Senior Note Documents)
binding upon the Borrower or any of the Significant Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the
Borrower or any of the Significant Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of the
Significant Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended March 31, 1999, reported on by KPMG LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended September 30, 1999, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and the Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Except as disclosed in the financial statements referred to above or the
notes thereto or in the Information Memorandum and except for the Disclosed
Matters, none of the Borrower or the Subsidiaries has, as of the Effective Date,
any contingent liabilities, unusual long-term commitments or unrealized losses
which could reasonably be expected to result in a Material Adverse Effect.
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(c) Since September 30, 1999, there has been no material adverse change in the
business, assets, operations or financial condition of the Borrower and the
Subsidiaries, taken as a whole.
SECTION 3.05. Properties.
(a) Each of the Borrower and the Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, (except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes) free and clear of all Liens other than
Permitted Encumbrances and Liens permitted by clauses (ii) through (vii) of
Section 6.02.
(b) Each of the Borrower and the Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) As of the Effective Date, neither the Borrower nor any of the Subsidiaries
has received notice of, or has knowledge of, any pending or contemplated
condemnation proceeding affecting any real property owned by it or any sale or
disposition thereof in lieu of condemnation which could reasonably be expected
to have a Material Adverse Effect. Neither any such real property nor any
interest therein is subject to any right of first refusal, option or other
contractual right to purchase such real property or interest therein which could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of the Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve any of
the Loan Documents.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Borrower nor any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) The Disclosed Matters, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. Since the date of
this Agreement, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially increased
the likelihood of, a Material Adverse Effect.
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SECTION 3.07. Compliance with Laws and Agreements.
Each of the Borrower and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes.
Each of the Borrower and the Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $5,000,000 of the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $5,000,000 of the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure.
The Borrower has disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which the Borrower or any of the Subsidiaries
is subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. Neither the Information Memorandum nor any of the other reports,
financial statements, certificates or other information furnished by or on
behalf of the Borrower to either of the Co-Administrative Agents or any Lender
in connection with the negotiation of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
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SECTION 3.12. Subsidiaries.
Schedule 3.12 sets forth the name of, the jurisdiction of organization of, and
the ownership interest of the Borrower in, each Subsidiary as of the Effective
Date. Schedule 3.12 also indicates which Subsidiaries are Significant
Subsidiaries as of the Effective Date.
SECTION 3.13. Insurance.
Each of the Borrower and the Subsidiaries maintain with financially sound and
reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies and in such amounts as are usually
carried by businesses engaged in similar activities as the Borrower and the
Subsidiaries and located in similar geographic areas in which the Borrower and
the Subsidiaries operate.
SECTION 3.14. Labor Matters.
As of the Effective Date, there are no strikes, lockouts or slowdowns against
the Borrower or any Subsidiary pending or, to the knowledge of the Borrower,
threatened. The hours worked by and payments made to employees of the Borrower
and the Subsidiaries have not been in violation of the Fair Labor Standards Act
or any other applicable Federal, state, local or foreign law dealing with such
matters in any material respect. All material amounts due from the Borrower or
any Subsidiary, or for which any claim may be made against the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Borrower or such Subsidiary.
SECTION 3.15. Solvency.
Immediately following the making of each Loan and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
Borrower and each Guarantor, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of Borrower and each Guarantor will be greater
than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) Borrower and each Guarantor
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
Borrower and each Guarantor will not have unreasonably small capital with which
to conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following the Effective Date. As used in this
Section 3.15, the term "fair value" means the amount at which the applicable
assets would change hands between a willing buyer and a willing seller within a
reasonable time, each having reasonable knowledge of the relevant facts, neither
being under any compulsion to act, with equity to both and "present fair
saleable value" means the amount that may be realized if the applicable
company's aggregate assets are sold with reasonable promptness in an arm's
length transaction under present conditions for the sale of a comparable
business enterprises.
SECTION 3.16. Senior Indebtedness.
Pursuant to that certain First Supplemental Indenture, dated as of September 17,
1998, among Borrower, May & ▇▇▇▇, Inc. and ▇▇▇▇▇▇ Trust and Savings Bank, as
trustee, Borrower assumed the obligations of May & ▇▇▇▇, Inc. under the
Subordinated Debt and the Subordinated Debt Documents to the same extent as if
Borrower had been originally named in the Subordinated Debt Documents as the
"Company" (as such term was originally defined in such Subordinated Debt
Documents). The Indebtedness of Borrower and Acxiom/May & ▇▇▇▇, Inc. arising
under this Agreement and the other Loan Documents (including with respect to
Acxiom/May & ▇▇▇▇, Inc., the Subsidiary Guaranty) constitutes "Senior
Indebtedness" under and as defined in the Subordinated Debt Documents.
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SECTION 3.17. Year 2000.
Any reprogramming required to permit the proper functioning, in and following
the year 2000, of (a) the computer systems of the Borrower and the Subsidiaries
and (b) equipment of the Borrower and the Subsidiaries containing embedded
microchips and the testing of all such systems and equipment, as so
reprogrammed, has been completed in a manner which will permit the Borrower and
the Subsidiaries to conduct its business without Material Adverse Effect. The
Borrower believes that the computer and management information systems of the
Borrower and the Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the Borrower to conduct
its businesses without Material Adverse Effect.
SECTION 3.18. Margin Securities.
Neither the Borrower nor any Subsidiary is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations U or X of
the Board of Governors of the Federal Reserve System), and, except for the
repurchases of the Borrower's capital stock in accordance with the limitations
in Section 5.10 and Section 6.08, no part of the proceeds of any Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.
ARTICLE IV.
Conditions
SECTION 4.01. Effective Date.
The obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 10.02):
(a) The Agent (or its counsel) shall have received from each party hereto either
(i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement. The Agent shall have received the
Subsidiary Guaranty signed by all Significant Subsidiaries in existence on the
Effective Date that are Domestic Subsidiaries.
(b) The Agent shall have received a favorable written opinion (addressed to the
Co-Administrative Agents and the Lenders and dated the Effective Date) of
counsel for the Borrower, substantially in the form of Exhibit B, and covering
such other matters relating to the Borrower, the Guarantor or the Loan Documents
as either Co-Administrative Agent shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinions.
(c) The Agent shall have received such documents and certificates as the
Co-Administrative Agents or their counsel may reasonably request relating to the
organization, existence and good standing of the Borrower and each Guarantor,
the power and authority of Borrower and each Guarantor to execute, deliver and
perform the Loan Documents to which each is a party and any other legal matters
relating to the Borrower, any Guarantor or the Loan Documents, all in form and
substance satisfactory to the Co-Administrative Agents and its counsel.
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(d) The Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President, a Financial Officer or the chief
legal officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Co-Administrative Agents, Chase Securities Inc. and Banc America
Securities LLC shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including with respect to the Agent and Chase
Securities Inc. only, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by the Borrower hereunder or under any other
Loan Document.
(f) The Agent shall have received the Subordinated Debt Documents and the Senior
Note Documents.
The Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event.
The obligation of each Lender to make a Loan on the occasion of any Borrowing,
and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit,
is subject to receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower and the Guarantors set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V.
Affirmative Covenants
Until the Revolving Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
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SECTION 5.01. Financial Statements and Other Information.
The Borrower will furnish to the Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, (i) its
audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied and (ii) the Borrower's unaudited consolidating balance
sheet and related statement of operations as of the end of and for such year,
both certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and the Subsidiaries on a consolidating basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, its unaudited consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year and its unaudited consolidating balance
sheet and statement of operations for the same period, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and the
Subsidiaries on a consolidated and consolidating basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Article VII, (iii) setting forth reasonably detailed
calculations demonstrating the calculation of the Applicable Rate, (iv) setting
forth reasonably detailed calculations demonstrating compliance with Section
5.11, and (v) stating whether any change in GAAP or in the application thereof
has occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a)
above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
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(e) at least 45 days prior to the commencement of each fiscal year of the
Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget) and, promptly
when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by the Borrower or
any Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as either
Co-Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events.
The Borrower will furnish to the Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting, the Borrower or
any Subsidiary thereof that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and the Subsidiaries in an aggregate amount exceeding
$5,000,000; and
(d) any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business.
The Borrower will, and will cause each of the Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
The Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
the rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business in such a
manner so that no Material Adverse Effect will result.
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SECTION 5.04. Payment of Obligations.
The Borrower will, and will cause each of the Subsidiaries to, pay its
Indebtedness and other obligations, including Tax liabilities, before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties.
The Borrower will, and will cause each of the Significant Subsidiaries to,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
SECTION 5.06. Insurance.
The Borrower will, and will cause each of the Subsidiaries to, maintain, with
financially sound and reputable insurance companies, insurance with respect to
its properties and business against such casualties and contingencies and in
such amounts as shall be in accordance with the general practices of businesses
engaged in similar activities as the Borrower and the Subsidiaries and in
similar geographic areas in which the Borrower and the Subsidiaries operate,
containing such terms, in such forms and for such periods as may be reasonable
and prudent. The Borrower will furnish to the Lenders, upon request of either
Co-Administrative Agent, information in reasonable detail as to the insurance so
maintained.
SECTION 5.07. Casualty and Condemnation.
The Borrower will furnish to the Agent and the Lenders prompt written notice
of any casualty or other insured damage to any portion of any property owned by
the Borrower or any Subsidiary or the commencement of any action or proceeding
for the taking of any such property or any part thereof or interest therein
under power of eminent domain or by condemnation or similar proceeding that in
any case could have a Material Adverse Effect.
SECTION 5.08. Books and Records; Inspection and Audit Rights.
The Borrower will, and will cause each of the Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by either Co-Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.09. Compliance with Laws.
The Borrower will, and will cause each of the Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property (including, without limitation, Environmental Laws), except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
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SECTION 5.10. Use of Proceeds and Letters of Credit.
The proceeds of the Loans and Swingline Loans will be used only for working
capital and other general corporate needs of the Borrower; provided that during
the entire term of this Agreement, the Borrower will not use more than
$65,000,000 of the proceeds of the Loans and the Swingline Loans to repurchase
or redeem its capital stock and if any proceeds of the Loans or Swingline Loans
are so used to repurchase the Borrower's capital stock, the Borrower agrees that
such stock shall immediately be retired. Borrower agrees to use the proceeds of
the initial Loan hereunder to pay in full all obligations owed under that
certain Second Amended and Restated Credit Agreement dated as of March 26, 1998
among the Borrower, Mercantile Bank, N.A. as administrative and documentation
agent and the other parties named therein. Upon such payment, Borrower agrees to
terminate all commitments of the lenders thereunder. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X. Letters of Credit will be issued only to support the
general corporate needs of the Borrower and the Subsidiaries.
SECTION 5.11. Additional Subsidiaries; Additional Guarantors. If any additional
Subsidiary is formed or acquired after the Effective Date and if such Subsidiary
is a Significant Subsidiary and a Domestic Subsidiary, the Borrower will notify
the Agent and the Lenders thereof and the Borrower will cause such Subsidiary to
become a party to the Subsidiary Guaranty within three Business Days after such
Subsidiary is formed or acquired. Notwithstanding the definition of Significant
Subsidiary, the (i) total assets of the Borrower and the Guarantors (determined
on a combined unconsolidated basis in accordance with GAAP) shall at all times
equal or exceed 80% of the Consolidated Total Assets of the Borrower and (ii)
the net income of Borrower and the Guarantors (determined on a combined
unconsolidated basis in accordance with GAAP) for any four fiscal quarter period
shall at all times equal or exceed 80% of the Consolidated Net Income of the
Borrower (the requirements of the forgoing two clauses, the "Concentration
Test"). If as of any fiscal quarter end, the Concentration Test is not met,
within 60 days after the end of such fiscal quarter the Borrower shall cause a
sufficient number of Domestic Subsidiaries to become Guarantors in accordance
with the Subsidiary Guaranty so that after giving pro forma effect thereto as of
the end of such fiscal quarter the Concentration Test shall be satisfied.
SECTION 5.12. Further Assurances.
The Borrower will execute, and will cause each Guarantor to execute, any and
all further documents, agreements and instruments, and take all such further
actions, which may be required under any applicable law, or which either
Co-Administrative Agent or the Required Lenders may reasonably request, to
effectuate the transactions contemplated by the Loan Documents all at the
expense of the Borrower.
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SECTION 5.13. Compliance with Agreements.
The Borrower will, and will cause each Subsidiary to, comply with all
agreements, contracts, and instruments binding on it or affecting its properties
or business other than such noncompliance which is not reasonably expected to
have a Material Adverse Effect.
ARTICLE VI.
Negative Covenants
Until the Revolving Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities.
(a) The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01
and extensions, renewals and replacements of any such Indebtedness that
do not increase the outstanding principal amount thereof or result in
an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness owed by a Subsidiary to Borrower or owed by a Subsidiary
to its parent incurred in accordance with the restrictions set forth
in Section 6.04; provided that (A) the obligations of each obligor of
such Indebtedness must be subordinated in right of payment to any
liability such obligor may have for the obligations arising hereunder
from and after such time as any portion of the obligations arising
hereunder or under any other Loan Documents shall become due and
payable (whether at stated maturity, by acceleration or otherwise),
(B) such Indebtedness must be incurred in the ordinary course of
business or incurred to finance general corporate needs, (C) such
Indebtedness must be provided on terms customary for intercompany
borrowings among the Borrower and the Subsidiaries or must be made on
such other terms and provisions as the Agent may reasonably require;
and (D) the sum of the aggregate outstanding amount of the obligations
of Excluded Subsidiaries guaranteed pursuant to clause (iv) below plus
the aggregate outstanding principal amount of the loans and advances
made to Excluded Subsidiaries by Borrower and the Subsidiaries (such
sum the "Excluded Subsidiary Loan and Guaranty Amount") shall not at
any time exceed the Dollar Amount equal to $45,000,000 (the "Excluded
Subsidiary Loan and Guaranty Limit");
(iv) Guarantees by the Borrower or a Subsidiary of (A) Indebtedness of any
of its wholly owned direct Subsidiaries; (B) trade accounts payable
owed by any of its wholly owned direct Subsidiaries and arising in the
ordinary course of business or (C) operating leases of any of its
wholly owned direct Subsidiaries entered into in the ordinary course of
business; provided that: (1) the Indebtedness guaranteed is otherwise
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permitted hereunder; (2) no Default exists or would result from such
Guarantee; and (3) the Excluded Subsidiary Loan and Guaranty Amount
shall not exceed the Excluded Subsidiary Loan and Guaranty Limit;
(v) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital
assets (but excluding the acquisition of assets which constitute a
business unit of a Person), including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement; (B) no Default exists
or would result therefrom; (C) such Indebtedness does not exceed the
amount of the purchase price or the costs of construction or
improvement, as the case may be, of the applicable asset; and (D)
after giving proforma effect to such Indebtedness, the Borrower shall
be in compliance with Section 7.02 as of the most recently ended
fiscal quarter of Borrower;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date
hereof or is merged with or into Borrower or a Subsidiary in accordance
with the permissions herein set forth; provided that (A) such
Indebtedness exists at the time such Person becomes a Subsidiary or was
so merged and is not created in contemplation of or in connection with
such Person becoming a Subsidiary or merger; (B) after giving proforma
effect to such Indebtedness and the EBITDA of the Person who became a
Subsidiary, the Borrower shall be in compliance with Section 7.02 of
the most recently ended fiscal quarter of Borrower; and (C) no Default
exists or would result therefrom;
(vii) Guaranties incurred in the ordinary course of business with respect to
surety and appeal bonds, performance and return-of-money bonds, and
other similar obligations not exceeding at any time outstanding a
Dollar Amount equal to $1,000,000 in aggregate liability;
(viii) Indebtedness constituting obligations to reimburse worker's
compensation insurance companies for claims paid by such companies on
Borrower's or a Subsidiaries' behalf in accordance with the policies
issued to Borrower and the Subsidiaries;
(ix) Indebtedness arising in connection with Hedging Agreements entered into
in the ordinary course of business to enable Borrower or a Subsidiary
(a) to limit the market risk of holding currency in either the cash or
futures market or (b) to fix or limit Borrower's or any Subsidiaries'
interest expense;
(x) the obligations arising under the Synthetic Real Estate Lease, the
Synthetic Airplane Lease Facility and the Synthetic Equipment Lease
Facility;
(xi) Indebtedness arising in connection with preferred Equity Interest
permitted to be issued in accordance with Section 6.01(b);
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(xii) Indebtedness for borrowed money not otherwise permitted under this
Section 6.01 of any Excluded Subsidiary provided that the aggregate
outstanding amount of all such Indebtedness shall not at any time
exceed the Dollar Amount equal to $10,000,000;
(xiii) Indebtedness arising under the terms of the Equity Forward Agreement
and any other Synthetic Purchase Agreement or Agreements entered into
with respect to the capital stock of the Borrower provided that the
aggregate notional amount applicable to all such other Synthetic
Purchase Agreement or Agreements shall at not time exceed $50,000,000;
(xiv) Indebtedness represented by software licensing liabilities; and
(xv) unsecured Indebtedness of Borrower of the type described in clauses
(a), (b), (c), (e), and (l) of the definition thereof, in addition to
the Indebtedness permitted by clauses (i) through (xiv) of this Section
6.01 (a); provided that after giving proforma effect to the
Indebtedness incurred under the permissions of this clause (xv), the
Borrower shall be in compliance with Section 7.02 as of the most
recently ended fiscal quarter of Borrower and no Default shall exist as
result therefrom.
(b) The Borrower will not, nor will they permit any Subsidiary to, issue any
preferred stock or other preferred Equity Interests except for the preferred
Equity Interest set forth in Schedule 6.01 and except for the issuance of
preferred Equity Interests by the Subsidiaries as long as the aggregate amount
to be paid in connection with the redemption of such preferred Equity Interests
issued after the Effective Dates does not exceed a Dollar Amount equal to
$5,000,000 and no mandatory redemption of such preferred Equity Interest is due
prior to the Maturity Date first established under the terms of this Agreement.
SECTION 6.02. Liens.
The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(i) Permitted Encumbrances;
(ii) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof (excluding the Liens arising in connection
with the Equity Forward Agreement and the other Synthetic Purchase
Agreements permitted under Section 6.01(a)(xiii) which are only
permitted in accordance with clause (vii) of this Section 6.02) and set
forth in Schedule 6.02; provided that (i) such Lien shall not apply to
any other property or asset of the Borrower or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the
date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(iii) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property
or asset of any Person that becomes a Subsidiary after the date hereof
in accordance with Section 6.04 prior to the time such Person becomes
a Subsidiary; provided that (A) such Lien is not created in
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contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (B) such Lien shall not
apply to any other property or assets of the Borrower or any
Subsidiary, (C) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof; (D) the Indebtedness secured thereby is otherwise
permitted by Section 6.01; and (E) no Default exists or will result
therefrom;
(iv) Liens on fixed or capital assets (but excluding assets which constitute
a business unit) acquired, constructed or improved by the Borrower or
any Subsidiary; provided that (A) such security interests secure
Indebtedness permitted by clause (v) of Section 6.01(a), (B) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (C) the Indebtedness secured thereby
does not exceed 85% of the cost of acquiring, constructing or improving
such fixed or capital assets and (D) such security interests shall not
apply to any other property or assets of the Borrower or any
Subsidiary;
(v) Liens created in connection with the Synthetic Real Estate Lease, the
Synthetic Airplane Lease Facility and the Synthetic Equipment Lease
Facility on property leased pursuant to the applicable related leases
as long as such Liens do not encumber any other property of the
Borrower or any Subsidiary;
(vi) Liens encumbering the property of an Excluded Subsidiary securing
Indebtedness of such Excluded Subsidiary incurred in accordance with
the permissions of Section 6.01(a)(xii); and
(vii) Liens, in addition to the Liens described in clauses (i) through (vi)
of this Section 6.02, provided that (A) as of the date a Lien created
under the permissions of this clause (vii) attaches, no Default exists
or would result therefrom; (B) such Lien secures Indebtedness permitted
to be incurred and secured in accordance with Section 6.01; and (C)
after giving effect to the creation of the Lien in question, the
aggregate amount of the Indebtedness secured by all Liens created under
the permissions of this clause (vii) shall at no time exceed an amount
equal to 7.5% of the Asset Value determined as of the most recently
completed fiscal quarter end.
SECTION 6.03. Fundamental Changes.
(a) The Borrower will not, nor will it permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall exist: (i)
any Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary may merge into or
consolidate with any other Subsidiary if the surviving Person assumes the
obligations of the applicable Subsidiary under the Loan Documents, if any, and
is solvent as contemplated under Section 3.15 hereunder after giving effect to
such merger or consolidation, except that a Significant Subsidiary that is a
Domestic Subsidiary may not be merged into or consolidated with a Foreign
Subsidiary; (iii) any Excluded Subsidiary may liquidate or dissolve if its
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assets are transferred to Borrower or a Significant Subsidiary and the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
and (iv) Borrower or any Subsidiary may consolidate with or merge with any other
Person in connection with an acquisition permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of the Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and the Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of the Subsidiaries to,
purchase, hold or acquire any Equity Interests in or evidences of indebtedness
or other securities (including any option, warrant or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) investments, loans and advances existing on the date hereof and set forth on
Schedule 6.04;
(c) Loans and advances to employees for business expenses incurred in the
ordinary course of business;
(d) Loans and advances by Borrower or any Subsidiary to any of the Guarantors
made in accordance with the restrictions set forth in Section 6.01; provided
that, at the time any such loan or advance is made, no Default exists or would
result therefrom;
(e) Loans and advances by Borrower or any Subsidiary to any of its directly
owned Excluded Subsidiaries made in accordance with the restrictions set forth
in Section 6.01; provided that, at the time of any such advance or loan, no
Default exists or would result therefrom and at no time shall the Excluded
Subsidiary Loan and Guaranty Amount exceed the Excluded Subsidiary Loan and
Guaranty Limit;
(f) if no Default exists, Borrower and the Subsidiaries may make additional
investments in or purchase Equity Interest of a wholly owned Subsidiary or a
newly created Person organized by Borrower or a Subsidiary that, immediately
after such investment or purchase, will be a wholly owned Subsidiary if the
obligations under Section 5.11 shall be fulfilled and the aggregate amount of
such contributions and investments made under the permissions of this clause (f)
does not exceed a Dollar Amount equal to $100,000 during the entire term of this
Agreement;
(g) investments by Foreign Subsidiaries which are held or made outside the
United States of the same or similar quality as the Permitted Investments;
(h) the Borrower or any Subsidiary (the "Acquiring Company") may acquire assets
constituting a business unit of any Subsidiary (a "Transferring Subsidiary") if
the Acquiring Company assumes all the Transferring Subsidiary's liabilities,
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including without limitation, all liabilities of the Transferring Subsidiary
under the Loan Documents to which it is a party and if all of the capital stock
of the Transferring Subsidiary is owned directly or indirectly by the Acquiring
Company (and, following such assignment and assumption, such Transferring
Subsidiary may wind up, dissolve and liquidate) except that no Foreign
Subsidiary may acquire assets of a Domestic Subsidiary in such a transaction;
(i) If no Default exists or would result therefrom, Borrower and any Subsidiary
may acquire all the Equity Interest of any Person or the assets of a Person
constituting a business unit if:
(i) The Target is involved in a similar type of business activities as the
Borrower or the Subsidiary;
(ii) If the proposed acquisition is an acquisition of the stock of a Target,
the acquisition will be structured so that the Target will become a
Subsidiary wholly and directly owned by Borrower or will,
simultaneously with the acquisition be merged into Borrower or a
Subsidiary. If the proposed acquisition is an acquisition of a business
unit, the acquisition will be structured so that Borrower or a
Subsidiary wholly and directly owned by Borrower will acquire the
business unit;
(iii) The cash portion of the Purchase Price paid for the proposed
acquisition in question does not exceed $75,000,000, the cash portion
of the Purchase Price for the proposed acquisition in question together
with the cash portion of the Purchase Prices paid for all acquisitions
consummated in the same fiscal year does not exceed a Dollar Amount
equal to $100,000,000 and the Purchase Price paid for the proposed
acquisition in question together with the Purchase Prices paid for all
acquisitions consummated in the same fiscal year does not exceed a
Dollar Amount equal to $200,000,000;
(iv) Borrower shall have provided to the Agent and each Lender at least 7
Business Days prior to the date that the proposed acquisition is to be
consummated (but no earlier than 10 Business Days prior to such date)
the following: (a) the name of the Target; (b) a description of the
nature of the Target's business; and (c) a certificate of a Financial
Officer of the Borrower (1) certifying that no Default exists or could
reasonably be expected to occur as a result of the proposed
acquisition, and (2) demonstrating compliance with the criteria set
forth in clause (iii) of this Section 6.04(i) and that both as of the
date of any such acquisition and immediately following such
acquisition the Borrower is and on a pro forma basis projects that it
will continue to be, in compliance with the financial covenants of
this Agreement;
(v) Such acquisition has been: (i) in the event a corporation or its
assets is the Target, either (x) approved by the Board of Directors of
the corporation which is the Target, or (y) recommended by such Board
of Directors to the shareholders of such Target, (ii) in the event a
partnership is the Target, approved by a majority (by percentage of
voting power) of the partners of the Target, (iii) in the event an
organization or entity other than a corporation or partnership is the
Target, approved by a majority (by percentage of voting power) of the
governing body, if any, or by a majority (by percentage of ownership
interest) of the owners of the Target or (iv) in the event the
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corporation, partnership or other organization or entity which is the
Target is in bankruptcy, approved by the bankruptcy court or another
court of competent jurisdiction;
(j) Guarantees constituting Indebtedness permitted by Section 6.01;
(k) In addition to the investments, loans and advances permitted by
clauses (a) through (j) of this Section 6.04, investments in Equity
Interests issued by, and loans and advances to, Persons having an
ongoing business similar to or consistent with the Borrower's line of
business; provided that, at any time of determination, the sum of the
aggregate book value of all such investments plus the aggregate
outstanding principal amount of all such loans and advances shall
never exceed a Dollar Amount equal to five percent (5%) of the amount
which, in conformity with GAAP, would be included as stockholders'
equity on a consolidated balance sheet of Borrower and the
Subsidiaries; and
(l) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business.
SECTION 6.05. Asset Sales; Equity Issuances.
The Borrower will not, and will not permit any of the Subsidiaries to, sell,
transfer, lease or otherwise dispose of any asset, including any Equity Interest
owned by it, nor will the Borrower permit any of the Subsidiaries to issue any
additional Equity Interest in such Subsidiary, except:
(a) sales of inventory, used or surplus equipment and Permitted Investments in
the ordinary course of business and the sale, lease or sublease of equipment to
customers in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Subsidiary in
accordance with Section 6.04;
(c) a Subsidiary may sell preferred Equity Interest issued by such Subsidiary in
accordance with the limitations set forth in Section 6.01(b); and
(d) sales, transfers and other dispositions of assets that are not permitted by
any other clause of this Section 6.05 (such other sales, transfers and other
dispositions herein the "Dispositions"); if: (1) after giving effect to such
Disposition, the aggregate book value of all such assets sold, transferred or
otherwise disposed of in the same fiscal year under the permissions of this
clause (d) would not exceed 10% of the Consolidated Total Assets, with the
Consolidated Total Assets determined as of the end of the immediately preceding
fiscal year; (2) after giving effect to the Disposition, the assets sold,
transferred or otherwise disposed of in the same fiscal year under the
permissions of this clause (d) did not contribute in excess of 15% of the
Consolidated Net Income of the Borrower before income taxes and interest, for
the prior fiscal year; and (3) after giving effect to such Disposition, the
aggregate book value of all assets sold, transferred or otherwise disposed of
under the permissions of this clause (d) for the entire term of this Agreement
would not exceed, as of the date of determination, 25% of the Accumulated Total
Assets. The term "Accumulated Total Assets" means, the sum of (x) 25% of
Consolidated Total Assets determined as of September 30, 1999 plus (ii) the
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cumulative sum of the increase (or decrease) in Consolidated Total Assets as of
the end of each subsequent fiscal year prior to the date of determination.
Notwithstanding the foregoing, the Borrower may make a Disposition and the book
value of the assets shall not be required to be included in the foregoing
computation if the Borrower shall, within one year after such Disposition,
invest the net proceeds thereof in other tangible property of a similar nature
and at least equivalent value (whether new, additional or replacement property
but excluding property purchased as part of regular upkeep and maintenance) for
use in the business of the Borrower and by Subsidiaries;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above) shall be made for fair
value.
SECTION 6.06. Sale and Leaseback Transactions.
The Borrower will not, and will not permit any of the Subsidiaries to, enter
into any arrangement, directly or indirectly, whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred, except for any such sale of any
fixed or capital assets that is made for cash consideration in an amount not
less than the cost of such fixed or capital asset and is consummated within 90
days after the Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset and the lease thereof pursuant to
the Synthetic Equipment Lease Facility, the Synthetic Airplane Lease Facility or
the Synthetic Real Estate Lease.
SECTION 6.07. Hedging Agreements.
The Borrower will not, and will not permit any of the Subsidiaries to, enter
into any Hedging Agreement, other than the Equity Forward Agreement, other
Synthetic Purchase Agreements permitted by Sections 6.01(a)(xiii) and other
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business and the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrower will not, nor will it permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except (i) the
Borrower may purchase or redeem its capital stock as long as no Default exists
or would result therefrom (including, any Default arising as a result of the
violation of Section 7.01), (ii) Subsidiaries may declare and pay dividends
ratably with respect to their capital stock, and (iii) Subsidiaries may make
payment in respect of preferred Equity Interest issued under the permissions of
Section 6.01(b) when such payments become due.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree
to pay or make, directly or indirectly, any payment or other distribution
(whether in cash securities or other property) of or in respect of principal of
or interest on any Indebtedness, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:
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(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and
when due in respect of any Indebtedness, other than payments in respect
of the Subordinated Debt prohibited by the subordination provisions
thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness; and
(v) Subsidiaries may make payment in respect of preferred Equity Interest
issued under the permissions of Section 6.01 (b) when such payments
become due.
(c) Neither the Borrower nor any Subsidiary shall enter into or be party to, or
make any payment under, any Synthetic Purchase Agreement (other than the Equity
Forward Agreement and any other Synthetic Purchase Agreement entered into in
compliance with Section 6.01(a)(xiii)) unless (i) in the case of any Synthetic
Purchase Agreement related to any Equity Interest, (A) the payments required to
be made thereunder are limited to the $1,000,000 and (B) the obligations of the
Borrower and the Subsidiaries thereunder are subordinated to the Indebtedness
and other obligations arising hereunder and under the other Loan Documents on
terms satisfactory to the Required Lenders and (ii) in the case of any Synthetic
Purchase Agreement related to any subordinated Indebtedness, (A) the payments
required to be made thereunder are limited to the amount permitted under Section
6.08 (b) of this Agreement and (B) the obligations of the Borrower and the
Subsidiaries thereunder are subordinated to the Indebtedness and other
obligations arising hereunder and under the other Loan Documents to at least the
same extent as the subordinated Indebtedness to which such Synthetic Purchase
Agreement relates. The Borrower shall promptly deliver to the Agent a copy of
any Synthetic Purchase Agreement to which it becomes party.
SECTION 6.09. Transactions with Affiliates.
The Borrower will not, nor will it permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, and (b) any Restricted Payment
permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements.
The Borrower will not, nor will it permit any Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
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conditions imposed by law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on
Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) clause (a) of the foregoing shall not apply to customary
provisions in leases restricting the assignment thereof.
SECTION 6.11. Amendment of Organizational Documents.
The Borrower will not, nor will it permit any Subsidiary to, amend, modify or
waive any of its rights under its certificate of incorporation, by-laws or other
organizational documents in a manner that would have a Material Adverse Affect.
SECTION 6.12. Subordinated Debt Documents.
Borrower will not and will not permit any Subsidiaries to change or amend the
terms of the Subordinated Debt Documents, if the effect of such amendment is to:
(a) increase the interest rate on the Subordinated Debt; (b) shorten the time of
payments of principal or interest due under the Subordinated Debt Documents; (c)
change any event of default or any covenant to a materially more onerous or
restrictive provision; (d) change the subordination provisions thereof (or the
subordination terms of any guaranty thereof); (e) change or amend any other term
if such change or amendment would materially increase the obligations of the
obligor or confer additional material rights on the holders of the Subordinated
Debt in a manner materially adverse to Agent or any Lender as senior creditors
or the interests of the Lenders under this Agreement or any other Loan Document
in any respect; or (f) in any manner amend any term of any Subordinated Debt
Document relating to the prohibition of the creation or assumption of any Lien
upon the properties or assets of Borrower or any Subsidiary or relating to the
prohibition of creation, existence or effectiveness of any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to (i)
pay dividends or make any other distribution; (ii) subject to subordination
provisions, pay any Indebtedness owed to Borrower or any Subsidiary; (iii) make
loans or advances to Borrower or any Subsidiary; or (iv) transfer any of its
property or assets to Borrower or any Subsidiary.
SECTION 6.13. Senior Note Documents.
Borrower will not and will not permit any Subsidiaries to change or amend the
terms of the Senior Note Documents, if the effect of such amendment is to: (a)
increase the interest rate on the Senior Notes; (b) shorten the time of payments
of principal or interest due under the Senior Note Documents; (c) change any
event of default or any covenant to a materially more onerous or restrictive
provision; (d) change or amend any other term if such change or amendment would
materially increase the obligations of the obligor or confer additional material
rights on the holders the Senior Notes in a manner materially adverse to Agent
or any Lender as senior creditors or the interests of the Lenders under this
Agreement or any other Loan Document in any respect; or (e) in any manner amend
any term of any Senior Note Document relating to the prohibition of the creation
or assumption of any Lien upon the properties or assets of Borrower or any
Subsidiary or relating to the prohibition of creation, existence or
effectiveness of any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to (i) pay dividends or make any other distribution;
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(ii) subject to subordination provisions, pay any Indebtedness owed to Borrower
or any Subsidiary; (iii) make loans or advances to Borrower or any Subsidiary;
or (iv) transfer any of its property or assets to Borrower or any Subsidiary.
SECTION 6.14. Change in Fiscal Year.
Borrower will not change the manner in which either the last day of its fiscal
year or the last days of the first three fiscal quarters of its fiscal year is
calculated.
ARTICLE VII.
Financial Covenants
Until the Revolving Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 7.01. Consolidated Tangible Net Worth.
The Borrower will at all times maintain Consolidated Tangible Net Worth (as
defined below) in an amount not less than the sum of (a) $280,000,000; plus (b)
50% of the Borrower's Consolidated Net Income for the period from September 30,
1999, through the fiscal quarter to have completely elapsed as of the date of
determination; plus (c) 100% of the net cash proceeds of any sale of Equity
Interests or other contributions to the capital of the Borrower received by
Borrower since September 30, 1999, calculated without duplication. If
Consolidated Net Income for a fiscal quarter is zero or less, no adjustment to
the requisite level of Consolidated Tangible Net Worth shall be made. As used in
this Agreement, the following terms have the following meanings:
"Consolidated Net Income" means, for any period and any Person
(a "Subject Person"), such Subject Person's consolidated net income (or
loss) determined in accordance with GAAP, but excluding any
extraordinary, nonrecurring, nonoperating or noncash gains or losses,
including or in addition, the following:
(i) the income (or loss) of any Person (other than a
subsidiary) in which the Subject Person or a subsidiary has an
ownership interest; provided, however, that (A) Consolidated Net
Income shall include amounts in respect of the income of such
when actually received in cash by the Subject Person or such
subsidiary in the form of dividends or similar distributions and
(B) Consolidated Net Income shall be reduced by the aggregate
amount of all investments, regardless of the form thereof, made
by the Subject Person or any of its subsidiaries in such Person
for the purpose of funding any deficit or loss of such Person;
(ii) the income of any subsidiary to the extent the payment
of such income in the form of a distribution or repayment of any
Indebtedness to the Subject Person or a subsidiary is not
permitted, whether on account of any restriction in by-laws,
articles of incorporation or similar governing document, any
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agreement or any law, statute, judgment, decree or governmental order,
rule or regulation applicable to such subsidiary;
(iii) any gains or losses accrued on foreign currency
receivables or on foreign currency payables of the Subject Person
or a subsidiary organized under the laws of the United States
which are not realized in a cash transaction;
(iv) the income or loss of any foreign subsidiary or of any
foreign Person (other than a subsidiary) in which the Subject
Person or subsidiary has an ownership interest to the extent that
the equivalent Dollar Amount of the income contains increases or
decreases due to the fluctuation of a foreign currency exchange
rate after the Effective Date;
(v) the income or loss of any Person acquired by the Subject
Person or a subsidiary for any period prior to the date of such
acquisition;
(vi) the income from any sale of assets in which the
accounting basis of such assets had been the book value of any
Person acquired by the Subject Person or a subsidiary prior to
the date such Person became a subsidiary or was merged into or
consolidated with the Subject Person or a subsidiary; and
(vii) when determining Consolidated Net Income for Borrower
and for any period which includes the second or third fiscal
quarters of the 1999 fiscal year, any of the special charges
recorded in the applicable fiscal quarter relating to the
Borrower's acquisition of May & ▇▇▇▇ and the write down of other
impaired assets.
The gains or losses of the type described in clauses (i)
through (vi) of this definition shall only be excluded in determining
consolidated net income if the aggregate amount of such gains or losses
exceed, in either case (i.e., gains or losses), $1,000,000 in the
period of calculation. If a gain or loss is to be excluded from the
calculation of consolidated net income pursuant to the foregoing
$1,000,000 threshold, the whole gain or loss shall be excluded, not
just that amount in excess of the threshold.
"Consolidated Tangible Net Worth" means, at any particular
time, the sum of (i) all amounts which, in conformity with GAAP, would
be included as stockholders' equity on a consolidated balance sheet of
the Borrower and the Subsidiaries; minus (ii) the sum of the following:
(a) the amount by which stockholders' equity has been increased by the
write-up of any asset of the Borrower and the Subsidiaries after
September 30, 1999, plus (b) the amount of net deferred income tax
assets (less adjustments included in Consolidated Net Income after
September 30, 1999), plus (c) any cash held in a sinking fund or other
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analogous fund established for the purpose of redemption, retirement or
prepayment of capital stock or Indebtedness, plus (d) the cumulative
foreign currency translation adjustment (less adjustments included in
Consolidated Net Income after September 30, 1999), plus (e) the amount
at which shares of capital stock of the Borrower is contained among the
assets on the consolidated balance sheet of the Borrower and the
Subsidiaries, plus (f) the amount of any preferred stock, plus (g) to
the extent included in clause (i) above of this definition, the amount
properly attributable to the minority interests, if any, of other
Persons in the stock, additional paid-in capital, and retained earnings
of the Subsidiaries, plus (h) the amount of intangible assets carried
on the balance sheet of the Borrower at such date determined in
accordance with GAAP on a consolidated basis, including goodwill,
patents, trademarks, tradenames, organizational expenses, deferred
financing changes, debt acquisition costs, start up costs, preoperating
costs, prepaid pension costs, or any other similar deferred charges but
not including deferred charges relating to data processing contracts
and software development costs.
SECTION 7.02. Leverage Ratio.
As of the last day of each fiscal quarter, the Borrower shall not permit the
ratio of Total Indebtedness as of such date to Adjusted EBITDA for the four (4)
Fiscal Quarters then ended to exceed 2.00 to 1.00. As used in this Agreement,
the following terms have the following meanings:
"Adjusted EBITDA" means, for any period (the "Subject
Period"), the total of the following calculated without duplication for
such period: (a) Borrower's EBITDA; plus (b), on a pro forma basis, the
pro forma EBITDA of each Prior Target or, as applicable, the EBITDA of
a Prior Target attributable to the assets acquired from such Prior
Target, for any portion of such Subject Period occurring prior to the
date of the acquisition of such Prior Target or the related assets but
only to the extent such EBITDA for such Prior Target can be established
in a manner satisfactory to the Agent based on financial statements of
the Prior Target prepared in accordance with GAAP; minus (c) the EBITDA
of each Prior Company and, as applicable but without duplication, the
EBITDA of Borrower and each Subsidiary attributable to all Prior
Assets, in each case for any portion of such Subject Period occurring
prior to the date of the disposal of such Prior Companies or Prior
Assets.
"EBITDA" means, for any period and any Person, the total of
the following each calculated without duplication on a consolidated
basis for such period: (a) Consolidated Net Income (as defined in
Section 7.01); plus (b) any provision for (or less any benefit from)
income or franchise taxes included in determining Consolidated Net
Income; plus (c) interest expense (including the interest portion of
Capital Lease Obligations) deducted in determining Consolidated Net
Income; plus (d) amortization and depreciation expense deducted in
determining Consolidated Net Income.
"Prior Target" means all Targets acquired or whose assets have
been acquired in a in a transaction permitted by Section 6.04.
"Prior Company" means any Subsidiary whose capital stock or
other equity interests have been disposed of, or all or substantially
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all of whose assets have been disposed of, in each case, in a
transaction with an unaffiliated third party approved in accordance
with this Agreement.
"Prior Assets" means assets that have been disposed of by a
division or branch of Borrower or a Subsidiary in a transaction with an
unaffiliated third party approved in accordance with this Agreement
which would not make the seller a "Prior Company" but constitute all or
substantially all of the assets of such division or branch.
"Total Indebtedness" means, at the time of determination, the
sum of the following determined for Borrower and the Subsidiaries on a
consolidated basis (without duplication): (a) the average outstanding
Loans under this Agreement for the four fiscal quarter period ending on
the date of determination (computed on the basis of the simple average
of the balances outstanding as of each fiscal quarter end during such
period); plus (b) all obligations for borrowed money, other than the
Loans, or with respect to deposits or advances of any kind; plus (c)
all obligations of such Person evidenced by bonds, notes, debentures,
or other similar instruments, other than the Loans; plus (d) all
obligations of such Person upon which interest charges are customarily
paid, other than the Loans; (e) all obligations of such Person under
conditional sale or other title retention agreements relating to
property acquired by such Person, (f) all obligations of such Person in
respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (g) all obligations of others secured by (or for which the
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby have been
assumed (provided that for purposes of this clause (g) the amount of
any such Indebtedness shall be deemed not to exceed the higher of the
market value or the book value of such assets), plus (h) all Capital
Lease Obligations; plus (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and
letters of guaranty, plus (j) all obligations, contingent or otherwise,
of such Person in respect of bankers' acceptances, plus (k) all
obligations, contingent or otherwise, for the payment of money under
any noncompete, consulting or similar agreement entered into with the
seller of a Target or any other similar arrangements providing for the
deferred payment of the purchase price for an acquisition; plus (l) all
Indebtedness arising in connection with Hedging Agreements and
preferred Equity Interests; minus (m) to the extent included in clauses
(a) through (l) of this definition, the amount reflected on the
Borrower's consolidated balance sheet as software license liabilities.
SECTION 7.03. Fixed Charge Coverage.
As of the last day of each fiscal quarter, the Borrower shall not
permit the ratio of:
(a) the sum of the following for Borrower and the Subsidiaries calculated on a
consolidated basis in accordance with GAAP for the period of four (4)
consecutive fiscal quarters then ended: (i) EBITDA; plus (ii) operating lease
rentals (including, rentals from operating leases treated as financings for all
purposes other than accounting purposes), plus (iii) software licensing
payments, minus (iv) Capital Expenditures, minus (v) all expenditures for
software development to
(
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b) the Fixed Charges for the period of four (4) consecutive fiscal quarters
then ended
to be less than:
(i) 1.25 to 1.00 as of the last day of each fiscal quarter occurring during
the period from the Effective Date through and including December 31,
2000 and
(ii) 1.35 to 1.00 as of the last day of each fiscal quarter occurring after
January 1, 2001.
As used in this Section 7.03, "Fixed Charges" means for any period, the sum of
the following for the Borrower and the Subsidiaries calculated on a consolidated
basis without duplication for such period: (a) the aggregate amount of interest,
including payments in the nature of interest under Capitalized Lease
Obligations; (b) the scheduled amortization of Indebtedness paid or payable; (c)
operating lease rentals (including, rentals from operating leases treated as
financings for all purposes other than accounting purposes); (d) all dividends,
redemptions, and other distributions made by Borrower on account of Equity
Interests; (e) payments on leases or other obligations assumed from customers
under service agreements to the extent such arrangements are not treated as
operating leases, Capital Lease Obligations or long term debt; and (f) to the
extent not included in clauses (a) through (e) of this definition, software
licensing payments.
SECTION 7.04. Asset Coverage.
The Borrower shall not at any time permit the ratio of the Asset
Value to Senior Debt to be less than 2.00 to 1.00. As used in this Section 7.04,
(a) the term "Asset Value" means, as of the date of determination, the sum of
the book values of the following for Borrower and the Subsidiaries calculated on
a consolidated basis: (i) trade accounts receivable and (ii) property, plant and
equipment net of accumulated depreciation and amortization and (b) the term
"Senior Debt" means, at the time of determination, the sum of the following
determined for Borrower and the Subsidiaries on a consolidated (without
duplication): (a) the average outstanding Loans under this Agreement for the
four fiscal quarter period ending on the date of determination (computed on the
basis of the simple average of the balances outstanding as of each fiscal
quarter end during such period); plus (b) all obligations for borrowed money,
other than the Loans, or with respect to deposits or advances of any kind; plus
(c) all obligations of such Person evidenced by bonds, notes, debentures, or
other similar instruments, other than the Loans; plus (d) all obligations of
such Person upon which interest charges are customarily paid, other than the
Loans; (e) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (f) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (g) all obligations of others secured by (or for which the holder
of such obligations has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed (provided that for
purposes of this clause (g) the amount of any such Indebtedness shall be deemed
not to exceed the higher of the market value or the book value of such assets),
plus (h) all Capital Lease Obligations; plus (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
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and letters of guaranty, plus (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances, plus (k) all obligations,
contingent or otherwise, for the payment of money under any noncompete,
consulting or similar agreement entered into with the seller of a Target or any
other similar arrangements providing for the deferred payment of the purchase
price for an acquisition; plus (l) all Indebtedness arising in connection with
Hedging Agreements; minus (m), to the extent included in clauses (a) through (l)
of this definition, the sum of (x) the amount reflected on the Borrower's
consolidated balance sheet as software license liabilities and (y) any
Indebtedness which by its terms is subordinated in right of payment to the
Loans.
ARTICLE VIII.
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any
other amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days;
(c) any representation, warranty or certification made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect in
any material respects when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to the existence of the
Borrower) or 5.10 or in Article VI or Article VII;
(e) the Borrower or any Guarantor shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the Agent
to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, (including, Indebtedness arising in connection with the Synthetic
Equipment Lease Facility and the Synthetic Real Property Lease) when and as the
same shall become due and payable;
(g) any event or condition occurs that results in any Material Indebtedness
(including, Indebtedness arising in connection with the Synthetic Equipment
Lease Facility and the Synthetic Real Property Lease) becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
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repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (h) of this Article, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its
inability, or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in
excess of $5,000,000 shall be rendered against the Borrower, any Subsidiary or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could or does result in a liability equal to or in excess of $5,000,000 or could
reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) an event of default or event of termination shall occur under the Equity
Forward Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Agent may, and at the request of the
Required Lenders shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate the Revolving
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Commitments, and thereupon the Revolving Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without notice of intent to
accelerate, notice of acceleration, presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Revolving Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without notice of intent to accelerate,
notice of acceleration, presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE IX.
Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Agent as its agent and authorizes the Agent to take such actions on its
behalf and to exercise such powers as are delegated to it by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 10.02), and (c) except as expressly set forth in the Loan Documents, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any
Subsidiaries that is communicated to or obtained by the bank serving as Agent or
any of its Affiliates in any capacity. The Agent shall not be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.02) or in the
absence of its own gross negligence or willful misconduct. The Agent shall not
be deemed to have knowledge of any Default unless and until written notice
thereof is given to the Agent by the Borrower or a Lender, and the Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
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delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Agent.
Subject to the appointment and acceptance of a successor as provided in
this paragraph, the Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the Lenders
and the Issuing Bank, appoint a successor Agent. Upon the acceptance of its
appointment as the Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Agent's resignation
hereunder, the provisions of this Article and Section 10.03 shall continue in
effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as the Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent, any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent,
any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
Mercantile Bank, N.A., Bank of America, N.A., The Bank of Nova Scotia,
Bank One, NA, Wachovia Bank, N.A., SunTrust Bank, Nashville, N.A. and ABN AMRO
Bank, N.V., have been designated as "co-administrative agent," "syndication
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agent" or "co-agent," hereunder in recognition of the level of each of their
Revolving Commitments. Neither Mercantile Bank, N.A., Bank of America, N.A., The
Bank of Nova Scotia, Bank One, NA, Wachovia Bank, N.A., SunTrust Bank,
Nashville, N.A. nor ABN AMRO Bank, N.V. is an agent for the Lenders and no such
Lender shall have any obligation hereunder other than those existing in its
capacity as a Lender. Without limiting the foregoing, no such Lender shall have
or be deemed to have any fiduciary relationship with or duty to any Lender.
ARTICLE X.
Miscellaneous
SECTION 10.01. Notices.
Except in the case of notices and other communications expressly permitted to
be given by telephone, all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer (Telecopy No.
501-342-3913);
(b) if to the Agent, the Issuing Bank, the Swing-Line Lender or to Chase Bank of
Texas, National Association, as a Lender, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇, (Telecopy No. 214-965-2044), with a copy
to Chase Bank of Texas, National Association, ▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇
Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Telephone ▇▇▇-▇▇▇-▇▇▇▇; Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇; and
(c) if to a Lender, to it at its address (or telecopy number) set forth in the
Administrative Questionnaire delivered to the Agent by such Lender in connection
with the execution of this Agreement or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No failure or delay by the Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by the Borrower or any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
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and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof
or thereof may be waived, amended or modified except (x) pursuant to an
Increased Commitment Supplement executed in accordance with the terms and
conditions of Section 2.19 which only needs to be signed by the Borrower, the
Agent and the Lenders increasing or providing new Revolving Commitments
thereunder if the Increased Commitment Supplement does not increase the
aggregate amount of the Revolving Commitments to an amount in excess of
$300,0000,000 and (y) in the case of this Agreement and any circumstance other
than as described in clause (x), pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or, in the case of
any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the parties thereto, in each case with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the
Revolving Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Revolving Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender or (vi) release any Guarantor from the
Subsidiary Guaranty or limit its liability in respect of the Subsidiary Guaranty
without the consent of each Lender; provided further that (1) no such agreement
shall amend, modify or otherwise affect the rights or duties of the Agent, the
Issuing Bank or the Swingline Lender without the prior written consent of the
Agent, the Issuing Bank or the Swingline Lender, as the case may be and (2) the
Agent shall be obligated and shall have the power without the consent of any
Lender to release a Guarantor from the Subsidiary Guaranty if the Guarantor is
sold in accordance with the restrictions on the disposition of assets set forth
in Section 6.05.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Agent and Chase Securities Inc. and their respective Affiliates, including
the reasonable fees, charges and disbursements of counsel for Agent and Chase
Securities Inc., in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of the Loan Documents or
any amendments, modifications or waivers of the provisions thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by either Co-Administrative Agent, the Issuing Bank or any Lender, including the
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fees, charges and disbursements of any counsel for either Co-Administrative
Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) THE BORROWER SHALL INDEMNIFY EACH CO-ADMINISTRATIVE AGENT, CHASE SECURITIES
INC. AND BANC OF AMERICA SECURITIES LLC, THE ISSUING BANK AND EACH LENDER, AND
EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING
CALLED AN "INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND
ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE
FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY
OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A
RESULT OF (I) THE EXECUTION OR DELIVERY OF ANY LOAN DOCUMENT OR ANY OTHER
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES TO
THE LOAN DOCUMENTS OF THEIR RESPECTIVE OBLIGATIONS THEREUNDER OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN OR LETTER OF
CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE
ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE
DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH
THE TERMS OF SUCH LETTER OF CREDIT), (III) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY REAL PROPERTY CURRENTLY OR
FORMERLY OWNED OR OPERATED BY THE BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY
ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF THE
SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION
OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO;
PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES
ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH INDEMNITEE. IT IS THE EXPRESSED INTENT OF THE PARTIES HERETO THAT THE
INDEMNITY IN THIS CLAUSE (B) SHALL, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE
EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE
DETERMINED TO HAVE RESULTED FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNITEE.
(c) To the extent that the Borrower fails to pay any amount required to be paid
by it to the Agent, the Issuing Bank or the Swingline Lender under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender's pro rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
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expense, as the case may be, was incurred by or asserted against the Agent, the
Issuing Bank or the Swingline Lender in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures and unused Revolving Commitments at the
time.
(d) To the extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, any Loan or Letter
of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written
demand therefor.
SECTION 10.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Co-Administrative Agents, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Revolving Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Agent must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Revolving
Commitment and Loans, the amount of the Revolving Commitment and Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Agent an Administrative Questionnaire; and
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (h) or (i)
of Article VIII has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
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obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16, 2.17 and 10.03).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Agent, acting for this purpose as an agent of the Borrower, shall
maintain at its offices in New York, New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Commitment of, and principal amount
of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Co-Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, either Co-
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Revolving Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Agent, the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08
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as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment under
Section 2.14 or 2.16 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.16(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. Survival.
All covenants, agreements, representations and warranties made by the Borrower
in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that either
Co-Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Revolving Commitments have
not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 2.17 and
10.03 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Revolving Commitments or the termination of this Agreement or any
provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY SEPARATE LETTER AGREEMENTS WITH
RESPECT TO FEES PAYABLE TO EITHER CO-ADMINISTRATIVE AGENT EMBODY THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ANY AND ALL PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
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executed by the Agent and the Borrower and when the Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 10.07. Severability.
Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of Texas.
(b) THE BORROWER HEREBY IRREVOCABLY AND UNCONDI-TIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE
OF TEXAS SITTING IN DALLAS COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
NORTHERN DISTRICT OF TEXAS, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT, THE ISSUING BANK OR ANY LENDER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.
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(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of process in
the manner provided for notices in Section 10.01. Nothing in this Agreement or
any other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 10.12. Confidentiality.
Each of the Co-Administrative Agents, the Issuing Bank and the Lenders agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to a Co-Administrative Agent, the Issuing Bank or any Lender
on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" means all information received from the
Borrower relating to the Borrower or its business, other than any such
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information that is available to the Co-Administrative Agents, the Issuing Bank
or any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 10.13. Maximum Interest Rate.
(a) No interest rate specified in any Loan Document shall at any time exceed the
Maximum Rate. If at any time the interest rate (the "Contract Rate") for any
obligation under the Loan Documents shall exceed the Maximum Rate, thereby
causing the interest accruing on such obligation to be limited to the Maximum
Rate, then any subsequent reduction in the Contract Rate for such obligation
shall not reduce the rate of interest on such obligation below the Maximum Rate
until the aggregate amount of interest accrued on such obligation equals the
aggregate amount of interest which would have accrued on such obligation if the
Contract Rate for such obligation had at all times been in effect. As used
herein, the term "Maximum Rate" means, at any time with respect to any Lender,
the maximum rate of nonusurious interest under applicable law that such Lender
may charge Borrower. The Maximum Rate shall be calculated in a manner that takes
into account any and all fees, payments, and other charges contracted for,
charged, or received in connection with the Loan Documents that constitute
interest under applicable law. Each change in any interest rate provided for
herein based upon the Maximum Rate resulting from a change in the Maximum Rate
shall take effect without notice to Borrower at the time of such change in the
Maximum Rate. For purposes of determining the Maximum Rate under Texas law, the
applicable rate ceiling shall be the weekly rate ceiling described in, and
computed in accordance with, Article 5069-1.04, Vernon's Texas Civil Statutes.
(b) No provision of any Loan Document shall require the payment or the
collection of interest in excess of the maximum amount permitted by applicable
law. If any excess of interest in such respect is hereby provided for, or shall
be adjudicated to be so provided, in any Loan Document or otherwise in
connection with this loan transaction, the provisions of this Section shall
govern and prevail and neither Borrower nor the sureties, guarantors,
successors, or assigns of Borrower shall be obligated to pay the excess amount
of such interest or any other excess sum paid for the use, forbearance, or
detention of sums loaned pursuant hereto. In the event any Lender ever receives,
collects, or applies as interest any such sum, such amount which would be in
excess of the maximum amount permitted by applicable law shall be applied as a
payment and reduction of the principal of the obligations outstanding hereunder,
and, if the principal of the obligations outstanding hereunder has been paid in
full, any remaining excess shall forthwith be paid to the Borrower. In
determining whether or not the interest paid or payable exceeds the Maximum
Rate, Borrower and each Lender shall, to the extent permitted by applicable law,
(a) characterize any non-principal payment as an expense, fee, or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the entire contemplated term of the obligations
outstanding hereunder so that interest for the entire term does not exceed the
Maximum Rate.
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(c) The provisions of Chapter 346 of the Finance Code of Texas are specifically
declared by the parties hereto not to be applicable to this Agreement or to the
transactions contemplated hereby.
SECTION 10.14. Intercompany Subordination.
(a) Borrower agrees that the Subordinated Indebtedness (as defined below) shall
be subordinate and junior in right of payment to the prior payment in full of
all Senior Indebtedness (as defined below) as herein provided. The Subordinated
Indebtedness shall not be payable, and no payment of principal, interest or
other amounts on account thereof, and no property or guarantee of any nature to
secure or pay the Subordinated Indebtedness shall be made or given, directly or
indirectly by or on behalf of any Guarantor or received, accepted, retained or
applied by Borrower unless and until the Senior Indebtedness shall have been
paid in full in cash; except that prior to the occurrence and continuance of an
Event of Default, each Guarantor shall have the right to make payments, and the
Borrower shall have the right to receive payments on the Subordinated
Indebtedness from time to time as may be determined by Borrower. After the
occurrence and during the continuance of an Event of Default, no payments of
principal, interest or other amounts may be made or given, directly or
indirectly, by or on behalf of any Guarantor or received, accepted, retained or
applied by Borrower unless and until the Senior Indebtedness shall have been
paid in full in cash. If any sums shall be paid to Borrower by any Guarantor or
any other Person on account of the Subordinated Indebtedness when such payment
is not permitted hereunder, such sums shall be held in trust by the Borrower for
the benefit of Agent and the Lenders and shall forthwith be paid to and applied
by Agent against the Senior Indebtedness in accordance with the terms hereof.
For purposes of this Section 10.14, the term (i) "Subordinated Indebtedness"
means, with respect to a Guarantor, all indebtedness, liabilities, and
obligations of such Guarantor to Borrower, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or
are direct, indirect, contingent, primary, secondary, several, joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contract, open account, or
otherwise, and irrespective of the Person or Persons in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Borrower and (ii) "Senior Indebtedness" means, with respect to
each Guarantor, all of the obligations, indebtedness and liability of the such
Guarantor to the Agent, the Issuing Bank and the Lenders, or any of them,
arising pursuant to the Subsidiary Guaranty or any of the other Loan Documents,
whether now existing or hereafter arising, whether direct, indirect, related,
unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint
and several, including, without limitation, any and all post-petition interest
and expenses (including attorneys' fees) whether or not allowed under any
bankruptcy, insolvency, or other similar law.
(b) Borrower agrees that any and all Liens (including any judgment liens), upon
any Guarantor's assets securing payment of any Subordinated Indebtedness shall
be and remain inferior and subordinate to any and all Liens upon any Guarantor's
assets securing payment of the Senior Indebtedness or any part thereof,
regardless of whether such Liens in favor of Borrower, Agent or any Lender
presently exist or are hereafter created or attached. Without the prior written
consent of Agent, Borrower shall not (i) file suit against any Guarantor or
exercise or enforce any other creditor's right it may have against any
Guarantor, or (ii) foreclose, repossess, sequester, or otherwise take steps or
institute any action or proceedings (judicial or otherwise, including without
limitation the commencement of, or joinder in, any liquidation, bankruptcy,
-75-
rearrangement, debtor's relief or insolvency proceeding) to enforce any
obligations of any Guarantor to Borrower or any Liens held by Borrower on assets
of any Guarantor.
(c) In the event of any receivership, bankruptcy, reorganization, rearrangement,
debtor's relief, or other insolvency proceeding involving any Guarantor as
debtor, Agent shall have the right to prove and vote any claim under the
Subordinated Indebtedness and to receive directly from the receiver, trustee or
other court custodian all dividends, distributions, and payments made in respect
of the Subordinated Indebtedness until the Senior Indebtedness has been paid in
full in cash. Agent may apply any such dividends, distributions, and payments
against the Senior Indebtedness in accordance with the terms hereof.
(d) Borrower agrees that all promissory notes and other instruments evidencing
Subordinated Indebtedness shall contain a specific written notice thereon that
the indebtedness evidenced thereby is subordinated under the terms of this
Section 10.14.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ACXIOM CORPORATION, as the Borrower
By:
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Business Development/Legal Leader
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent and a
co-administrative agent, the Issuing
Bank, the Swingline Lender and as a
Lender
By:
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
BANK OF AMERICA, N.A., as syndication
agent and as a Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
MERCANTILE BANK, N.A., as a
co-administrative agent and as a
Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE BANK OF NOVA SCOTIA, as co-agen
and as a Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
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BANK ONE, NA (Main Office -
Chicago), as co-agent and as a
Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SUNTRUST BANK, NASHVILLE, N.A., as
co-agent and as a Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
WACHOVIA BANK, N.A., as co-agent and
as a Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ABN AMRO BANK N.V., as co-agent and
as a Lender
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
BANK HAPOALIM
By:
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By:
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
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COMERICA BANK
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE DAI-ICHI KANGYO BANK, LIMITED
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
REGIONS BANK
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
-79-
EXHIBITS:
EXHIBIT A - Form of Assignment and Acceptance E
XHIBIT B - Form of Opinion of Borrower's Counsel
EXHIBIT C - Form of Subsidiary Guaranty
EXHIBIT D - Form of Increased Commitment Supplement
SCHEDULES:
SCHEDULE 2.01 - Commitments
SCHEDULE 3.12 - Subsidiaries
SCHEDULE 6.01 - Existing Indebtedness and Preferred Equity Interests
SCHEDULE 6.02 - Existing Liens
SCHEDULE 6.04 - Existing Investments
SCHEDULE 6.10 - Existing Restrictions
EXHIBIT A
TO
ACXIOM CORPORATION
CREDIT AGREEMENT
Form of Assignment and Acceptance
ASSIGNMENT AND ACCEPTANCE
Dated: ___________________
Reference is made to the Credit Agreement dated as of December 29, 1999
(as amended, modified, extended or restated from time to time, the "Agreement"),
among ACXIOM CORPORATION (the "Borrower"), the lenders listed in Schedule 2.01
thereto (the "Lenders"), CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as agent and
as a co-administrative agent, MERCANTILE BANK, N.A., as co-administrative agent,
and BANK OF AMERICA, N.A., as syndication agent.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date of Assignment set forth below,
the interests set forth below (the "Assigned Interest") in the Assignor's rights
and obligations under the Agreement, including, without limitation, the
interests set forth below in the Revolving Commitment of the Assignor on the
Effective Date of Assignment and the Loans owing to the Assignor which are
outstanding on the Effective Date of Assignment, together with unpaid interest
accrued on the assigned Loans to the Effective Date of Assignment and the
amount, if any, set forth below of the fees accrued to the Effective Date of
Assignment for the account of the Assignor. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 10.04 of the Agreement, a copy of
which has been received by each such party. From and after the Effective Date of
Assignment, (i) the Assignee shall be a party to and be bound by the provisions
of the Agreement and, to the extent of the interests assigned by this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and (ii)
the Assignor shall, to the extent of the interests assigned by this Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Agreement. After giving effect to this Assignment and Acceptance, Assignor=s
Revolving Commitment shall be $________________ and Assignee=s Revolving
Commitment shall be $_________________.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.16(e) of the
Agreement, duly completed and executed by such Assignee, and (ii) if the
Assignee is not already a Lender under the Agreement, an Administrative
Questionnaire and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Texas.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
-1-
------------------------------ ---------------- ----------------------------
Facility Principal Amount Percentage Assigned of
Assigned Revolving Commitment (set
forth, to at least 8
decimals, as a percentage of
the aggregate Revolving
Commitments of all
Lenders thereunder)
------------------------------ ---------------- ----------------------------
Revolving Commitment Assigned: $
------------------------------ ---------------- ----------------------------
Loans: $
------------------------------ ---------------- ----------------------------
Fees Assigned (if any): $
------------------------------ ---------------- ----------------------------
The terms set forth herein are hereby
agreed to: Accepted:
[ASSIGNOR], as Assignor
ACXIOM CORPORATION
By: By:
---------------------------------- -------------------------------------
Name: Name:
-------------------------------- -----------------------------------
Title: Title:
-------------------------------- ----------------------------------
[ASSIGNEE], as Assignee CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent
By: By:
---------------------------------- -------------------------------------
Name: Name:
-------------------------------- -----------------------------------
Title: Title:
-------------------------------- ----------------------------------
-2-
EXHIBIT B
TO
ACXIOM CORPORATION
CREDIT AGREEMENT
Form of Opinion of Borrower's Counsel
December 29, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ National Association, as agent for certain lenders and the
lenders party to the hereinafter defined Agreement ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: The Credit Agreement dated as of December 29, 1999 (the "Agreement")
among Acxiom Corporation, a Delaware corporation (the "Company"), Chase
Bank of Texas, National Association, as the agent and as a
co-administrative agent, Mercantile Bank, N.A., as a co-administrative
agent, Bank of America, N.A., as syndication agent, and the other
lenders named therein.
Ladies and Gentlemen:
We are special counsel to the Company. As such, we have been asked to
render to you the opinion set forth below relating to the Agreement. This
opinion is given pursuant to Section 4.01(b) of the Agreement. Capitalized terms
used herein, not otherwise defined, have the meanings given them in the
Agreement. The Agreement and the Subsidiary Guaranty are hereinafter
collectively referred to as the "Loan Documents."
To enable us to render this opinion, we have reviewed originals or
copies (certified or otherwise identified to our satisfaction) of the
Certificate of Incorporation and By-Laws of the Company and each Guarantor, the
Loan Documents, the records of proceedings of the Board of Directors of the
Company and each Guarantor, and such other documents, corporate records and
certificates of public officials as we have considered appropriate.
For purposes of this opinion, we have, with your permission, assumed
without independent investigation or inquiry that:
(i) all signatures of the Lenders on the Loan Documents that
we examined are genuine, the Loan Documents submitted to us as
originals are authentic, and the Loan Documents submitted to us as
copies conform to the original Loan Documents executed by the parties
thereto;
(ii) the Loan Documents have been duly and validly authorized,
executed, delivered and accepted by all parties thereto (other than the
Company and each Guarantor) and all parties thereto (other than the
Company and each Guarantor) have all requisite power and authority to
make and enter into the Loan Documents and perform their obligations
thereunder pursuant to the laws of all relevant jurisdictions;
(iii) the Agent and the Lenders have their principal place of
business, chief executive office and domicile outside of the State of
Arkansas; all substantive negotiations relating to the transactions
contemplated by the Loan Documents have taken place outside the State
of Arkansas, either in person or by telephone conferences between your
-1-
representatives in the States of Texas and New York and representatives
of the Company in the State of Arkansas; the closing of the
transactions contemplated by, the delivery by the Company and each
Guarantor and the acceptance by the Lenders or their counsel of the
Loan Documents occurred in the State of Texas; the administration of
and delivery and acceptance of payments pursuant to the Loan Documents
will take place in the State of New York; the choice of law as provided
for in the Loan Documents is valid pursuant to the conflict of laws
principles under the laws of any and all jurisdictions governing the
same (other than the State of Arkansas) specifically including the laws
of the State of Texas; and, the parties to the Loan Documents have
voluntarily chosen to have the laws of the State of Texas govern the
Loan Documents;
(iv) The Loan Documents were entered into in good faith and
for adequate consideration; and
(v) The Agent and the Lenders will exercise their rights,
remedies and benefits under the Loan Documents in a commercially
reasonably manner.
Based upon the foregoing and subject to the qualifications and
limitations set forth below, we are of the opinion that:
1. The Company and each Guarantor organized under the laws of the
States of either Arkansas or Delaware (collectively the "Loan Parties") has been
duly organized and is validly existing and in good standing under the laws of
the State of its incorporation or organization as reflected in the Agreement.
2. Each Loan Party has the corporate power and authority to enter into
and perform the Loan Documents to which it is a party. The execution, delivery
and performance of the Loan Documents have been duly authorized by all requisite
corporate action, and the Loan Documents have been duly executed and delivered
by each Loan Party who is a party thereto.
3. The execution and delivery of the Loan Documents, and the
performance by each Loan Party that is a party thereto of their respective
terms, do not conflict with or result in a violation of law, rule or regulation,
the Certificate of Incorporation or By-Laws of any Loan Party, or of any
agreement, instrument, order, writ, judgment or decree known to us to which any
Loan Party is a party or is subject.
4. A court of the State of Arkansas presented with the facts, as we
have assumed them, and properly applying the current conflict of law principles,
would honor the choice of law provisions as set forth in the Loan Documents and
would not apply the substantive laws of the State of Arkansas, including usury
laws to the Loan Documents, except for certain issues necessarily governed by
Arkansas law such as title to properties and remedies and procedures for
enforcement in Arkansas.
5. No consent, approval, authorization or other action by, or filing
with, any governmental authority is required in connection with the execution
and delivery by any Loan Party of Loan Documents to which it is a party.
-2-
6. To our knowledge, there are no actions, suits or proceedings pending
or threatened against or affecting the Company or any Subsidiary or any of their
respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect.
7. The execution and delivery by the Company and each Guarantor of the
Agreement and the other Loan Documents executed by it, the consummation of the
transactions contemplated by the Agreement and the performance of the terms and
provisions of the Agreement and the other Loan Documents by the Company and the
Guarantors will not involve any violations of Regulation T, U or X or any other
rule or regulation of the Board of Governors of the Federal Reserve System
pursuant to Section 7 of the Securities Exchange Act of 1934, as amended.
8. The Company is not an investment company, or a person directly or
indirectly controlled by or acting on behalf of an investment company, within
the meaning of the Investment Company Act of 1940, as amended.
9. The Indebtedness arising under the Subsidiary Guaranty, the
Agreement and the other Loan Documents constitutes "Senior Indebtedness" under
and as defined in the Subordinated Debt Documents.
The opinions hereinafter expressed are subject to the following
qualifications and limitations:
(a) The opinions set forth herein are subject to the qualification that
we are members of the bar of the State of Arkansas only and we express no
opinion as to the laws of any jurisdiction other than the United States of
America, the State of Arkansas and the General Corporate Laws of the State of
Delaware.
(b) This opinion is limited to pertinent laws in effect as of the date
hereof, and we expressly disclaim any undertaking to advise you of any changes
of law or fact that may thereafter come to our attention.
(c) Our opinion is limited to the matters stated herein and no opinion
is to be implied or may be inferred beyond those matters expressly stated. The
opinions expressed herein represent our judgment as to certain legal matters,
but they are not warranties or guarantees and should not be construed as such.
The liability of this firm is limited to the fullest extent possible under Ark.
Code ▇▇▇. Section ▇▇-▇▇▇-▇▇▇; provided, however, the requirements of such
section necessary to allow the Lenders to rely on this opinion have been
satisfied.
(d) This opinion is furnished by us solely for your benefit, and it may
not be relied upon, quoted from or delivered to any person other than counsel to
you and your agents or employees and participants without our express prior
written consent, except (i) in connection with the enforcement of obligations of
the Loan Parties under the Loan Documents, (ii) in response to a valid subpoena
or other legal process, (iii) as otherwise required by applicable law or
regulations, or (iv) in connection with the sale or transfer of the rights under
the Loan Documents to a subsequent purchaser or transferee.
-3-
(e) The phrases "known to us" or "to our knowledge" as used in this
letter means the actual knowledge of those attorneys of our firm who have
performed services in connection with the Loan Documents and this opinion based
solely on representations from the Company, and does not include constructive
knowledge or knowledge imputed to our firm under common law principles of agency
or otherwise. Except as expressly set forth herein, we have not undertaken any
investigation to determine the existence or absence of any facts and no
inference as to our knowledge concerning any facts should be drawn from the fact
that such representation has been undertaken by us.
(f) For purposes of the factual matters material to the opinions
expressed herein, we have, with your consent, relied upon the correctness of the
representations contained in the Agreement and the factual assumptions stated
therein.
(g) Our opinions are rendered as of the date hereof and do not cover
the effect of any amendment or supplement to the Loan Documents or the validity
or enforceability of any amendment or supplement thereto, including without
limitation any refinancings, modifications, extensions, waivers or releases or
the effect or applicability of federal or state tax laws on or to the
transactions contemplated by the Loan Documents.
(h) We have made no examination or investigation to verify the accuracy
or completeness of any financial, accounting, or statistical information
furnished to you or with respect to any other accounting and financial matters
and express no opinion with respect thereto.
(i) We call your attention to the fact that the awarding of attorney's
fees and expenses is discretionary under Arkansas law. We cannot opine that
attorney's fees and expenses will be awarded in any particular amount.
(j) Our opinions are subject to, and we express no opinion on, state or
federal law relating to fraudulent conveyances.
(k) The opinions expressed above are (i) given to the addressees hereof
solely for their benefit and the benefit of their successors and transferees
(including any assignee or participant in the Loans under the Loan Agreement)
and it is acknowledged that each such Loan Party has relied on same, (ii) not
binding on any court and (iii) may not be quoted in whole or in part or
otherwise referred to in any legal opinion, document, or other report to be
furnished to another person or entity without our prior written consent;
provided, however, that you may furnish this opinion to any proposed assignee or
participant in the Loans under the Loan Agreement.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇ LLP
jjg/mlc
-4-
EXHIBIT "C"
TO
ACXIOM CORPORATION
CREDIT AGREEMENT
Form of Subsidiary Guaranty
GUARANTY AGREEMENT
(Subsidiaries)
WHEREAS, ACXIOM CORPORATION, a Delaware corporation (the "Borrower")
has entered into that certain Credit Agreement dated December 29, 1999, among
Borrower, the lenders party thereto (the "Lenders"), CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as the agent for the Lenders (the "Agent") and a
co-administrative agent, MERCANTILE BANK, N.A., as a co-administrative agent,
and BANK OF AMERICA, N.A., as syndication agent (such Credit Agreement, as it
may hereafter be amended or otherwise modified from time to time, being
hereinafter referred to as the "Credit Agreement", and capitalized terms not
otherwise defined herein shall have the same meaning as set forth in the Credit
Agreement);
WHEREAS, the execution of this Guaranty Agreement is a condition to the
Agent's and each Lender's obligations under the Credit Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, each of the undersigned Subsidiaries and any
Subsidiary hereafter added as a "Guarantor" hereto pursuant to a Subsidiary
Joinder Agreement in the form attached hereto as Exhibit A (individually a
"Guarantor" and collectively the "Guarantors"), hereby irrevocably and
unconditionally guarantees to Agent, the Lenders and their respective Affiliates
the full and prompt payment and performance of the Guaranteed Indebtedness
(hereinafter defined), this Guaranty Agreement being upon the following terms:
1. The term "Guaranteed Indebtedness", as used herein means all of the
obligations, indebtedness and liability of the Borrower to the Agent, the
Issuing Bank and the Lenders, or any of them, arising pursuant to any of the
Loan Documents, pursuant to any interest rate protection Hedging Agreement
entered into by the Agent, any Lender or any of their respective Affiliates with
the Borrower to hedge or mitigate interest rate risk on the Loans, whether now
existing or hereafter arising, whether direct, indirect, related, unrelated,
fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several, including, without limitation, the obligation of the Borrower to repay
the Loans, the LC Disbursements, interest on the Loans and all fees, costs and
expenses (including attorneys' fees and expenses) provided for in the Loan
Documents or such interest rate protection Hedging Agreements. The "Guaranteed
Indebtedness" shall include any and all post-petition interest and expenses
(including attorneys' fees) whether or not allowed under any bankruptcy,
insolvency, or other similar law; provided that the Guaranteed Indebtedness
shall be limited, with respect to each Guarantor, to an aggregate amount equal
to the largest amount that would not render such Guarantor's obligations
hereunder subject to avoidance under Section 544 or 548 of the United States
Bankruptcy Code or under any applicable state law relating to fraudulent
transfers or conveyances.
2. The Guarantors together desire to allocate among themselves (collectively,
the "Contributing Guarantors"), in a fair and equitable manner, their
obligations arising under this Guaranty Agreement. Accordingly, in the event any
payment or distribution is made by a Guarantor under this Guaranty Agreement (a
"Funding Guarantor") that exceeds its Fair Share (as defined below), that
Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in the amount of such other Contributing Guarantor's
Fair Share Shortfall (as defined below), with the result that all such
-1-
contributions will cause each Contributing Guarantor's Aggregate Payments (as
defined below) to equal its Fair Share. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (i)
the ratio of (x) the Adjusted Maximum Amount (as defined below) with respect to
such Contributing Guarantor to (y) the aggregate of the Adjusted Maximum Amounts
with respect to all Contributing Guarantors, multiplied by (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty Agreement in respect of the obligations guarantied. "Fair
Share Shortfall" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "Adjusted
Maximum Amount" means, with respect to a Contributing Guarantor as of any date
of determination, the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty Agreement determined in accordance
with the provisions hereof; provided that, solely for purposes of calculating
the "Adjusted Maximum Amount" with respect to any Contributing Guarantor for
purposes of this paragraph 2, the assets or liabilities arising by virtue of any
rights to or obligations of contribution hereunder shall not be considered as
assets or liabilities of such Contributing Guarantor. "Aggregate Payments"
means, with respect to a Contributing Guarantor as of any date of determination,
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty Agreement
(including, without limitation, in respect of this paragraph 2). The amounts
payable as contributions hereunder shall be determined as of the date on which
the related payment or distribution is made by the applicable Funding Guarantor.
The allocation among Contributing Guarantors of their obligations as set forth
in this paragraph 2 shall not be construed in any way to limit the liability of
any Contributing Guarantor hereunder.
3. This instrument shall be an absolute, continuing, irrevocable and
unconditional guaranty of payment and performance, and not a guaranty of
collection, and each Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness. No
set-off, counterclaim, recoupment, reduction, or diminution of any obligation,
or any defense of any kind or nature which Borrower may have against Agent, any
Lender or any other party, or which any Guarantor may have against Borrower, the
Issuing Bank, the Agent, any Lender or any other party, shall be available to,
or shall be asserted by, any Guarantor against Agent, any Lender or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or against
payment of the Guaranteed Indebtedness or any part thereof.
4. If a Guarantor becomes liable for any indebtedness owing by Borrower to Agent
or any Lender by endorsement or otherwise, other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or affected
hereby, and the rights of Agent and the Lenders hereunder shall be cumulative of
any and all other rights that Agent and the Lenders may ever have against such
Guarantor. The exercise by Agent and the Lenders of any right or remedy
hereunder or under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
5. In the event of default by Borrower in payment or performance of the
Guaranteed Indebtedness, or any part thereof, when such Guaranteed Indebtedness
becomes due, whether by its terms, by acceleration, or otherwise, the Guarantors
shall, jointly and severally, promptly pay the amount due thereon to Agent,
-2-
without notice or demand, in lawful currency of the United States of America,
and it shall not be necessary for Agent or any Lender, in order to enforce such
payment by any Guarantor, first to institute suit or exhaust its remedies
against Borrower or others liable on such Guaranteed Indebtedness, or to enforce
any rights against any collateral which shall ever have been given to secure
such Guaranteed Indebtedness. In the event such payment is made by a Guarantor,
then such Guarantor shall be subrogated to the rights then held by Agent and any
Lender with respect to the Guaranteed Indebtedness to the extent to which the
Guaranteed Indebtedness was discharged by such Guarantor and, in addition, upon
payment by such Guarantor of any sums to Agent and any Lender hereunder, all
rights of such Guarantor against Borrower, any other guarantor or any collateral
arising as a result therefrom by way of right of subrogation, reimbursement, or
otherwise shall in all respects be subordinate and junior in right of payment to
the prior indefeasible payment in full of the Guaranteed Indebtedness. All
payments received by the Agent hereunder shall be applied by the Agent to
payment of the Guaranteed Indebtedness in the following order unless a court of
competent jurisdiction shall otherwise direct:
(a) FIRST, to payment of all costs and expenses of the
Agent incurred in connection with the collection and enforcement of the
Guaranteed Indebtedness;
(b) SECOND, to payment of that portion of the Guaranteed
Indebtedness constituting accrued and unpaid interest and fees, pro
rata among the Lenders and their Affiliates in accordance with the
amount of such accrued and unpaid interest and fees owing to each of
them;
(c) THIRD, to payment of the principal of the Guaranteed
Indebtedness and the net early termination payments and any other
obligations due under any Hedging Agreements guaranteed hereby, pro
rata among the Lenders and their Affiliates in accordance with the
amount of such principal and such net early termination payments and
other obligations then due and unpaid owing to each of them; and
(d) FOURTH, to payment of any Guaranteed Indebtedness (other
than the Guaranteed Indebtedness listed above) pro rata among those
parties to whom such Guaranteed Indebtedness is due in accordance with
the amounts owing to each of them.
6. If acceleration of the time for payment of any amount payable by Borrower
under the Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration
under the terms of the Guaranteed Indebtedness shall nonetheless be payable by
the Guarantors hereunder forthwith on demand by Agent or any Lender.
7. Each Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired, reduced, or
affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of any Guarantor: (a) the taking or accepting of collateral as
security for any or all of the Guaranteed Indebtedness or the release,
surrender, exchange, or subordination of any collateral now or hereafter
securing any or all of the Guaranteed Indebtedness; (b) any partial release of
-3-
the liability of any Guarantor hereunder, or the full or partial release of any
other guarantor from liability for any or all of the Guaranteed Indebtedness;
(c) any disability of Borrower, or the dissolution, insolvency, or bankruptcy of
Borrower, any Guarantor, or any other party at any time liable for the payment
of any or all of the Guaranteed Indebtedness; (d) any renewal, extension,
modification, waiver, amendment, or rearrangement of any or all of the
Guaranteed Indebtedness or any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Guaranteed Indebtedness;
(e) any adjustment, indulgence, forbearance, waiver, or compromise that may be
granted or given by Agent or any Lender to Borrower, any Guarantor, or any other
party ever liable for any or all of the Guaranteed Indebtedness; (f) any
neglect, delay, omission, failure, or refusal of Agent or any Lender to take or
prosecute any action for the collection of any of the Guaranteed Indebtedness or
to foreclose or take or prosecute any action in connection with any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (g) the unenforceability or invalidity of any or
all of the Guaranteed Indebtedness or of any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Indebtedness; (h) any payment by Borrower or any other party to Agent or any
Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Agent or any Lender is required to
refund any payment or pay the amount thereof to someone else; (i) the settlement
or compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of
any security interest or lien securing any or all of the Guaranteed
Indebtedness; (k) any impairment of any collateral securing any or all of the
Guaranteed Indebtedness; (l) the failure of Agent or any Lender to sell any
collateral securing any or all of the Guaranteed Indebtedness in a commercially
reasonable manner or as otherwise required by law; (m) any change in the
corporate existence, structure, or ownership of Borrower; or (n) any other
circumstance which might otherwise constitute a defense available to, or
discharge of, Borrower or any other Guarantor (other than payment of the
Guaranteed Indebtedness).
8. Each Guarantor represents and warrants to Agent and the Lenders as
follows:
(a) All representations and warranties in the Credit Agreement relating to
it are true and correct as of the date hereof and on each date the
representations and warranties hereunder are restated pursuant to any
of the Loan Documents with the same force and effect as if such
representations and warranties had been made on and as of such date
except to the extent that such representations and warranties relate
specifically to another date.
(b) It has, independently and without reliance upon Agent or any Lender and
based upon such documents and information as it has deemed appropriate,
made its own analysis and decision to enter into the Loan Documents to
which it is a party.
(c) It has adequate means to obtain from Borrower on a continuing basis
information concerning the financial condition and assets of Borrower
and it is not relying upon Agent or any Lender to provide (and neither
the Agent nor any Lender shall have any duty to provide) any such
information to it either now or in the future.
-4-
(d) The value of the consideration received and to be received by each
Guarantor as a result of Borrower's and the Lenders' entering into the
Credit Agreement and each Guarantor's executing and delivering this
Guaranty Agreement is reasonably worth at least as much as the
liability and obligation of each Guarantor hereunder, and such
liability and obligation and the Credit Agreement have benefited and
may reasonably be expected to benefit each Guarantor directly or
indirectly.
9. Each Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding or any Lender has any commitment
under the Credit Agreement, it will comply with all covenants set forth in the
Credit Agreement specifically applicable to it.
10. When an Event of Default exists, Agent and each Lender shall have the right
to set-off and apply against this Guaranty Agreement or the Guaranteed
Indebtedness or both, at any time and without notice to any Guarantor, any and
all deposits (general or special, time or demand, provisional or final, but
excluding any account established by a Guarantor as a fiduciary for another
party) or other sums at any time credited by or owing from Agent and the Lenders
to any Guarantor whether or not the Guaranteed Indebtedness is then due and
irrespective of whether or not Agent or any Lender shall have made any demand
under this Guaranty Agreement. Each Lender agrees promptly to notify the
Borrower (with a copy to the Agent) after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of
such setoff and application. The rights and remedies of Agent and the Lenders
hereunder are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which Agent or any Lender may have.
11. (a) Each Guarantor hereby agrees that the Subordinated Indebtedness (as
defined below) shall be subordinate and junior in right of payment to the prior
payment in full of all Guaranteed Indebtedness as herein provided. The
Subordinated Indebtedness shall not be payable, and no payment of principal,
interest or other amounts on account thereof, and no property or guarantee of
any nature to secure or pay the Subordinated Indebtedness shall be made or
given, directly or indirectly by or on behalf of any Debtor (hereafter defined)
or received, accepted, retained or applied by any Guarantor unless and until the
Guaranteed Indebtedness shall have been paid in full in cash; except that prior
to the occurrence and continuance of an Event of Default, each Debtor shall have
the right to make payments and a Guarantor shall have the right to receive
payments on the Subordinated Indebtedness from time to time as may be determined
by Borrower. After the occurrence and during the continuance of an Event of
Default, no payments of principal or interest may be made or given, directly or
indirectly, by or on behalf of any Debtor or received, accepted, retained or
applied by any Guarantor unless and until the Guaranteed Indebtedness shall have
been paid in full in cash. If any sums shall be paid to a Guarantor by any
Debtor or any other Person on account of the Subordinated Indebtedness when such
payment is not permitted hereunder, such sums shall be held in trust by such
Guarantor for the benefit of Agent and the Lenders and shall forthwith be paid
to Agent and applied by Agent against the Guaranteed Indebtedness in accordance
with this Guaranty Agreement. For purposes of this Guaranty Agreement and with
respect to a Guarantor, the term "Subordinated Indebtedness" means all
indebtedness, liabilities, and obligations of Borrower or any other Guarantor
(Borrower and such other Guarantor herein the "Debtors") to such Guarantor,
-5-
whether such indebtedness, liabilities, and obligations now exist or are
hereafter incurred or arise, or are direct, indirect, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such indebtedness, liabilities, or obligations are evidenced by a note,
contract, open account, or otherwise, and irrespective of the Person or Persons
in whose favor such indebtedness, obligations, or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in which they
have been or may hereafter be acquired by such Guarantor.
(b) Each Guarantor agrees that any and all Liens (including
any judgment liens), upon any Debtor's assets securing payment of any
Subordinated Indebtedness shall be and remain inferior and subordinate to any
and all Liens upon any Debtor's assets securing payment of the Guaranteed
Indebtedness or any part thereof, regardless of whether such Liens in favor of a
Guarantor, Agent or any Lender presently exist or are hereafter created or
attached. Without the prior written consent of Agent, no Guarantor shall (i)
file suit against any Debtor or exercise or enforce any other creditor's right
it may have against any Debtor, or (ii) foreclose, repossess, sequester, or
otherwise take steps or institute any action or proceedings (judicial or
otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any obligations of any Debtor to such Guarantor or any
Liens held by such Guarantor on assets of any Debtor.
(c) In the event of any receivership, bankruptcy,
reorganization, rearrangement, debtor's relief, or other insolvency proceeding
involving any Debtor as debtor, Agent shall have the right to prove and vote any
claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions, and
payments made in respect of the Subordinated Indebtedness until the Guaranteed
Indebtedness has been paid in full in cash. Agent may apply any such dividends,
distributions, and payments against the Guaranteed Indebtedness in accordance
with the Credit Agreement.
(d) Each Guarantor agrees that all promissory notes and other
instruments evidencing Subordinated Indebtedness shall contain a specific
written notice thereon that the indebtedness evidenced thereby is subordinated
under the terms of this Guaranty Agreement.
12. Except for modifications made pursuant to the execution and delivery of a
Subsidiary Joinder Agreement (which needs to be signed only by the Subsidiary
party thereto), no amendment or waiver of any provision of this Guaranty
Agreement or consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Agent and
Required Lenders except as otherwise provided in the Credit Agreement. No
failure on the part of Agent or any Lender to exercise, and no delay in
exercising, any right, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
13. To the extent permitted by law, any acknowledgment or new promise, whether
by payment of principal or interest or otherwise and whether by Borrower or
others (including any Guarantor), with respect to any of the Guaranteed
Indebtedness shall, if the statute of limitations in favor of a Guarantor
-6-
against Agent or any Lender shall have commenced to run, toll the running of
such statute of limitations and, if the period of such statute of limitations
shall have expired, prevent the operation of such statute of limitations.
14. This Guaranty Agreement is for the benefit of Agent and the Lenders and
their successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty Agreement is binding not only on each
Guarantor, but on each Guarantor's successors and assigns.
15. Each Guarantor recognizes that Agent and the Lenders are relying upon this
Guaranty Agreement and the undertakings of each Guarantor hereunder and under
the other Loan Documents to which each is a party in making extensions of credit
to Borrower under the Credit Agreement and further recognizes that the execution
and delivery of this Guaranty Agreement and the other Loan Documents to which
each Guarantor is a party is a material inducement to Agent and the Lenders in
entering into the Credit Agreement and continuing to extend credit thereunder.
Each Guarantor hereby acknowledges that there are no conditions to the full
effectiveness of this Guaranty Agreement or any other Loan Document to which it
is a party.
16. Any notice or demand to any Guarantor under or in connection with this
Guaranty Agreement or any other Loan Document to which it is a party shall be
deemed effective if given to the Guarantor, care of Borrower in accordance with
the notice provisions in the Credit Agreement.
17. The Guarantors shall, jointly and severally, pay on demand all reasonable
attorneys' fees and all other reasonable costs and expenses incurred by Agent
and the Lenders in connection with the administration, enforcement, or
collection of this Guaranty Agreement.
18. Except as otherwise specifically provided in the Credit Agreement, each
Guarantor hereby waives promptness, diligence, notice of any default under the
Guaranteed Indebtedness, demand of payment, notice of acceptance of this
Guaranty Agreement, presentment, notice of protest, notice of dishonor, notice
of the incurring by Borrower of additional indebtedness, and all other notices
and demands with respect to the Guaranteed Indebtedness and this Guaranty
Agreement.
19. The Credit Agreement, and all of the terms thereof, are incorporated herein
by reference, the same as if stated verbatim herein, and each Guarantor agrees
that Agent and the Lenders may exercise any and all rights granted to any of
them under the Credit Agreement and the other Loan Documents without affecting
the validity or enforceability of this Guaranty Agreement.
20. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF EACH
GUARANTOR, AGENT AND THE LENDERS WITH RESPECT TO EACH GUARANTOR'S GUARANTY OF
THE GUARANTEED INDEBTEDNESS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
-7-
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY AGREEMENT IS INTENDED BY
EACH GUARANTOR, AGENT AND THE LENDERS AS A FINAL AND COMPLETE EXPRESSION OF THE
TERMS OF THE GUARANTY AGREEMENT, AND NO COURSE OF DEALING AMONG ANY GUARANTOR,
AGENT AND THE LENDERS, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY,
SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL
AGREEMENTS AMONG ANY GUARANTOR, AGENT AND THE LENDERS.
21. This Guaranty Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas and applicable laws of the
United States of America. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
SUPREME COURT OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
TEXAS STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE GUARANTORS AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY
AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT OR
ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST A GUARANTOR OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION. Each Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Guaranty
Agreement or any other Loan Document in any court referred to in this paragraph
21. Each of the Guarantors irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
22. EACH GUARANTOR WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT,
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH GUARANTOR (A) CERTIFIES THAT NO
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REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
EXECUTED as of the 29th day of December 1999.
GUARANTORS:
Acxiom CDC, Inc.
Acxiom/Direct Media, Inc.
Acxiom/May & ▇▇▇▇, Inc.
Acxiom RM-Tools, Inc.
Acxiom/Woodland Hills Data Center, Inc.
By:
------------------------------------------
Name:
-------------------------------------
Authorized Officer of all Guarantors
-9-
EXHIBIT "A"
TO
ACXIOM CORPORATION
SUBSIDIARY GUARANTY
Subsidiary Joinder Agreement
SUBSIDIARY JOINDER AGREEMENT, Solo Page
DALLAS2 635610v7 12283-00139
SUBSIDIARY JOINDER AGREEMENT
This SUBSIDIARY JOINDER AGREEMENT (the "Agreement") dated as of
____________________, ____ is executed by the undersigned (the "Guarantor") for
the benefit of CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, in its capacity as
agent for the lenders party to the hereafter identified Credit Agreement (in
such capacity herein, the "Agent") and for the benefit of such lenders in
connection with that certain Credit Agreement among ACXIOM CORPORATION
("Borrower"), the lenders party thereto (the "Lenders"), CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as the agent for the Lenders (the "Agent") and as a
co-administrative agent, MERCANTILE BANK, N.A., as a co-administrative agent,
and BANK OF AMERICA, N.A., as syndication (such Credit Agreement, as it may
hereafter be amended or otherwise modified from time to time, being hereinafter
referred to as the "Credit Agreement", and capitalized terms not otherwise
defined herein shall have the same meaning as set forth in the Credit Agreement)
(as modified, the "Credit Agreement", and capitalized terms not otherwise
defined herein being used herein as defined in the Credit Agreement).
The Debtor [is a newly formed or newly acquired Significant Subsidiary
and] is required to execute this Agreement pursuant to Sections 5.11 of the
Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Debtor hereby agrees as follows:
1. The Debtor hereby assumes all the obligations of a "Guarantor" under
the Subsidiary Guaranty and agrees that it is a "Guarantor" and bound as a
"Guarantor" under the terms of the Subsidiary Guaranty as if it had been an
original signatory thereto. In accordance with the forgoing and for valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Debtor
irrevocably and unconditionally guarantees to the Agent and the Lenders the full
and prompt payment and performance of the Guaranteed Indebtedness (as defined in
the Subsidiary Guaranty) upon the terms and conditions set forth in the
Subsidiary Guaranty.
2. This Agreement shall be deemed to be part of, and a modification to,
the Subsidiary Guaranty and shall be governed by all the terms and provisions of
the Subsidiary Guaranty, which terms are incorporated herein by reference, are
ratified and confirmed and shall continue in full force and effect as valid and
binding agreements of Debtor enforceable against Debtor. The Debtor hereby
waives notice of Agent's, the Issuing Bank's or any Lender's acceptance of this
Agreement.
IN WITNESS WHEREOF, the Debtor has executed this Agreement as of the
day and year first written above.
Debtor:
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT "D
TO
ACXIOM CORPORATION
CREDIT AGREEMENT
Increased Commitment Supplement
INCREASED COMMITMENT SUPPLEMENT
This INCREASED COMMITMENT SUPPLEMENT (this "Supplement") is dated as of
____________, ___ and entered into by and among ACXIOM CORPORATION, a Delaware
corporation (the "Borrower"), each of the banks or other lending institutions
which is a signatory hereto (the "Lenders"), CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as agent for itself and the other Lenders (in such capacity,
together with its successors in such capacity, the "Agent"), and is made with
reference to that certain Credit Agreement dated as of December 29, 1999 (as
amended, the "Credit Agreement"), by and among the Company, the Lenders, the
Agent, MERCANTILE BANK, N.A., as a co-administrative agent and BANK OF AMERICA,
N.A., as syndication agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, pursuant to Section 2.19 of the Credit Agreement, the Borrower
and the Lenders are entering into this Increased Commitment Supplement to
provide for the increase of the aggregate Revolving Commitments;
WHEREAS, each Lender [party hereto and already a party to the Credit
Agreement] wishes to increase its Revolving Commitment [, and each Lender, to
the extent not already a Lender party to the Credit Agreement (herein a "New
Lender"), wishes to become a Lender party to the Credit Agreement];1
WHEREAS, the Lenders are willing to agree to supplement the Credit
Agreement in the manner provided herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1.Increase in Revolving Commitments. Subject to the terms and
conditions hereof, each Lender severally agrees that its Revolving Commitment
shall be increased to [or in the case of a New Lender, shall be] the amount set
forth opposite its name on the signature pages hereof.
Section 2. [New Lenders. Each New Lender (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements of the Borrower delivered under Section 5.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (ii) agrees that it has,
independently and without reliance upon the Agent, any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Supplement; (iii) agrees that it will, independently and without reliance upon
the Agent, any other Lender or any of their Related Parties and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes the Agent to take such action as agent
-1-
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and (v) agrees that
it is a "Lender" under the Credit Agreement and will perform in accordance with
their terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender.
Section 3. Conditions to Effectiveness. Section 1 of this Supplement
shall become effective only upon the satisfaction of the following conditions
precedent:
(a) receipt by the Agent of an opinion of counsel to the
Borrower as to the matters referred to in Section 3.01, 3.02 and 3.03
of the Credit Agreement (with the term "Agreement" as used therein
meaning this Supplement for purposes of such opinion), dated the date
hereof, satisfactory in form and substance to the Agent.
(b) receipt by the Agent of certified copies of all corporate
action taken by the Borrower to authorize the execution, delivery and
performance of this Supplement; and
(c) receipt by the Agent of a certificate of the Secretary or
an Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign this
Supplement and the other documents to be delivered hereunder.
Section 4. Representations and Warranties. In order to induce the
Lenders to enter into this Supplement and to supplement the Credit Agreement in
the manner provided herein, Borrower represents and warrants to Agent and each
Lender that (a) the representations and warranties contained in Article III of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the effective date hereof to the same extent as though
made on and as of that date and for that purpose, this Supplement shall be
deemed to be the Agreement referred to therein, and (b) no event has occurred
and is continuing or will result from the consummation of the transactions
contemplated by this Supplement that would constitute a Default.
Section 5. Effect of Supplement. The terms and provisions set forth in
this Supplement shall modify and supersede all inconsistent terms and provisions
set forth in the Credit Agreement and except as expressly modified and
superseded by this Supplement, the terms and provisions of the Credit Agreement
are ratified and confirmed and shall continue in full force and effect. The
Borrower, the Agent, and the Lenders party hereto agree that the Credit
Agreement as supplemented hereby shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms. Any and all agreements,
documents, or instruments now or hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Credit Agreement as
supplemented hereby, are hereby amended so that any reference in such documents
to the Agreement shall mean a reference to the Agreement as supplemented hereby.
Section 6. Applicable Law. This Supplement shall be governed
by, and construed in accordance with, the laws of the State of Texas and
applicable laws of the United States of America.
-2-
Section 7. Counterparts, Effectiveness. This Supplement may be executed
in any number of counterparts, by different parties hereto in separate
counterparts and on telecopy counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. This Supplement
(other than the provisions of Section 1 hereof, the effectiveness of which is
governed by Section 3 hereof) shall become effective upon the execution of a
counterpart hereof by the Borrower, the Lenders and receipt by the Borrower and
the Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
Section 8. ENTIRE AGREEMENT. THIS SUPPLEMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY AND ALL PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
ACXIOM CORPORATION
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
New Total Revolving Commitment:
$ CHASE BANK OF TEXAS, NATIONAL
---------------- ASSOCIATION, individually and as the
Agent
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
$ [BANK]
----------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
-3-
$ [New Lender]
----------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Each Guarantor: (i) consents and agrees to this Supplement; (ii) agrees
that the Subsidiary Guaranty is in full force and effect and continues to be its
legal, valid and binding obligation enforceable in accordance with its terms;
and (iii) agrees that the obligations, indebtedness and liabilities of the
Borrower arising as a result of the increase in the Revolving Commitments
contemplated hereby are "Guaranteed Indebtedness" as defined in the Subsidiary
Guaranty.
[List Guarantors]
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
-4-
SCHEDULE 2.01
to
ACXIOM CORPORATION
CREDIT AGREEMENT
Lenders and Commitments
Lenders Revolving Commitments
1. Chase Bank of Texas National Association $ 35,000,000
2. Mercantile Bank, N.A. $ 35,000,000
3. Bank of America, N.A. $ 30,000,000
4. ABN AMRO Bank, N.V. $ 25,000,000
5. SunTrust Bank, Nashville, N.A. $ 25,000,000
6. Bank One, NA $ 25,000,000
7. The Bank of Nova Scotia $ 25,000,000
8 Wachovia Bank, N.A. $ 25,000,000
9. Dai-Ichi Kangyo Bank $ 15,000,000
10. Regions Bank $ 15,000,000
11. Bank Hapoalim $ 10,000,000
12. Comerica Bank $ 10,000,000
Total $275,000,000
SCHEDULE 3.12
to
ACXIOM CORPORATION
CREDIT AGREEMENT
List of all Subsidiaries of the Company
============================================================================
DOMESTIC SUBSIDIARIES
============================================================================
Name Incorporated In Significant
----------------------------------------------------------------------------
Acxiom Asia, Ltd. Arkansas No
----------------------------------------------------------------------------
Acxiom CDC, Inc. Arkansas Yes
----------------------------------------------------------------------------
Acxiom/Direct Media, Inc. Arkansas Yes
----------------------------------------------------------------------------
Acxiom/May & ▇▇▇▇, Inc. Delaware Yes
----------------------------------------------------------------------------
Acxiom RM-Tools, Inc. Arkansas No
----------------------------------------------------------------------------
Acxiom RTC, Inc. Delaware No
----------------------------------------------------------------------------
Acxiom SDC, Inc. Arkansas No
----------------------------------------------------------------------------
Acxiom Transportation Services, Inc. Arkansas No
----------------------------------------------------------------------------
Acxiom/Woodland Hills Data Center, Inc. Arkansas No
----------------------------------------------------------------------------
Acxiom JTA Inc. New Jersey No
----------------------------------------------------------------------------
Catalog Marketing Services, Inc. Florida No
----------------------------------------------------------------------------
DQ Investment Corporation California No
----------------------------------------------------------------------------
DataQuick Information Systems California No
============================================================================
FOREIGN SUBSIDIARIES
============================================================================
Acxiom Limited United Kingdom Yes
----------------------------------------------------------------------------
Generator Datamarketing Limited United Kingdom No
----------------------------------------------------------------------------
Marketlead Services, Ltd. United Kingdom No
(Agency company of Acxiom Limited)
----------------------------------------------------------------------------
Southwark Computer Services, Ltd. United Kingdom No
(Agency company of Acxiom Limited)
----------------------------------------------------------------------------
Normadress SA France No
----------------------------------------------------------------------------
Marketing Technology SA Spain No
----------------------------------------------------------------------------
Acxiom Australia Pty Ltd. Australia No
----------------------------------------------------------------------------
All Subsidiaries are wholly-owned by Acxiom Corporation, except for Acxiom CDC,
Inc. Acxiom Corporation owns 99% of the outstanding capital stock of Acxiom CDC,
Inc.
SCHEDULE 6.01
to
ACXIOM CORPORATION
CREDIT AGREEMENT
Existing Indebtedness and Preferred Equity Interest
A. Existing Indebtedness
Description Principal Liens
Outstanding as of
11/30/99
----------------------------------------------------------------------------
1. Subordinated Debt $115,000,000 Unsecured
----------------------------------------------------------------------------
2. 6.92% Senior Notes due
March 30, 2007 $30,000,000 Unsecured
----------------------------------------------------------------------------
3. 9.75% Senior Notes due
May 1, 2000 $2,143,000 Unsecured
----------------------------------------------------------------------------
4. Synthetic Equipment
Facility (see below) Secured by Lien on all
Equipment financed
thereby (as defined in
the Master Lease
Agreement relating to the
Synthetic Equipment
Facility)
----------------------------------------------------------------------------
5. 8.5% Unsecured Term Loan $8,600,000 Unsecured
----------------------------------------------------------------------------
6. Capital Lease Obligations $18,861,000 Secured by Lien on land
located in Downers Grove,
Illinois and the related
building and other
related real and personal
property assets of
Acxiom/May & ▇▇▇▇, Inc.
----------------------------------------------------------------------------
7. Software license liabilities $69,735,000 Interest is software
licenses arising under
related agreements.
----------------------------------------------------------------------------
8. Construction loan $3,000,000 Secured by Lien on land
located in Conway,
Arkansas and the related
building and other
related real and personal
assets of Acxiom
Corporation.
----------------------------------------------------------------------------
9. Mortgage loan $3,073,000 Secured by Lien on land
located in Conway,
Arkansas and the related
building and other
related real and personal
assets of Acxiom
Corporation.
----------------------------------------------------------------------------
10. Aircraft Lease Agreement
with General Electric $2,250,000 Secured by Lien on
Capital Corporation Aircraft (as defined in
the Aircraft Lease
Agreement)
----------------------------------------------------------------------------
11. Other capital leases, debt
and long-term liabilities $1,904,000 Secured by various Liens
on assets of Borrower
and/or its Subsidiaries
with a book value of
less than $500,000.
----------------------------------------------------------------------------
Total commitment under the Synthetic Equipment Facility is $100,000,000.
B. Preferred Equity Interests.
None
SCHEDULE 6.02
to
ACXIOM CORPORATION
CREDIT AGREEMENT
Existing Liens
Liens described in Schedule 6.01.
SCHEDULE 6.04
to
ACXIOM CORPORATION
CREDIT AGREEMENT
Existing Investments
================================================================================
Person Type Balance
at 11/30/99
================================================================================
Ceres Integrated 25% ownership and membership $ 3,176,000
Solutions, LLC interest
--------------------------------------------------------------------------------
Chenal Technology Office 50% ownership interest 1,021,000
Joint Venture
--------------------------------------------------------------------------------
Customer Analytics, Inc. 250,000 shares Series A 500,000
Preferred Stock
--------------------------------------------------------------------------------
Exchange Marketing Group, Ownership of a 40% equity 610,000
LLC interest in Exchange
Marketing Group, LLC
--------------------------------------------------------------------------------
Riverdale Office Building 81.82% ownership interest 943,000
Joint Venture
--------------------------------------------------------------------------------
Bigfoot International 27% of Bigfoot International 9,522,000
(5000 shares of common stock
($4,000,000.00), $4,000,000.00
Convertible Promissory Note,
$750,000 of Preferred Series A
Convertible, $750,000
contribution of Oracle license)
--------------------------------------------------------------------------------
Joint Venture Agreement, Participating Interest of 50% 520,000
Publishing & Broadcasting
Limited; Jade West
Entertainment PTY Limited;
Acxiom Corporation; Acxiom
Australia PTY Limited;
Acxiom PTY Limited
("Australian/New Zealand
Joint Venture)
--------------------------------------------------------------------------------
Digital Asset Management, 35% equity interest 1,769,000
Inc.
--------------------------------------------------------------------------------
EMC Miscellaneous 50,000
--------------------------------------------------------------------------------
Constellation Ventures Constellation Ventures is a 3,000,000
Bear ▇▇▇▇▇▇▇ Venture Capital
Group, Acxiom's maximum
commitment is $5,000,000.00.
--------------------------------------------------------------------------------
B & K List Services, Inc. Ownership of 100% of assets 37,000
of a small list brokerage
business
--------------------------------------------------------------------------------
The Personal Marketing Interim loan of $250,000.00 250,000
Company "PMC" subject to completion of
transaction; Acxiom has the
option to purchase up to 15%
of the common stock of PMC
----------
--------------------------------------------------------------------------------
$21,398,000
================================================================================
SCHEDULE 6.10
to
ACXIOM CORPORATION
CREDIT AGREEMENT
Existing Restrictions
Existing restrictions include the restrictions and conditions on the
(a) ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock, to make or repay loans or advances to the Borrower or any
other Subsidiary, or to Guarantee Indebtedness of the Borrower or any other
subsidiary, that are contained in the loan documents pertaining to the
Indebtedness described in items 1, 2, 3, 4 and 5 of Schedule 6.01.