Exhibit 10.1
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CONVERTIBLE REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
XPEDITE SYSTEMS, INC.,
As Borrower,
PTEK HOLDINGS, INC.,
As Guarantor,
THE BANKS PARTY HERETO,
And
ABN AMRO BANK N.V.,
As Administrative, Syndication, and Documentation Agent
Dated as of September 29, 2000
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TABLE OF CONTENTS
Section Page
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1. CERTAIN DEFINITIONS........................................................................................................ 1
1.1 Certain Definitions................................................................................................... 1
1.2 Construction.......................................................................................................... 16
1.3 Accounting Principles................................................................................................. 16
2. CONVERTIBLE REVOLVING CREDIT FACILITY...................................................................................... 17
2.1 Convertible Revolving Credit Commitments.............................................................................. 17
2.2 Convertible Revolving Credit Loan Requests............................................................................ 17
2.3 Making Convertible Revolving Credit Loans............................................................................. 18
2.4 Extension by Banks of the Convertible Revolving Credit Expiration Date................................................ 18
2.4.1 Requests; Approval by All Banks................................................................................ 18
2.4.2 Failure to Extend; Optional Conversion to Term Loan............................................................ 19
2.5 Letter of Credit Subfacility.......................................................................................... 19
2.5.1 Issuance of Letters of Credit.................................................................................. 19
2.5.2 Letter of Credit Fees.......................................................................................... 20
2.5.3 Disbursements, Reimbursement................................................................................... 20
2.5.4 Repayment of Participation Advances............................................................................ 21
2.5.5 Documentation.................................................................................................. 21
2.5.6 Nature of Participation and Reimbursement Obligations.......................................................... 21
2.5.7 Indemnity...................................................................................................... 23
2.5.8 Liability for Acts and Omissions............................................................................... 23
2.6 Commitment Fees....................................................................................................... 24
2.7 Additional Fees....................................................................................................... 24
2.8 Use of Proceeds....................................................................................................... 24
2.9 Swingline Loans....................................................................................................... 24
2.9.1 Swingline Commitment........................................................................................... 24
2.9.2 Swingline Loans................................................................................................ 25
2.9.3 Prepayment..................................................................................................... 25
2.9.4 Interest....................................................................................................... 25
2.9.5 Participations................................................................................................. 25
3. INTEREST RATES............................................................................................................. 26
3.1 Interest Rate Options................................................................................................. 26
3.1.1 Convertible Revolving Credit Interest Rate Options............................................................. 26
3.1.2 Rate Quotations................................................................................................ 27
3.2 Committed Loans Interest Periods...................................................................................... 27
3.2.1 Ending Date and Business Day................................................................................... 27
3.2.2 Termination Before Expiration Date............................................................................. 27
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TABLE OF CONTENTS
Section Page
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3.2.3 Renewals....................................................................................................... 27
3.3 Interest After Default................................................................................................ 27
3.3.1 Letter of Credit Fees, Interest Rate........................................................................... 28
3.3.2 Other Obligations.............................................................................................. 28
3.3.3 Acknowledgment................................................................................................. 28
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available........................................ 28
3.4.1 Unascertainable................................................................................................ 28
3.4.2 Illegality; Increased Costs; Deposits Not Available............................................................ 28
3.4.3 Agent's and Bank's Rights...................................................................................... 29
3.5 Selection of Interest Rate Options.................................................................................... 29
4. PAYMENTS................................................................................................................... 29
4.1 Payments.............................................................................................................. 29
4.2 Pro Rata Treatment of Banks........................................................................................... 30
4.3 Interest Payment Dates................................................................................................ 30
4.4 Voluntary Prepayments; Voluntary Reduction or Termination of Commitments.............................................. 31
4.4.1 Right to Prepay................................................................................................ 31
4.4.2 Replacement of a Bank.......................................................................................... 32
4.4.3 Change of Lending Office....................................................................................... 32
4.5 Mandatory Prepayments................................................................................................. 33
4.5.1 Application Among Interest Rate Options........................................................................ 33
4.5.2 Failure to Convert............................................................................................. 33
4.6 Additional Compensation in Certain Circumstances...................................................................... 33
4.6.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital Adequacy Requirements, Expenses,
Etc............................................................................................................ 33
4.6.2 Indemnity...................................................................................................... 34
4.7 Taxes................................................................................................................. 34
4.7.1 No Deductions.................................................................................................. 34
4.7.2 Stamp Taxes.................................................................................................... 35
4.7.3 Indemnification for Taxes Paid by a Bank....................................................................... 35
4.7.4 Certificate.................................................................................................... 35
4.7.5 Survival....................................................................................................... 35
4.8 Judgment Currency..................................................................................................... 35
4.8.1 Currency Conversion Procedures for Judgments................................................................... 35
4.8.2 Indemnity in Certain Events.................................................................................... 36
4.9 Notes................................................................................................................. 36
5. REPRESENTATIONS AND WARRANTIES............................................................................................. 36
5.1 Representations and Warranties........................................................................................ 36
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TABLE OF CONTENTS
SECTION Page
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5.1.1 Organization and Qualification................................................................................ 36
5.1.2 Subsidiaries.................................................................................................. 36
5.1.3 Power and Authority........................................................................................... 37
5.1.4 Validity and Binding Effect................................................................................... 37
5.1.5 No Conflict................................................................................................... 37
5.1.6 Litigation.................................................................................................... 37
5.1.7 Title to Properties........................................................................................... 38
5.1.8 Financial Statements.......................................................................................... 38
5.1.9 Use of Proceeds; Margin Stock................................................................................. 38
5.1.10 Full Disclosure............................................................................................... 39
5.1.11 Taxes......................................................................................................... 39
5.1.12 Consents and Approvals........................................................................................ 39
5.1.13 No Event of Default; Compliance With Instruments.............................................................. 39
5.1.14 Patents, Trademarks, Copyrights, Licenses, Etc................................................................ 40
5.1.15 Security Interests............................................................................................ 40
5.1.16 Status of the Pledged Collateral.............................................................................. 40
5.1.17 Insurance..................................................................................................... 41
5.1.18 Compliance With Laws.......................................................................................... 41
5.1.19 Material Contracts; Burdensome Restrictions................................................................... 41
5.1.20 Investment Companies; Regulated Entities...................................................................... 41
5.1.21 Plans and Benefit Arrangements................................................................................ 41
5.1.22 Employment Matters............................................................................................ 42
5.1.23 Environmental Matters......................................................................................... 43
5.1.24 Senior Debt Status............................................................................................ 44
5.2 Continuation of Representations; Updates to Schedules................................................................. 44
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT.................................................................... 44
6.1 First Loans and Letters of Credit..................................................................................... 44
6.1.1 Representations and Warranties True; No Event of Default...................................................... 44
6.1.2 Secretary's Certificate....................................................................................... 45
6.1.3 Delivery of Loan Documents.................................................................................... 45
6.1.4 Opinion of Counsel............................................................................................ 45
6.1.5 Legal Details................................................................................................. 45
6.1.6 Payment of Fees............................................................................................... 46
6.1.7 Consents...................................................................................................... 46
6.1.8 No Material Adverse Change.................................................................................... 46
6.1.9 No Violation of Laws.......................................................................................... 46
6.1.10 No Actions or Proceedings..................................................................................... 46
6.1.11 Insurance Policies; Certificates of Insurance; Endorsements................................................... 46
6.1.12 Landlord's Waiver............................................................................................. 46
6.2 Each Additional Loan or Letter of Credit.............................................................................. 46
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SECTION Page
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7. COVENANTS.................................................................................................................. 47
7.1 Affirmative Covenants................................................................................................. 47
7.1.1 Preservation of Existence, Etc................................................................................ 47
7.1.2 Payment of Liabilities, Including Taxes, Etc.................................................................. 47
7.1.3 Maintenance of Insurance...................................................................................... 47
7.1.4 Maintenance of Properties and Leases.......................................................................... 48
7.1.5 Maintenance of Patents, Trademarks, Etc....................................................................... 49
7.1.6 Visitation Rights............................................................................................. 49
7.1.7 Keeping of Records and Books of Account....................................................................... 49
7.1.8 Plans and Benefit Arrangements................................................................................ 49
7.1.9 Compliance With Laws.......................................................................................... 49
7.1.10 Further Assurances............................................................................................ 50
7.1.11 Subordination of Intercompany Loans........................................................................... 50
7.1.12 Landlord's Waivers............................................................................................ 50
7.2 Negative Covenants.................................................................................................... 50
7.2.1 Indebtedness................................................................................................ 50
7.2.2 Liens....................................................................................................... 51
7.2.3 Guaranties.................................................................................................. 51
7.2.4 Loans and Investments....................................................................................... 52
7.2.5 Restricted Payments......................................................................................... 52
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions......................................................... 53
7.2.7 Dispositions of Assets or Subsidiaries...................................................................... 54
7.2.8 Affiliate Transactions...................................................................................... 55
7.2.9 [Reserved.]................................................................................................. 55
7.2.10 Negative Pledges............................................................................................ 55
7.2.11 Agreements Restricting Dividends; Restricted Payments....................................................... 55
7.2.12 Subsidiaries, Partnerships, and Joint Ventures.............................................................. 55
7.2.13 Continuation of or Change in Business....................................................................... 56
7.2.14 Plans and Benefit Arrangements.............................................................................. 56
7.2.15 Fiscal Year................................................................................................. 57
7.2.16 Issuance of Stock........................................................................................... 57
7.2.17 Changes in Organizational Documents......................................................................... 57
7.2.18 Capital Expenditures and Non-Capitalized Leases............................................................. 57
7.2.19 Maximum Debt to Consolidated Cash Flow Ratio of Borrower.................................................... 57
7.2.20 Maximum Debt to Consolidated Cash Flow of Parent............................................................ 58
7.2.21 Maximum Modified Leverage Ratio of Parent................................................................... 58
7.2.22 Minimum Net Worth of Borrower............................................................................... 58
7.2.23 Minimum Interest Coverage Ratio of Borrower................................................................. 58
7.2.24 Limitation on Indebtedness, Expenditures Etc................................................................ 59
7.3 Reporting Requirements................................................................................................ 59
7.3.1 Quarterly Financial Statements................................................................................. 59
7.3.2 Annual Financial Statements.................................................................................... 59
7.3.3 Certificate of the Borrower and PTEK
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TABLE OF CONTENTS
Section Page
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7.3.4 Notice of Default............................................................................................ 60
7.3.5 Notice of Litigation......................................................................................... 60
7.3.6 Intentionally Omitted........................................................................................ 60
7.3.7 Certain Events............................................................................................... 60
7.3.8 Budgets, Forecasts, Other Reports, and Information........................................................... 61
7.3.9 Notices Regarding Plans and Benefit Arrangements............................................................. 61
8. DEFAULT..................................................................................................................... 63
8.1 Events of Default...................................................................................................... 63
8.1.1 Payments Under Loan Documents................................................................................ 63
8.1.2 Breach of Warranty........................................................................................... 63
8.1.3 Breach of Negative Covenants or Visitation Rights............................................................ 63
8.1.4 Breach of Other Covenants.................................................................................... 63
8.1.5 Defaults in Other Agreements or Indebtedness................................................................. 63
8.1.6 Final Judgments or Orders.................................................................................... 64
8.1.7 Loan Document Unenforceable.................................................................................. 64
8.1.8 Proceedings Against Assets................................................................................... 64
8.1.9 Notice of Lien or Assessment................................................................................. 64
8.1.10 Insolvency................................................................................................... 64
8.1.11 Events Relating to Plans and Benefit Arrangements............................................................ 64
8.1.12 Cessation of Business........................................................................................ 65
8.1.13 Change of Control............................................................................................ 65
8.1.14 Material Adverse Changes..................................................................................... 65
8.1.15 Involuntary Proceedings...................................................................................... 65
8.1.16 Voluntary Proceedings........................................................................................ 66
8.2 Consequences of Event of Default....................................................................................... 66
8.2.1 Events of Default Other Than Bankruptcy, Insolvency, or Reorganization Proceedings........................... 66
8.2.2 Bankruptcy, Insolvency, or Reorganization Proceedings........................................................ 66
8.2.3 Set-off...................................................................................................... 67
8.2.4 Suits, Actions, Proceedings.................................................................................. 67
8.2.5 Application of Proceeds...................................................................................... 67
8.2.6 Other Rights and Remedies.................................................................................... 68
8.3 Notice of Sale......................................................................................................... 68
9. THE AGENT................................................................................................................... 68
9.1 Appointment............................................................................................................ 68
9.2 Delegation of Duties................................................................................................... 68
9.3 Nature of Duties; Independent Credit Investigation..................................................................... 68
9.4 Actions in Discretion of Agent; Instructions From the Banks............................................................ 69
9.5 Reimbursement and Indemnification of Agent by the Borrower............................................................. 69
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TABLE OF CONTENTS
Section Page
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9.6 Exculpatory Provisions; Limitation of Liability...................................................................... 70
9.7 Reimbursement and Indemnification of Agent by Banks.................................................................. 70
9.8 Reliance by Agent.................................................................................................... 71
9.9 Notice of Default.................................................................................................... 71
9.10 Notices.............................................................................................................. 71
9.11 Banks in Their Individual Capacities................................................................................. 71
9.12 Holders of Notes..................................................................................................... 72
9.13 Equalization of Banks................................................................................................ 72
9.14 Successor Agent...................................................................................................... 72
9.15 Agent's Fee.......................................................................................................... 73
9.16 Availability of Funds................................................................................................ 73
9.17 Calculations......................................................................................................... 73
9.18 Beneficiaries........................................................................................................ 73
10. MISCELLANEOUS............................................................................................................... 74
10.1 Modifications, Amendments, or Waivers................................................................................ 74
10.1.1 Increase of Commitment; Extension or Expiration Date........................................................ 74
10.1.2 Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms of Payment............. 74
10.1.3 Release of Collateral or Guarantor.......................................................................... 74
10.1.4 Miscellaneous............................................................................................... 75
10.2 No Implied Waivers; Cumulative Remedies; Writing Required............................................................ 75
10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes.................................................... 75
10.4 Holidays............................................................................................................. 76
10.5 Funding by Branch, Subsidiary, or Affiliate.......................................................................... 76
10.5.1 Notional Funding............................................................................................. 76
10.5.2 Actual Funding............................................................................................... 76
10.6 Notices.............................................................................................................. 77
10.7 Severability......................................................................................................... 77
10.8 Governing Law........................................................................................................ 77
10.9 Prior Understanding.................................................................................................. 77
10.10 Duration; Survival................................................................................................... 78
10.11 Successors and Assigns............................................................................................... 78
10.12 Confidentiality..................................................................................................... 79
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TABLE OF CONTENTS
Section Page
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10.12.1 General.................................................................................................... 79
10.12.2 Sharing Information With Affiliates of the Banks........................................................... 79
10.12.3 Announcements.............................................................................................. 80
10.13 Counterparts........................................................................................................ 80
10.14 Agent's or Bank's Consent........................................................................................... 80
10.15 Exceptions.......................................................................................................... 80
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.............................................................................. 80
10.17 Tax Withholding Clause.............................................................................................. 81
10.18 Joinder of Guarantors............................................................................................... 81
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(C) - EXISTING INVESTMENTS
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 5.1.2 - SUBSIDIARIES, CAPITALIZATION, QUALIFICATIONS TO DO
BUSINESS
SCHEDULE 5.1.6 - LITIGATION
SCHEDULE 5.1.11 - FEDERAL TAX RETURNS SUBJECT TO EXTENDED LIMITATIONS
PERIOD
SCHEDULE 5.1.12 - CONSENTS AND APPROVALS
SCHEDULE 5.1.16 - STATUS OF PLEDGED COLLATERAL
SCHEDULE 5.1.17 - INSURANCE
SCHEDULE 5.1.21 - EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.23 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 6.1.2 - LANDLORD WAIVER LOCATIONS
SCHEDULE 7.2.1 - EXISTING INDEBTEDNESS
SCHEDULE 7.2.8 - AFFILIATE TRANSACTIONS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C) - CONVERTIBLE REVOLVING CREDIT NOTE
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) - GUARANTY AGREEMENT
EXHIBIT 1.1(I) - INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(P)(1) - PATENT, TRADEMARK AND COPYRIGHT SECURITY AGREEMENT
EXHIBIT 1.1(P)(2) - PLEDGE AGREEMENT
EXHIBIT 1.1(S)(1) - SECURITY AGREEMENT
EXHIBIT 1.1(S)(2) - SWINGLINE NOTE
EXHIBIT 2.2 - COMMITTED LOAN REQUEST
EXHIBIT 6.1.12 - LANDLORD'S WAIVER
EXHIBIT 7.2.6 - ACQUISITION COMPLIANCE CERTIFICATE
EXHIBIT 7.3.3 - MONTHLY COMPLIANCE CERTIFICATE
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of September 29, 2000, and is made by and
among XPEDITE SYSTEMS, INC., a Delaware corporation (the "Borrower"), PTEK
HOLDINGS, INC., a Georgia corporation ("PTEK" or "Parent"), each of the other
GUARANTORS (as hereinafter defined) now or hereafter party hereto, the BANKS (as
hereinafter defined) now or hereafter party hereto, and ABN AMRO BANK N.V., in
its capacity as administrative agent for the Banks from time to time under this
Agreement (hereinafter referred to in such capacity as the "Agent"), and in its
capacity as syndication and documentation agent for the Banks from time to time
under this Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested the Banks to provide a convertible
revolving credit facility; and
WHEREAS, the convertible revolving credit facility shall be used for the
general corporate purposes of Borrower and PTEK; and
WHEREAS, the Banks are willing to provide such credit upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
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1.1 Certain Definitions.
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In addition to words and terms defined elsewhere in this Agreement, the
following words and terms shall have the following respective meanings, unless
the context hereof clearly requires otherwise:
ABN AMRO Bank or ABN AMRO shall mean ABN AMRO Bank N.V., its
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successors and assigns.
Affiliate as to any Person shall mean any other Person (i) which
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directly or indirectly controls, is controlled by, or is under common control
with such Person, (ii) which beneficially owns or holds 5% or more of any class
of the voting or other equity interests of such Person, or (iii) 5% or more of
any class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean 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 ownership of voting securities, by contract, or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
Agent shall mean ABN AMRO Bank N.V., its successors and assigns,
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provided, however, that to the extent that Agent extends credit to Borrower or
any other Loan Party in connection herewith, it shall have the rights of a Bank
hereunder.
Agent's Fee shall have the meaning assigned to that term in Section
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9.15.
Agent's Letter shall have the meaning assigned to that term in Section
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9.15.
Agreement shall mean this Credit Agreement, as the same may be
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modified, supplemented, restated, or amended from time to time, including all
schedules and exhibits.
Annual Statements shall have the meaning assigned to that term in
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Section 5.1.8((i)).
Assignment and Assumption Agreement shall mean an Assignment and
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Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially in the form
of Exhibit 1.1(A).
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Authorized Officer shall mean those individuals, designated by written
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notice to the Agent from the Borrower, authorized to execute notices, reports
and other documents on behalf of the Loan Parties required hereunder. The
Borrower may amend such list of individuals from time to time by giving written
notice of such amendment to the Agent.
Banks shall mean the financial institutions from time to time named on
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Schedule 1.1(B), as amended from time to time, and their respective successors
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and assigns as permitted hereunder, each of which is referred to herein as a
"Bank."
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Base Net Worth shall mean the sum of (i) $66,500,000, plus (ii) eighty
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percent (80%) of consolidated net income of the Borrower and its Subsidiaries
for each calendar month in which net income is earned (as opposed to a net loss)
during the period from July 1, 2000, through the date of determination, plus
(iii) at any time one hundred percent of the proceeds of any stock offering of
Borrower or any of its Subsidiaries, minus (iv) one hundred percent (100%) of
any permitted dividends paid by or declared by Borrower or by any Subsidiary of
Borrower, to any Person other than Borrower.
Base Rate shall mean the greater (redetermined daily) of (i) the
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interest rate per annum announced from time to time by the Agent at its
principal offices in Chicago as its then prime rate, which rate may not be the
lowest rate then being charged commercial borrowers by the Agent, or (ii) the
Federal Funds Effective Rate plus 0.5% per annum.
Base Rate Option shall mean the Convertible Revolving Credit Base Rate
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Option.
Benefit Arrangement shall mean at any time an "employee benefit plan,"
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within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a
Multiemployer Plan and which is maintained, sponsored, or otherwise contributed
to by any member of the ERISA Group.
Borrower shall mean Xpedite Systems, Inc., a corporation organized and
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existing under the laws of the State of Delaware.
Borrowing Date shall mean, with respect to any Loan, the date for the
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making thereof or the renewal or conversion of the interest thereon at or to the
same or a different Interest Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans outstanding
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as follows: (i) all Loans to which a Euro-Rate Option applies and which have
the same Interest Period (commencing
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and ending on the same dates) shall constitute one Borrowing Tranche, and (ii)
all Loans to which a Base Rate Option applies shall constitute one Borrowing
Tranche.
Business Day shall mean any day other than a Saturday or Sunday or a
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legal holiday on which commercial banks are authorized or required to be closed
for business in Atlanta, Georgia, or Chicago, Illinois; and if the applicable
Business Day relates to any Loan to which the Euro-Rate Option applies, such day
must also be a day on which dealings are carried on in the London interbank
market.
Change of Control shall have the meaning assigned to that term in
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Section 8.1.13.
Closing Date shall mean the date of this Agreement, but not later than
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September 30, 2000, or such other date as the parties agree.
Commercial Letter of Credit shall mean any Letter of Credit which is a
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letter of credit issued in respect of the purchase of goods or services by one
or more of the Loan Parties in the ordinary course of its business.
Commitment shall mean as to any Bank its Convertible Revolving Credit
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Commitment, and, in the case of ABN AMRO, its Swingline Commitment, and
Commitments shall mean the Convertible Revolving Credit Commitments and
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Swingline Commitments of all of the Banks.
Committed Loan shall mean a Convertible Revolving Credit Loan or a
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Swingline Loan.
Committed Loan Euro-Rate Option shall mean a Convertible Revolving
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Credit Euro-Rate Option.
Committed Loan Interest Period shall have the meaning set forth in
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Section 3.2.
Committed Loan Request shall mean a request, in the form of Exhibit
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2.2 or made telephonically in accordance with Section 2.2, for a Convertible
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Revolving Credit Loan or a request to select, convert to, or renew a Base Rate
Option or Euro-Rate Option with respect to an outstanding Convertible Revolving
Credit Loan.
Commitment Fees shall mean the fees referred to in Section 2.6.
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Consideration shall mean, with respect to any Permitted Acquisition,
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the aggregate (but without duplication) of (i) the cash paid by any of the Loan
Parties, directly or indirectly, to the seller in connection therewith, (ii) the
Indebtedness incurred or assumed by any of the Loan Parties, whether in favor of
the seller or otherwise and whether fixed or contingent, (iii) any Guaranty
given or incurred by any Loan Party in connection therewith, and (iv) any other
consideration given or obligation incurred by any of the Loan Parties in
connection therewith; provided, however, that capital stock of PTEK shall not
constitute Consideration for purposes of this Agreement.
Consolidated Cash Flow for any period of determination shall mean (i)
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the sum of net income (or loss, utilized as a negative number), depreciation,
amortization, other noncash charges to net income (or such loss), interest
expense, and income tax expense minus (ii) noncash credits to net income (or
such loss), in each case of a Person and its Subsidiaries for such period
determined and consolidated in accordance with GAAP.
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Consolidated Net Worth shall mean as of any date of determination
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total stockholders' equity, less goodwill attributable to acquisitions after the
date hereof, of the Borrower and its Subsidiaries as of such date determined and
consolidated in accordance with GAAP.
Consolidated Total Indebtedness shall mean as of any date of
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determination total Indebtedness of a Person and its Subsidiaries as of such
date consolidated in accordance with GAAP.
Convertible Revolving Credit Base Rate Option shall mean the option of
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the Borrower to have Convertible Revolving Credit Loans bear interest at the
rate and under the terms and conditions set forth in Section 3.1.1(i).
Convertible Revolving Credit Commitment shall mean, as to any Bank at
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any time, the amount initially set forth opposite its name on Schedule 1.1(B) in
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the column labeled "Amount of Commitment for Convertible Revolving Credit
Loans," and thereafter on Schedule I to the most recent Assignment and
Assumption Agreement, and Convertible Revolving Credit Commitments shall mean
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the aggregate Convertible Revolving Credit Commitments of all of the Banks.
Convertible Revolving Credit Euro-Rate Option shall mean the option of
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the Borrower to have Convertible Revolving Credit Loans bear interest at the
rate and under the terms and conditions set forth in Section 3.1.1.
Convertible Revolving Credit Expiration Date shall mean, with respect
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to the Convertible Revolving Credit Commitments, September ____, 2001, as such
date may be extended in accordance with the terms hereof.
Convertible Revolving Credit Loans shall mean collectively and
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Convertible Revolving Credit Loan shall mean separately all Convertible
---------------------------------
Revolving Credit Loans or any Convertible Revolving Credit Loan made by the
Banks or one of the Banks to the Borrower pursuant to Section 2.
Convertible Revolving Credit Note shall mean any Convertible Revolving
---------------------------------
Credit Note of the Borrower in the form of Exhibit 1.1(C) issued by the Borrower
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at the request of a Bank pursuant to Section 4.9 evidencing the Convertible
Revolving Credit Loans to such Bank, together with all amendments, restatements,
extensions, renewals, replacements, refinancings, or refundings thereof in whole
or in part.
Convertible Revolving Facility Usage shall mean at any time the sum of
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the Convertible Revolving Credit Loans outstanding and the Letters of Credit
Outstanding.
Discretionary Basket shall mean an aggregate amount equal to Forty
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Five Million Dollars ($45,000,000).
Dollar, Dollars, U.S. Dollars, and the symbol $ shall mean lawful
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money of the United States of America.
Drawing Date shall have the meaning assigned to that term in Section
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2.5.3.2.
Environmental Complaint shall mean any written complaint setting forth
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a cause of action for personal or property damage or natural resource damage or
equitable relief, order, notice of violation, citation, request for information
issued pursuant to any Environmental Laws by an Official
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Body, subpoena, or other written notice of any type relating to, arising out of,
or issued pursuant to any of the Environmental Laws or any Environmental
Conditions, as the case may be.
Environmental Conditions shall mean any conditions of the environment,
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including the workplace, the ocean, natural resources (including flora or
fauna), soil, surface water, groundwater, any actual or potential drinking water
supply sources, substrata, or the ambient air, relating to or arising out of, or
caused by, the use, handling, storage, treatment, recycling, generation,
transportation, release, spilling, leaking, pumping, emptying, discharging,
injecting, escaping, leaching, disposal, dumping, threatened release, or other
management or mismanagement of Regulated Substances resulting from the use of,
or operations on, any Property.
Environmental Laws shall mean all federal, state, local, and foreign
------------------
Laws and regulations, including permits, licenses, authorizations, bonds,
orders, judgments, and consent decrees issued, or entered into, pursuant
thereto, relating to pollution or protection of human health or the environment
or employee safety in the workplace.
Environmentally Sensitive Area shall mean (i) any wetland as defined
------------------------------
by applicable Environmental Laws; (ii) any area designated as a coastal zone
pursuant to applicable Laws, including Environmental Laws; (iii) any area of
historic or archeological significance or scenic area as defined or designated
by applicable Laws, including Environmental Laws; (iv) habitats of endangered
species or threatened species as designated by applicable Laws, including
Environmental Laws; or (v) a floodplain or other flood hazard area as defined
pursuant to any applicable Laws.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
-----
as the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all members of a
-----------
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control and all other entities which, together with
the Borrower, are treated as a single employer under Section 414 of the Internal
Revenue Code.
Euro-Rate shall mean, with respect to the Loans comprising any
---------
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
an interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upward to the nearest 1/16th of 1% per annum) (i) the rate of
interest per annum determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) equal
to the rate per annum at which Dollar deposits approximately equal in principal
amount to such Borrowing Tranche for a period and with a maturity comparable to
such Interest Period are offered to the principal London office of Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period ("LIBOR") by (ii) a number equal to 1.00 minus the Euro-Rate
Reserve Percentage. The Euro-Rate may also be expressed by the following
formula:
Euro-Rate = LIBOR
-----------------------------------
1.00 - Euro-Rate Reserve Percentage
-5-
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option
outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The Agent shall give prompt notice to the
Borrower of the Euro-Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest error.
Euro-Rate Interest Period shall mean the Interest Period applicable to
-------------------------
a Euro-Rate Loan.
Euro-Rate Option shall mean the Convertible Revolving Credit Euro-Rate
----------------
Option.
Euro-Rate Reserve Percentage shall mean the maximum percentage
----------------------------
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent which is in effect during any relevant period, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal, and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System.
Event of Default shall mean any of the events described in Section 8.1
----------------
and referred to therein as an "Event of Default."
Federal Funds Effective Rate for any day shall mean the rate per annum
----------------------------
(based on a year of 360 days for the actual number of days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
--------
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
GAAP shall mean generally accepted accounting principles as are in
----
effect from time to time in the United States, subject to the provisions of
Section 1.3, and applied on a consistent basis both as to classification of
items and amounts.
Governmental Acts shall have the meaning assigned to that term in
-----------------
Section 2.5.7.
Guarantor shall mean each of the Loan Parties and each other Person
---------
which joins this Agreement as a Guarantor after the date hereof pursuant to
Section 10.18, but excluding the Borrower.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor
-----------------
under this Agreement, the Guaranty Agreement, and the other Loan Documents in
the form of Exhibit 1.1(G)(1).
-----------------
Guaranty of any Person shall mean any obligation of such Person
--------
guarantying or in effect guarantying any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any agreement to
indemnify or hold harmless any other Person, any performance bond or other
suretyship arrangement, and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.
-6-
Guaranty Agreements shall mean the Guaranty Agreements in
-------------------
substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of
-----------------
the Guarantors to the Agent for the benefit of the Banks.
Hedge Agreement shall mean any currency swap agreement, interest rate
---------------
swap, cap, collar, or floor agreement, or other interest rate, investment,
commodity, or currency risk management, option, or speculative device.
Historical Statements shall have the meaning assigned to that term in
---------------------
Section 5.1.8((i)).
Indebtedness shall mean, as to any Person at any time, any and all
------------
indebtedness, obligations, or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement or payment obligations
(contingent or otherwise) under or in connection with any letter of credit,
surety bond, or Hedge Agreement (with the value of any such device being
determined in accordance with a method of valuation reasonably acceptable to the
Agent based upon a daily ▇▇▇▇-to-market method of calculation) (iv) any other
transaction (including forward sale or purchase agreements, capitalized leases,
synthetic leases, and conditional sales agreements) having the commercial effect
of a borrowing of money entered into by such Person to finance its operations or
capital requirements (but not including trade payables and accrued expenses
incurred in the ordinary course of business which are not represented by a
promissory note or other evidence of indebtedness and which are not more than
ninety (90) days past due), or (v) the current portion of mandatory redeemable
stock or similar interests, or (vi) any Guaranty of Indebtedness; provided,
however, that when any Indebtedness in the form of Guaranties, letters of
credit, or surety bonds (referred to in this definition as "Contingent Debt")
---------------
backs or enhances the payment of other Indebtedness, the calculation of
Consolidated Total Indebtedness in this Agreement shall not reflect a
duplication of amounts; and provided, further, that when any Contingent Debt is
utilized to enhance or back the payment of operating expenses or other
obligations, that otherwise would not then qualify as indebtedness on the
relevant balance sheet, then the calculation of Consolidated Total Indebtedness
in this Agreement shall not reflect the amount of such Contingent Debt until
such Contingent Debt is called upon for payment.
Insolvency Proceeding shall mean, with respect to any Person, (a) a
---------------------
case, action, or proceeding with respect to such Person (i) before any court or
any other Official Body under any bankruptcy, insolvency, reorganization, or
other similar Law now or hereafter in effect, or (ii) for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or conservator
(or similar official) of any Loan Party or otherwise relating to the
liquidation, dissolution, winding-up, or relief of such Person, or (b) any
general assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of such Person's
creditors generally or any substantial portion of its creditors undertaken under
any Law.
Intercompany Subordination Agreement shall mean the Intercompany
------------------------------------
Subordination Agreement in substantially the form of Exhibit 1.1(I)(2) executed
-----------------
and delivered by each of the Loan Parties to the Agent for the benefit of the
Banks.
Interest Period shall mean a Committed Loan Interest Period.
---------------
-7-
Interest Rate Option shall mean any Committed Loan Euro-Rate Option or
--------------------
Base Rate Option.
Interim Statements shall have the meaning assigned to that term in
------------------
Section 5.1.8((i)).
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as
---------------------
the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
Labor Contracts shall mean all employment agreements, employment
---------------
contracts, collective bargaining agreements and other agreements among any Loan
Party and its employees.
Law shall mean any law (including common law), constitution, statute,
---
treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, award, or the like of any Official Body.
Letter of Credit shall have the meaning assigned to that term in
----------------
Section 2.5.1.
Letter of Credit Borrowing shall mean an extension of credit resulting
--------------------------
from a drawing under any Letter of Credit which shall not have been converted
into a Convertible Revolving Credit Loan under Section 2.5.3.4.
Letters of Credit Outstanding shall mean at any time the sum of the
-----------------------------
(i) the maximum aggregate amount that may be drawn under all outstanding Letters
of Credit, (ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations, and (iii) the aggregate amount of all outstanding Letter of Credit
Borrowings.
Lien shall mean any mortgage, deed of trust, pledge, lien, security
----
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LLC Interests shall have the meaning given to such term in Section
-------------
5.1.2.
Loan Documents shall mean this Agreement, the Agent's Letter, the
--------------
Guaranty Agreements, the Security Agreements, the Pledge Agreements, the Patent,
Trademark and Copyright Security Agreements, and any other instruments,
certificates, or documents delivered or contemplated to be delivered hereunder
or thereunder or in connection herewith or therewith, as the same may be
supplemented or amended from time to time in accordance herewith or therewith,
and Loan Document shall mean any of the Loan Documents.
-------------
Loan Parties shall mean the Borrower, the Parent, and each and every
------------
present and future direct and indirect Material Subsidiary of Borrower or Parent
other than direct or indirect Subsidiaries of the Loan Parties that are
organized under the Laws of a country, or a political subdivision of such
country, other than the United States.
Loan Request shall mean a Committed Loan Request.
------------
-8-
Loans shall mean collectively and Loan shall mean separately all
----- ----
Convertible Revolving Credit Loans and Swingline Loans or any Convertible
Revolving Credit Loan or Swingline Loan.
Material Adverse Change shall mean any set of circumstances or events
-----------------------
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of this Agreement or any
other Loan Document, (b) is or could reasonably be expected to be material and
adverse to the business, properties, assets, financial condition, or results of
operations of the Loan Parties taken as a whole, (c) impairs materially or could
reasonably be expected to impair materially the ability of the Loan Parties
taken as a whole to duly and punctually pay or perform its Indebtedness, or (d)
impairs materially or could reasonably be expected to impair materially the
ability of the Agent or any of the Banks, to the extent permitted, to enforce
their legal remedies pursuant to this Agreement or any other Loan Document.
Material Subsidiary shall mean (i) any Subsidiary of Borrower or of
-------------------
Parent if the book value of such Subsidiaries' assets at any time on or after
the date hereof equals or exceeds five percent (5%) or more of the consolidated
assets of the Borrower as of the date of the most recent financial statement of
Borrower provided to Bank prior to the date hereof, and (ii) any other
subsidiary of Borrower or of Parent that joins this Agreement as a Guarantor
notwithstanding whether or not the criteria set forth in Clause (i) directly
above applies.
Month, with respect to an Interest Period under the Euro-Rate Option,
-----
shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Multiemployer Plan shall mean any employee benefit plan which is a
------------------
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
----------------------
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notes shall mean the Convertible Revolving Credit Notes and Swingline
-----
Note.
notices shall have the meaning assigned to that term in Section 10.6.
-------
Obligation shall mean any obligation or liability of any of the Loan
----------
Parties to the Agent or any of the Banks or any Affiliate of any Bank, howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due, under or in
connection with this Agreement, any Notes, the Letters of Credit, the Agent's
Letter, or any other Loan Document.
Official Body shall mean any national, federal, state, local, or other
-------------
government or political subdivision or any agency, authority, bureau, central
bank, commission, department, or
-9-
instrumentality of any thereof, or any court, tribunal, grand jury, or
arbitrator, in each case whether foreign or domestic.
Parent shall mean PTEK Holdings, Inc., a Georgia corporation.
------
Participation Advance shall mean, with respect to any Bank, such
---------------------
Bank's payment in respect of its participation in a Letter of Credit Borrowing
according to its Ratable Share pursuant to Section 2.5.3.
Partnership Interests shall have the meaning given to such term in
---------------------
Section 5.1.2.
Patent, Trademark and Copyright Security Agreement shall mean the
---------------------------------------------------
Patent, Trademark and Copyright Security Agreement in substantially the format
of Exhibit 1.1(P.)(1) executed and delivered by each Loan Party to the Agent for
------------------
the benefit of the Banks.
PBGC shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA or any successor.
PCI shall mean Premiere Communications, Inc., a Florida corporation.
---
Permitted Acquisitions shall have the meaning assigned to such term in
----------------------
Section 7.2.6.
Permitted Investments shall mean:
---------------------
(i) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations backed by the full faith and
credit of the United States of America maturing in twelve (12) months or less
from the date of investment;
(ii) commercial paper maturing in 180 days or less rated not
lower than A-1 by Standard & Poor's or P-1 by ▇▇▇▇▇'▇ on the date of
acquisition;
(iii) demand deposits, time deposits or certificates of deposit
maturing within one year in commercial banks whose obligations are rated A-1, A,
or the equivalent or better by Standard & Poor's on the date made or acquired;
(iv) intercompany loans and equity investments among the Xpedite
Companies, provided that all such loans are subject to the Intercompany
Subordination Agreement;
(v) intercompany loans and equity investments by any of the
PTEK Companies to or in any of the Xpedite Companies or any of the PTEK
Companies, provided that all such loans are subject to the Intercompany
Subordination Agreement;
(vi) intercompany loans by any of the Xpedite Companies to any
of the PTEK Companies to the extent permitted by Section 7.2.1(iii);
(vii) loans and investments made by any of the PTEK Companies in
technology, telecommunications, and related businesses together with guaranties
given by and letters of credit issued on behalf of any of the PTEK Companies in
support of such business and which, in each case, are consistent with the
business objectives of PTEK;
-10-
(viii) short term money market funds offered by any of the Banks
or comparable financial institutions which investments comply with the
investment restrictions indicated in items (i) through (iv) of this definition
of Permitted Investments;
(ix) those existing investments, loans, and advances made in or
to Persons not a party hereto set forth on Schedule 1.1(C) or that otherwise are
---------------
disclosed in Form 10-Q of PTEK for the period ending June 30, 2000; and
(x) non-cash loans or advances (the payment of which is
secured by the stock of PTEK) by PTEK to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to fund the exercise by such individuals of
certain stock options;
(xi) subject to Section 7.2.24, loans or advances (the payment
of which is secured by the stock of PTEK) by any of the PTEK Companies after the
date hereof, not to exceed $5,000,000 in the aggregate outstanding at any time,
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to fund tax
liabilities incurred by them in connection with income arising by reason of the
exercise of stock options or the receipt of other compensation, all pursuant to
employment agreements and arrangements in existence prior to the date hereof;
(xii) subject to Section 7.2.24, advances after the date hereof,
repayable in accordance with past practices of the Loan Parties, to employees of
Loan Parties to meet expenses and other obligations incurred by such employees
in the ordinary course of business in an aggregate amount not to exceed
$1,000,000 in the aggregate at any time outstanding.
Permitted Indebtedness is defined at Section 7.2.1.
----------------------
Permitted Liens shall mean:
---------------
(i) Liens for taxes, assessments, or similar charges, incurred
in the ordinary course of business and which are not yet due and payable;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of workmen's compensation, or to participate in any
fund in connection with workmen's compensation, unemployment insurance, old-age
pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in
default;
(iv) Good-faith pledges or deposits made in the ordinary course
of business to secure performance of bids, tenders, contracts (other than for
the repayment of borrowed money), or leases, not in excess of the aggregate
amount due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance, or other similar bonds required in the ordinary course
of business together with such unperfected Liens as may arise by virtue of the
execution of an agreement for the services of a surety ;
(v) Encumbrances consisting of zoning restrictions, easements,
or other restrictions on the use of real property, none of which materially
impairs the use of such property or the
-11-
value thereof, and none of which is violated in any material respect by existing
or proposed structures or land use;
(vi) Liens in favor of the Agent for the benefit of the Banks;
(vii) Liens arising in connection with Indebtedness permitted by
Section 7.2.1(v) or Section 7.2.1(ix), provided that the amount secured thereby
is not materially in excess of the purchase price of the item subject thereto
or, as the case may be, the aggregate lease payments comprising such
Indebtedness, and no additional assets are or become subject to such Lien;
(viii) Any Lien existing on the date of this Agreement and
described on Schedule 1.1(P), provided that the principal amount secured thereby
---------------
is not hereafter increased, and no additional assets become subject to such
Lien;
(ix) The following, (A) if the validity or amount thereof is
being contested in good faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed and (B) if a final judgment is entered with respect thereto and such
judgment is discharged, stayed or bonded within thirty (30) days of entry, and
they do not in the aggregate materially impair the ability of any Loan Party to
perform its Obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments, or charges due
and payable and subject to interest or penalty, provided that the
--------
applicable Loan Party maintains such reserves or other appropriate
provisions as shall be required by GAAP and pays all such taxes,
assessments, or charges forthwith upon the commencement of proceedings
to foreclose any such Lien;
(2) Claims, Liens, or encumbrances upon, and defects of
title to, real or personal property, including any attachment of
personal or real property or other legal process prior to adjudication
of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens; or
(4) Liens resulting from final judgments or orders
described in Section 8.1.6, and
(x) Other Liens securing Indebtedness not to exceed $1,000,000
in the aggregate.
Person shall mean any individual, corporation, partnership, limited
------
liability company, association, joint-stock company, trust, unincorporated
organization, joint venture, government or political subdivision or agency
thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
----
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any
-12-
time within the preceding five years been maintained by any entity which was at
such time a member of the ERISA Group for employees of any entity which was at
such time a member of the ERISA Group.
Pledge Agreements shall mean each Pledge Agreement in substantially
-----------------
the form of Exhibit 1.1(P)(2) executed and delivered by the Loan Parties in
-----------------
favor of the Agent for the benefit of the Banks.
Pledged Collateral shall mean the property of the Loan Parties in
------------------
which Liens are now or hereafter granted under the Pledge Agreement.
Potential Default shall mean any event or condition which with notice,
-----------------
passage of time, or a determination by the Agent or the Required Banks, or any
combination of the foregoing, would constitute an Event of Default.
Principal Office shall mean the main banking office of the Agent in
----------------
Atlanta, Georgia, or the office of Agent in Chicago, Illinois, set forth on
Schedule 1.1(B) or such other location, as expressly stated herein or as
otherwise notified to Borrower and the Banks in writing by Agent.
Prior Security Interest shall mean a valid and enforceable perfected
-----------------------
first-priority security interest under the Uniform Commercial Code in the UCC
Collateral and the Pledged Collateral which is subject only to Liens for taxes
not yet due and payable to the extent such prospective tax payments are given
priority by statute or Purchase Money Security Interests as permitted hereunder.
Prohibited Transaction shall mean any prohibited transaction as
----------------------
defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by the United
States Department of Labor.
Property shall mean all real property, both owned and leased, of any
--------
Loan Party.
PTEK is defined in the preamble.
----
PTEK Companies shall mean PTEK and its Material Subsidiaries, other
--------------
than the Xpedite Companies, as of the date hereof, as shown on Schedule 5.1.2,
--------------
together with any Person that hereafter becomes a Material Subsidiary of PTEK
and which is not a Xpedite Company.
Purchase Money Security Interest shall mean Liens upon property
--------------------------------
securing loans to any Loan Party, or deferred payments by such Loan Party, for
the purchase of such property, including for the purchase of such property in
connection with a Permitted Acquisition.
Purchasing Bank shall mean a Bank which becomes a party to this
---------------
Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Bank's Commitment bears
-------------
to the Commitments of all of the Banks; and Ratable Share with respect to
Letters of Credit Outstanding or Swingline Loans shall mean the proportion that
a Bank's respective share thereof bears to respectively, all Letters of Credit
Outstanding or outstanding Swingline Loans after giving effect to such Bank's
participation therein in accordance with the terms hereof.
-13-
Regulated Substances shall mean any substance, including any solid,
--------------------
liquid, semisolid, gaseous, thermal, thoriated, or radioactive material, refuse,
garbage, wastes, chemicals, petroleum products, by-products, coproducts,
impurities, dust, scrap, heavy metals, defined as a "hazardous substance,"
"pollutant," "pollution," "contaminant," "hazardous or toxic substance,"
"extremely hazardous substance," "toxic chemical," "toxic waste," "hazardous
waste," "industrial waste," "residual waste," "solid waste," "municipal waste,"
"mixed waste," "infectious waste," "chemotherapeutic waste," "medical waste," or
"regulated substance" or any related materials, substances, or wastes as now or
hereafter defined pursuant to any Environmental Laws, ordinances, rules,
regulations or other directives of any Official Body, the generation,
manufacture, extraction, processing, distribution, treatment, storage, disposal,
transport, recycling, reclamation, use, reuse, spilling, leaking, dumping,
injection, pumping, leaching, emptying, discharge, escape, release, or other
management or mismanagement of which is regulated by the Environmental Laws.
Regulation U shall mean Regulation T, U, or X as promulgated by the
------------
Board of Governors of the Federal Reserve System, as amended from time to time.
Reimbursement Obligation shall have the meaning assigned to such term
------------------------
in Section 2.5.3.
Rents shall mean rent expense pursuant to the Borrower's or any other
-----
Loan Party's operating leases.
Reportable Event shall mean a reportable event described in Section
----------------
4043 of ERISA and regulations thereunder with respect to a Plan or Multiemployer
Plan.
Required Banks shall mean:
--------------
(A) if there are no Loans (other than Swingline Loans) or Letter of
Credit Borrowings outstanding or Letters of Credit Outstanding,
Required Banks shall mean Banks whose Commitments (other than
Swingline Commitments) aggregate at least 51% of the Commitments
(other than Swingline Commitments), of all of the Banks, or
(B) if there are Loans (other than Swingline Loans), Letter of Credit
Borrowings outstanding, or Letters of Credit Outstanding, Required
Banks shall mean any Bank or group of Banks if the sum of the
Committed Loans (other than Swingline Loans), Letters of Credit
Outstanding, and Letter of Credit Borrowings of such Banks then
outstanding aggregates at least 66.67% of the total principal amount
of all of the then outstanding Committed Loans (other than Swingline
Loans), Letters of Credit Outstanding, and Letter of Credit
Borrowings.
Letters of Credit Outstanding and Letter of Credit Borrowings shall be deemed,
for purposes of this definition, to be in favor of the appropriate Issuing Bank
and not a participating Bank if such Bank has not made its Participation Advance
in respect thereof and shall be deemed to be in favor of such Bank to the extent
of its Participation Advance if it has made its Participation Advance in respect
thereof. Swingline Loans shall be deemed, for purposes of this definition, to
be a Committed Loan (other than a Swingline Loan) made by the Swingline Bank and
not a participating Bank if such Bank has failed to pay to the Agent, for the
account of the Swingline Bank, such Bank's Ratable Share of such Swingline Loan
or Loans.
-14-
Reimbursement Obligations and Letter of Credit Borrowings shall be
deemed, for purposes of this definition, to be in favor of the Agent and not a
participating Bank if such Bank has not made its Participation Advance in
respect thereof and shall be deemed to be in favor of such Bank to the extent of
its Participation Advance if it has made its Participation Advance in respect
thereof.
Restricted Payments is defined at Section 7.2.5.
-------------------
SEC shall mean the Securities and Exchange Commission or any
---
governmental agencies substituted therefor.
Security Agreement shall mean the Security Agreement in substantially
------------------
the form of Exhibit 1.1(S)(1) executed and delivered by each of the Loan Parties
-----------------
to the Agent for the benefit of the Banks.
Standard & Poor's shall mean Standard & Poor's Ratings Services, a
-----------------
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
Standby Letter of Credit shall mean a Letter of Credit, other than a
------------------------
Commercial Letter of Credit, issued to support obligations of one or more of the
Loan Parties, contingent or otherwise, which facilitate the working capital and
business needs of the Loan Parties incurred in the ordinary course of business.
Subsidiary of any Person at any time shall mean (i) any corporation or
----------
trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, (ii) any partnership of which such Person is a general partner or
of which 50% or more of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries,
(iii) any limited liability company of which 50% or more of the limited
liability company interests is at the time directly or indirectly owned by such
Person or one or more of such Person's Subsidiaries or (iv) any corporation,
trust, partnership, limited liability company or other entity which is
controlled by such Person or one or more of such Person's Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term in
-----------------
Section 5.1.2
Swingline Bank shall mean ABN AMRO.
--------------
Swingline Commitment shall mean the obligation of the Swingline Bank
-------------------- ----------
to make Loans pursuant to Section 2.9.1 as set forth on Schedule 1.1(B), as the
----------------
same may be amended from time to time in accordance with the terms hereof.
Swingline Loans is defined in Section 2.9.1.
---------------
Syndications Period shall mean the period between the Closing Date and
-------------------
the date which is ninety (90) days after the Closing Date.
Taxes shall have the meaning assigned to that term in Section 4.7.1.
-----
-15-
Transferor Bank shall mean the selling Bank pursuant to an Assignment
---------------
and Assumption Agreement.
UCC Collateral shall mean the property of the Loan Parties in which
--------------
security interests are to be granted under the Security Agreement.
Xpedite is defined in the preamble.
-------
Xpedite Companies shall mean Xpedite and its Material Subsidiaries as
-----------------
of the date hereof, as shown on Schedule 5.1.2, together with any Person that
--------------
hereafter becomes a Material Subsidiary of Xpedite.
1.2 Construction.
------------
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents: (a) references to the plural include the singular, the
plural, the part and the whole; unless the context clearly indicates otherwise
"or" has the inclusive meaning represented by the phrase "and/or," and
"including" has the meaning represented by the phrase "including without
limitation"; (b) references to "determination" of or by the Agent or the Banks
shall be deemed to include good-faith estimates by the Agent or the Banks (in
the case of quantitative determinations) and good-faith beliefs by the Agent or
the Banks (in the case of qualitative determinations) and such determination
shall be prima facie evidence thereof; (c) whenever the Agent or the Banks are
granted the right herein to act in its or their sole discretion or to grant or
withhold consent, such right shall be exercised in good faith; (d) the words
"hereof," "herein," "hereunder," "hereto," and similar terms in this Agreement
or any other Loan Document refer to this Agreement or such other Loan Document
as a whole and not to any particular provision of this Agreement or such other
Loan Document; (e) the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any) preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect; (f) article, section,
subsection, clause, schedule, and exhibit references are to this Agreement or
other Loan Document, as the case may be, unless otherwise specified; (g)
reference to any Person includes such Person's successors and assigns but, if
applicable, only if such successors and assigns are permitted by this Agreement
or such other Loan Document, as the case may be, and reference to a Person in a
particular capacity excludes such Person in any other capacity; (h) reference to
any agreement (including this Agreement and any other Loan Document together
with the schedules and exhibits hereto or thereto), document, or instrument
means such agreement, document or instrument as amended, modified, replaced,
substituted for, superseded, or restated; (i) relative to the determination of
any period of time, "from" means "from and including," "to" means "to but
excluding," and "through" means "through and including"; and (j) references to
"shall" and "will" are intended to have the same meaning.
1.3 Accounting Principles.
---------------------
Except as otherwise provided or defined in this Agreement, all accounting
or financial terms shall have the meanings ascribed to such terms by GAAP as in
effect on the date hereof applied on a basis consistent with those used in
preparing the Annual Statements referred to in Section 5.1.8(i); and, except as
otherwise provided or defined in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement
-16-
shall be made and prepared in accordance with GAAP (including principles of
consolidation where appropriate). In the event of any change after the date
hereof in GAAP or in any Loan Party's fiscal year, and if such change relates to
the financial covenants set forth in Sections 7.1.10 or the financial statements
required hereby, then the parties hereto agree to endeavor, in good faith, to
agree upon an amendment to this Agreement that would adjust such financial
covenants and reporting requirements in a manner that would not affect the
substance thereof, but would allow compliance therewith in a manner consistent
with past practices.
2. CONVERTIBLE REVOLVING CREDIT FACILITY
-------------------------------------
2.1 Convertible Revolving Credit Commitments.
----------------------------------------
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Bank severally agrees to
make Convertible Revolving Credit Loans to the Borrower at any time or from time
to time on or after the date hereof to the Convertible Revolving Credit
Expiration Date, provided that after giving effect to each such Loan the
aggregate amount of Convertible Revolving Credit Loans from such Bank shall not
exceed such Bank's Convertible Revolving Credit Commitment minus such Bank's
Ratable Share of the Letters of Credit Outstanding and Ratable Share of
Swingline Loans. Within such limits of time and amount and subject to the other
provisions of this Agreement, the Borrower may borrow, repay and reborrow
pursuant to this Section 2.1. All outstanding Convertible Revolving Credit Loans
shall be due and payable on the Convertible Revolving Credit Expiration Date.
(b) Each Bank shall be obligated to participate in each request for
Convertible Revolving Credit Loans pursuant to Section 2.2 in accordance with
its Ratable Share. The aggregate of each Bank's Convertible Revolving Credit
Loans outstanding hereunder to the Borrower at any time, together with such
Bank's Ratable Share of the Letters of Credit Outstanding and Ratable Share of
Swingline Loans, shall never exceed its Convertible Revolving Credit Commitment.
The obligations of each Bank hereunder are several and not joint. The failure
of any Bank to perform its obligations hereunder shall not affect the
Obligations of the Borrower to any other party nor shall any other party be
liable for the failure of such Bank to perform its obligations hereunder. The
Banks shall have no obligation to make Convertible Revolving Credit Loans
hereunder on or after the Convertible Revolving Credit Expiration Date.
2.2 Convertible Revolving Credit Loan Requests.
------------------------------------------
Except as otherwise provided herein, the Borrower may from time to time
prior to the Convertible Revolving Credit Expiration Date request the Banks to
make Convertible Revolving Credit Loans, or renew or convert the Interest Rate
Option applicable to existing Convertible Revolving Credit Loans pursuant to
Section 3.2, by delivering to the Agent at its Principal Office in Chicago, not
later than 12:00 noon, New York time, (i) three (3) Business Days prior to the
proposed Borrowing Date with respect to the making of Convertible Revolving
Credit Loans to which the Euro-Rate Option applies or prior to the conversion to
or the renewal of the Euro-Rate Option for any such Loans; and (ii) one (1)
Business Day prior to either the proposed Borrowing Date with respect to the
making of a Convertible Revolving Credit Loan to which the Base Rate Option
applies or prior to the last day of the preceding Committed Loan Interest Period
with respect to the conversion of an Interest Rate Option to the Base Rate
Option for any such Loan, of a duly completed Committed Loan Request therefor
substantially in
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the form of Exhibit 2.2 or a Committed Loan Request by telephone immediately
-----------
confirmed in writing by letter, facsimile, or telex in the form of such Exhibit,
it being understood that the Agent may rely on the authority of any individual
making such a telephonic request without the necessity of receipt of such
written confirmation. Each Committed Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the
proposed Convertible Revolving Credit Loans comprising each Borrowing Tranche,
which shall be in integral multiples of $500,000 and not less than $2,000,000
for each Borrowing Tranche to which the Euro-Rate Option applies and in integral
multiples of $250,000 and not less than the lesser of $500,000 or the maximum
amount available for Borrowing Tranches to which the Base Rate Option applies;
(iii) whether Committed Loan Euro-Rate Option or Base Rate Option shall apply to
the proposed Convertible Revolving Credit Loans comprising the applicable
Borrowing Tranche; and (iv) in the case of a Borrowing Tranche to which the
Committed Loan Euro-Rate Option applies, an appropriate Committed Loan Interest
Period for the Convertible Revolving Credit Loans comprising such Borrowing
Tranche.
2.3 Making Convertible Revolving Credit Loans.
-----------------------------------------
The Agent shall, promptly after receipt by it of a Loan Request pursuant to
Section 2.2, notify the Banks of its receipt of such Loan Request specifying:
(i) the proposed Borrowing Date and the time and method of disbursement of the
Convertible Revolving Credit Loans requested thereby; (ii) the amount and type
of each such Convertible Revolving Credit Loan and the applicable Interest
Period (if any); and (iii) the apportionment among the Banks of such Convertible
Revolving Credit Loans as determined by the Agent in accordance with Section
2.1(b). Each Bank shall remit the principal amount of each Convertible
Revolving Credit Loan to the Agent at its Principal Office in Chicago such that
the Agent is able to, and the Agent shall, to the extent the Banks have made
funds available to it for such purpose and subject to Section 6.1.11, fund such
Convertible Revolving Credit Loans to the Borrower in U.S. Dollars and
immediately available funds at the Principal Office in Chicago prior to 2:00
p.m., New York time, on the applicable Borrowing Date, provided that if any Bank
--------
fails to remit such funds to the Agent in a timely manner, the Agent may elect
in its sole discretion to fund with its own funds the Convertible Revolving
Credit Loans of such Bank on such Borrowing Date, and such Bank shall be subject
to the repayment obligation in Section 9.16.
2.4 Extension by Banks of the Convertible Revolving Credit Expiration Date.
----------------------------------------------------------------------
2.4.1 Requests; Approval by All Banks.
-------------------------------
No earlier than sixty (60) days and no later than thirty (30)
days prior to the then applicable Convertible Revolving Credit Expiration Date,
the Borrower may request an extension for an additional 364 days of the
Convertible Revolving Credit Expiration Date by written notice to the Agent.
Agent shall promptly notify the Banks of such request. Within twenty (20) days
of receipt by the Agent of such request, each Bank shall respond to the Agent in
writing as to whether or not it agrees to the Borrower's request for such
extension; provided, however, that the failure of any Bank to respond within
such time period shall not in any manner constitute an agreement by such Bank to
extend the Convertible Revolving Credit Expiration Date. If all Banks elect to
extend, the Agent shall so notify the Borrower that the Convertible Revolving
Credit Expiration Date shall be extended for an additional period of 364 days.
-18-
2.4.2 Failure to Extend; Optional Conversion to Term Loan.
---------------------------------------------------
Subject to Section 4.4.2, in the event that less than all of the
Banks shall agree to an extension of the Convertible Revolving Credit Expiration
Date in accordance with Section 2.4.1, all Convertible Revolving Credit Loans,
together with all interest thereon and costs and expenses related thereto shall
be due and payable on the Convertible Revolving Credit Expiration Date, unless
Borrower has elected, by written notice received by the Agent no later than
seven (7) days prior to the Convertible Revolving Credit Expiration Date, to
convert all Convertible Revolving Credit Loans outstanding on the Convertible
Revolving Credit Expiration Date to a term loan of one year's duration. Interest
shall be payable on such term loan and rights of prepayment shall be permitted
with respect thereto in the manner established hereby for Convertible Revolving
Credit Loans; and, principal amounts outstanding under such term loan shall be
due and payable in four equal quarterly amounts commencing three Months after
the Convertible Revolving Credit Expiration Date (as described herein, the "Term
Loan"). Borrower hereby agrees to execute such amendments and modifications to
the Loan Documents, together with such term notes, prior to the Convertible
Revolving Credit Expiration Date, as Agent shall reasonably request to evidence
and govern the Term Loan.
2.5 Letter of Credit Subfacility.
----------------------------
2.5.1 Issuance of Letters of Credit.
-----------------------------
Borrower may request the issuance of a letter of credit (each a
"Letter of Credit") on behalf of itself or on behalf of PTEK (provided that
Borrower is the account party thereon) by delivering to the Agent at its
Principal Office in Chicago a completed application for letters of credit in
such form as the Agent may specify from time to time by no later than 10:00
a.m., New York time, at least three (3) Business Days, or such shorter period as
may be agreed to by the Agent, in advance of the proposed date of issuance. Each
Letter of Credit shall be either a Standby Letter of Credit or a Commercial
Letter of Credit and shall be denominated in Dollars. Subject to the terms and
conditions hereof and in reliance on the agreements of the other Banks set forth
in this Section 2.5, the Agent will issue a Letter of Credit provided that in no
event shall (i) the Letters of Credit Outstanding exceed, at any one time,
$10,000,000 or (ii) the Convertible Revolving Facility Usage exceed, at any one
time, the Convertible Revolving Credit Commitments and provided further that
each Letter of Credit shall expire no later than either (a) ten (10) Business
Days prior to the Convertible Revolving Credit Expiration Date, or (b) two (2)
years after the date of its issuance, provided, however, that with respect to
any Letter of Credit having an expiration date which is later than ten (10)
Business Days prior to the Convertible Revolving Credit Expiration Date,
Borrower hereby agrees that it shall, no later than ten (10) Business Days prior
to the Convertible Revolving Credit Expiration Date (A) provide to Agent a
letter of credit in an amount equal to the maximum amount that may be drawn
under such Letter of Credit payable to Agent upon a drawing under such Letter of
Credit and from a bank and presentable at such location and in such form as is
satisfactory to Agent, or (B) deposit in an interest-bearing account with or at
the direction of Agent, as cash collateral for Borrower Obligations arising from
such Letter of Credit, an amount equal to the maximum amount that may be drawn
under such Letter of Credit, and Borrower hereby pledges to Agent, and grants to
Agent a security interest in, all such cash, deposit, account, and the proceeds
thereof as security for such Obligations.
-19-
2.5.2 Letter of Credit Fees.
---------------------
The Borrower shall pay (i) to the Agent at its Principal Office
in Chicago for the ratable account of the Banks a nonrefundable fee (the "Letter
of Credit Fee") equal to 350 basis points per annum, and (ii) to the Agent for
its own account a fronting fee at the rate set forth in the Agent's Letter, all
of which fees shall be computed on the average daily Letters of Credit
Outstanding (computed on the basis of a year of 360 days for the actual number
of days elapsed), and shall be payable quarterly in arrears commencing with the
last Business Day of each December, March, June, and September following
issuance of each Letter of Credit and on the Convertible Revolving Credit
Expiration Date. The Borrower shall also pay to the Agent for the Agent's sole
account the Agent's then in effect customary fees and administrative expenses
payable with respect to the Letters of Credit as the Agent generally may charge
or incur from time to time in connection with the issuance, maintenance,
modification (if any), assignment or transfer (if any), negotiation, and
administration of letters of credit.
2.5.3 Disbursements, Reimbursement.
----------------------------
2.5.3.1 Immediately upon the issuance of each Letter of Credit, each Bank
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Agent a participation in such Letter of Credit and each
drawing thereunder in an amount equal to such Bank's Ratable Share of the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
2.5.3.2 In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the Agent will promptly notify the
Borrower. Borrower shall reimburse (such obligation to reimburse the Agent shall
sometimes be referred to as a "Reimbursement Obligation") the Agent at its
Principal Office in Chicago prior to 12:00 noon, New York time, on each date
that an amount is paid by the Agent under any Letter of Credit (each such date,
a "Drawing Date") in an amount equal to the amount so paid by the Agent. Unless
otherwise instructed in writing by the Borrower by 12:00 noon, New York time, on
the Drawing Date, the Agent will promptly notify each Bank thereof, and the
Borrower shall be deemed to have requested that Convertible Revolving Credit
Loans in the aggregate amount paid by Agent under the Letter of Credit be made
on the Drawing Date by the Banks under the Base Rate Option for disbursement
under such Letter of Credit or to finance the Reimbursement Obligation of
Borrower then arising, as the case may be. Any notice given by the Agent
pursuant to this Section 2.5.3.2 may be given orally (and thereafter confirmed
in writing), provided that the lack of such confirmation shall not affect the
conclusiveness or binding effect of such notice.
2.5.3.3 In consideration of its participation in each Letter of Credit, as set
forth at Sections 2.5.3.2 and 2.5.3.1, each Bank shall upon any notice given
pursuant to Section 2.5.3.2 make available to the Agent at its Principal Office
in Chicago an amount in immediately available funds equal to its Ratable Share
of the amount paid or to be paid, as the case may be, by the Agent under the
Letter of Credit, whereupon each of the Banks making such amount available to
Agent shall (subject to Section 2.5.3.4) each be deemed to have made a
Convertible Revolving Credit Loan under the Base Rate Option to the Borrower in
that amount, if such Loan may be made, or each such Bank shall be deemed to have
funded its participation as provided below at Section 2.5.3.4. If any Bank so
notified fails to make available to the Agent for the account of the Agent the
amount of such Bank's Ratable Share of such amount by no later than 2:00 p.m.,
New York time, on the Drawing Date, then interest shall accrue on such Bank's
obligation to make such payment, from the Drawing Date to the date on which such
Bank makes such payment (i) at a rate per annum equal to the Federal Funds
Effective Rate during the first three days following the Drawing Date and (ii)
at a rate per annum equal to the rate applicable to Loans under the
-20-
Convertible Revolving Credit Base Rate Option on and after the fourth day
following the Drawing Date. The Agent will promptly give notice of the
occurrence of the Drawing Date, but failure of the Agent to give any such notice
on the Drawing Date or in sufficient time to enable any Bank to effect such
payment on such date shall not relieve such Bank from its obligation under this
Section 2.5.3.
2.5.3.4 With respect to any unreimbursed drawing that is not converted into
Convertible Revolving Credit Loans to the Borrower under the Base Rate Option in
whole or in part as contemplated by Section 2.5.3.3, for any reason, the
Borrower shall be deemed to have incurred from the Agent a Letter of Credit
Borrowing in the amount of such drawing. Such Letter of Credit Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
the rate per annum applicable to the Convertible Revolving Credit Loans under
the Base Rate Option. Each Bank's payment to the Agent pursuant to Section
2.5.3.3 shall be deemed to be a payment in respect of its participation in such
Letter of Credit Borrowing and shall constitute a Participation Advance from
such Bank in satisfaction of its participation obligation under this Section
2.5.3.
2.5.4 Repayment of Participation Advances.
-----------------------------------
2.5.4.1 Upon (and only upon) receipt by the Agent for its account of
immediately available funds from the Borrower (i) in reimbursement of any
payment made by the Agent under the Letter of Credit with respect to which any
Bank has made a Participation Advance to the Agent, or (ii) in payment of
interest on such a payment made by the Agent under such a Letter of Credit, the
Agent will pay to each Bank, in the same funds as those received by the Agent,
the amount of such Bank's Ratable Share of such funds, except the Agent shall
retain the amount of the Ratable Share of such funds of any Bank that did not
make a Participation Advance in respect of such payment by Agent.
2.5.4.2 If the Agent is required at any time to return to any Loan Party, or
to a trustee, receiver, liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by any Loan Party to the Agent
pursuant to Section 2.9.4.1 in reimbursement of a payment made under the Letter
of Credit or interest or fee thereon, each Bank shall, on demand of the Agent,
forthwith return to the Agent the amount of its Ratable Share of any amounts so
returned by the Agent plus interest thereon from the date such demand is made to
the date such amounts are returned by such Bank to the Agent, at a rate per
annum equal to the Federal Funds Effective Rate in effect from time to time.
2.5.5 Documentation.
-------------
Each Loan Party agrees to be bound by the terms of the Agent's
application for letters of credit and the Agent's written regulations and
customary practices relating to letters of credit, though such interpretation
may be different from such Loan Party's own interpretation. In the event of a
conflict between such application and this Agreement, this Agreement shall
govern. It is understood and agreed that, except in the case of gross
negligence or willful misconduct, the Agent shall not be liable for any error,
negligence, or mistakes, whether of omission or commission, in following any
Loan Party's instructions or those contained in the Letters of Credit, or any
application therefor, or any in modifications, amendments, or supplements
thereto.
2.5.6 Nature of Participation and Reimbursement Obligations.
-----------------------------------------------------
Each Bank's obligation in accordance with this Agreement to make
the Convertible Revolving Credit Loans or Participation Advances, as
contemplated by Section 2.5.3, as a result of a
-21-
drawing under a Letter of Credit, and the Obligations of the Borrower to
reimburse the Agent upon a draw under a Letter of Credit, shall be absolute,
unconditional, and irrevocable, and shall be performed strictly in accordance
with the terms of this Section 2.5.6 under all circumstances (except to the
extent of the Agent's gross negligence or willful misconduct), including the
following circumstances:
(i) any set-off, counterclaim, recoupment, defense, or other right
which such Bank may have against the Agent, the Borrower, or any other Person
for any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to comply,
in connection with a Letter of Credit Borrowing, with any conditions set forth
in this Agreement or any other Loan Document for the making of a Convertible
Revolving Credit Loan, it being acknowledged that such conditions are not
required for the making of a Letter of Credit Borrowing or the obligation of the
Banks to make Participation Advances under Section 2.5.3;
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) the existence of any claim, set-off, defense, or other right
which any Loan Party or any Bank may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), the Agent or any Bank or any other Person or, whether
in connection with this Agreement, the transactions contemplated herein, or any
unrelated transaction (including any underlying transaction between any Loan
Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter
of Credit was procured);
(v) any draft, demand, certificate, or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect even if the Agent has been notified thereof;
(vi) payment by the Agent under any Letter of Credit against
presentation of a demand, draft, or certificate or other document which does not
comply with the terms of such Letter of Credit;
(vii) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise), or prospects of any Loan Party or
Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other Loan Document by any
party thereto;
(ix) the occurrence or continuance of an Insolvency Proceeding with
respect to any Loan Party;
(x) the fact that an Event of Default or a Potential Default shall
have occurred and be continuing;
(xi) the fact that the Convertible Revolving Credit Expiration Date
shall have passed or this Agreement or the Commitments hereunder shall have been
terminated; and
(xii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
-22-
2.5.7 Indemnity.
---------
In addition to amounts payable as provided in Section 9.5, the
Borrower hereby agrees to protect, indemnify, pay, and save harmless the Agent
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges, and expenses (including reasonable fees, expenses, and
disbursements of counsel and allocated costs of internal counsel) which the
Agent may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance or payment of any Letter of Credit, except to the extent that any
such claims, demands, liabilities, damages, losses, costs, charges, or expenses
are the result of the gross negligence or willful misconduct of the Agent as
determined by a final judgment of a court of competent jurisdiction, or (ii) the
failure of the Agent to honor a drawing under any such Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority (all such acts
or omissions herein called "Governmental Acts").
2.5.8 Liability for Acts and Omissions.
--------------------------------
As between any Loan Party and the Agent, such Loan Party assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, the Agent shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness, or legal effect of any
document submitted by any party in connection with the application for an
issuance of or any documents presented under any such Letter of Credit, even if
it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent, or forged (even if the Agent shall have been notified
thereof); (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) the failure of the
beneficiary of any such Letter of Credit, or any other party to which such
Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of any
Loan Party against any beneficiary of such Letter of Credit, or any such
transferee, or any dispute between or among any Loan Party and any beneficiary
of any Letter of Credit or any such transferee; (iv) errors, omissions,
interruptions, or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Agent, including any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting of, any of
the Agent's rights or powers hereunder. Nothing in the preceding sentence shall
relieve the Agent from liability for the Agent's gross negligence or willful
misconduct in connection with actions or omissions described in such clauses (i)
through (viii) of such sentence.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by the Agent
under or in connection with the Letters of Credit issued by it or any documents
and certificates delivered thereunder, if taken or omitted in good faith (as
such term is applicable to Letters of Credit pursuant to the applicable Uniform
Commercial Code), shall not put the Agent under any resulting liability to the
Borrower or any Bank.
-23-
In the event that the jurisdiction referred to in Section 10.8
adopts revisions to Article 5 of its Uniform Commercial Code which are
inconsistent with the provisions of this Section 2.5, the Loan Parties shall
upon the request of Agent agree to a modification of the provisions of this
Section 2.5 that is consistent with the intent hereof and permissible under such
Article 5 as revised.
2.6 Commitment Fees.
---------------
Accruing from the date hereof until the Convertible Revolving Credit
Expiration Date, the Borrower agrees to pay to the Agent for the account of each
Bank, as consideration for such Bank's Convertible Revolving Credit Commitment
hereunder, a nonrefundable commitment fee (each, a "Commitment Fee") equal to
one-half of one percent (0.50%) per annum (computed on the basis of a year of
360 days for the actual number of days elapsed) on the average daily difference
between the amount of (i) such Bank's Convertible Revolving Credit Commitment as
the same may be constituted from time to time and the (ii) the principal amount
of such Bank's Convertible Revolving Credit Loans outstanding from time to time
plus such Bank's Ratable Share of Letters of Credit Outstanding from time to
time. All Commitment Fees shall be payable in arrears on the last Business Day
of each December, March, June, and September after the date hereof and on the
Convertible Revolving Credit Expiration Date, or in any event upon acceleration
of the Loans.
2.7 Additional Fees.
---------------
The Borrower agrees to pay to the Agent for its own account the fees and
costs set forth in the Agent's Letter. All fees payable hereunder and
thereunder shall be nonrefundable and deemed earned in full when due.
2.8 Use of Proceeds.
---------------
The Letters of Credit and the proceeds of the Convertible Revolving Credit
Loans may be used for the general corporate purposes of Borrower and the
Guarantors, including capital expenditures, working capital, acquisitions,
refinancing Borrower's indebtedness existing as of the date hereof,
intercompany loans and distributions to other Loan Parties, Permitted
Investments, and otherwise; provided, however, that no Letter of Credit nor any
proceeds of any Convertible Revolving Credit Loan may be used for any purpose
that contravenes any applicable Law or any provision of any Loan Document.
2.9 Swingline Loans.
---------------
2.9.1 Swingline Commitment.
--------------------
On the terms and subject to the conditions and relying upon the
representations and warranties herein set forth, the Swingline Bank agrees to
make loans (as described in this Section 2.9.1, "Swingline Loans") to the
Borrower at any time and from time to time, on and after the date hereof to the
earlier of the Convertible Revolving Credit Expiration Date or the termination
of the Convertible Revolving Credit Commitments in accordance with the terms
hereof, in an aggregate principal amount at any time outstanding, after giving
effect to any Swingline Loan requested by Borrower, that will not result in (i)
the aggregate outstanding principal amount of all Swingline Loans exceeding
$10,000,000, or (ii) the aggregate outstanding principal amount of all
Convertible Revolving Credit Loans and Swingline Loans plus the Letters of
Credit Outstanding exceeding the aggregate amount of the Convertible
-24-
Revolving Credit Commitments then existing of the Banks. Each Swingline Loan
shall be in a principal amount that is an integral multiple of $100,000. The
Swingline Commitment may be terminated or reduced from time to time in the same
manner as provided herein for Convertible Revolving Credit Commitments. Within
the foregoing limits and subject to the terms, conditions, and limitations set
forth herein, the Borrower may borrow, pay, and reborrow Swingline Loans
hereunder. The Swingline Loans shall be evidenced by a promissory note of
Borrower in favor of the Swingline Bank substantially in the form of Exhibit
-------
1.1(S)(2).
---------
2.9.2 Swingline Loans.
---------------
The Borrower shall notify the Agent by telephone (promptly
confirmed in writing), not later than 12:00 (noon), New York City time, on the
date of a proposed Swingline Loan. Such notice shall be delivered on a Business
Day, shall be irrevocable and shall refer to this Agreement and shall specify
the requested date (which shall be a Business Day) and amount of such Swingline
Loan. The Agent will promptly advise the Swingline Bank of any notice received
from the Borrower pursuant to this Section 2.9.2. The Swingline Bank will make
each Swingline Loan available to the Borrower as designated by the Borrower by
telephone (promptly confirmed in writing) by 3:00 p.m. on the date such
Swingline Loan is so requested. The Agent and Swingline Bank may rely on the
authority of any individual making such a telephonic request or giving such
telephonic direction without the necessity of receipt of written confirmation.
2.9.3 Prepayment.
----------
The Borrower shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving telephonic
notice (promptly confirmed in writing) to the Swingline Bank and to the Agent
before 12:00 noon, New York City time, on the date of prepayment at the Agent's
telephone number and address for notices specified on Schedule 1.1(B). Any
---------------
prepayment in part of a Swingline Loan shall be in an amount that is an integral
multiple of $100,000. All principal payments, including prepayments, of
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to but excluding the date of payment. All outstanding Swingline
Loans shall be due and payable on the Convertible Revolving Credit Expiration
Date.
2.9.4 Interest.
--------
Each Swingline Loan shall bear interest at a fluctuating rate per
annum (computed on the basis of a year of 360 days for the actual number of days
elapsed) equal to the Base Rate plus one and one-quarter percent (1.25%) per
annum, such interest rate to change automatically from time to time effective as
of the effective date of each change in the Base Rate.
2.9.5 Participations.
--------------
The Swingline Bank may by written notice given to the Agent not
later than 12:00 (noon), New York City time, on any Business Day require the
Banks to acquire participations in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Banks shall participate. The Agent will, promptly upon receipt of such
notice, give notice to each Bank, specifying in such notice such Bank's Ratable
Share of such Swingline Loan or Loans. In consideration and in furtherance of
the foregoing, each Bank hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Agent, for the account of
-25-
the Swingline Bank, such Bank's Ratable Share of such Swingline Loan or Loans.
Each Bank acknowledges and agrees that its obligation to acquire participations
in Swingline Loans pursuant to this Section 2.9.5 is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence or continuance of a Potential Default or an Event of Default, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Bank shall comply with its obligation under this
Section by wire transfer to Agent of immediately available funds not later than
2:00 p.m. New York City time, and the Agent shall promptly credit the amounts so
received to the account of the Swingline Bank. The Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
Section and thereafter payments in respect of such Swingline Loan shall be made
to the Agent and not to the Swingline Bank. Any amounts received by the
Swingline Bank from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by the Swingline Bank 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 Banks that shall have made their payments pursuant to this Section and to
the Swingline Bank, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this Section 2.9.5 shall not
relieve the Borrower (or other party liable for obligations of the Borrower) of
its obligations in respect of the payment thereof.
3. INTEREST RATES
--------------
3.1 Interest Rate Options.
---------------------
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Committed Loans (other than with respect to the
Swingline Loans which are addressed in Section 2.9.4) as selected by it from the
Base Rate Option or Convertible Revolving Credit Euro-Rate Option set forth
below applicable to the type of Committed Loans, it being understood that,
subject to the provisions of this Agreement, the Borrower may select different
Interest Rate Options and different Interest Periods to apply simultaneously to
various of the Committed Loans comprising different Borrowing Tranches and may
convert to or renew one or more Interest Rate Options with respect to all or any
portion of the Committed Loans comprising any Borrowing Tranche, provided that
--------
there shall not be at any one time outstanding more than six (6) Borrowing
Tranches in the aggregate among all of the Committed Loans. If at any time the
designated rate applicable to any portion of a Committed Loan made by any Bank
exceeds such Bank's highest lawful rate, the rate of interest on such Bank's
Committed Loan shall be limited to such Bank's highest lawful rate.
3.1.1 Convertible Revolving Credit Interest Rate Options.
--------------------------------------------------
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Convertible Revolving Credit:
(i) Convertible Revolving Credit Base Rate Option: A
---------------------------------------------
fluctuating rate per annum (computed on the basis of a year of 360 days for the
actual number of days elapsed) equal to the Base Rate plus one and one-quarter
percent (1.25%) per annum, such interest rate to change automatically from time
to time effective as of the effective date of each change in the Base Rate; or
-26-
(ii) Convertible Revolving Credit Euro-Rate Option: A rate per
---------------------------------------------
on the basis of a year of 360 days for the actual number of days elapsed) equal
to the Euro-Rate plus three and one-half percent (3.50%) per annum.
3.1.2 Rate Quotations.
---------------
The Borrower may call the Agent at the Principal Office of the
Agent in Chicago on or before the date on which a Committed Loan Request is to
be delivered to receive an indication of the rates then in effect, but it is
acknowledged that such projection shall not be binding on the Agent or the Banks
nor affect the rate of interest which thereafter is actually in effect when the
election is made.
3.2 Committed Loans Interest Periods.
--------------------------------
At any time when the Borrower shall select, convert to or renew a Committed
Loan Euro-Rate Option, the Borrower shall notify the Agent thereof at its
Principal Office in Chicago at least three (3) Business Days prior to the
effective date of such Euro-Rate Option by delivering a Committed Loan Request.
The notice shall specify an interest period (the "Interest Period") during which
such Interest Rate Option shall apply, such Interest Period to be (i) one Month
if Borrower selects the Committed Loan Euro-Rate Option during the Syndications
Period and (ii) one, two, three, or six Months if Borrower selects the Committed
Loan Euro-Rate Option after the Syndications Period has ended. Notwithstanding
the preceding sentence, the following provisions shall apply to any selection
of, renewal of, or conversion to a Committed Loan Euro-Rate Option:
3.2.1 Ending Date and Business Day.
----------------------------
Any Interest Period which would otherwise end on a date which is
not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which case such Interest
Period shall end on the directly preceding Business Day;
3.2.2 Termination Before Expiration Date.
----------------------------------
The Borrower shall not select, convert to or renew an Interest
Period, respectively, for any portion of the Convertible Revolving Credit Loans
that would end after the Convertible Revolving Credit Expiration Date; and
3.2.3 Renewals.
--------
In the case of the renewal of a Committed Loan Euro-Rate Option
at the end of an Interest Period, the first day of the new Interest Period shall
be the last day of the preceding Interest Period, without duplication in payment
of interest for such day.
3.3 Interest After Default.
----------------------
To the extent permitted by Law, upon the occurrence of an Event of Default
and until such time as such Event of Default shall have been cured or waived:
-27-
3.3.1 Letter of Credit Fees, Interest Rate.
------------------------------------
The Letter of Credit Fees and the otherwise applicable rate of
interest for each outstanding Loan shall be increased by 2.0% per annum; and
3.3.2 Other Obligations.
-----------------
Each other Obligation hereunder if not paid when due shall bear
interest at a rate per annum equal to the sum of the rate of interest applicable
under the Convertible Revolving Credit Base Rate Option plus an additional 2.0%
per annum from the time such Obligation becomes due and payable and until it is
paid in full.
3.3.3 Acknowledgment.
--------------
The Borrower acknowledges that the increase in rates referred to
in this Section 3.3 reflects, among other things, that such Loans or other
amounts have become a substantially greater risk given their default status and
that the Banks are entitled to additional compensation for such risk; and all
such interest shall be payable by Borrower upon demand by Agent.
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
--------------------------------------------------------------------
Available.
---------
3.4.1 Unascertainable.
---------------
If, on any date on which a Euro-Rate would otherwise be
determined with respect to Committed Loans, the Agent shall have determined
that:
(i) adequate and reasonable means do not exist for ascertaining
such Euro-Rate, or
(ii) a contingency has occurred which materially and adversely
affects the London interbank eurodollar market relating to the Euro-Rate,
then the Agent and the Banks shall have the rights specified in Section 3.4.3.
3.4.2 Illegality; Increased Costs; Deposits Not Available.
---------------------------------------------------
If at any time any Bank shall have determined that:
(i) the making, maintenance or funding of any Loan to which a
Euro-Rate Option applies has been made impracticable or unlawful by compliance
by such Bank in good faith with any Law or any interpretation or application
thereof by any Official Body or with any request or directive of any such
Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly
reflect the cost to such Bank of the establishment or maintenance of any such
Loan, or
(iii) after making all reasonable efforts, deposits of the
relevant amount in Dollars for the relevant Interest Period for a Loan to which
a Euro-Rate Option applies, respectively, are not available to such Bank with
respect to such Loan, in the London interbank market,
-28-
then the Agent and the Banks shall have the rights specified in Section 3.4.3.
3.4.3 Agent's and Bank's Rights.
-------------------------
In the case of any event specified in Section 3.4.1 above, the
Agent shall promptly so notify the Banks and the Borrower thereof, and in the
case of an event specified in Section 3.4.2 above, such Bank shall promptly so
notify the Agent at its Principal Office in Chicago and endorse a certificate to
such notice as to the specific circumstances of such notice, and the Agent shall
promptly send copies of such notice and certificate to the other Banks and the
Borrower. Upon such date as shall be specified in such notice (which shall not
be earlier than the date such notice is given), the obligation of (A) the Banks,
in the case of such notice given by the Agent, or (B) such Bank, in the case of
such notice given by such Bank, to allow the Borrower to select, convert to, or
renew a Euro-Rate Option shall be suspended until the Agent shall have later
notified the Borrower, or such Bank shall have later notified the Agent, of the
Agent's or such Bank's, as the case may be, determination that the circumstances
giving rise to such previous determination no longer exist. If at any time the
Agent makes a determination under Section 3.4.1 and the Borrower has previously
notified the Agent of its selection of, conversion to, or renewal of a Euro-Rate
Option and such Interest Rate Option has not yet gone into effect and no funding
has been reserved by a Bank therefor, such notification shall be deemed to
provide for the selection of, conversion to, or renewal of the Base Rate Option
otherwise available with respect to such Loans if the Borrower has requested the
Committed Loan Euro-Rate Option. If any Bank notifies the Agent of a
determination under Section 3.4.2, the Borrower shall, subject to the Borrower's
indemnification Obligations under Section 4.6.2 , as to any Loan of the Bank to
which a Euro-Rate Option applies, on the date specified in such notice either
convert such Loan to the Base Rate Option otherwise available with respect to
such Loan or prepay such Loan in accordance with Section 4.4 or 4.5. Absent due
notice from the Borrower of conversion or prepayment, such Loan shall
automatically be converted to the Base Rate Option otherwise available with
respect to such Loan upon such specified date.
3.5 Selection of Interest Rate Options.
----------------------------------
If the Borrower fails to select a new Interest Period or if borrower fails
to select an interest rate option to apply to any Borrowing Tranche of Committed
Loans subject to the Committed Euro-Rate Option at the expiration of the
existing Interest Period applicable to such Borrowing Tranche in accordance with
the provisions of Section 3.2, the Borrower shall be deemed to have converted
such Borrowing Tranche to the Convertible Revolving Credit Base Rate Option
commencing upon the last day of the existing Interest Period.
4. PAYMENTS
--------
4.1 Payments.
--------
All payments and prepayments to be made in respect of principal, interest,
fees, or other amounts due from the Borrower hereunder or in connection herewith
shall be payable prior to 12:00 noon, New York time, on the date when due
without presentment, demand, protest, or notice of any kind, all of which are
hereby expressly waived by the Borrower, and without set-off, counterclaim, or
other deduction of any nature, and an action therefor shall immediately accrue.
Such payments shall be made to the Agent at its Principal Office in Chicago, or
at such location as Agent shall otherwise direct, for the
-29-
ratable accounts of the Banks with respect to Loans (other than with respect to
Swingline Loans which, to the extent not participated to the Banks shall be for
the account of the Swingline Bank), in U.S. Dollars and in immediately available
funds, and the Agent shall promptly distribute such amounts to the Banks in
immediately available funds, provided that in the event payments are received by
--------
12:00 noon, New York time, by the Agent with respect to the Loans and such
payments are not distributed to the Banks on the same day received by the Agent,
the Agent shall pay the Banks the Federal Funds Effective Rate with respect to
the amount of such payments for each day held by the Agent and not distributed
to the Banks. The Agent's statement of account, ledger, or other relevant record
shall, in the absence of manifest error, be conclusive as the statement of the
amount of principal of and interest on the Loans and other amounts owing under
this Agreement.
4.2 Pro Rata Treatment of Banks.
---------------------------
Each borrowing of Convertible Revolving Credit Loans shall be allocated to
each Bank according to its Ratable Share (irrespective of the amount of
Swingline Loans outstanding), and each selection of, conversion to, or renewal
of any Interest Rate Option applicable to Convertible Revolving Credit Loans and
each payment or prepayment by the Borrower with respect to principal or interest
on the Convertible Revolving Credit Loans or fees (except for the Agent's Fee,
Fronting Fee, and any other fee addressed in the Agent's Letter) or other
amounts due from the Borrower hereunder to the Banks with respect to the
Convertible Revolving Credit Loans, shall (except as provided in Section 3.4.3
and in the case of an event specified in Section 3.4, 4.4.2 or 4.6) be made in
proportion to the applicable Convertible Revolving Credit Loans outstanding from
each Bank and, if no such Loans are then outstanding from any Bank, in
proportion to the Ratable Share of each Bank. Borrowings of and payments on
Swingline Loans shall be governed, inter alia, by the terms of Section 2.9. For
purposes of determining the available Convertible Revolving Credit Commitments
of the Banks at any time, each outstanding Swingline Loan shall be deemed to
have utilized the Convertible Revolving Credit Commitments of the Banks pro rata
in accordance with such Convertible Revolving Credit Commitments.
4.3 Interest Payment Dates.
----------------------
Interest on Committed Loans to which the Base Rate Option applies shall be
due and payable in arrears on the last Business Day of each December, March,
June, and September after the date hereof and on the Convertible Revolving
Credit Expiration Date with respect to Convertible Revolving Credit Loans or
upon acceleration of any Loan. Interest on Committed Loans to which the Euro-
Rate Option applies shall be due and payable on the last day of each Interest
Period for those Loans and, if such Interest Period is longer than three (3)
Months, also at the end of each three (3) Month period within such Interest
Period, calculated from the commencement thereof. Interest on mandatory
prepayments of principal under Section 4.5 and on voluntary prepayments of
principal shall be due on the date such prepayment is due or made. Interest on
the principal amount of each Loan or other monetary Obligation shall be due and
payable on demand after such principal amount or other monetary Obligation
becomes due and payable (whether on the stated maturity date, upon acceleration,
or otherwise).
-30-
4.4 Voluntary Prepayments; Voluntary Reduction or Termination of Commitments.
------------------------------------------------------------------------
4.4.1 Right to Prepay.
---------------
The Borrower shall have the right at its option from time to time
to prepay the Committed Loans or prepay the Committed Loans and reduce or
terminate the Convertible Revolving Credit Commitment, in whole or part, without
premium or penalty (except as provided in Section 4.4.2 below or in Section
4.6):
(i) at any time with respect to any Committed Loan to which the Base
Rate Option applies, and
(ii) on the last day of the applicable Interest Period with respect
to Committed Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Bank pursuant to
Section 3.4 with respect to any Committed Loan to which a Euro-Rate Option
applies.
Whenever the Borrower desires to prepay any part of the Committed
Loans or prepay the Committed Loans and reduce or terminate the Convertible
Revolving Credit Commitment, it shall provide a prepayment or reduction or
termination notice to the Agent at its Principal Office in Chicago by 12:00 noon
at least three (3) Business Day prior to the date of prepayment or reduction or
termination setting forth the following information:
(x) the date, which shall be a Business Day, on which the
proposed prepayment or reduction or termination is to be made;
(y) a statement indicating the application of the prepayment
between the various interest rate options applicable to Convertible
Revolving Credit Loans and Swingline Loans; and
(z) the total principal amount of such prepayment or reduction
or termination, which shall not be less than $1,000,000 and in
integral multiples of $500,000 (other than with respect to the minimum
amount of Swingline loan prepayments which are addressed in Section
2.9.3).
All prepayment, reduction, and termination notices shall be
irrevocable. The principal amount of the Committed Loans for which a prepayment,
reduction, or termination notice is given, together with interest on such
principal amount, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made. In
the event of a reduction or termination notice, the principal amount of
Committed Loans so reduced or terminated shall not be reborrowed at any time
thereafter and the Commitments of the Banks shall be permanently so reduced or
terminated. Except as provided in Section 3.4.3, if the Borrower prepays a
Committed Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is prepaying, the prepayment shall be applied first to Committed Loans
to which the Base Rate Option applies, then to Loans to which the Committed Loan
Euro-Rate Option applies. Any prepayment, reduction, or termination hereunder
shall be subject to the Borrower's Obligation to indemnify the Banks under
Section 4.6.2.
-31-
Borrower's rights and obligations with respect to prepayments of
the Term Loan shall be the same as set forth herein for Convertible Revolving
Credit Loans (except to the extent necessary to account for structural
differences between the nature of Committed Loans and the Term Loan).
4.4.2 Replacement of a Bank.
---------------------
In the event any Bank (i) gives notice under Section 3.4 or
Section 4.6.1, (ii) does not fund Convertible Revolving Credit Loans because the
making of such Loans would contravene any Law applicable to such Bank, (iii)
does not approve any action as to which consent of the Required Banks is
requested by the Borrower and obtained hereunder, (iv) does not agree to an
extension of the Convertible Revolving Credit Expiration Date requested in
accordance with Section 2.4.1 and, however, the Required Banks do so agree, or
(v) becomes subject to the control of an Official Body (other than normal and
customary supervision), then the Borrower shall have the right at its option,
with the consent of the Agent, which shall not be unreasonably withheld, to
prepay the Loans of such Bank in whole, together with all interest accrued
thereon, and terminate such Bank's Commitment within no more than thirty (30)
days after an event described in Clause (iv) directly above (but in no event
later than the Convertible Revolving Credit Expiration Date), or within ninety
(90) days after (w) receipt of such Bank's notice under Section 3.4 or 4.6.1,
(x) the date such Bank has failed to fund Convertible Revolving Credit Loans
because the making of such Loans would contravene Law applicable to such Bank,
(y) the date of obtaining the consent which such Bank has not approved, or (z)
the date such Bank became subject to the control of an Official Body, as
applicable; provided that the Borrower shall also pay to such Bank at the time
of such prepayment any amounts required under Section 4.6 and any accrued
interest due on such amount and any other fees and costs payable hereunder; and
provided, further, that the Convertible Revolving Credit Loans and any other
Commitments of such Bank shall be provided by one or more of the remaining Banks
or a replacement bank acceptable to the Agent or, upon payment of every such
Loan and all related interest, fees, costs, and expenses (including those
payable under Section 4.6), the Commitments of such Bank are permanently
terminated; and provided, further, the remaining Banks shall have no obligation
hereunder to increase their Commitments or provide any Loan of such Bank.
Notwithstanding the foregoing, the Agent may only be replaced subject to the
requirements of Section 9.14 and provided that all Letters of Credit shall have
expired or been terminated or replaced.
4.4.3 Change of Lending Office.
------------------------
Each Bank agrees that, upon the occurrence of any event giving
rise to increased costs or other special payments under Section 3.4.2 or 4.6.1
with respect to such Bank, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal, or regulatory disadvantage, with
the objective of avoiding the consequence of the event giving rise to the
operation of such Sections. Nothing in this Section 4.4.3 shall affect or
postpone any of the Obligations of the Borrower or any other Loan Party or the
rights of the Agent or any Bank provided in this Agreement.
-32-
4.5 Mandatory Prepayments.
---------------------
4.5.1 Application Among Interest Rate Options.
---------------------------------------
All prepayments required pursuant to this Section 4.5 shall first
be applied among the Interest Rate Options to the principal amount of the
Committed Loans subject to the Base Rate Option, then to Loans subject to a
Euro-Rate Option. In accordance with Section 4.6.2, the Borrower shall indemnify
the Banks for any loss or expense, including loss of margin, incurred with
respect to any such prepayments applied against Committed Loans subject to a
Euro-Rate Option on any day other than the last day of the applicable Interest
Period.
4.5.2 Failure to Convert.
-------------------
If any Bank notifies the Agent of a determination under Section
3.4.2 and the Borrower elects not convert such Loan to the Base Rate Option,
then the Borrower shall prepay such Loan.
4.6 Additional Compensation in Certain Circumstances.
------------------------------------------------
4.6.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves,
-----------------------------------------------------------------
Capital Adequacy Requirements, Expenses, Etc.
---------------------------------------------
If, after the date hereof, any new Law, guideline, or interpretation
or any change in any Law, guideline, or interpretation or application thereof by
any Official Body charged with the interpretation or administration thereof or
compliance with any request or directive (whether or not having the force of
Law) of any central bank or other Official Body:
(i) subjects any Bank to any tax or changes the basis of taxation
with respect to this Agreement, the Committed Loans or payments by the Borrower
of principal, interest, fees, or other amounts due from the Borrower hereunder
(except for taxes on the overall net income of such Bank),
(ii) imposes, modifies, or deems applicable any reserve, special
deposit, or similar requirement against credits or commitments to extend credit
extended by, or assets (funded or contingent) of, deposits with or for the
account of, or other acquisitions of funds by, any Bank, or
(iii) imposes, modifies, or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or letters of
credit, other credits, or commitments to extend credit extended by, any Bank, or
(B) otherwise applicable to the obligations of any Bank under this Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Bank with respect to this Agreement, or the making, maintenance, or funding of
any part of the Committed Loans (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on any
Bank's or its holding company's capital, taking into consideration such Bank's
or holding company's customary policies with respect to capital adequacy) by an
amount which such Bank in its sole discretion deems to be material, such Bank
shall from time to time notify the Borrower and the Agent of the amount
determined in good faith (using any averaging and attribution methods employed
in good faith) by such Bank to be necessary to compensate such Bank for such
increase in cost, reduction of income, additional expense, or reduced rate of
return. Such notice shall set forth in reasonable detail the calculation
utilized
-33-
as the basis for such determination. Such amount shall be due and payable by the
Borrower to such Bank ten (10) Business Days after such notice is given.
4.6.2 Indemnity.
---------
In addition to the compensation required by Section 4.6.1, the
Borrower shall indemnify each Bank against all liabilities, losses, or expenses
(including loss of margin, any loss or expense incurred in liquidating or
employing deposits from third parties, and any loss or expense incurred in
connection with funds acquired by a Bank to fund or maintain Loans subject to a
Euro-Rate Option) which such Bank sustains or incurs as a consequence of any:
(i) payment, prepayment, conversion, or renewal of any Loan to
which a Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary, or automatic and whether or not such payment or prepayment
is then due), or
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices, or otherwise) in whole or part any Committed Loan Requests
to which a Euro-Rate Option applies or notice relating to prepayments of Loans
to which a Euro-Rate Option applies, or
(iii) default by the Borrower in the performance or observance of
any covenant or condition contained in this Agreement or any other Loan
Document, including any failure of the Borrower to pay when due (by acceleration
or otherwise) any principal of or interest on the Committed Loans to which a
Euro-Rate Option applies, any fee, or any other amount due hereunder.
If any Bank sustains or incurs any such loss or expense, it shall
from time to time notify the Borrower of the amount determined in good faith by
such Bank (which determination may include such assumptions, allocations of
costs and expenses, and averaging or attribution methods as such Bank shall deem
reasonable) to be necessary to indemnify such Bank for such loss or expense.
Such notice shall set forth in reasonable detail the calculation determining the
basis for such determination. Such amount shall be due and payable by the
Borrower to such Bank ten (10) Business Days after such notice is given.
For all purposes of this Agreement, each Bank's and Agent's
determination of amounts payable under, and actions required or authorized by
Section 3.4 or Section 4.6 shall be calculated, at each Bank's and Agent's
option, as though each Bank and Agent funded its Loans under the Euro-Rate
Option through the purchase of deposits of the types and maturities
corresponding to the deposits used as a reference in determining the Euro-Rate
applicable to such Loans, whether in fact that is the case.
4.7 Taxes.
-----
4.7.1 No Deductions.
-------------
All payments made by Borrower hereunder and under each Note shall
be made free and clear of and without deduction for any present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all liabilities with
respect thereto, excluding taxes imposed on the net income of any Bank and all
income and franchise taxes applicable to any Bank of the United States (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter
-34-
referred to as "Taxes"). If Borrower shall be required by Law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 4.7.1) each Bank receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrower shall make such
deductions, and (iii) Borrower shall timely pay the full amount deducted to the
relevant tax authority or other authority in accordance with applicable Law.
4.7.2 Stamp Taxes.
-----------
In addition, Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
any Note (hereinafter referred to as "Other Taxes").
4.7.3 Indemnification for Taxes Paid by a Bank.
----------------------------------------
Borrower shall indemnify each Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 4.7.3) paid by any
Bank and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. The Agent shall use its best efforts, but shall
not be penalized for failure, to alert Borrower to the assertion of any such
claim for taxes. This indemnification shall be made within 30 days from the date
a Bank makes written demand therefor.
4.7.4 Certificate.
-----------
Within 30 days after the date of any payment of any Taxes by
Borrower, Borrower shall furnish to each Bank, at its address referred to
herein, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment by Borrower, Borrower
shall, if so requested by a Bank, provide a certificate of an officer of
Borrower to that effect.
4.7.5 Survival.
--------
Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
Sections 4.7.1 through 4.7.5 shall survive the payment in full of principal and
interest hereunder and under any instrument delivered hereunder.
4.8 Judgment Currency.
-----------------
4.8.1 Currency Conversion Procedures for Judgments.
--------------------------------------------
If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder or under a Note in any currency (the
"Original Currency") into another currency (the "Other Currency"), the parties
hereby agree, to the fullest extent permitted by Law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures each
Bank could purchase the Original Currency with the Other Currency after any
premium and costs of exchange on the Business Day preceding that on which final
judgment is given.
-35-
4.8.2 Indemnity in Certain Events.
---------------------------
The obligation of Borrower in respect of any sum due from
Borrower to any Bank hereunder shall, notwithstanding any judgment in an Other
Currency, whether pursuant to a judgment or otherwise, be discharged only to the
extent that, on the Business Day following receipt by any Bank of any sum
adjudged to be so due in such Other Currency, such Bank may in accordance with
normal banking procedures purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to such Bank in the Original Currency, Borrower agrees, as a
separate obligation and notwithstanding any such judgment or payment, to
indemnify such Bank against such loss.
4.9 Notes.
-----
Upon the request of any Bank, the Convertible Revolving Credit Loans made
by such Bank may be evidenced respectively by a Convertible Revolving Credit
Note in the form of Exhibit 1.1(C).
--------------
5. REPRESENTATIONS AND WARRANTIES
------------------------------
5.1 Representations and Warranties.
------------------------------
The Loan Parties, jointly and severally, represent and warrant to the Agent
and each of the Banks as follows:
5.1.1 Organization and Qualification.
------------------------------
Each Loan Party is a corporation, partnership, or limited
liability company duly organized, validly existing, and in good standing under
the laws of its jurisdiction of organization. Each Loan Party has the lawful
power to own or lease its properties and to engage in the business it presently
conducts or proposes to conduct. Each Loan Party is duly licensed or qualified
and in good standing in each jurisdiction where the property owned or leased by
it or the nature of the business transacted by it or both makes such licensing
or qualification necessary, except to the extent that the failure to do so would
not result in a Material Adverse Change.
5.1.2 Subsidiaries.
------------
(a) Schedule 5.1.2 states the name of each of Borrower's and
--------------
PTEK's respective Subsidiaries, its jurisdiction of incorporation, its
authorized capital stock, the issued and outstanding shares (referred to herein
as the "Subsidiary Shares") and the owners thereof if it is a corporation, its
outstanding partnership interests (the "Partnership Interests") if it is a
partnership and its outstanding limited liability company interests, interests
assigned to managers thereof and the voting rights associated therewith (the
"LLC Interests") if it is a limited liability company. Each of Borrower and PTEK
and each of Borrower's and PTEK's respective Subsidiaries has good and
marketable title to all of the Subsidiary Shares, Partnership Interests and LLC
Interests it purports to own, free and clear in each case of any Lien. All
Subsidiary Shares, Partnership Interests and LLC Interests have been validly
issued, and all Subsidiary Shares are fully paid and nonassessable. Except as
set forth in Schedule 5.1.2, all capital contributions and other consideration
--------------
required to be made or paid in connection with the issuance of the Partnership
Interests and LLC Interests have been made or paid, as the case may be. There
are no options, warrants or other rights outstanding to purchase any such
Subsidiary Shares,
-36-
Partnership Interests or LLC Interests except as indicated on Schedule 5.1.2.
--------------
Schedule 5.1.2 designates which Subsidiaries are Material Subsidiaries and there
--------------
are no Subsidiaries that are Material Subsidiaries that are not designated as
such.
(b) There is no direct or indirect Material Subsidiary of
Borrower or any other Loan Party which is not a Loan Party hereunder, other than
direct or indirect Subsidiaries of the Loan Parties that are organized under the
Laws of a country or a political subdivision of such country other than the
United States.
5.1.3 Power and Authority.
-------------------
Each Loan Party has full power to enter into, execute, deliver,
and carry out this Agreement and the other Loan Documents to which it is a
party, to incur the Indebtedness contemplated by the Loan Documents and to
perform its Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings on its part.
5.1.4 Validity and Binding Effect.
---------------------------
This Agreement has been duly and validly executed and delivered
by each Loan Party, and each other Loan Document which any Loan Party is
required to execute and deliver on or after the date hereof will have been duly
executed and delivered by such Loan Party on the required date of delivery of
such Loan Document. This Agreement and each other Loan Document constitutes, or
will constitute, legal, valid, and binding obligations of each Loan Party which
is or will be a party thereto on and after its date of delivery thereof,
enforceable against such Loan Party in accordance with its terms, except to the
extent that enforceability of any of such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
5.1.5 No Conflict.
-----------
Neither the execution and delivery of this Agreement or the other
Loan Documents by any Loan Party nor the consummation of the transactions herein
or therein contemplated or compliance with the terms and provisions hereof or
thereof by any of them will conflict with, constitute a default under, or result
in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement, or
other organizational documents of any Loan Party or (ii) any Law or any material
agreement or instrument or order, writ, judgment, injunction, or decree to which
any Loan Party is a party or by which it is bound or to which it is subject, or
result in the creation or enforcement of any Lien, charge, or encumbrance
whatsoever upon any property (now or hereafter acquired) of any Loan Party
(other than Liens granted under the Loan Documents).
5.1.6 Litigation.
----------
Except as set forth on Schedule 5.1.6, there are no actions,
----------------
suits, proceedings, or investigations pending or, to the knowledge of any Loan
Party, threatened against such Loan Party at law or equity before any Official
Body which individually or in the aggregate may, if adversely determined and
where such adverse determination is a reasonable possibility, result in any
Material Adverse Change.
-37-
None of the Loan Parties is in violation of any order, writ, injunction, or any
decree of any Official Body which may result in any Material Adverse Change.
5.1.7 Title to Properties.
-------------------
Each Loan Party has good and marketable title to or valid
leasehold interest in all material properties, assets, and other rights which it
purports to own or lease or which are reflected as owned or leased on its books
and records, free and clear of all Liens and encumbrances except Permitted
Liens, and subject to the terms and conditions of the applicable leases. All
material leases of property are in full force and effect without the necessity
for any consent which has not previously been obtained upon consummation of the
transactions contemplated hereby.
5.1.8 Financial Statements.
--------------------
(i) Historical Statements. The Borrower has delivered to the
---------------------
Agent copies of PTEK's audited consolidated year-end financial statements for
and as of the end of the two (2) fiscal years ended 1998 and 1999 (the "Annual
Statements"). In addition, the Borrower has delivered to the Agent copies of its
and PTEK's unaudited consolidated interim financial statements for the first two
(2) fiscal quarters of fiscal year 2000 through June 30, 2000 (the "Interim
Statements") (the Annual and Interim Statements being collectively referred to
as the "Historical Statements"). The Historical Statements were compiled from
the books and records maintained by the Parent's and Borrower's management, are
correct and complete in all material respects and fairly represent the
consolidated financial condition and the results of operations for the fiscal
periods then ended of the Borrower and its Subsidiaries and PTEK and its
Subsidiaries.
(ii) Accuracy of Financial Statements. Neither the Borrower nor
--------------------------------
any other Loan Party has any liabilities, contingent or otherwise, or forward or
long-term commitments that are not disclosed in the Historical Statements or in
the notes thereto, and except as disclosed therein there are no unrealized or
anticipated losses from any commitments of the Borrower or any other Loan Party
which may cause a Material Adverse Change. Since June 30, 2000, through the date
hereof, no Material Adverse Change has occurred.
5.1.9 Use of Proceeds; Margin Stock.
-----------------------------
5.1.9.1 General. The Loan Parties intend to use the proceeds of the Loans in
-------
accordance with Section 2.8.
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5.1.9.2 Margin Stock. None of the Loan Parties or any Subsidiaries of any
------------
Loan Party engages or intends to engage principally, or as one of its important
activities, in the business of extending credit for the purpose, immediately,
incidentally, or ultimately, of purchasing or carrying margin stock (within the
meaning of Regulation U). No part of the proceeds of any Loan has been or will
be used, immediately, incidentally, or ultimately, to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock or to refund Indebtedness originally incurred for such
purpose, or for any purpose which entails a violation of or which is
inconsistent with the provisions of the regulations of the Board of Governors of
the Federal Reserve System. None of the Loan Parties holds or intends to hold
margin stock in such amounts that more than 25% of the reasonable value of the
assets of any Loan Party are or will be represented by margin stock.
5.1.10 Full Disclosure.
---------------
Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement, or other documents furnished to the Agent or
any Bank in connection herewith or therewith, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein, in light of the circumstances under
which they were made, not misleading. There is no fact known to any Loan Party
which materially adversely affects the business, property, assets, financial
condition, results of operations, or prospects of any Loan Party which has not
been set forth in this Agreement or in the certificates, statements, agreements
or other documents furnished in writing to the Agent and the Banks prior to or
at the date hereof in connection with the transactions contemplated hereby.
5.1.11 Taxes.
-----
All federal, state, local, and other tax returns required to have
been filed with respect to each Loan Party have been filed, and payment or
adequate provision has been made for the payment of all taxes, fees,
assessments, and other governmental charges which have or may become due
pursuant to said returns or to assessments received, except to the extent that
such taxes, fees, assessments, and other charges are being contested in good
faith by appropriate proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made. There are no agreements or waivers extending the statutory
period of limitations applicable to any federal income tax return of any Loan
Party for any period except as disclosed in Schedule 5.1.11.
5.1.12 Consents and Approvals.
----------------------
No consent, approval, exemption, order, or authorization of, or a
registration or filing with, any Official Body or any other Person is required
by any Law or any agreement in connection with the execution, delivery, and
carrying out of this Agreement and the other Loan Documents by any Loan Party,
except as listed on Schedule 5.1.12, all of which shall have been obtained or
---------------
made on or prior to the Closing Date except as otherwise indicated on Schedule
--------
5.1.12.
------
5.1.13 No Event of Default; Compliance With Instruments.
------------------------------------------------
No event has occurred and is continuing and no condition exists
or will exist after giving effect to the borrowings or other extensions of
credit to be made on the Closing Date under or pursuant to the Loan Documents
which constitutes an Event of Default or Potential Default. None of the Loan
Parties is in violation of (i) any term of its certificate of incorporation,
bylaws, certificate of limited
-39-
partnership, partnership agreement, certificate of formation, limited liability
company agreement, or other organizational documents or (ii) any material
agreement or instrument to which it is a party or by which it or any of its
properties may be subject or bound where such violation would constitute a
Material Adverse Change.
5.1.14 Patents, Trademarks, Copyrights, Licenses, Etc.
----------------------------------------------
Each Loan Party owns or possesses all the material patents,
trademarks, service marks, trade names, copyrights, licenses, registrations,
franchises, permits, and rights necessary to own and operate its properties and
to carry on its business as presently conducted and planned to be conducted by
such Loan Party, without known possible, alleged, or actual conflict with the
rights of others which would, if adversely determined and such adverse
determination is reasonably foreseeable, result in a Material Adverse Change.
5.1.15 Security Interests.
------------------
The Liens and security interests granted to the Agent for the
benefit of the Banks pursuant to the Patent, Trademark and Copyright Security
Agreement, the Pledge Agreement and the Security Agreement in the Collateral
(other than the Real Property) constitute and will continue to constitute Prior
Security Interests under the Uniform Commercial Code as in effect in each
applicable jurisdiction (the "Uniform Commercial Code") or other applicable Law
entitled to all the rights, benefits and priorities provided by the Uniform
Commercial Code or such Law. Upon the filing of financing statements relating to
said security interests in each office and in each jurisdiction where required
in order to perfect the security interests described above, taking possession of
any stock certificates or other certificates evidencing the Pledged Collateral
and recordation of the Patent, Trademark and Copyright Security Agreement in the
United States Patent and Trademark Office and United States Copyright Office, as
applicable, all such action as is necessary or advisable to establish such
rights of the Agent will have been taken, and there will be upon execution and
delivery of the Patent, Trademark and Copyright Security Agreement, the Pledge
Agreement and the Security Agreement, such filings and such taking of
possession, no necessity for any further action in order to preserve, protect
and continue such rights, except the filing of continuation statements with
respect to such financing statements within six months prior to each five-year
anniversary of the filing of such financing statements. All filing fees and
other expenses in connection with each such action have been or will be paid by
the Borrower.
5.1.16 Status of the Pledged Collateral.
--------------------------------
All the shares of capital stock, Partnership Interests or LLC
Interests included in the Pledged Collateral to be pledged pursuant to the
Pledge Agreement are or will be upon issuance validly issued and nonassessable
and owned beneficially and of record by the pledgor free and clear of any Lien
or restriction on transfer, except as otherwise provided by the Pledge Agreement
or in Schedule 5.1.16 and except as the right of the Banks to dispose of the
---------------
Shares, Partnership Interests or LLC Interests may be limited by the Securities
Act of 1933, as amended, and the regulations promulgated by the Securities and
Exchange Commission thereunder and by applicable state securities laws. There
are no shareholder, partnership, limited liability company or other agreements
or understandings with respect to the shares of capital stock, Partnership
Interests or LLC Interests included in the Pledged Collateral except for the
partnership and shareholder agreements and limited liability company agreements
described on Schedule 5.1.16. The Loan Parties have delivered true and correct
---------------
copies of such partnership agreements and limited liability company agreements
to the Agent.
-40-
5.1.17 Insurance.
---------
Schedule 5.1.17 lists and describes all insurance policies and
---------------
other bonds to which any Loan Party or Subsidiary of any Loan Party is a party,
all of which are valid and in full force and effect. No notice has been given or
claim made and no grounds exist to cancel or avoid any of such policies or bonds
or to reduce the coverage provided thereby. Such policies and bonds provide
adequate coverage from reputable and financially sound insurers in amounts
sufficient to insure the assets and risks of each Loan Party in accordance with
prudent business practice in the industry of the Loan Parties.
5.1.18 Compliance With Laws.
--------------------
The Loan Parties are in compliance in all material respects with
all applicable Laws in all jurisdictions in which any Loan Party is presently or
will be doing business except where the failure to do so would not constitute a
Material Adverse Change.
5.1.19 Material Contracts; Burdensome Restrictions.
-------------------------------------------
All material contracts relating to the business operations of
each Loan Party, including all employee benefit plans and Labor Contracts, are
valid, binding, and enforceable upon such Loan Party and each of the other
parties thereto in accordance with their respective terms, and there is no
default thereunder, to the Loan Parties' knowledge, with respect to parties
other than such Loan Party. None of the Loan Parties is bound by any contractual
obligation or subject to any restriction in any organization document or any
requirement of Law, which could result in a Material Adverse Change.
5.1.20 Investment Companies; Regulated Entities.
----------------------------------------
None of the Loan Parties is an "investment company" registered or
required to be registered under the Investment Company Act of 1940 or under the
"control" of an "investment company" as such terms are defined in the Investment
Company Act of 1940 and shall not become such an "investment company" or under
such "control." None of the Loan Parties is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
5.1.21 Plans and Benefit Arrangements.
------------------------------
Except as set forth on Schedule 5.1.21 and except where such
---------------
event, condition, or action described below would not result in a Material
Adverse Change:
(i) The Borrower and each other member of the ERISA Group are in
compliance in all material respects with any applicable provisions of ERISA with
respect to all Benefit Arrangements, Plans and Multiemployer Plans. There has
been no Prohibited Transaction with respect to any Benefit Arrangement or any
Plan or, to the best knowledge of the Borrower, with respect to any
Multiemployer Plan or Multiple Employer Plan, which could result in any material
liability of the Borrower or any other member of the ERISA Group. The Borrower
and all other members of the ERISA Group have made when due any and all payments
required to be made under any agreement relating to a Multiemployer Plan or a
Multiple Employer Plan or any Law pertaining thereto. With respect to each Plan
and Multiemployer Plan, the Borrower and each other member of the ERISA Group
(i) have fulfilled in all material respects their obligations under the minimum
funding standards of ERISA, (ii) have not
-41-
incurred any liability to the PBGC, and (iii) have not had asserted against them
any penalty for failure to fulfill the minimum funding requirements of ERISA.
(ii) To the best of the Borrower's knowledge, each
Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder
when due.
(iii) Neither the Borrower nor any other member of the ERISA
Group has instituted or intends to institute proceedings to terminate any Plan.
(iv) No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan, and no amendment with respect to which security is required
under Section 307 of ERISA has been made or is reasonably expected to be made to
any Plan.
(v) The aggregate actuarial present value of all benefit
liabilities (whether or not vested) under each Plan, determined on a plan
termination basis, as disclosed in, and as of the date of, the most recent
actuarial report for such Plan, does not exceed the aggregate fair market value
of the assets of such Plan.
(vi) Neither the Borrower nor any other member of the ERISA
Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or
Multiple Employer Plan is reasonably expected to be reorganized or terminated,
within the meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is insured, the
Borrower and all other members of the ERISA Group have paid when due or within a
permissible period thereafter all premiums required to be paid for all periods
through the Closing Date. To the extent that any Benefit Arrangement is funded
other than with insurance, the Borrower and all other members of the ERISA Group
have made when due or within a permissible period thereafter all contributions
required to be paid for all periods through the Closing Date.
(viii) All Plans, Benefit Arrangements and Multiemployer Plans
have been administered in accordance with their terms and applicable Law.
5.1.22 Employment Matters.
------------------
Each of the Loan Parties is in compliance with the Labor
Contracts and all applicable federal, state, and local labor and employment Laws
including those related to equal employment opportunity and affirmative action,
labor relations, minimum wage, overtime, child labor, medical insurance
continuation, worker adjustment and relocation notices, immigration controls,
and worker and unemployment compensation, where the failure to comply would
constitute a Material Adverse Change. There are no outstanding grievances,
arbitration awards, or appeals therefrom arising out of the Labor Contracts or
current or threatened strikes, picketing, handbilling, or other work stoppages
or slowdowns at facilities of any of the Loan Parties which in any case would
constitute a Material Adverse Change.
-42-
5.1.23 Environmental Matters.
---------------------
Except as disclosed on Schedule 5.1.23 and except where
---------------
such event, condition, or action described below would not result in a Material
Adverse Change:
(i) None of the Loan Parties has received any Environmental
Complaint, whether directed or issued to any Loan Party or relating or
pertaining to any prior owner, operator or occupant of the Property, and has no
reason to believe that it might receive an Environmental Complaint.
(ii) No activity of any Loan Party at the Property is being or
has been conducted in violation of any Environmental Law or Required
Environmental Permit and to the knowledge of any Loan Party no activity of any
prior owner, operator or occupant of the Property was conducted in violation of
any Environmental Law.
(iii) There are no Regulated Substances present on, in, under,
or emanating from, or to any Loan Party's knowledge emanating to, the Property
or any portion thereof which result in Contamination.
(iv) Each Loan Party has all Required Environmental Permits
and all such Required Environmental Permits are in full force and effect.
(v) Each Loan Party has submitted to an Official Body and/or
maintains, as appropriate, all Required Environmental Notices.
(vi) No structures, improvements, equipment, fixtures,
impoundments, pits, lagoons or aboveground or underground storage tanks located
on the Property contain or use, except in compliance with Environmental Laws and
Required Environmental Permits, Regulated Substances or otherwise are operated
or maintained except in compliance with Environmental Laws and Required
Environmental Permits. To the knowledge of each Loan Party, no structures,
improvements, equipment, fixtures, impoundments, pits, lagoons or aboveground or
underground storage tanks of prior owners, operators or occupants of the
Property contained or used, except in compliance with Environmental Laws,
Regulated Substances or otherwise were operated or maintained by any such prior
owner, operator or occupant except in compliance with Environmental Laws.
(vii) To the knowledge of each Loan Party, no facility or site
to which any Loan Party, either directly or indirectly by a third party, has
sent Regulated Substances for storage, treatment, disposal or other management
has been or is being operated in violation of Environmental Laws or pursuant to
Environmental Laws is identified or proposed to be identified on any list of
contaminated properties or other properties which pursuant to Environmental Laws
are the subject of an investigation, cleanup, removal, remediation or other
response action by an Official Body.
(viii) No portion of the Property is identified or to the
knowledge of any Loan Party proposed to be identified on any list of
contaminated properties or other properties which pursuant to Environmental Laws
are the subject of an investigation or remediation action by an Official Body,
nor to the knowledge of any Loan Party is any property adjoining or in the
proximity of the Property identified or proposed to be identified on any such
list.
(ix) No portion of the Property constitutes an Environmentally
Sensitive Area.
-43-
(x) No lien or other encumbrance authorized by Environmental
Laws exists against the Property and none of the Loan Parties has any reason to
believe that such a lien or encumbrance may be imposed.
5.1.24 Senior Debt Status.
------------------
The Obligations of each Loan Party under this Agreement, the
Guaranty Agreement, and each of the other Loan Documents to which it is a party
do rank and will continue to rank senior or at least pari passu in priority of
payment with all other Indebtedness of such Loan Party except Indebtedness of
such Loan Party to the extent secured by Purchase Money Security Interests,
capitalized lease interests, or Permitted Liens. There is no Lien upon or with
respect to any of the properties or income of any Loan Party which secures
indebtedness or other obligations of any Person except for Permitted Liens.
5.2 Continuation of Representations; Updates to Schedules.
-----------------------------------------------------
The Loan Parties make the representations and warranties in this Section 5
on the date hereof and on the Closing Date and each date thereafter on which a
Loan is made or a Letter of Credit is issued as provided in and subject to
Sections 6.1 and 6.2. Should any of the information or disclosures provided on
any of the Schedules attached hereto become outdated or incorrect in any
material respect, the Borrower shall promptly provide the Agent in writing with
such revisions or updates to such Schedule as may be necessary or appropriate to
update or correct same; provided, however, that no Schedule shall be deemed to
--------
have been amended, modified or superseded by any such correction or update, nor
shall any breach of warranty or representation resulting from the inaccuracy or
incompleteness of any such Schedule be deemed to have been cured thereby, unless
either (a) such revised schedule represents a change in facts or circumstances
that is not prohibited by the terms hereof or does not constitute an Event of
Default, or (b) the Required Banks, in their sole and absolute discretion,
shall have accepted in writing such revisions or updates to such Schedule.
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
-------------------------------------------------------
The obligation of each Bank to make Loans and of the Agent to issue Letters
of Credit hereunder is subject to the performance by each of the Loan Parties of
its Obligations to be performed hereunder at or prior to the making of any such
Loans or issuance of such Letters of Credit and to the satisfaction of the
following further conditions:
6.1 First Loans and Letters of Credit.
---------------------------------
On or before the date of the first Loan made or first Letter of Credit
issued hereunder (the "Initial Credit Date"):
6.1.1 Representations and Warranties True; No Event of Default.
--------------------------------------------------------
The representations and warranties of each of the Loan Parties
contained in Section 5.1 and in each of the other Loan Documents shall be true
and accurate with the same effect as though such representations and warranties
had been made on and as of such date (except representations and warranties
which relate solely to an earlier date or time, which representations and
warranties shall be true and correct on and as of the specific dates or times
referred to therein), and each of the Loan Parties
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shall have performed and complied with all covenants and conditions hereof and
thereof, no Event of Default or Potential Default shall have occurred and be
continuing or shall exist.
6.1.2 Secretary's Certificate.
-----------------------
There shall be delivered to the Agent for the benefit of each
Bank a certificate dated on or after the date hereof, but no later than the
Closing Date, and signed by the Secretary or an Assistant Secretary of each of
the Loan Parties, certifying as appropriate as to:
(i) all action required hereby has been taken by each Loan
Party in connection with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized to sign
this Agreement and the other Loan Documents and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of each Loan Party for purposes of this Agreement and the true signatures
of such officers, on which the Agent and each Bank may conclusively rely; and
(iii) copies of its organizational documents, including its
certificate of incorporation, and bylaws, as in effect on the Closing Date
certified, to the extent applicable, by the appropriate state official where
such documents are filed in a state office together with certificates from the
appropriate state officials as to the continued existence and good standing of
each Loan Party that is a material operating company in each state where
organized or qualified to do business.
6.1.3 Delivery of Loan Documents.
--------------------------
The Patent, Trademark and Copyright Security Agreement, Notes,
Pledge Agreement, Security Agreement, Intercompany Subordination Agreement,
Security Agreement, Guaranty Agreement and this Agreement acceptable to Agent
and Documentation Agent shall have been duly executed and delivered to the Agent
for the benefit of the Banks, together with all appropriate financing statements
and appropriate stock powers and stock and similar certificates evidencing the
Subsidiary Shares, the Partnership Interests and the LLC Interests; provided,
however, that no Loan Documents shall require PCI to guaranty or secure any of
the obligations of the Loan Parties hereunder and no Loan Document shall require
the pledge of any shares of stock of PCI.
6.1.4 Opinion of Counsel.
------------------
There shall be delivered to the Agent for the benefit of each
Bank a written opinion of ▇▇▇▇▇▇ & Bird LLP, counsel for the Loan Parties (who
may rely on the opinions of such other counsel as may be acceptable to the
Agent), dated on or after the date hereof, but no later than the Closing Date,
and in form and substance satisfactory to the Agent and its counsel.
6.1.5 Legal Details.
-------------
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be in form and substance satisfactory to the Agent and counsel for the Agent,
and the Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent and said
counsel, as the Agent or said counsel may reasonably request. All Loan Documents
shall be in form and substance satisfactory to the Agent.
-45-
6.1.6 Payment of Fees.
---------------
The Borrower shall have paid or caused to be paid to the Agent
for itself and for the account of the Banks to the extent not previously paid
all fees accrued through the Initial Credit Date, and the costs and expenses for
which the Agent and the Banks are entitled to be reimbursed.
6.1.7 Consents.
--------
All material consents required to effectuate the transactions
contemplated hereby as set forth on Schedule 5.1.12 shall have been obtained.
---------------
6.1.8 No Material Adverse Change.
--------------------------
Since June 30, 2000, no Material Adverse Change has occurred.
6.1.9 No Violation of Laws.
--------------------
The making of the Loans and the issuance of the Letters of Credit
shall not contravene any Law applicable to any Loan Party or any of the Banks.
6.1.10 No Actions or Proceedings.
-------------------------
No action, proceeding, investigation, regulation, or legislation
shall have been instituted, threatened, or proposed before any court,
governmental agency, or legislative body to enjoin, restrain, or prohibit, or to
obtain damages in respect of, this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or which, in the
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.
6.1.11 Insurance Policies; Certificates of Insurance; Endorsements.
-----------------------------------------------------------
The Loan Parties shall have delivered evidence acceptable to the
Agent that adequate insurance in compliance with Section 7.1.3 is in full force
and effect and that all premiums then due thereon have been paid, together with
a certified copy of each Loan Party's casualty insurance policy or policies
evidencing coverage satisfactory to the Agent, with additional insured,
mortgagee and lender loss payable special endorsements attached thereto in form
and substance satisfactory to the Agent and its counsel naming the Agent as
additional insured, mortgagee and lender loss payee.
6.1.12 Landlord's Waiver.
-----------------
The Loan Parties (other than PCI) shall endeavor to deliver an
executed Landlord's Waiver in substantially the form of Exhibit 6.1.12 from the
--------------
lessor for each domestic leased location listed on Schedule 6.1.12, but only to
the extent that any such location contains a significant portion of the
Collateral.
6.2 Each Additional Loan or Letter of Credit.
----------------------------------------
At the time of making any Loans or issuing any Letters of Credit other than
Loans made or Letters of Credit issued on the Closing Date and after giving
effect to the proposed extensions of credit,
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the representations and warranties of the Loan Parties contained in Section 5.1
and in the other Loan Documents shall be true on and as of the date of such
additional Loan or Letter of Credit with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties shall be true and correct on and
as of the specific dates or times referred to therein) and the Loan Parties
shall have performed and complied with all covenants and conditions hereof; no
Event of Default or Potential Default shall have occurred and be continuing or
shall exist; the making of the Loans or issuance of such Letter of Credit shall
not contravene any Law applicable to any Loan Party or any of the Banks; and the
Borrower shall have delivered to the Agent a duly executed and completed Loan
Request or application for a Letter of Credit, as the case may be.
7. COVENANTS
---------
7.1 Affirmative Covenants.
---------------------
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations, and Letter of Credit
Borrowings, and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations, and
termination of the Commitments, the Loan Parties shall comply at all times with
the following affirmative covenants:
7.1.1 Preservation of Existence, Etc.
-------------------------------
Each Loan Party shall maintain its legal existence as a
corporation, limited partnership, or limited liability company and its license
or qualification and good standing in each jurisdiction in which its ownership
or lease of property or the nature of its business makes such license or
qualification necessary, except where a failure to do so would not result in a
Material Adverse Change or as otherwise expressly permitted in Section 7.2.6.
7.1.2 Payment of Liabilities, Including Taxes, Etc.
---------------------------------------------
Each Loan Party shall duly pay and discharge all liabilities to
which it is subject or which are asserted against it, promptly as and when the
same shall become due and payable, including all taxes, assessments, and
governmental charges upon it or any of its properties, assets, income, or
profits, prior to the date on which penalties attach thereto, except to the
extent that such liabilities, including taxes, assessments, or charges are being
contested in good faith and by appropriate and lawful proceedings diligently
conducted and for which such reserve or other appropriate provisions, if any, as
shall be required by GAAP shall have been made, but only to the extent that
failure to discharge any such liabilities would not result in any additional
liability which would adversely affect to a material extent the financial
condition of any Loan Party, provided that the Loan Parties will pay all such
--------
liabilities forthwith upon the commencement of proceedings to foreclose any Lien
which may have attached as security therefor.
7.1.3 Maintenance of Insurance.
-------------------------
Each Loan Party shall, and shall cause each of its Subsidiaries
to, insure its properties and assets against loss or damage by fire and such
other insurable hazards as such assets are commonly
-47-
insured (including fire, extended coverage, property damage, workers'
compensation, public liability and business interruption insurance) and against
other risks (including errors and omissions) in such amounts as similar
properties and assets are insured by prudent companies in similar circumstances
carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary, all as reasonably
determined by the Agent. At the request of the Agent, the Loan Parties shall
deliver to the Agent and each of the Banks (x) on the Initial Credit Date and
annually thereafter an original certificate of insurance signed by the Loan
Parties' independent insurance broker describing and certifying as to the
existence of the insurance on the Collateral required to be maintained by this
Agreement and the other Loan Documents, together with a copy of the endorsement
described in the next sentence attached to such certificate and (y) from time to
time a summary schedule indicating all insurance then in force with respect to
each of the Loan Parties. Such policies of insurance shall contain special
endorsements, in form and substance acceptable to the Agent, which shall (i)
specify the Agent as an additional insured and lender loss payee as its
interests may appear, with the understanding that any obligation imposed upon
the insured (including the liability to pay premiums) shall be the sole
obligation of the applicable Loan Parties and not that of the insured, (ii)
provide that the interest of the Banks shall be insured regardless of any breach
or violation by the applicable Loan Parties of any warranties, declarations or
conditions contained in such policies or any action or inaction of the
applicable Loan Parties or others insured under such policies, (iii) provide a
waiver of any right of the insurers to set off or counterclaim or any other
deduction, whether by attachment or otherwise, (iv) provide that any and all
rights of subrogation which the insurers may have or acquire shall be, at all
times and in all respects, junior and subordinate to the prior payment in full
of the Indebtedness hereunder and that no insurer shall exercise or assert any
right of subrogation until such time as the Indebtedness hereunder has been paid
in full and the Commitments have terminated, (v) provide, except in the case of
public liability insurance and workmen's compensation insurance, that all
insurance proceeds for losses to assets of less than $5,000,000 shall be
adjusted with and payable to the applicable Loan Parties and that all insurance
proceeds for losses to assets of $5,000,000 or more shall be adjusted by
Borrower with the consent of Agent (such consent not to be unreasonably
withheld) unless there then exists an Event of Default in which case such losses
shall be adjusted by Agent and, in all cases all such losses of $5,000,000 or
more shall be payable to the Agent, (vi) include effective waivers by the
insurer of all claims for insurance premiums against the Agent, (vii) provide
that no cancellation of such policies for any reason (including non-payment of
premium) nor any change therein shall be effective until at least thirty (30)
days after receipt by the Agent of written notice of such cancellation or
change, (viii) be primary without right of contribution of any other insurance
carried by or on behalf of any additional insureds with respect to their
respective interests in the Collateral, and (ix) provide that inasmuch as the
policy covers more than one insured, all terms, conditions, insuring agreements
and endorsements (except limits of liability) shall operate as if there were a
separate policy covering each insured. The applicable Loan Parties shall notify
the Agent promptly of any occurrence causing a material loss or decline in value
of the Collateral and the estimated (or actual, if available) amount of such
loss or decline. Any monies received by the Agent constituting insurance
proceeds may, at the option of the Agent, (i) be applied by the Agent to the
payment of the Loans (with a corresponding reduction of the Commitments) in such
manner as the Agent may reasonably determine, or (ii) be disbursed to the
applicable Loan Parties on such terms as are deemed appropriate by the Agent for
the repair, restoration and/or replacement of property in respect of which such
proceeds were received and, in which case, the Commitments shall not be reduced.
7.1.4 Maintenance of Properties and Leases.
------------------------------------
Each Loan Party shall maintain in good repair, working order, and
condition (ordinary wear and tear excepted) in accordance with the general
practice of other businesses of similar character
-48-
and size, all of those properties useful or necessary to its business, and from
time to time, such Loan Party will make or cause to be made all appropriate
repairs, renewals, or replacements thereof, except where a failure to do so
would not result in a Material Adverse Change.
7.1.5 Maintenance of Patents, Trademarks, Etc.
----------------------------------------
Each Loan Party shall maintain in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses,
franchises, permits, and other authorizations necessary for the ownership and
operation of its properties and business if the failure so to maintain the same
would constitute a Material Adverse Change.
7.1.6 Visitation Rights.
-----------------
Each Loan Party shall permit any of the officers or authorized
employees or representatives of the Agent or any of the Banks to visit and
inspect any of its properties and to examine and make excerpts from its books
and records and discuss its business affairs, finances, and accounts with its
officers, all in such detail and at such times and as often as any of the Banks
or Agent may reasonably request, provided that each Bank shall provide the
--------
Borrower and the Agent with reasonable notice prior to any visit or inspection.
In the event any Bank desires to conduct an audit of any Loan Party, such Bank
shall make a reasonable effort to conduct such audit contemporaneously with any
audit to be performed by the Agent.
7.1.7 Keeping of Records and Books of Account.
---------------------------------------
Each Loan Party shall, and shall cause each Subsidiary of any
Loan Party to, maintain and keep proper books of record and account which enable
the Borrower and its Subsidiaries to issue financial statements in accordance
with GAAP and as otherwise required by applicable Laws of any Official Body
having jurisdiction over the Borrower, and in which full, true, and correct
entries shall be made in all material respects of all its dealings and business
and financial affairs.
7.1.8 Plans and Benefit Arrangements.
------------------------------
The Borrower shall, and shall cause each other member of the
ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Plans and Benefit Arrangements except where such
failure, alone or in conjunction with any other failure, would not result in a
Material Adverse Change. Without limiting the generality of the foregoing, the
Borrower shall cause all of its Plans and all Plans maintained by any member of
the ERISA Group to be funded in accordance with the minimum funding requirements
of ERISA and shall make, and cause each member of the ERISA Group to make, in a
timely manner, all contributions due to Plans, Benefit Arrangements, and
Multiemployer Plans.
7.1.9 Compliance With Laws.
--------------------
Each Loan Party shall comply with all applicable Laws, including
all Environmental Laws, in all respects, provided that it shall not be deemed to
--------
be a violation of this Section 7.1.9 if any failure to comply with any Law would
not result in fines, penalties, remediation costs, other similar liabilities, or
injunctive relief which in the aggregate would constitute a Material Adverse
Change.
-49-
7.1.10 Further Assurances.
------------------
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Agent's Lien on and Prior Security Interest
in the Collateral as a continuing first priority perfected Lien, subject only to
Permitted Liens, and shall do such other acts and things as the Agent in its
sole discretion may deem necessary or advisable from time to time in order to
preserve, perfect and protect the Liens granted under the Loan Documents and to
exercise and enforce its rights and remedies thereunder with respect to the
Collateral.
7.1.11 Subordination of Intercompany Loans.
-----------------------------------
Each Loan Party shall cause any intercompany Indebtedness, loans
or advances owed by any Loan Party to any other Loan Party to be subordinated
pursuant to the terms of the Intercompany Subordination Agreement.
7.1.12 Landlord's Waivers.
------------------
To the extent any required Landlord's Waivers have not been
received prior to the Closing Date, the Loan Parties shall continue to endeavor
for a reasonable period of time subsequent to the Closing Date, to deliver and
executed Landlord's Waiver in substantially the form of Exhibit 6.1.12 from the
--------------
lessor for each domestic leased location listed on Schedule A to the Security
Agreement, but only to the extent that any such location contains material
Collateral.
7.2 Negative Covenants.
------------------
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations, and Letter of Credit
Borrowings and interest thereon and the expiration or termination of all Letters
of Credit and satisfaction of all of the Loan Parties' other Obligations and
termination of the Commitments, the Loan Parties shall comply with the following
negative covenants:
7.2.1 Indebtedness.
------------
The Loan Parties and all other Subsidiaries of the Loan Parties
shall not at any time create, incur, assume, permit, or suffer to exist any
Indebtedness, except the following ("Permitted Indebtedness"):
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness of any Xpedite Companies to any PTEK
Companies, provided that all such Indebtedness is subject to the Intercompany
Subordination Agreement;
(iii) (A) Indebtedness of any PTEK Company to any Xpedite
Company, (B) Indebtedness of any Xpedite Company arising out of one or more
Guaranties given by any Xpedite Company for the benefit of any PTEK Company, and
(C) Indebtedness of any Xpedite Company arising out of one or more letters of
credit (including Letters of Credit hereunder) or surety bonds issued for the
account of Xpedite or any other Xpedite Company and for the benefit of any PTEK
Company; provided that the aggregate amount at any one time outstanding of all
such Indebtedness described in the immediately preceding Clauses (A), (B), and
(C), minus the aggregate amount of In debtedness then
-50-
owing by Xpedite Companies to PTEK Companies does not exceed $40,000,000; and
provided further that all Indebtedness of any PTEK Company to any Xpedite
Company is subject to the Intercompany Subordination Agreement;
(iv) Any existing Indebtedness as set forth on Schedule 7.2.1
--------------
(including any extensions, refinancings, or renewals thereof), provided there is
no increase in the amount thereof or other significant change in the terms
thereof unless otherwise specified on Schedule 7.2.1;
--------------
(v) Indebtedness incurred after the date hereof arising from
any lease or similar transaction (including capitalized leases, synthetic
leases, sales/leasebacks, and conditional sales agreements) having the
commercial effect of a borrowing of money or secured by Purchase Money Security
Interests, provided that the aggregate of all such Indebtedness of the Loan
--------
Parties from all such sources does not exceed at any time $15,000,000;
(vi) Indebtedness of any Xpedite Company to any one or more
other Xpedite Companies, and Indebtedness of any PTEK Company to any one or more
other PTEK Companies, provided that in each instance all such Indebtedness is at
all times subject to the Intercompany Subordination Agreement;
(vii) Indebtedness incurred in or assumed for Permitted
Acquisitions in accordance with Section 7.2.6, provided that the aggregate
--------
amount of such Indebtedness does not exceed $15,000,000 in any twelve (12)
consecutive month period after the date hereof minus the aggregate amount of
Consideration paid for all Permitted Acquisitions in any twelve (12) consecutive
month period;
(viii) Guaranties by any PTEK Company of any Indebtedness or
other obligation of any other PTEK Company or any Xpedite Company permitted
under this Agreement, and Indebtedness incurred by any PTEK Company to finance
those Permitted Investments described at Clause (vii) of the definition thereof,
and Guaranties given by and letters of credit issued on behalf of any of the
PTEK Companies in support of those Permitted Investments described at Clause
(vii) of the definition thereof; and
(ix) [Reserved]
(x) Subject to Section 7.2.24, any other Indebtedness of the
Loan Parties not described by any of the foregoing Clauses (i) through (viii) in
an aggregate amount at any time not in excess of $5,000,000.
7.2.2 Liens.
-----
None of the Loan Parties and no other Subsidiary of a Loan Party
shall at any time create, incur, assume, permit, or suffer to exist any Lien on
any Property or assets, tangible or intangible, now owned or hereafter acquired
by any Loan Party, or agree or become liable to do so, except Permitted Liens.
7.2.3 Guaranties.
----------
Other than existing Guaranties set forth on Schedule 7.2.1, none
of the Loan Parties and no other Subsidiary of a Loan Party shall, at any time,
directly or indirectly, become or be liable in
-51-
respect of any Guaranty, or assume, guaranty, become surety for, endorse or
otherwise become or remain directly or contingently liable upon or with respect
to any obligation or liability of any Person, except to the extent permitted by
Section 7.2.1(iii) or Section 7.2.1(viii).
7.2.4 Loans and Investments.
---------------------
None of the Loan Parties and no other Subsidiary of a Loan Party
shall, at any time, make or suffer to remain outstanding any loan or advance to,
or purchase, acquire, or own any stock, bonds, notes, or securities of, or any
partnership interest (whether general or limited) or limited liability company
interest in, or any other investment or interest in, or make any capital
contribution to, any other Person, or agree, become or remain liable to do any
of the foregoing, except:
(i) trade credit extended on usual and customary terms in the
ordinary course of business;
(ii) loans and advances to employees of any Loan Party
outstanding on the date hereof and any renewals or extensions thereof, provided
there is no increase in the amount, or other significant change in the terms,
thereof;
(iii) Permitted Investments; and
(iv) Permitted Acquisitions.
7.2.5 Restricted Payments.
-------------------
7.2.5.1 The Xpedite Companies shall not, and shall not permit any of their
respective Subsidiaries to, make, pay, transfer or provide, or agree to become
or remain liable to make, pay, transfer or provide, to any of the PTEK Companies
or any of their respective Subsidiaries or to any other Person owning any of the
stock or other ownership interests of any Xpedite Company any of the following
(collectively, "Restricted Payments"): (i) any dividend or other distribution of
any nature (whether in cash, property, securities or otherwise) on account of or
in respect of its shares of capital stock, partnership interests or limited
liability company interests on account of the purchase, redemption, retirement
or acquisition of its shares of capital stock (or warrants, options or rights
therefor), partnership interests or limited liability company interests, (ii)
any management, servicing, or similar fees, or (iii) any forgiveness of any
Indebtedness (regardless how such forgiveness is characterized); provided,
however, that Borrower may make any such Restricted Payments to any of the PTEK
Companies in an aggregate amount not in excess of $10,000,000 in any twelve
month period (with the first twelve month period commencing as of the date
hereof).
7.2.5.2 Prior to making any one or more Restricted Payments, loans, advances,
or other transfers of funds or value by any one or more Xpedite Companies to any
one or more PTEK Companies which alone or in any related series of transactions
or in any consecutive thirty day period exceeds $5,000,000 in the aggregate,
Borrower shall demonstrate that it shall be in compliance with Section 7.2.22,
after giving effect to all such Restricted Payment(s), loans, advances, or other
transfers by delivering at least five (5) Business Days prior thereto a
certificate in the form of Exhibit 7.2.6 evidencing such compliance.
-------------
-52-
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions.
---------------------------------------------------
None of the Xpedite Companies and no other Subsidiary of a
Xpedite Company shall dissolve, liquidate, or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease, or
otherwise all or substantially all of the assets or capital stock of any other
Person, except:
(1) any Subsidiary of Borrower may consolidate or merge
into a Xpedite Company and any Xpedite Company (other than Borrower) may
consolidate or merge with any PTEK Company, provided that the survivor of such
merger or consolidation shall be the Xpedite Company, and
(2) any Xpedite Company may acquire, whether by
purchase or by merger, (A) all of the ownership interests of a Person who is not
a Loan Party or (B) substantially all the assets of a Person who is not a Loan
Party or of a business or division of a Person who is not a Loan Party (each a
"Permitted Acquisition"), provided that each of the following requirements is
met:
(i) if the Xpedite Company is acquiring the ownership interests
in such Person, such Person shall execute a Guarantor Joinder and join this
Agreement as a Guarantor pursuant to Section 10.18 on or before the date of such
Permitted Acquisition;
(ii) the Xpedite Company, such Person, and its owners, as
applicable, shall grant Liens in the assets of or acquired from and stock or
other ownership interests in such Person and otherwise comply with Section 10.18
on or before the date of such Permitted Acquisition and join this Agreement as a
Guarantor in the manner set forth in Section 10.18 on or before the date of such
Permitted Acquisition;
(iii) the board of directors or other equivalent governing body
of such Person shall have approved such Permitted Acquisition or such Permitted
Acquisition shall otherwise be consensual and, if the Xpedite Company or any
other Loan Party shall use any portion of the Loans to fund such Permitted
Acquisition, the Xpedite Company also shall have delivered to the Banks written
evidence of the approval of the board of directors (or equivalent body) of such
Person for such Permitted Acquisition or written evidence otherwise
demonstrating to Agent's satisfaction that such Permitted Acquisition is
consensual;
(iv) the Xpedite Company shall be the surviving Person in the
event of a merger or consolidation and no change of control shall occur with
respect to the Xpedite Company and, as appropriate, the Xpedite Company shall
assume all Obligations in writing; and the business acquired, or the business
conducted by the Person whose ownership interests are being acquired, as
applicable, shall be substantially the same as one or more line or lines of
business conducted by the Xpedite Companies or shall be reasonably related
thereto or shall be in furtherance thereof, and shall comply with Section
7.2.13;
(v) no Potential Default or Event of Default shall exist
immediately prior to and after giving effect to such Permitted Acquisition;
(vi) no Liens or Indebtedness other than Permitted Liens or
Permitted Indebtedness shall result from such merger, consolidation or
acquisition and the Borrower shall demonstrate that it and
-53-
PTEK shall be and would have been in compliance with the covenants contained in
Sections 7.2.18, 7.2.19, 7.2.20, 7.2.21, 7.2.22 and 7.2.23, for the four fiscal
quarters covered thereby (as applicable) after giving effect to such Permitted
Acquisition (including in such computations Indebtedness or other liabilities
assumed or incurred in connection with such Permitted Acquisition and including
income earned or expenses incurred by the Person, business, or assets to be
acquired for the most recent four fiscal quarters ending prior to the date of
such Permitted Acquisition) by delivering at least five (5) Business Days prior
to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6
-------------
evidencing such compliance; and
(vii) the Consideration paid by the Loan Parties for all
Permitted Acquisitions made during any consecutive twelve month period after the
Closing Date shall not exceed $15,000,000.
(viii) in connection with any Permitted Acquisition, Borrower
shall provide to Agent upon its request such further documents and take such
further actions as Agent shall reasonably request in connection with providing
information pertaining to a proposed Permitted Acquisition at least five (5)
days prior to such proposed Permitted Acquisition.
7.2.7 Dispositions of Assets or Subsidiaries.
--------------------------------------
None of the Loan Parties and no other Subsidiary of a Loan Party
shall sell, convey, assign, lease, abandon, or otherwise transfer or dispose of,
voluntarily or involuntarily, any of its properties or assets (in excess of
$1,000,000 in aggregate book value in any twelve consecutive month period
commencing with the date hereof), tangible or intangible (including sale,
assignment, discount, or other disposition of accounts, contract rights, chattel
paper, equipment, or general intangibles with or without recourse or of capital
stock, shares of beneficial interest, partnership interests, or limited
liability company interests of a Loan Party), except:
(i) transactions involving the sale or lease of inventory in
the ordinary course of business;
(ii) any sale, transfer, or lease of assets in the ordinary
course of business which are no longer necessary or required in the conduct of
such Loan Party's or such Subsidiary's business;
(iii) any sale, transfer, or lease of assets by any Xpedite
Company to any other Xpedite Company and any sale, transfer, or lease of assets
by any PTEK Company to any other PTEK Company;
(iv) any sale, transfer, or lease of assets in the ordinary
course of business which are replaced by comparable substitute assets acquired
or leased within one (1) year before or after the date of dispossession,
provided such substitute assets are subject to the Banks' Prior Security
--------
Interest;
(v) any sale or transfer by any PTEK Company of its ownership
interests in those Permitted Investments described at Clause (vii) of the
definition of such term;
(vi) any sale, transfer, or lease of the assets of any Loan
Party made in connection with a sale/leaseback or other lease financing of
equipment; or
-54-
(vii) subject to Section 7.2.24, other sales of assets of PTEK
Companies, including shares of capital stock of PTEK Companies (other than
PTEK), in an amount not to exceed $5,000,000 in the aggregate in any twelve
consecutive month period commencing as of the date hereof.
7.2.8 Affiliate Transactions.
----------------------
None of the Loan Parties and no other Subsidiary of a Loan Party
shall enter into or carry out any transaction (including purchasing property or
services from or selling property or services to any Affiliate of any Loan Party
or other Person) unless such transaction is not prohibited by this Agreement and
is entered into in the ordinary course of business upon terms that are fair and
reasonable and at arm's length with respect to each Loan Party and under
conditions which are fully disclosed to the Agent and in accordance with all
applicable Law, including those on Schedule 7.2.8.
--------------
7.2.9 [Reserved.]
7.2.10 Negative Pledges.
----------------
Each of the Loan Parties covenants and agrees that it shall not
enter into any agreement with any Person which prohibits any of the Loan Parties
from granting any Liens to the Agent or the Banks other than shareholder or
other similar agreements which in each instance pertain to solely those
Permitted Investments described at Clauses (vii) and (ix) of the definition of
such term.
7.2.11 Agreements Restricting Dividends; Restricted Payments.
-----------------------------------------------------
Except for the agreements and covenants contained herein: (i)
each of the Subsidiaries of Borrower covenants and agrees that it shall not
enter into any agreement with any Person which restricts any such Subsidiary's
right to pay dividends or other distributions to any of the other Xpedite
Companies, and (ii) each of the Loan Parties covenants and agrees that it shall
not enter into any agreement with any Person which restricts any such Loan
Party's right to repay intercompany loans from any Loan Party to any other Loan
Party.
7.2.12 Subsidiaries, Partnerships, and Joint Ventures.
----------------------------------------------
(a) None of the Loan Parties shall own or create directly or
indirectly any one or more Material Subsidiaries other than (i) any Subsidiary
which has joined this Agreement as a Guarantor on the date hereof, and (ii) any
Material Subsidiary formed after the date hereof which joins this Agreement as a
Guarantor pursuant to Section 10.18 provided that such Subsidiary and the Loan
Parties, as applicable, shall grant and cause to be perfected first priority
Liens to the Agent for the benefit of the Banks in the assets held by, and stock
of or other ownership interests in, such Subsidiary; except that no Subsidiary
of a Loan Party shall be required to join this Agreement as a Guarantor pursuant
to the terms of this Section (i) if such Subsidiary is organized under the Laws
of a country (or a political subdivision of any such country) other than the
United States or (ii) if such Subsidiary is not a Material Subsidiary; provided
that any Subsidiary which is not a Material Subsidiary when it is created or
acquired, but subsequently becomes a Material Subsidiary is required to join
this Agreement as a Guarantor and provided further that 65% of the ownership
interest of any Material Subsidiary that is organized under the Laws of a
country (or a political subdivision of any such country) other than the United
States shall be pledged to the Agent for the benefit of the Banks.
-55-
(b) Subject to Section 7.2.24, except for Permitted Investments
made by the PTEK Companies in accordance with Clauses (vii) and (ix) of the
definition of Permitted Investments, each of the Loan Parties shall not become
or agree to (1) become a general or limited partner in any general or limited
partnership, except that the Loan Parties may be general or limited partners in
other Loan Parties, (2) become a member or manager of, or hold a limited
liability company interest in, a limited liability company, except that the Loan
Parties may be members or managers of, or hold limited liability company
interests in, other Loan Parties, or (3) become a joint venturer or hold a joint
venture interest in any joint venture; provided, however, that a Loan Party may
become such general or limited partner or member or manager of a limited
liability company or joint venturer if the aggregate exposure of the Loan
Parties to the Indebtedness, obligations, and liabilities of all such
partnerships, companies, and ventures does not exceed $5,000,000 at any one
time.
7.2.13 Continuation of or Change in Business.
-------------------------------------
None of the Loan Parties shall engage in any business other than
that which they currently conduct, and other activities reasonably incidental
thereto or which are in furtherance thereof or supplemental thereto.
7.2.14 Plans and Benefit Arrangements.
------------------------------
Each of the Loan Parties and each other Subsidiary of a Loan
Party shall not, and shall not permit any of its Subsidiaries to:
(i) fail to satisfy the minimum funding requirements of ERISA
and the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the Internal Revenue
Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any Plan, Benefit
Arrangement or Multiemployer Plan which, alone or in conjunction with any other
circumstances or set of circumstances resulting in liability under ERISA, would
constitute a Material Adverse Change;
(iv) permit the aggregate actuarial present value of all benefit
liabilities (whether or not vested) under each Plan, determined on a plan
termination basis, as disclosed in the most recent actuarial report completed
with respect to such Plan, to exceed, as of any actuarial valuation date, the
fair market value of the assets of such Plan;
(v) fail to make when due any contribution to any Multiemployer
Plan that the Borrower or any member of the ERISA Group may be required to make
under any agreement relating to such Multiemployer Plan, or any Law pertaining
thereto;
(vi) withdraw (completely or partially) from any Multiemployer
Plan or withdraw (or be deemed under Section 4062(e) of ERISA to withdraw) from
any Multiple Employer Plan, where any such withdrawal is likely to result in a
material liability of the Borrower or any member of the ERISA Group;
(vii) terminate, or institute proceedings to terminate, any
Plan, where such termination is likely to result in a material liability to the
Borrower or any member of the ERISA Group;
-56-
(viii) make any amendment to any Plan with respect to which
security is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make all disclosures
and governmental filings required under ERISA or the Internal Revenue Code,
(x) where, in each of Clauses (i) through (ix) directly above,
such action, withdrawal, termination, or failure is likely to result in a
Material Adverse Change.
7.2.15 Fiscal Year.
-----------
The Borrower shall not, and shall not permit any Subsidiary of
the Borrower to, change its fiscal year from the twelve-month period beginning
January 1 and ending December 31.
7.2.16 Issuance of Stock.
-----------------
The Borrower shall not, and shall not permit any of its
Subsidiaries to, issue any additional shares of its capital stock or other
ownership interests or any options, warrants or other rights in respect thereof
other than to any Loan Party.
7.2.17 Changes in Organizational Documents.
-----------------------------------
Each of the Loan Parties shall not amend in any respect its
certificate or articles of incorporation (including any provisions or
resolutions relating to capital stock), by-laws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement or other organizational documents in any manner which
reasonably could be anticipated to threaten the likelihood of repayment of the
Obligations or impair the interests of the Agent or the Banks in the Collateral
without providing at least thirty (30) calendar days' prior written notice to
the Agent and the Banks and, in the event such change would be adverse to the
Banks as determined by the Agent in its sole discretion, obtaining the prior
written consent of the Required Banks.
7.2.18 Capital Expenditures.
--------------------
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, make capital expenditures in excess of $50,000,000 in the
aggregate for all Loan Parties and their respective Subsidiaries in any
consecutive twelve month period, and all such expenditures shall be made under
usual and customary terms and in the ordinary course of business.
7.2.19 Maximum Debt to Consolidated Cash Flow Ratio of Borrower.
--------------------------------------------------------
Borrower shall not permit the ratio of Consolidated Total
Indebtedness of the Borrower and its Subsidiaries to Consolidated Cash Flow of
the Borrower and its Subsidiaries, calculated as of the end of each calendar
month for the immediately preceding twelve calendar month period then ended
(subject, however, to the next paragraph) to be greater than 0.80 to 1.0.
For purposes of the above calculation for months ending on or
before December 31, 2000, Consolidated Cash Flow of the Borrower and its
Subsidiaries shall be calculated by dividing the Consolidated Cash Flow of the
Borrower and its Subsidiaries for the period commencing January 1, 2000, through
the calendar month just ended by the number of calendar months elapsed since
January 1,
-57-
2000, through the calendar month just ended and then multiplying such result by
12. After December 31, 2000, Consolidated Cash Flow of the Borrower and its
Subsidiaries shall be calculated on a rolling twelve calendar month basis.
7.2.20 Maximum Debt to Consolidated Cash Flow of Parent.
------------------------------------------------
PTEK shall not permit the ratio of Consolidated Total
Indebtedness of PTEK and its Subsidiaries to Consolidated Cash Flow of PTEK and
its Subsidiaries, calculated as of the end of each calendar month for the
immediately preceding twelve calendar month period then ended (subject, however,
to the next paragraph) to be greater than 6.0 to 1.0.
For purposes of the above calculation for months ending on or
before December 31, 2000, Consolidated Cash Flow of PTEK and its Subsidiaries
shall be calculated by dividing the Consolidated Cash Flow of PTEK and its
Subsidiaries for the period commencing January 1, 2000, through the calendar
month just ended by the number of calendar months elapsed since January 1, 2000,
through the calendar month just ended and then multiplying such result by 12.
After December 31, 2000, Consolidated Cash Flow of PTEK and its Subsidiaries
shall be calculated on a rolling twelve calendar month basis.
7.2.21 Maximum Modified Leverage Ratio of Parent.
-----------------------------------------
PTEK shall not at any time permit the ratio of Consolidated Total
Indebtedness of PTEK and its Subsidiaries to the sum of shareholder's equity of
PTEK and its Subsidiaries plus Consolidated Total Indebtedness of PTEK and its
Subsidiaries, calculated at any time, to exceed 0.50 to 1.0.
7.2.22 Minimum Net Worth of Borrower.
-----------------------------
The Borrower shall not at any time permit Consolidated Net Worth
of Xpedite and its Subsidiaries to be less than Base Net Worth.
7.2.23 Minimum Interest Coverage Ratio of Borrower.
-------------------------------------------
Borrower shall not permit the ratio of Consolidated Cash Flow of
Borrower and its Subsidiaries to consolidated interest expense of the Borrower
and its Subsidiaries, calculated as of the end of each calendar month for the
immediately preceding twelve calendar month period then ended (subject, however,
to the next paragraph) to be less than 5.0 to 1.0.
For purposes of the above calculation for months ending on or
before December 31, 2000, Consolidated Cash Flow and consolidated interest
expense of Borrower and its Subsidiaries shall be respectively calculated by
dividing the Consolidated Cash Flow and consolidated interest expense of
Borrower and its Subsidiaries for the period commencing January 1, 2000, through
the calendar month just ended by the number of calendar months elapsed since
January 1, 2000, through the calendar month just ended and then multiplying such
result by 12. After December 31, 2000, Consolidated Cash Flow and consolidated
interest expense of Borrower and its Subsidiaries shall be calculated on a
rolling twelve calendar month basis.
-58-
7.2.24 Limitation on Indebtedness, Expenditures Etc..
---------------------------------------------
Notwithstanding anything to the contrary contained in Sections
7.2.1(v), 7.2.1(vii), 7.2.1(x), 7.2.7(vii), 7.2.12, and clauses (xi) and (xii)
of the definition of Permitted Investments and clause (x) of the definition of
Permitted Liens, the aggregate amount that can be expended, incurred, assumed,
loaned, advanced, secured, invested, or sold, as the case may be, by the Loan
Parties and all other Subsidiaries of the Loan Parties under such provisions,
shall not exceed the Discretionary Basket.
7.3 Reporting Requirements.
----------------------
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations, and Letter of Credit
Borrowings, and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations hereunder and
under the other Loan Documents and termination of the Commitments, the Loan
Parties will furnish or cause to be furnished to the Agent and each of the
Banks:
7.3.1 Quarterly Financial Statements.
------------------------------
As soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three fiscal quarters in each
fiscal year: financial statements of the Borrower and its Subsidiaries and of
PTEK and its Subsidiaries, consisting of consolidated balance sheets as of the
end of such fiscal quarter and related consolidated statements of income,
stockholders' equity, and cash flows, together with calculations setting forth
in comparative form the actual results for the fiscal quarter then ended and the
fiscal year through that date against those of the prior year through such
quarter and against the projected budget for such quarter and year-to-date
respectively of Borrower and its Subsidiaries and of PTEK and its Subsidiaries
(alternatively, for PTEK, its quarterly 10-Q as filed with the Securities and
Exchange Commission may be substituted for the financial statements required by
the foregoing portion of this Section 7.3.1), all as of the end of such fiscal
quarter for the fiscal quarter then ended and the fiscal year through that date,
and all in reasonable detail and certified (subject to normal year-end audit
adjustments) by the Chief Executive Officer, President, Chief Financial Officer,
Treasurer, or Controller respectively of the Borrower and PTEK as having been
prepared in accordance with GAAP, consistently applied.
7.3.2 Annual Financial Statements.
---------------------------
As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower and PTEK: financial statements
of the Borrower and its Subsidiaries and of PTEK and its Subsidiaries,
consisting of consolidated balance sheets for each as of the end of such fiscal
year and related consolidated statements of income, stockholder's equity and
cash flows for the fiscal year then ended, all in reasonable detail and setting
forth in comparative form the financial statements as of the end of and for the
preceding fiscal year (alternatively, for PTEK, its annual 10-K as filed with
the Securities and Exchange Commission may be substituted for the financial
statements required by the foregoing portion of this Section 7.3.2) and, with
respect to the financial statements of PTEK and its Subsidiaries, certified by
independent certified public accountants of nationally recognized standing
satisfactory to the Agent. Each such certificate or report of accountants shall
be free of qualifications (other than any consistency qualification that may
result from a change in the method used to prepare the financial statements as
to which such accountants concur) and shall not indicate the occurrence or
existence of any event, condition, or contingency which would materially impair
the prospect of payment
-59-
or performance of any covenant, agreement, or duty of any Loan Party under any
of the Loan Documents. The Loan Parties shall deliver with such financial
statements and certification by their accountants a letter of such accountants
to the Agent and the Banks substantially (i) to the effect that, based upon
their ordinary and customary examination of the affairs of PTEK and its
Subsidiaries, performed in connection with the preparation of such consolidated
financial statements, and in accordance with generally accepted auditing
standards, they are not aware of the existence of any condition or event which
constitutes an Event of Default or Potential Default under Sections 7.2.19
through 7.2.23 or, if they are aware of such condition or event, stating the
nature thereof and confirming the Borrower's calculations with respect to the
certificate to be delivered pursuant to Section 7.3.3 with respect to such
financial statements and (ii) to the effect that the Banks are intended to rely
upon such accountant's certification of the annual financial statements and that
such accountants authorize the Loan Parties to deliver such reports and
certificate to the Banks on such accountants' behalf.
7.3.3 Certificate of the Borrower and PTEK.
------------------------------------
As soon as available and in any event within thirty (30) calendar
days after the end of each calendar month, a certificate of the Borrower and
PTEK signed by the Chief Executive Officer, President, Chief Financial Officer,
Treasurer, or Controller of each, in the form of Exhibit 7.3.3, to the effect
-------------
that, except as described pursuant to Section 7.3.4, (i) the representations and
warranties of the Borrower and other Loan Parties contained in Section 5.1 and
in the other Loan Documents are true on and as of the date of such certificate
with the same effect as though such representations and warranties had been made
on and as of such date (except representations and warranties which expressly
relate solely to an earlier date or time) and the Loan Parties have performed
and complied with all covenants and conditions hereof, (ii) no Event of Default
or Potential Default exists and is continuing on the date of such certificate,
and (iii) containing calculations in sufficient detail to demonstrate compliance
as of the date of such financial statements with all financial covenants
contained in Sections 7.2.18 through 7.2.23.
7.3.4 Notice of Default.
-----------------
Promptly after any officer of any Loan Party has learned of the
occurrence of an Event of Default or Potential Default, a certificate signed by
the Chief Executive Officer, President, Chief Financial Officer, Treasurer, of
Controller of such Loan Party setting forth the details of such Event of Default
or Potential Default and the action which such Loan Party proposes to take with
respect thereto.
7.3.5 Notice of Litigation.
--------------------
Promptly after the commencement thereof, notice of all actions,
suits, proceedings, or investigations before or by any Official Body or any
other Person against any Loan Party or Subsidiary of any Loan Party, involving a
claim or series of claims in excess of $5,000,000 or which if adversely
determined would constitute a Material Adverse Change.
7.3.6 Intentionally Omitted.
---------------------
7.3.7 Certain Events.
--------------
Written notice to the Agent:
-60-
(i) at least ten (10) calendar days prior thereto, with respect to
any proposed sale or transfer of assets pursuant to Section 7.2.7(iv) or,
(ii) within the time limits set forth in Section 7.2.17, any
amendment to the organizational documents of any Loan Party; and
(iii) at least twenty (20) calendar days prior thereto, with respect
to any change in any Loan Party's locations from the locations set forth in
Schedule A to the Security Agreement.
7.3.8 Budgets, Forecasts, Other Reports, and Information.
--------------------------------------------------
(i) Borrower shall provide the annual budgets and forecasts, as
prepared in a manner consistent with past practices, of the Borrower, the Parent
and the other Loan Parties, to be supplied not later than ninety (90) days after
the commencement of each fiscal year.
Promptly upon their becoming available to the Borrower or Parent,
Borrower shall provide to the Agent and each of the Banks:
(ii) excerpts of management letters submitted to Borrower or Parent
by independent accountants in connection with any annual, interim, or special
audit,
(iii) any reports, notices, or proxy statements generally distributed
by the Borrower or Parent to its stockholders on a date no later than the date
supplied to such stockholders,
(iv) regular or periodic reports, including Forms 10-K, 10-Q, and
material 8-K, registration statements and prospectuses, filed by the Borrower or
Parent with the SEC,
(v) a copy of any order in any proceeding to which the Borrower, the
Parent or any of their respective Subsidiaries is a party issued by any Official
Body to the extent such order may result in, cause, or relate to a Material
Adverse Change, and
(vi) such other reports and information as any of the Banks may from
time to time reasonably request and which without undue expense can be obtained
or provided and which will not vitiate any attorney-client or other evidentiary
privilege not waived by the Loan Party benefiting therefrom. The Borrower shall
also notify the Banks promptly of the enactment or adoption of any Law of which
it is aware which may result in a Material Adverse Change.
7.3.9 Notices Regarding Plans and Benefit Arrangements.
------------------------------------------------
7.3.9.1 Certain Events. Promptly upon becoming aware of the occurrence thereof,
--------------
notice (including the nature of the event and, when known, any action taken or
threatened by the Internal Revenue Service or the PBGC with respect thereto) of:
(i) any Reportable Event with respect to the Borrower or any other
member of the ERISA Group (regardless of whether the obligation to report said
Reportable Event to the PBGC has been waived),
(ii) any Prohibited Transaction which could subject the Borrower or
any other member of the ERISA Group to a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax
-61-
imposed by Section 4975 of the Internal Revenue Code in connection with any
Plan, any Benefit Arrangement, or any trust created thereunder, when such
penalty or tax could reasonably be expected to result in a Material Adverse
Change
(iii) any assertion of material withdrawal liability with respect to
any Multiemployer Plan,
(iv) any partial or complete withdrawal from a Multiemployer Plan by
the Borrower or any other member of the ERISA Group under Title IV of ERISA (or
assertion thereof), where such withdrawal is likely to result in material
withdrawal liability,
(v) any cessation of operations (by the Borrower or any other
member of the ERISA Group) at a facility in the circumstances described in
Section 4062(e) of ERISA,
(vi) withdrawal by the Borrower or any other member of the ERISA
Group from a Multiple Employer Plan,
(vii) a failure by the Borrower or any other member of the ERISA
Group to make a payment to a Plan required to avoid imposition of a Lien under
Section 302(f) of ERISA,
(viii) the adoption of an amendment to a Plan requiring the provision
of security to such Plan pursuant to Section 307 of ERISA, or
(ix) any change in the actuarial assumptions or funding methods used
for any Plan, where the effect of such change is to materially increase or
materially reduce the unfunded benefit liability or obligation to make periodic
contributions.
7.3.9.2 Notices of Involuntary Termination and Annual Reports. Promptly after
-----------------------------------------------------
receipt thereof, copies of (a) all notices received by the Borrower or any other
member of the ERISA Group of the PBGC's intent to terminate any Plan
administered or maintained by the Borrower or any member of the ERISA Group, or
to have a trustee appointed to administer any such Plan, except when such notice
could not reasonably be expected to result in a Material Adverse Change; and (b)
at the request of the Agent or any Bank each annual report (IRS Form 5500
series) and all accompanying schedules, the most recent actuarial reports, the
most recent financial information concerning the financial status of each Plan
administered or maintained by the Borrower or any other member of the ERISA
Group, and schedules showing the amounts contributed to each such Plan by or on
behalf of the Borrower or any other member of the ERISA Group in which any of
their personnel participate or from which such personnel may derive a benefit,
and each Schedule B (Actuarial Information) to the annual report filed by the
Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
-62-
7.3.9.3 Notice of Voluntary Termination. Promptly upon the filing thereof,
-------------------------------
copies of any Form 5310, or any successor or equivalent form to Form 5310, filed
with the PBGC in connection with the termination of any Plan, except when the
filing thereof could not reasonably be expected to result in a Material Adverse
Change.
8. DEFAULT
-------
8.1 Events of Default.
-----------------
An Event of Default shall mean the occurrence or existence of any one or
more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary, or effected by operation of Law):
8.1.1 Payments Under Loan Documents.
-----------------------------
The Borrower shall fail to pay (i) any principal of any Loan
(including scheduled installments, mandatory prepayments, or payment due at
maturity), any Reimbursement Obligation or Letter of Credit Borrowing when such
principal or other amount is due hereunder or (ii) any interest on any Loan,
Reimbursement Obligation, or Letter of Credit Borrowing or any other amount
owing hereunder or under the other Loan Documents within five (5) Business Days
after such interest or other amount becomes due in accordance with the terms
hereof or thereof;
8.1.2 Breach of Warranty.
------------------
Any representation or warranty made at any time by any of the Loan
Parties herein or by any of the Loan Parties in any other Loan Document, or in
any certificate, other instrument, or statement furnished pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading in
any material respect as of the time it was made or furnished;
8.1.3 Breach of Negative Covenants or Visitation Rights.
-------------------------------------------------
Any of the Loan Parties shall default in the observance or performance
of any covenant contained in Section 7.1.6 or Section 7.2.;
8.1.4 Breach of Other Covenants.
-------------------------
Any of the Loan Parties shall default in the observance or performance
of any other covenant, condition, or provision hereof or of any other Loan
Document and such default shall continue unremedied for a period of fifteen (15)
Business Days after the first of the following to occur: any officer of any Loan
Party becomes or should have become aware of the occurrence thereof or notice
thereof has been provided by Agent or any Bank to Borrower (and, in any event,
such grace period to be applicable only in the event such default can be
remedied by corrective action of the Loan Parties as determined by the Agent in
its sole discretion);
8.1.5 Defaults in Other Agreements or Indebtedness.
--------------------------------------------
A default or event of default shall occur at any time under the terms
of any other agreement involving any other Indebtedness under which any Loan
Party may be obligated as a borrower
-63-
or guarantor in excess of $5,000,000 in the aggregate, and such breach, default,
or event of default consists of the failure to pay (beyond any period of grace
permitted with respect thereto, whether waived or not) any Indebtedness when due
(whether at stated maturity, by acceleration, or otherwise) or if such breach or
default permits or causes the acceleration of any Indebtedness or the
termination of any commitment to lend;
8.1.6 Final Judgments or Orders.
-------------------------
Any final judgments or orders for the payment of money in excess of
$5,000,000 in the aggregate over the amount, if any, that an insurer has
committed to pay under a policy of insurance shall be entered against any Loan
Party by a court having jurisdiction in the premises, which judgment is not
discharged, vacated, bonded, or stayed pending appeal within a period of thirty
(30) days from the date of entry;
8.1.7 Loan Document Unenforceable.
---------------------------
Any of the Loan Documents shall cease to be legal, valid, and binding
agreements enforceable against the party executing the same or such party's
successors and assigns (as permitted under the Loan Documents) in accordance
with the respective terms thereof or shall in any way be terminated (except in
accordance with its terms) or become or be declared ineffective or inoperative
or shall in any way be challenged or contested or cease to give or provide the
respective Liens, security interests, rights, titles, interests, remedies,
powers, or privileges intended to be created thereby;
8.1.8 Proceedings Against Assets.
--------------------------
Any assets having an aggregate value of $5,000,000 or more of any of
the Loan Parties are in the course of any twelve consecutive month period
attached, seized, levied upon, or subjected to a writ or distress warrant or
such come within the possession of any receiver, trustee, custodian, or assignee
for the benefit of creditors and the same is not cured within thirty (30) days
thereafter;
8.1.9 Notice of Lien or Assessment.
----------------------------
A notice of Lien or assessment in excess of $5,000,000 which is not a
Permitted Lien is filed of record with respect to all or any part of any of the
assets of any of the Loan Parties by the United States, or any department,
agency or instrumentality thereof, or by any state, county, municipal, or other
governmental agency, including the PBGC, or any taxes or debts owing at any time
or times hereafter to any one of these becomes payable and the same is not paid
within thirty (30) days after the same becomes payable;
8.1.10 Insolvency.
----------
Any Loan Party ceases to be solvent or admits in writing its inability
to pay its debts as they mature;
8.1.11 Events Relating to Plans and Benefit Arrangements.
-------------------------------------------------
Any of the following occurs: (i) any Reportable Event, which the Agent
determines in good faith constitutes grounds for the termination of any Plan by
the PBGC or the appointment of a trustee to administer or liquidate any Plan,
shall have occurred and be continuing; (ii) proceedings shall
-64-
have been instituted or other action taken to terminate any Plan, or a
termination notice shall have been filed with respect to any Plan; (iii) a
trustee shall be appointed to administer or liquidate any Plan; (iv) the PBGC
shall give notice of its intent to institute proceedings to terminate any Plan
or Plans or to appoint a trustee to administer or liquidate any Plan; and, in
the case of the occurrence of (i), (ii), (iii), or (iv) above, the Agent
determines in good faith that the amount of the Borrower's or PTEK's liability
is likely to exceed 10% of the Consolidated Net Worth of Borrower; (v) the
Borrower or any member of the ERISA Group shall fail to make any contributions
when due to a Plan or a Multiemployer Plan; (vi) the Borrower or any other
member of the ERISA Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vii) the Borrower or any
other member of the ERISA Group shall withdraw completely or partially from a
Multiemployer Plan; (viii) the Borrower or any other member of the ERISA Group
shall withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw)
from a Multiple Employer Plan; or (ix) any applicable Law is adopted, changed,
or interpreted by any Official Body with respect to or otherwise affecting one
or more Plans, Multiemployer Plans, or Benefit Arrangements and, with respect to
any of the events specified in (v), (vi), (vii), (viii), or (ix), the Agent
determines in good faith that any such occurrence would be reasonably likely to
materially and adversely affect the total enterprise represented by the Borrower
and the other members of the ERISA Group;
8.1.12 Cessation of Business.
---------------------
The Loan Parties taken as a whole cease to conduct any material
portion of their business as contemplated, except as expressly permitted under
Section 7.2.6;
8.1.13 Change of Control.
-----------------
(i) Any person or group of persons (within the meaning of Sections
13(d) or 14(a) of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3 promulgated
by the SEC under said Act) 25% or more of the voting capital stock of the
Borrower or PTEK; or (ii) within a period of twelve (12) consecutive calendar
months, individuals who were directors of PTEK on the first day of such period
shall cease to constitute a majority of the board of directors of PTEK.
8.1.14 Material Adverse Changes.
------------------------
Any Material Adverse Change shall occur;
8.1.15 Involuntary Proceedings.
-----------------------
A proceeding shall have been instituted in a court having jurisdiction
in the premises seeking a decree or order for relief in respect of any Loan
Party or any Subsidiary of a Loan Party in an involuntary case under any
applicable bankruptcy, insolvency, reorganization, or other similar law now or
hereafter in effect, or for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or conservator (or similar official) of any
Loan Party or any Subsidiary of a Loan Party for any substantial part of its
property, or for the winding-up or liquidation of its affairs, and such
proceeding shall remain undismissed or unstayed and in effect for a period of
thirty (30) consecutive days or such court shall enter a decree or order
granting any of the relief sought in such proceeding; or
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8.1.16 Voluntary Proceedings.
---------------------
Any Loan Party or any Subsidiary of a Loan Party shall commence a
voluntary case under any applicable bankruptcy, insolvency, reorganization, or
other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to
the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or conservator (or other similar official) of
itself or for any substantial part of its property or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any action in furtherance of any of the
foregoing.
8.2 Consequences of Event of Default.
--------------------------------
8.2.1 Events of Default Other Than Bankruptcy, Insolvency, or Reorganization
----------------------------------------------------------------------
Proceedings.
-----------
If an Event of Default specified under Sections 8.1.1 through 8.1.14
shall occur and be continuing (other than an Event of Default specified in
Section 8.1.10), the Banks and the Agent shall be under no further obligation to
make Convertible Revolving Credit Loans, Swingline Loans or issue Letters of
Credit, as the case may be, and the Agent may, and upon the request of the
Required Banks, shall by written notice to the Borrower, take one or more of the
following actions: (i) terminate the Commitments and thereupon the Commitments
shall be terminated and of no further force and effect, or (ii) declare the
unpaid principal amount of the Loans then outstanding and all interest accrued
thereon, any unpaid fees and all other Indebtedness of the Borrower to the Banks
and the Agent hereunder and thereunder to be forthwith due and payable, and the
same shall thereupon become and be immediately due and payable to the Agent for
the benefit of each Bank without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, and (iii) require
the Borrower to, and the Borrower shall thereupon, deposit in an interest-
bearing account with the Agent, as cash collateral for its Obligations under the
Loan Documents, an amount equal to the maximum amount currently or at any time
thereafter available to be drawn on all outstanding Letters of Credit, and the
Borrower hereby pledges to the Agent and the Banks, and grants to the Agent and
the Banks a security interest in, all such cash, deposit, and account, and the
proceeds thereof, as security for such Obligations. Upon the curing of all
existing Events of Default to the satisfaction of the Required Banks, the Agent
shall return such cash collateral to the Borrower; and
8.2.2 Bankruptcy, Insolvency, or Reorganization Proceedings.
-----------------------------------------------------
If an Event of Default specified under Section 8.1.10 or Sections
8.1.15 or 8.1.16 shall occur, the Commitments shall automatically terminate and
be of no further force and effect, the Banks and the Agent shall be under no
further obligations to make Convertible Revolving Credit Loans hereunder or
issue Letters of Credit, as the case may be, and the unpaid principal amount of
the Loans then outstanding and all interest accrued thereon, any unpaid fees and
all other Indebtedness of the Borrower to the Banks and the Agent hereunder and
thereunder shall be immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived; and the
Borrower shall deposit in an interest-bearing account with the Agent, as cash
collateral for its Obligations under the Loan Documents, an amount equal to the
maximum amount currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, and the Borrower hereby pledges to the Agent and
the Banks, and grants to the Agent and the Banks a security interest in, all
such cash, deposit, and account, and the proceeds thereof, as security for such
Obligations; and
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8.2.3 Set-off.
-------
If an Event of Default shall occur and be continuing and is not
otherwise waived in accordance with the terms hereof, any Bank to whom any
Obligation is owed by any Loan Party hereunder or under any other Loan Document
or any participant of such Bank which has agreed in writing to be bound by the
provisions of Section 9.13 and any branch, Subsidiary, or Affiliate of such Bank
or participant anywhere in the world shall have the right, in addition to all
other rights and remedies available to it, without notice to such Loan Party ,
to set-off against and apply to the then unpaid balance of all the Loans and all
other Obligations of the Borrower and the other Loan Parties hereunder or under
any other Loan Document any debt owing to, and any other funds held in any
manner for the account of, the Borrower or such other Loan Party by such Bank or
participant or by such branch, Subsidiary, or Affiliate, including all funds in
all deposit accounts (whether time or demand, general or special, provisionally
credited or finally credited, or otherwise) now or hereafter maintained by the
Borrower or such other Loan Party for its own account (but not including funds
held in custodian or trust accounts) with such Bank or participant or such
branch, Subsidiary, or Affiliate. Such right shall exist whether or not any Bank
or the Agent shall have made any demand under this Agreement or any other Loan
Document, whether or not such debt owing to or funds held for the account of the
Borrower or such other Loan Party is or are matured or unmatured and regardless
of the existence or adequacy of any Guaranty or any other security, right or
remedy available to any Bank or the Agent; and
8.2.4 Suits, Actions, Proceedings.
---------------------------
If an Event of Default shall occur and be continuing, and whether
or not the Agent shall have accelerated the maturity of Committed Loans pursuant
to any of the foregoing provisions of this Section 8.2, the Agent or any Bank,
if owed any amount with respect to the Loans, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
this Agreement or the other Loan Documents and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of the Agent or such Bank; and
8.2.5 Application of Proceeds.
-----------------------
From and after the date on which the Agent has taken any action
pursuant to this Section 8.2 and until all Obligations of the Loan Parties have
been paid in full, any and all proceeds received by the Agent from the exercise
of any remedy by the Agent, shall be applied as follows:
(i) first, to reimburse the Agent and the Banks for out-of-
pocket costs, expenses, and disbursements, including reasonable attorneys' and
paralegals' fees and legal expenses, incurred by the Agent or the Banks in
connection with collection of any Obligations of any of the Loan Parties under
any of the Loan Documents;
(ii) second, to the repayment of all Indebtedness then due and
unpaid of the Loan Parties to the Banks incurred under this Agreement or any of
the other Loan Documents, whether of principal, interest, fees, expenses, or
otherwise, in such manner as the Agent may determine in its discretion; and
(iii) the balance, if any, as required by Law.
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8.2.6 Other Rights and Remedies.
-------------------------
In addition to all of the rights and remedies contained in this
Agreement or in any of the other Loan Documents, the Agent shall have all of the
rights and remedies under applicable Law, all of which rights and remedies shall
be cumulative and nonexclusive, to the extent permitted by Law. The Agent may,
and upon the request of the Required Banks shall, exercise all post-default
rights granted to the Agent and the Banks under the Loan Documents or applicable
Law.
8.3 Notice of Sale.
--------------
Any notice required to be given by the Agent of a sale, lease, or
other disposition of the Collateral or any other intended action by the Agent,
if given ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice thereof to the Borrower.
9. THE AGENT
---------
9.1 Appointment.
-----------
Each Bank hereby irrevocably designates, appoints, and authorizes ABN
AMRO to act as Agent for such Bank under this Agreement and to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents. Each
Bank hereby irrevocably authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and any
other instruments and agreements referred to herein, and to exercise such powers
and to perform such duties hereunder as are specifically delegated to or
required of the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. ABN AMRO Bank N.V. agrees to act as the Agent on
behalf of the Banks to the extent provided in this Agreement.
9.2 Delegation of Duties.
--------------------
The Agent may perform any of its duties hereunder by or through agents
or employees (provided such delegation does not constitute a relinquishment of
--------
its duties as Agent) and, subject to Sections 9.5 and 9.6, shall be entitled to
engage and pay for the advice or services of any attorneys, accountants, or
other experts concerning all matters pertaining to its duties hereunder and to
rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation.
--------------------------------------------------
The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Agreement, express or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to the Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties. Each
Bank expressly acknowledges (i) that the
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Agent has not made any representations or warranties to it and that no act by
the Agent hereafter taken, including any review of the affairs of any of the
Loan Parties, shall be deemed to constitute any representation or warranty by
the Agent to any Bank; (ii) that it has made and will continue to make, without
reliance upon the Agent, its own independent investigation of the financial
condition and affairs and its own appraisal of the creditworthiness of each of
the Loan Parties in connection with this Agreement and the making and
continuance of the Loans hereunder; and (iii) except as expressly provided
herein, that the Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank with any credit or other information
with respect thereto, whether coming into its possession before the making of
any Loan or at any time or times thereafter.
9.4 Actions in Discretion of Agent; Instructions From the Banks.
-----------------------------------------------------------
The Agent agrees, upon the written request of the Required Banks, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers, or discretion herein, provided that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Banks, the Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
9.6. Subject to the provisions of Section 9.6, no Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks, or in the absence of such instructions, in the absolute
discretion of the Agent.
9.5 Reimbursement and Indemnification of Agent by the Borrower.
----------------------------------------------------------
The Borrower unconditionally agrees to pay or reimburse the Agent and
hold the Agent harmless against (a) liability for the payment of all reasonable
out-of-pocket costs, expenses, and disbursements, including fees and expenses of
counsel (including the allocated costs of staff counsel), and, after the
occurrence of an Event of Default, of appraisers and environmental consultants,
incurred by the Agent (i) in connection with the development, negotiation,
preparation, printing, execution, administration, syndication, interpretation,
and performance of this Agreement and the other Loan Documents, (ii) relating to
any requested amendments, waivers, or consents pursuant to the provisions
hereof, (iii) in connection with the enforcement of this Agreement or any other
Loan Document or collection of amounts due hereunder or thereunder or the proof
and allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise, and
(iv) in any workout or restructuring or in connection with the protection,
preservation, exercise, or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection, or bankruptcy proceedings, and (b) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, provided that
--------
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements if the same results from the Agent's gross negligence
or willful misconduct, or if the Borrower was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that the Borrower shall remain liable to the extent such failure to give
notice does not result in a loss to the Borrower), or if
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the same results from a compromise or settlement agreement entered into without
the consent of the Borrower, which shall not be unreasonably withheld. In
addition, the Borrower agrees to reimburse and pay all reasonable out-of-pocket
expenses of the Agent's regular employees and agents engaged periodically to
perform audits of the Loan Parties books, records and business properties;
provided, however, that prior to the occurrence of an Event of Default
Borrower's obligation to reimburse Agent for audits shall be limited to one
audit in any twelve consecutive month period.
9.6 Exculpatory Provisions; Limitation of Liability.
-----------------------------------------------
Neither the Agent nor any of its directors, officers, employees,
agents, attorneys, or Affiliates shall (a) be liable to any Bank for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith
including pursuant to any Loan Document, unless caused by its or their own gross
negligence or willful misconduct, (b) be responsible in any manner to any of the
Banks for the effectiveness, enforceability, genuineness, validity, or the due
execution of this Agreement or any other Loan Documents or for any recital,
representation, warranty, document, certificate, report, or statement herein or
made or furnished under or in connection with this Agreement or any other Loan
Documents, or (c) be under any obligation to any of the Banks to ascertain or to
inquire as to the performance or observance of any of the terms, covenants, or
conditions hereof or thereof on the part of the Loan Parties, or the financial
condition of the Loan Parties, or the existence or possible existence of any
Event of Default or Potential Default. No claim may be made by any of the Loan
Parties, any Bank, the Agent, or any of their respective Subsidiaries against
the Agent, any Bank, or any of their respective directors, officers, employees,
agents, attorneys, or Affiliates, or any of them, for any special, indirect, or
consequential damages or, to the fullest extent permitted by Law, for any
punitive damages in respect of any claim or cause of action (whether based on
contract, tort, statutory liability, or any other ground) based on, arising out
of, or related to any Loan Document or the transactions contemplated hereby or
any act, omission, or event occurring in connection therewith, including the
negotiation, documentation, administration, or collection of the Loans, and each
of the Loan Parties (for itself and on behalf of each of its Subsidiaries), the
Agent and each Bank hereby waive, release and agree never to ▇▇▇ upon any claim
for any such damages, whether such claim now exists or hereafter arises and
whether or not it is now known or suspected to exist in its favor. Each Bank
agrees that, except for notices, reports, and other documents expressly required
to be furnished to the Banks by the Agent hereunder or given to the Agent for
the account of or with copies for the Banks, the Agent and each of its
directors, officers, employees, agents, attorneys or Affiliates shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects, or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its directors, officers, employees,
agents, attorneys, or Affiliates.
9.7 Reimbursement and Indemnification of Agent by Banks.
---------------------------------------------------
Each Bank agrees to reimburse and indemnify the Agent (to the extent
not reimbursed by the Borrower and without limiting the Obligation of the
Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements, including attorneys' fees and disbursements
(including the allocated costs of staff counsel), and costs of appraisers and
environmental consultants, of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, provided that
--------
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
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disbursements (a) if the same results from the Agent's gross negligence or
willful misconduct, or (b) if such Bank was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that such Bank shall remain liable to the extent such failure to give
notice does not result in a loss to the Bank), or (c) if the same results from a
compromise and settlement agreement entered into without the consent of such
Bank, which shall not be unreasonably withheld. In addition, each Bank agrees
promptly upon demand to reimburse the Agent (to the extent not reimbursed by the
Borrower and without limiting the Obligation of the Borrower to do so) in
proportion to its Ratable Share for all amounts due and payable by the Borrower
to the Agent in connection with the Agent's periodic audit of the Loan Parties'
books, records, and business properties.
9.8 Reliance by Agent.
-----------------
The Agent shall be entitled to rely upon any writing, telegram,
telecopy, email, telex, or teletype message, resolution, notice, consent,
certificate, letter, cablegram, statement, order, or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent, or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Agent. The Agent shall be fully justified in failing or refusing to take any
action hereunder unless it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
9.9 Notice of Default.
-----------------
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default unless the Agent has
received written notice from a Bank or the Borrower referring to this Agreement,
describing such Potential Default or Event of Default and stating that such
notice is a "notice of default."
9.10 Notices.
-------
The Agent shall promptly send to each Bank a copy of all notices
received from the Borrower pursuant to the provisions of this Agreement or the
other Loan Documents promptly upon receipt thereof. The Agent shall promptly
notify the Borrower and the other Banks of each change in the Base Rate and the
effective date thereof.
9.11 Banks in Their Individual Capacities.
------------------------------------
With respect to its Convertible Revolving Credit Commitment and the
Convertible Revolving Credit Loans made by it and any other rights and powers
given to it as a Bank hereunder or under any of the other Loan Documents, the
Agent shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not the Agent, and the term "Banks" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. ABN AMRO Bank and its Affiliates and each of the Banks and their
respective Affiliates may, without liability to account, except as prohibited
herein, make loans to, accept deposits from, discount drafts for, act as trustee
under indentures of, and generally engage in any kind of banking or trust
business with, the Loan Parties and their Affiliates, in the case of the Agent,
as though it were not acting as Agent hereunder and in the case of each Bank, as
though such Bank were not a Bank hereunder. The Banks acknowledge that, pursuant
to such activities, the Agent or its Affiliates may (i) receive information
regarding the Loan Parties
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(including information that may be subject to confidentiality obligations in
favor of the Loan Parties) and acknowledge that the Agent shall be under no
obligation to provide such information to them, and (ii) accept fees and other
consideration from the Loan Parties for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
9.12 Holders of Notes.
----------------
The Agent may deem and treat any payee of any Note as the owner
thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority, or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, or assignee of such
Note or of any Note or Notes issued in exchange therefor.
9.13 Equalization of Banks.
---------------------
The Banks and the holders of any participations in any Commitments or
Loans or other rights or obligations of a Bank hereunder agree among themselves
that, with respect to all amounts received by any Bank or any such holder for
application on any Obligation hereunder or under any such participation, whether
received by voluntary payment, by realization upon security, by the exercise of
the right of set-off or banker's lien, by counterclaim, or by any other non-pro
rata source, equitable adjustment will be made in the manner stated in the
following sentence so that, in effect, all such excess amounts will be shared
ratably among the Banks and such holders in proportion to their interests in
payments on the Loans, except as otherwise provided in Section 3.4.3, 4.4.2 or
4.6 . The Banks or any such holder receiving any such amount shall purchase for
cash from each of the other Banks an interest in such Bank's Loans in such
amount as shall result in a ratable participation by the Banks and each such
holder in the aggregate unpaid amount of the Loans, provided that if all or any
--------
portion of such excess amount is thereafter recovered from the Bank or the
holder making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by law (including court order) to be paid by the Bank
or the holder making such purchase.
9.14 Successor Agent.
---------------
The Agent (i) may resign as Agent or (ii) shall resign if such
resignation is requested by the Required Banks (if the Agent is a Bank, the
Agent's Loans and its Commitment shall be considered in determining whether the
Required Banks have requested such resignation) or required by Section 4.4.2, in
either case of (i) or (ii) by giving not less than thirty (30) days' prior
written notice to the Borrower. If the Agent shall resign under this Agreement,
then either (a) the Required Banks shall appoint from among the Banks a
successor agent for the Banks, subject to the consent of the Borrower, such
consent not to be unreasonably withheld, or (b) if a successor agent shall not
be so appointed and approved within the thirty (30) day period following the
Agent's notice to the Banks of its resignation, then the Agent shall appoint,
with the consent of the Borrower, such consent not to be unreasonably withheld,
a successor agent who shall serve as Agent until such time as the Required Banks
appoint and the Borrower consents to the appointment of a successor agent. Upon
its appointment pursuant to either clause (a) or (b) above, such successor agent
shall succeed to the rights, powers, and duties of the Agent, and the term
"Agent" shall mean such successor agent, effective upon its appointment, and the
former Agent's rights, powers, and duties as Agent shall be terminated without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After the resignation of any
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Agent hereunder, the provisions of this Section 9 shall inure to the benefit of
such former Agent and such former Agent shall not by reason of such resignation
be deemed to be released from liability for any actions taken or not taken by it
while it was an Agent under this Agreement.
9.15 Agent's Fee.
-----------
The Borrower shall pay to the Agent a nonrefundable fee (the "Agent's
Fee") for Agent's services hereunder, and such other fees and expenses, pursuant
to the terms of a letter, dated as of September 28, 2000 (the "Agent's Letter"),
between the Borrower and Agent, as amended from time to time.
9.16 Availability of Funds.
---------------------
The Agent may assume that each Bank has made or will make the proceeds
of a Loan available to the Agent unless the Agent shall have been notified by
such Bank on or before the later of (i) the close of Business on the Business
Day preceding the Borrowing Date with respect to such Loan, or (ii) two (2)
hours before the time on which the Agent actually funds the proceeds of such
Loan to the Borrower (whether using its own funds pursuant to this Section 9.16
or using proceeds deposited with the Agent by the Banks and whether such funding
occurs before or after the time on which Banks are required to deposit the
proceeds of such Loan with the Agent). The Agent may, in reliance upon such
assumption (but shall not be required to), make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent by such Bank, the Agent shall be entitled to recover such amount on
demand from such Bank (or, if such Bank fails to pay such amount forthwith upon
such demand from the Borrower) together with interest thereon, in respect of
each day during the period commencing on the date such amount was made available
to the Borrower and ending on the date the Agent recovers such amount, at a rate
per annum equal to (i) the Federal Funds Effective Rate during the first three
(3) days after such interest shall begin to accrue and (ii) the applicable
interest rate in respect of such Loan after the end of such three-day period.
9.17 Calculations.
------------
In the absence of gross negligence or willful misconduct, the Agent
shall not be liable for any error in computing the amount payable to any Bank
whether in respect of the Loans, fees, or any other amounts due to the Banks
under this Agreement. In the event an error in computing any amount payable to
any Bank is made, the Agent, the Borrower and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
9.18 Beneficiaries.
-------------
Except as expressly provided herein, the provisions of this Section 9
are solely for the benefit of the Agent and the Banks, and the Loan Parties
shall not have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for any
of the Loan Parties.
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10. MISCELLANEOUS
-------------
10.1 Modifications, Amendments, or Waivers.
-------------------------------------
Provided that there exists no Event of Default or Potential Default
and subject to the satisfaction of all other conditions hereof pertaining to the
making of additional Loans, the Agent may consent (which shall not be
unreasonably withheld) from time to time to one or more written requests of
Borrower to increase (by principal increments not less than $5,000,000) the
principal amount of the Convertible Revolving Credit Commitments up to a total
aggregate amount not to exceed $50,000,000 by the addition of additional
financial institutions as Banks hereunder (and in no event by an increase of any
Bank's Convertible Revolving Credit Commitment without such Bank's written
agreement thereto) whereupon each such increase shall be effective upon (i) each
such financial institution joining this Agreement as a Bank hereunder by
executing an assumption and joinder agreement substantially similar to an
Assignment and Assumption Agreement, (ii) Borrower providing appropriate
promissory notes to each such additional financial institution and such other
documents as Agent or such financial institutions may reasonably request, and
(iii) Agent issuing a new Schedule 1.1(B) showing the Commitments of all Banks,
---------------
including such additional financial institutions; and, each Loan Party and each
Bank hereby consents to each such increase at any time or times.
With the written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and the Borrower, on behalf of the Loan Parties, may
from time to time enter into written agreements amending or changing any
provision of this Agreement or any other Loan Document or the rights of the
Banks or the Loan Parties hereunder or thereunder, or may grant written waivers
or consents to a departure from the due performance of the Obligations of the
Loan Parties hereunder or thereunder. Any such agreement, waiver, or consent
made with such written consent shall be effective to bind all the Banks and the
Loan Parties; provided, that, without the written consent of all the Banks, no
--------
such agreement, waiver, or consent may be made which will:
10.1.1 Increase of Commitment; Extension or Expiration Date.
----------------------------------------------------
Increase the amount of the Convertible Revolving Credit Commitment or
Swingline Commitment of any Bank hereunder or extend the Convertible Revolving
Credit Expiration Date;
10.1.2 Extension of Payment; Reduction of Principal Interest or Fees;
--------------------------------------------------------------
Modification of Terms of Payment.
--------------------------------
Whether or not any Loans are outstanding, extend the time for payment
of principal or interest of any Loan, the Commitment Fee or any other fee
payable to any Bank, or reduce the principal amount of or the rate of interest
borne by any Loan or reduce the Commitment Fee or any other fee payable to any
Bank, or otherwise affect the terms of payment of the principal of or interest
of any Loan, the Commitment Fee or any other fee payable to any Bank;
10.1.3 Release of Collateral or Guarantor.
----------------------------------
Except for sales of assets permitted by Section 7.2.7, release any
Collateral consisting of capital stock or other ownership interests of any Loan
Party or its Subsidiary or substantially all of the assets of any Loan Party,
any Guarantor from its Obligations under the Guaranty Agreement or any other
security for any of the Loan Parties' Obligations Agreements; or
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10.1.4 Miscellaneous.
-------------
Amend Section 4.2, 9.6 or 9.13 or this Section 10.1, alter any
provision regarding the pro rata treatment of the Banks, change the definition
of Required Banks, or change any requirement providing for the Banks or the
Required Banks to authorize the taking of any action hereunder;
provided, further, that no agreement, waiver or consent which would modify the
-------- -------
interests, rights or obligations of the Agent in its capacity as Agent or as the
issuer of Letters of Credit shall be effective without the written consent of
the Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.
---------------------------------------------------------
No course of dealing and no delay or failure of the Agent or any Bank
in exercising any right, power, remedy, or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy,
or privilege preclude any further exercise thereof or of any other right, power,
remedy, or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent, or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes.
-----------------------------------------------------------------
The Borrower agrees unconditionally upon demand to pay or reimburse to
each Bank (other than the Agent, as to which the Borrower's Obligations are set
forth in Section 9.5), and to save such Bank harmless against (i) liability for
the payment of all reasonable out-of-pocket costs, expenses, and disbursements
(including fees and expenses of counsel (including allocated costs of staff
counsel) for each Bank except with respect to (a) and (b) below), incurred by
such Bank (a) in connection with the administration and interpretation of this
Agreement, and other instruments and documents to be delivered hereunder, (b)
relating to any amendments, waivers, or consents pursuant to the provisions
hereof, (c) in connection with the enforcement of this Agreement or any other
Loan Document, or collection of amounts due hereunder or thereunder or the proof
and allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise, and
(d) in any workout or restructuring or in connection with the protection,
preservation, exercise, or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection, or bankruptcy proceedings, or (ii) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against such Bank, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by such Bank hereunder or thereunder, provided that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements (A) if the same results from such Bank's gross
negligence or willful misconduct, or (B) if the Borrower was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that the Borrower shall remain liable to the extent such
failure to give notice does not result in a loss to the Borrower) and, in this
connection, so long as no Event of Default or Potential Default has occurred and
is continuing, the
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Borrower and each such affected Bank shall endeavor to cooperate in the defense
of any such claim, or (C) if the same results from a compromise or settlement
agreement entered into without the consent of the Borrower, which shall not be
unreasonably withheld. The Banks will attempt to minimize the fees and expenses
of legal counsel for the Banks which are subject to reimbursement by the
Borrower hereunder by considering the usage of one law firm to represent the
Banks and the Agent if appropriate under the circumstances. The Borrower agrees
unconditionally to pay all stamp, document, transfer, recording or filing taxes
or fees and similar impositions now or hereafter determined by the Agent or any
Bank to be payable in connection with this Agreement or any other Loan Document,
and the Borrower agrees unconditionally to save the Agent and the Banks harmless
from and against any and all present or future claims, liabilities, or losses
with respect to or resulting from any omission to pay or delay in paying any
such taxes, fees, or impositions.
10.4 Holidays.
--------
Whenever payment of a Loan to be made or taken hereunder shall be due on a
day which is not a Business Day such payment shall be due on the next Business
Day and such extension of time shall be included in computing interest and fees,
except that the Loans shall be due on the Business Day preceding the Convertible
Revolving Credit Expiration Date, as applicable, if the relevant expiration date
is not a Business Day. Whenever any payment or action to be made or taken
hereunder (other than payment of the Loans) shall be stated to be due on a day
which is not a Business Day, such payment or action shall be made or taken on
the next following Business Day (except as provided in Section 3.2 with respect
to Interest Periods under the Euro-Rate Option), and such extension of time
shall not be included in computing interest or fees, if any, in connection with
such payment or action.
10.5 Funding by Branch, Subsidiary, or Affiliate.
-------------------------------------------
10.5.1 Notional Funding.
----------------
Each Bank shall have the right from time to time, without notice
to the Borrower, to deem any branch, Subsidiary, or Affiliate (which for the
purposes of this Section 10.5 shall mean any corporation or association which is
directly or indirectly controlled by or is under direct or indirect common
control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained, or funded any Loan to
which the Euro-Rate Option applies at any time, provided that immediately
--------
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial obligation pursuant to Section 4.6 than it would
have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to such Bank's actual methods of making,
maintaining, or funding the Loans or any sources of funding actually used by or
available to such Bank.
10.5.2 Actual Funding.
--------------
Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary, or Affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this Section
10.5.2. If any Bank causes a branch, Subsidiary, or Affiliate to make or
maintain any part of the Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Loans to the same extent as if such Loans were
made or maintained by such Bank, but in no event shall any Bank's use of such a
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branch, Subsidiary, or Affiliate to make or maintain any part of the Loans
hereunder cause such Bank or such branch, Subsidiary, or Affiliate to incur any
cost or expenses payable by the Borrower hereunder or require the Borrower to
pay any other compensation to any Bank (including any expenses incurred or
payable pursuant to Section 4.6 ) which would otherwise not be incurred.
10.6 Notices.
-------
All notices, requests, demands, directions, and other communications (as
used in this Section 10.6, collectively referred to as "notices") given to or
made upon any party hereto under the provisions of this Agreement shall be by
telephone or in writing (including telex or facsimile communication) unless
otherwise expressly permitted hereunder and shall be delivered or sent by telex
or facsimile to the respective parties at the addresses and numbers set forth
under their respective names on Schedule 1.1(B) hereof or in accordance with any
---------------
subsequent unrevoked written direction from any party to the others. All
notices shall, except as otherwise expressly herein provided, be effective (a)
in the case of telex or facsimile, when received, (b) in the case of hand-
delivered notice, when hand-delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective, telephonic notices
--------
must be confirmed in writing no later than the next day by letter, facsimile, or
telex, (d) if given by mail, four (4) days after such communication is deposited
in the mail with first-class postage prepaid, return receipt requested, and (e)
if given by any other means (including by air courier), when delivered;
provided, that notices to the Agent shall not be effective until received. Any
--------
Bank giving any notice to any Loan Party shall simultaneously send a copy
thereof to the Agent, and the Agent shall promptly notify the other Banks of the
receipt by it of any such notice.
10.7 Severability.
------------
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
10.8 Governing Law.
-------------
Each Letter of Credit and Section 2.5 shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be revised or amended
from time to time, and to the extent not inconsistent therewith, the internal
laws of the State of New York without regard to its conflict of laws principles,
and the balance of this Agreement shall be deemed to be a contract under the
Laws of the State of New York and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to its conflict of laws principles.
10.9 Prior Understanding.
-------------------
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments.
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10.10 Duration; Survival.
------------------
All representations and warranties of the Loan Parties contained herein
or made in connection herewith shall survive the making of Loans and issuance of
Letters of Credit and shall not be waived by the execution and delivery of this
Agreement, any investigation by the Agent or the Banks, the making of Loans,
issuance of Letters of Credit, or payment in full of the Loans. All covenants
and agreements of the Loan Parties contained in Sections 7.1, 7.1.10, and 0
herein shall continue in full force and effect from and after the date hereof so
long as the Borrower may borrow or request Letters of Credit hereunder and until
termination of the Commitments and payment in full of the Loans and expiration
or termination of all Letters of Credit. All covenants and agreements of the
Borrower contained herein relating to the payment of principal, interest,
premiums, additional compensation or expenses, and indemnification, including
those set forth in Section 4 and Sections 9.5, 9.7, and 10.3, shall survive
payment in full of the Loans, expiration or termination of the Letters of Credit
and termination of the Commitments.
10.11 Successors and Assigns.
----------------------
(i) This Agreement shall be binding upon and shall inure to the
benefit of the Banks, the Agent, the Loan Parties, and their respective
successors and assigns, except that none of the Loan Parties may assign or
transfer any of its rights and Obligations hereunder or any interest herein.
Each Bank may, at its own cost, make assignments of or sell participations in
all or any part of its Convertible Revolving Credit Commitments and the Loans
made by it to one or more banks or other entities, subject to the consent of the
Borrower and the Agent with respect to any assignee, such consent not to be
unreasonably withheld provided that (1) no consent of the Borrower shall be
--------
required (A) if an Event of Default exists and is continuing, or (B) in the case
of an assignment by a Bank to an Affiliate of such Bank or to another Bank, (2)
any assignment by a Bank to a Person other than an Affiliate of such Bank may
not be made in amounts less than the lesser of $2,000,000 or the amount of the
assigning Bank's Commitment, and (3) a Bank may assign an interest or sell a
participation in less than 100% of its Commitments or Loans, provided that such
--------
Bank sells an equal percentage interest or participation in each of its
Convertible Revolving Credit Commitment and the Loans. In the case of an
assignment, upon receipt by the Agent of the Assignment and Assumption
Agreement, the assignee shall have, to the extent of such assignment (unless
otherwise provided therein), the same rights, benefits, and obligations as it
would have if it had been a signatory Bank hereunder, the Commitments shall be
adjusted accordingly, and upon surrender of any Convertible Revolving Credit
Note subject to such assignment, the Borrower shall execute and deliver a new
Convertible Revolving Credit Note to the assignee, if such assignee requests
such a Note in an amount equal to the amount of the Convertible Revolving Credit
Commitment assumed by it and a new Convertible Revolving Credit Note to the
assigning Bank, if the assigning Bank requests such a Note, in an amount equal
to the Convertible Revolving Credit Commitment retained by it hereunder. Any
Bank which assigns any or all of its Commitment or Loans to a Person other than
an Affiliate of such Bank shall pay to the Agent a service fee in the amount of
$3,500 for each assignment. In the case of a participation, the participant
shall only have the rights specified in Section 8.2.3 (the participant's rights
against such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto and
not to include any voting rights except with respect to changes of the type
referenced in Sections 10.1.1, 10.1.2, or 10.1.3), all of such Bank's
obligations under this Agreement or any other Loan Document shall remain
unchanged, and all amounts payable by any Loan Party hereunder or thereunder
shall be determined as if such Bank had not sold such participation.
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(ii) Any assignee or participant which is not incorporated under the
Laws of the United States of America or a state thereof shall deliver to the
Borrower and the Agent the form of certificate described in Section 10.17
relating to federal income tax withholding. Each Bank may furnish any publicly
available information concerning any Loan Party or its Subsidiaries and any
other information concerning any Loan Party or its Subsidiaries in the
possession of such Bank from time to time to assignees and participants
(including prospective assignees or participants), provided that such assignees
--------
and participants agree to be bound by the provisions of Section 10.12.
(iii) Notwithstanding any other provision in this Agreement, any Bank
may at any time pledge or grant a security interest in all or any portion of its
rights under this Agreement, its Note (if any) and the other Loan Documents to
any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14 without notice to or consent of the
Borrower or the Agent. No such pledge or grant of a security interest shall
release the transferor Bank of its obligations hereunder or under any other Loan
Document.
10.12 Confidentiality.
---------------
10.12.1 General.
-------
The Agent and the Banks each agree to keep confidential all
information obtained from any Loan Party or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates as confidential), except as provided below in
this Section 10.12.1 and Section 10.12.3, and to use such information only in
connection with their respective capacities under this Agreement and for the
purposes contemplated hereby. The Agent and the Banks shall be permitted to
disclose such information (i) to outside legal counsel, accountants and other
professional advisors who need to know such information in connection with the
administration and enforcement of this Agreement, subject to agreement of such
Persons to maintain the confidentiality, (ii) to assignees and participants as
contemplated by Section 10.11, (iii) to the extent requested by any bank
regulatory authority or, with notice to the Borrower, as otherwise required by
applicable Law or by any subpoena or similar legal process, or in connection
with any investigation or proceeding arising out of the transactions
contemplated by this Agreement, (iv) if it becomes publicly available other than
as a result of a breach of this Agreement or becomes available from a source not
known to be subject to confidentiality restrictions, or (v) if the Borrower
shall have consented to such disclosure.
10.12.2 Sharing Information With Affiliates of the Banks.
------------------------------------------------
Each Loan Party acknowledges that from time to time financial
advisory, investment banking, and other services may be offered or provided to
the Borrower or one or more of its Affiliates (in connection with this Agreement
or otherwise) by any Bank or by one or more Subsidiaries or Affiliates of such
Bank and each of the Loan Parties hereby authorizes each Bank to share any
information delivered to such Bank by such Loan Party and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Bank to
enter into this Agreement, to any such Subsidiary or Affiliate of such Bank, it
being understood that any such Subsidiary or Affiliate of any Bank receiving
such information shall be bound by the provisions of Section 10.12.1 as if it
were a Bank hereunder. Such Authorization shall survive the repayment of the
Loans and other Obligations and the termination of the Commitments.
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10.12.3 Announcements.
-------------
Each of the Borrower, PTEK, Agent, and each Bank may issue a press
release or other announcement concerning the transaction evidenced hereby
subject, in the case of a release or announcement by Borrower or PTEK, to the
consent of Agent and subject, in the case of a release or announcement by Agent
or any Bank, to the consent of PTEK; in each case, such consent is not to be
unreasonably withheld.
10.13 Counterparts.
------------
This Agreement may be executed by different parties hereto on any number
of separate counterparts, each of which, when so executed and delivered, shall
be an original, and all such counterparts shall together constitute one and the
same instrument.
10.14 Agent's or Bank's Consent.
-------------------------
Except as otherwise expressly set forth herein, whenever the Agent's or
any Bank's consent is required to be obtained under this Agreement or any of the
other Loan Documents as a condition to any action, inaction, condition, or
event, the Agent and each Bank shall be authorized to give or withhold such
consent in its sole and absolute discretion and to condition its consent upon
the giving of additional collateral, the payment of money, or any other matter.
10.15 Exceptions.
----------
The representations, warranties, and covenants contained herein shall be
independent of each other, and no exception to any representation, warranty, or
covenant shall be deemed to be an exception to any other representation,
warranty, or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
--------------------------------------
EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF NEW YORK COUNTY AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH LOAN PARTY AT
THE ADDRESSES PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH LOAN PARTY WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE. EACH LOAN PARTY, THE AGENT AND THE BANKS HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR THE
COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.
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10.17 Tax Withholding Clause.
----------------------
Each Bank or assignee or participant of a Bank that is not incorporated
under the Laws of the United States of America or a state thereof agrees that it
will deliver to each of the Borrower and the Agent two (2) duly completed copies
of the following: (i) Internal Revenue Service Form W-9, 4224, or 1001, or
other applicable form prescribed by the Internal Revenue Service, certifying
that such Bank, assignee, or participant is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or withholding of
any United States federal income taxes, or is subject to such tax at a reduced
rate under an applicable tax treaty, or (ii) Internal Revenue Service Form W-8
or other applicable form or a certificate of such Bank, assignee, or participant
indicating that no such exemption or reduced rate is allowable with respect to
such payments. Each Bank, assignee, or participant required to deliver to the
Borrower and the Agent a form or certificate pursuant to the preceding sentence
shall deliver such form or certificate as follows: (A) each Bank which is a
party hereto on the Closing Date shall deliver such form or certificate at least
five (5) Business Days prior to the first date on which any interest or fees are
payable by the Borrower hereunder for the account of such Bank; (B) each
assignee or participant shall deliver such form or certificate at least five (5)
Business Days before the effective date of such assignment or participation
(unless the Agent in its sole discretion shall permit such assignee or
participant to deliver such form or certificate less than five (5) Business Days
before such date in which case it shall be due on the date specified by the
Agent). Each Bank, assignee, or participant which so delivers a Form W-8, W-9,
4224, or 1001 further undertakes to deliver to each of the Borrower and the
Agent two (2) additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, either certifying that such Bank,
assignee or participant is entitled to receive payments under this Agreement and
the other Loan Documents without deduction or withholding of any United States
federal income taxes or is subject to such tax at a reduced rate under an
applicable tax treaty or stating that no such exemption or reduced rate is
allowable. The Agent shall be entitled to withhold United States federal income
taxes at the full withholding rate unless the Bank, assignee, or participant
establishes an exemption or that it is subject to a reduced rate as established
pursuant to the above provisions.
10.18 Joinder of Guarantors.
---------------------
Any Subsidiary of the Borrower which is required to join this Agreement
as a Guarantor pursuant to Section 7.2.12 or Section 7.2.5(ii) shall execute and
deliver to the Agent (i) a Guarantor Joinder in substantially the form attached
hereto as Exhibit 1.1(G)(1) pursuant to which it shall join as a Guarantor each
-----------------
of the documents to which the Guarantors are parties; and (ii) documents in the
forms described in Section 6.1 modified as appropriate to relate to such
Subsidiary. The Loan Parties shall deliver such Guarantor Joinder and related
documents to the Agent within five (5) Business Days after the date of the
filing of such Subsidiary's articles of incorporation if the Subsidiary is a
corporation, the date of the filing of its certificate of limited partnership if
it is a limited partnership, or the date of its organization if it is an entity
other than a limited partnership or corporation.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE 1 OF 2 OF CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
BORROWER:
XPEDITE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
GUARANTORS:
PTEK HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
XPEDITE SYSTEMS WORLDWIDE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
VOICE-TEL ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
AMERICAN TELECONFERENCING SERVICES, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
[SIGNATURE PAGE 2 OF 2 OF CREDIT AGREEMENT]
ABN AMRO BANK N.V., individually and as
syndication documentation and administrative agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (SEAL)
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (SEAL)
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President