Exhibit 10.1
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF JANUARY 3, 2006
AMONG
THE BISYS GROUP, INC.,
AS BORROWER,
THE LENDERS PARTY HERETO,
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AND
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT
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SUNTRUST CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND BOOK RUNNER
▇▇▇▇▇▇ & BIRD LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS.......................................................... 1
SECTION 1.1 DEFINED TERMS.................................................. 1
SECTION 1.2 CLASSIFICATION OF LOANS AND BORROWINGS......................... 21
SECTION 1.3 TERMS GENERALLY................................................ 21
SECTION 1.4 ACCOUNTING TERMS; GAAP......................................... 21
ARTICLE 2. THE CREDITS........................................................ 22
SECTION 2.1 COMMITMENTS.................................................... 22
SECTION 2.2 LOANS AND BORROWINGS........................................... 22
SECTION 2.3 REQUESTS FOR REVOLVING AND TERM BORROWINGS..................... 23
SECTION 2.4 INTENTIONALLY DELETED.......................................... 24
SECTION 2.5 INTENTIONALLY DELETED.......................................... 24
SECTION 2.6 FUNDING OF BORROWINGS.......................................... 24
SECTION 2.7 TERMINATION, REDUCTION AND INCREASE OF REVOLVING COMMITMENTS... 25
SECTION 2.8 REPAYMENT OF LOANS; EVIDENCE OF DEBT........................... 25
SECTION 2.9 PREPAYMENT OF LOANS............................................ 26
SECTION 2.10 LETTERS OF CREDIT.............................................. 28
SECTION 2.11 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS..... 32
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC................................ 34
SECTION 3.1 INTEREST....................................................... 34
SECTION 3.2 INTEREST ELECTIONS............................................. 35
SECTION 3.3 FEES........................................................... 36
SECTION 3.4 ALTERNATE RATE OF INTEREST..................................... 37
SECTION 3.5 INCREASED COSTS; ILLEGALITY.................................... 38
SECTION 3.6 BREAK FUNDING PAYMENTS......................................... 39
SECTION 3.7 TAXES.......................................................... 40
SECTION 3.8 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS................. 41
ARTICLE 4. REPRESENTATIONS AND WARRANTIES....................................... 42
SECTION 4.1 ORGANIZATION; POWERS........................................... 42
SECTION 4.2 AUTHORIZATION; ENFORCEABILITY.................................. 42
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS........................... 42
SECTION 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE................ 43
SECTION 4.5 PROPERTIES..................................................... 43
SECTION 4.6 LITIGATION AND ENVIRONMENTAL MATTERS........................... 43
SECTION 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS............................ 44
SECTION 4.8 INVESTMENT AND HOLDING COMPANY STATUS.......................... 44
SECTION 4.9 TAXES.......................................................... 44
SECTION 4.10 ERISA.......................................................... 45
SECTION 4.11 DISCLOSURE..................................................... 45
SECTION 4.12 SUBSIDIARIES................................................... 45
SECTION 4.13 INSURANCE...................................................... 45
SECTION 4.14 LABOR MATTERS.................................................. 46
SECTION 4.15 SOLVENCY....................................................... 46
SECTION 4.16 FEDERAL RESERVE REGULATIONS.................................... 46
SECTION 4.17 THE SECURITY DOCUMENTS......................................... 47
SECTION 4.18 SUBORDINATED NOTES............................................. 47
ARTICLE 5. CONDITIONS........................................................... 47
SECTION 5.1 CLOSING DATE................................................... 47
TABLE OF CONTENTS
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SECTION 5.2 CONDITIONS TO EXTENSIONS OF CREDIT IN CONNECTION WITH
ACQUISITIONS PERMITTED UNDER SECTION 7.4(L) OF THIS CREDIT
AGREEMENT................................................... 50
SECTION 5.3 EACH CREDIT EVENT.............................................. 51
SECTION 5.4 TERM LOAN FUNDING DATE......................................... 51
ARTICLE 6. AFFIRMATIVE COVENANTS................................................ 52
SECTION 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION..................... 52
SECTION 6.2 NOTICES OF MATERIAL EVENTS..................................... 54
SECTION 6.3 EXISTENCE; CONDUCT OF BUSINESS................................. 54
SECTION 6.4 PAYMENT OF OBLIGATIONS......................................... 55
SECTION 6.5 MAINTENANCE OF PROPERTIES...................................... 55
SECTION 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS........................... 55
SECTION 6.7 COMPLIANCE WITH LAWS........................................... 55
SECTION 6.8 USE OF PROCEEDS................................................ 55
SECTION 6.9 INSURANCE...................................................... 56
SECTION 6.10 ADDITIONAL SUBSIDIARIES........................................ 56
SECTION 6.11 ENVIRONMENTAL COMPLIANCE....................................... 57
SECTION 6.12 COLLATERAL GRANT............................................... 57
SECTION 6.13 INFORMATION SERVICES GROUP..................................... 57
SECTION 6.14 RECHARACTERIZED SUBSIDIARIES................................... 57
ARTICLE 7. NEGATIVE COVENANTS................................................... 58
SECTION 7.1 INDEBTEDNESS; EQUITY SECURITIES................................ 58
SECTION 7.2 LIENS.......................................................... 61
SECTION 7.3 FUNDAMENTAL CHANGES; LINE OF BUSINESS; FISCAL YEAR............. 61
SECTION 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS...... 62
SECTION 7.5 ASSET SALES.................................................... 65
SECTION 7.6 SALE AND LEASE BACK TRANSACTIONS............................... 65
SECTION 7.7 HEDGING AGREEMENTS............................................. 66
SECTION 7.8 RESTRICTED PAYMENTS............................................ 66
SECTION 7.9 TRANSACTIONS WITH AFFILIATES................................... 66
SECTION 7.10 RESTRICTIVE AGREEMENTS......................................... 67
SECTION 7.11 AMENDMENT OF MATERIAL DOCUMENTS................................ 67
SECTION 7.12 FINANCIAL COVENANTS............................................ 67
ARTICLE 8. EVENTS OF DEFAULT.................................................... 68
ARTICLE 9. THE ADMINISTRATIVE AGENT............................................. 71
SECTION 9.1 APPOINTMENT OF ADMINISTRATIVE AGENT............................ 71
SECTION 9.2 NATURE OF DUTIES OF ADMINISTRATIVE AGENT....................... 71
SECTION 9.3 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT................... 72
SECTION 9.4 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT..................... 72
SECTION 9.5 RELIANCE BY ADMINISTRATIVE AGENT............................... 72
SECTION 9.6 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY............ 72
SECTION 9.7 SUCCESSOR ADMINISTRATIVE AGENT................................. 73
SECTION 9.8 ADDITIONAL AGENCIES; NO DUTIES IMPOSED UPON SYNDICATION AGENTS
OR DOCUMENTATION AGENTS..................................... 73
ARTICLE 10. MISCELLANEOUS....................................................... 74
SECTION 10.1 NOTICES........................................................ 74
SECTION 10.2 WAIVERS; AMENDMENTS............................................ 75
SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER............................. 76
SECTION 10.4 SUCCESSORS AND ASSIGNS......................................... 78
SECTION 10.5 SURVIVAL....................................................... 80
SECTION 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS....................... 81
(ii)
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SECTION 10.7 SEVERABILITY................................................... 81
SECTION 10.8 RIGHT OF SETOFF................................................ 81
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS..... 82
SECTION 10.10 WAIVER OF JURY TRIAL........................................... 82
SECTION 10.11 HEADINGS....................................................... 83
SECTION 10.12 INTEREST RATE LIMITATION....................................... 83
SECTION 10.13 TREATMENT OF CERTAIN INFORMATION............................... 83
ARTICLE 11. COLLATERAL SECURITY................................................. 84
SECTION 11.1 SECURITY OF BORROWER........................................... 84
SECTION 11.2 SECURITY OF SUBSIDIARIES....................................... 84
SECTION 11.3 VALIDITY OF LIENS.............................................. 85
SECTION 11.4 PERFECTION CERTIFICATES AND UCC SEARCH RESULTS................. 85
SECTION 11.5 CERTIFICATES OF INSURANCE...................................... 85
(iii)
SCHEDULE
Schedule 1.1 Draft Financial Statements
Schedule 4.4 Exceptions to Financial Condition
Schedule 4.6 List of Disclosed Matters
Schedule 4.7 Exceptions to Compliance with Law and Agreements
Schedule 4.12 List of Subsidiaries
Schedule 4.13 List of Insurance
Schedule 7.1 List of Existing Indebtedness
Schedule 7.2 List of Existing Liens
Schedule 7.4 List of Existing Investments
Schedule 7.10 List of Existing Restrictions
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Opinion of Counsel to the Loan Parties
Exhibit C Form of Credit Request
Exhibit D-1 Form of Revolving Loan Note
Exhibit D-2 Form of Term Loan Note
Exhibit E Form of Guarantee Agreement
Exhibit F Form of Compliance Certificate
Exhibit G. Form of Security Agreement
Exhibit H Form of Pledge Agreement
(iv)
CREDIT AGREEMENT, dated as of January 3, 2006, among THE BISYS GROUP, INC.,
a Delaware corporation (the "Borrower"), the several banks and other financial
institutions from time to time party hereto (the "Lenders"), and SUNTRUST BANK,
in its capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make (i) a
revolving loan facility to the Borrower the proceeds of which shall be used for,
among other things, general corporate purposes and (ii) a term loan to the
Borrower the proceeds of which shall be used to repay the Subordinated Notes (as
defined below);
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments, are willing to
make such loans to the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Borrower, the Lenders and the Administrative Agent agree
as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Defined Terms
As used in this Credit Agreement, the following terms have the
meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition Related Contingent Payment" means a payment constituting
all or a portion of the purchase price payable in connection with an acquisition
permitted by Section 7.4(l), the maximum aggregate potential amount of which
payments cannot be determined in advance of the occurrence or non-occurrence
after the closing date of such acquisition of certain contingencies.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBO
Rate for such Interest Period by (ii) a percentage equal to 1.00 minus the
Statutory Reserve Rate.
"Administrative Agent" means SunTrust, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement Date" means the first date appearing in this Credit
Agreement.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (i) the Prime Rate in effect on such day and (ii) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means, at all times from and after the Agreement
Date and during the applicable periods set forth below: (i) with respect to ABR
Revolving Borrowings and ABR Term Loan Borrowings, 0%, (ii) with respect to
Eurodollar Revolving Borrowings, Eurodollar Term Loan Borrowings, and fees
payable under Section 3.3(b): (A) 1.25% unless and until the Term Loan is funded
and (B) in the event the Term Loan is funded: (w) from the funding date of the
Term Loan through May 31, 2006, 2.00%, (x) from June 1, 2006 through August 31,
2006, 2.50%, (y) from September 1, 2006 through November 30, 2006, 3.00% and (z)
from December 1, 2006 through repayment, 3.50%.
"Applicable Percentage" means, with respect to any applicable Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
an applicable Lender's Applicable Percentage shall be determined by dividing (i)
the sum of such Lender's Revolving Credit Exposure by (ii) the sum of the
aggregate amount of all applicable Lenders' Revolving Credit Exposures.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale" shall mean any one or series of related transactions in
which a the Borrower or any of its Subsidiaries conveys, transfers, assigns,
sells, leases, licenses or otherwise disposes of, directly or indirectly, any of
its properties, businesses or assets (including the sale or issuance of Equity
Interests of any Subsidiary other than to the Borrower or any of its
Subsidiaries) whether owned on the Closing Date or thereafter acquired.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or in such other form as shall be
acceptable to the Administrative Agent.
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"Availability Period" means the period from and including the Closing
Date to but excluding the earlier of the Maturity Date and, if different, the
date of termination of the Revolving Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means The BISYS Group, Inc., a Delaware corporation.
"Borrowing" means Revolving Loans or Term Loans, as applicable, of the
same Type made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Atlanta, Georgia and New York are authorized or
required by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" of any Person means expenditures (whether paid
in cash or other consideration or accrued as a liability) for fixed or capital
assets (excluding any capitalized interest and any such asset acquired in
connection with normal replacement and maintenance programs properly charged to
current operations and excluding any replacement assets acquired with the
proceeds of insurance) made by such Person.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" shall mean with respect to any property (including
any interest in property) of the Borrower and its Subsidiaries, any loss or
destruction of, damage to, or condemnation or other taking of, such property for
which the Borrower or the applicable Subsidiary receives insurance proceeds,
proceeds of a condemnation award or other compensation.
"Change in Control" means (a) ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of shares representing
25% or more of the aggregate ordinary voting power or economic interests
represented by the issued and outstanding equity securities of the Borrower on a
fully diluted basis, (b) the occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Borrower by Persons who were
neither (i) nominated by the board of directors of the Borrower nor (ii)
appointed by directors so nominated or (c) any change in control (or similar
event, however denominated) with respect to the Borrower or any of the
Subsidiaries shall occur
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under and as defined in any indenture or agreement in respect of Indebtedness in
an outstanding principal amount in excess of $10,000,000 to which the Borrower
or any Subsidiary is a party.
"Change in Law" means (i) the adoption of any law, rule or regulation
after the Agreement Date, (ii) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the Agreement Date or (iii) compliance by any Credit Party (or, for purposes of
Section 3.5(b), by any lending office of such Credit Party or by such Credit
Party's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the Agreement Date.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans, as applicable.
"Closing Date" means the date on which the conditions specified in
Section 5.1 are satisfied (or waived in accordance with Section 10.2).
"Collateral" shall mean that personal property with respect to which
any security interests or other liens or encumbrances have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledged Collateral and all Security Agreement Collateral.
"Collateral Trigger Date" shall mean May 31, 2006; provided that the
Term Loan has been funded.
"Code" means the Internal Revenue Code of 1986.
"Commitments" means, collectively, the Revolving Commitments, the Term
Commitments and the Letter of Credit Commitments.
"Compensation Financing" means, as to any Subsidiary which is a
principal underwriter or distributor of shares of an Investment Company and is
so designated in such Investment Company's then effective registration
statement, either (i) the incurrence by such Subsidiary, as such principal
underwriter or distributor, of Indebtedness, the proceeds of which are loaned by
it to a broker or dealer entitled to compensation in connection with the sale of
shares of such Investment Company, which loan is to be repaid by such broker or
dealer at the time of its receipt of Contingent Deferred Sales Commissions or
12b-1 Fees to which such broker or dealer is entitled as a result of such sale
or (ii) the sale by such Subsidiary as such principal underwriter or distributor
of Contingent Deferred Sales Commissions or 12b-1 Fees to which such principal
underwriter or distributor is entitled in connection with the sale of shares of
such Investment Company.
"Compliance Certificate" means a certificate, substantially in the
form of Exhibit F.
"Consolidated Adjusted EBITDA" means for any period, Consolidated
EBITDA for such period plus the sum of, without duplication, to the extent
deducted in determining
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Consolidated EBITDA, an amount equal to (i) the total fees paid to Persons in
connection with the acquisition of rights permitted by Section 7.4(k) made after
the Closing Date (not in excess of $50,000,000 in the aggregate for all such
fees for all such acquisitions), minus (ii) the amount thereof which would be
amortized during such period if such fees were amortizable and assuming a five
year useful life thereof.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus the sum of, without duplication, (i) Consolidated Interest
Expense, (ii) provision for income taxes and (iii) depreciation, amortization
and all other non-cash charges for such period of the Borrower and the
Subsidiaries determined on a consolidated basis in accordance with GAAP, each to
the extent deducted in determining Consolidated Net Income for such period and
minus the sum of non-cash gains for such period to the extent included in
determining Consolidated Net Income for such period.
"Consolidated Fixed Charges" means, for any period, the sum for such
period of, without duplication, the following items, each for the Borrower and
the Subsidiaries on a consolidated basis in accordance with GAAP: (i) all
scheduled payments of principal of Indebtedness, (ii) all payments in respect of
Capitalized Lease Obligations, (iii) Consolidated Interest Expense, (iv)
Acquisition Related Contingent Payments (whether paid or accrued), and (iv)
regularly scheduled principal payments on Subordinated Debt to the extent the
same is permitted to be paid pursuant to the subordination provisions applicable
thereto.
"Consolidated Interest Expense" means, for any period, the sum of,
without duplication, all interest (adjusted to give effect to all interest rate
swap, cap, collar or other interest rate hedging arrangements and non-cash
amortization of fees in connection therewith, all as determined on a
consolidated basis in accordance with GAAP), paid or accrued in respect of
Indebtedness of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP during such period.
"Consolidated Net Income" means, for any period, the sum of, without
duplication, net income of the Borrower and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"Consolidated Net Worth" means, at any date of determination, (i) the
sum of all amounts which would be included under shareholders' equity on a
consolidated balance sheet of the Borrower and the Subsidiaries determined on a
consolidated basis in accordance with GAAP as at such date plus (ii) the amount
of the SEC Penalties, to the extent that the SEC Penalties (x) otherwise reduce
shareholders' equity and (y) are accrued but not paid.
"Consolidated Senior Debt" means, at any date of determination, the
aggregate funded Indebtedness (including Capital Lease Obligations) on such date
of the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP minus Subordinated Debt.
"Consolidated Total Assets" means, at any date of determination, the
total assets of the Borrower and the Subsidiaries determined on a consolidated
basis in accordance with GAAP as at such date.
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"Consolidated Total Debt" means, at any date of determination, the
aggregate funded Indebtedness (including Capital Lease Obligations) on such date
of the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP.
"Contingent Deferred Sales Commissions" means amounts owed by an
Investment Company to the principal underwriter or distributor thereof (as
designated in such Investment Company's then effective registration statement
under the ▇▇▇▇ ▇▇▇) as repayment for expenses incurred by such principal
underwriter or distributor pursuant to a written plan adopted by the
shareholders of such Investment Company.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Event" has the meaning assigned to such term in Section 5.3.
"Credit Parties" means the Administrative Agent, the Issuing Bank and
the Lenders.
"Credit Request" means a Credit Request, substantially in the form of
Exhibit C, or in such other form as shall be acceptable to the Administrative
Agent.
"Debt Issuance" shall mean any sale or issuance of Indebtedness by the
Borrower or any of its Subsidiaries other than those permitted pursuant to
Sections 7.1(a)(ii)-(xv).
"Default" means any event or condition which constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits, proceedings and
environmental matters disclosed in Schedule 4.6.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means a Subsidiary incorporated or organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Draft Financial Statements" shall mean draft financial statements
containing the consolidated balance sheet and statements of income of the
Borrower and the Subsidiaries as of and for the fiscal quarters ending March 31,
2005, June 30, 2005 and September 30, 2005, copies of which are attached hereto
as Schedule 1.1.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
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"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any Loan Party directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity Interest" means (i) shares of corporate stock, partnership
interests, membership interests and any other interest that confers on a Person
the right to receive a share of the profits and losses of, or a distribution of
the assets of, the issuing Person and (ii) all warrants, options or other rights
to acquire any Equity Interest set forth in clause (i) of this defined term.
"Equity Issuance" shall mean the sale or issuance by the Borrower or
any of its Subsidiaries of any of its Equity Interests, other than (a) any sale
or issuance to the Borrower or any of its wholly-owned Subsidiaries, (b) any
issuance pursuant to the exercise of options or warrants, (c) any issuance
pursuant to any Employee Stock Purchase Plan, (d) any issuance pursuant to the
conversion of any Subordinated Notes, (e) any issuance of options or warrants,
and (f) any issuance as consideration for an acquisition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30 day notice period is waived); (ii) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iii)
the filing pursuant to Section 412(d) of the Code or Section 303(a) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by the Borrower or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (vi) the incurrence by the
Borrower or any ERISA Affiliate of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt
by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
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"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article 8.
"Excluded Taxes" means, with respect to any Credit Party or any other
recipient of any payment to be made by or on account of any obligation of any
Loan Party under any Loan Document, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Credit Party, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Loan Party is located and (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Credit
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 3.7(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Loan Party with respect to such withholding tax pursuant to
Section 3.7(a).
"Exempt Subsidiary" means each Subsidiary for so long as it is (i) a
registered broker-dealer, (ii) engaged in the insurance business and subject to
net capital rules or regulations of any Governmental Authority which would treat
the Guarantee under the Guarantee Agreement as a liability for purposes thereof
if such Subsidiary was a Subsidiary Guarantor, (iii) holding no assets and
conducting no business, or (iv) any licensed or regulated Foreign Subsidiary
engaged in the funds administration business.
"Federal Funds Effective Rate" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by SunTrust as determined by SunTrust and reported to the
Administrative Agent.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charge Coverage Ratio" means, at any date of determination, the
ratio of (i) an amount equal to Consolidated Adjusted EBITDA for the four fiscal
quarter period ending on such date or, if such date is not the last day of a
fiscal quarter, for the immediately preceding four fiscal quarter period minus
Capital Expenditures made during such period by the Borrower
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and the Subsidiaries minus income taxes paid during such period to (ii)
Consolidated Fixed Charges for such period.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the applicable Loan Party is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, commission, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor as to enable the primary obligor
to pay such Indebtedness or other obligation or (iv) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guaranteed" has a meaning correlative thereto.
"Guarantee Agreement" means the Guarantee Agreement, substantially in
the form of Exhibit E, among the Subsidiary Guarantors and the Administrative
Agent, for the benefit of the Credit Parties.
"Guarantee Documents" means the Guarantee Agreement and each other
guarantee agreement, instrument or other document executed or delivered pursuant
to Section 6.10 to guarantee any of the Obligations.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
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"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price swap, cap, collar,
hedging or other like arrangement.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iii) all obligations of such Person
upon which interest charges are customarily paid, (iv) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (v) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable, obligations under equipment servicing agreements and license, royalty
and similar fees, in each case incurred in the ordinary course of business),
(vi) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (vii) all Guarantees by such
Person of Indebtedness of others, (viii) all Capital Lease Obligations of such
Person, (ix) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (x)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section 10.3(b).
"Information Services Group Sale" means the sale by the Borrower of
all of its equity interests in BISYS Information Solutions, L.P. and BISYS
Document Solutions, LLC to Open Solutions, Inc. pursuant to a Stock Purchase
Agreement dated as of September 15, 2005, as amended, for approximately
$470,000,000 (subject to adjustment).
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 3.2.
"Interest Payment Date" means (i) with respect to any ABR Loan, the
last day of each March, June, September and December, (ii) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Loan with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, and (iii) with respect to all
Loans, the Maturity Date.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, provided that (i) if any
Interest Period would end on a day other than a Business Day, such
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Interest Period shall be extended to the next succeeding Business Day, unless,
in the case of a Eurodollar Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day, and (ii) any Interest Period pertaining
to a Eurodollar Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing or a Term Borrowing, thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investment Company" means an investment company registered under the
1940 Act.
"Issuing Bank" means SunTrust, in its capacity as issuer of Letters of
Credit.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, (i) with respect to all of the
applicable Lenders, the sum, without duplication, of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time and (ii) with respect to each applicable Lender,
its Applicable Percentage of the amount determined under clause (i) above.
"Lenders" means SunTrust, and any other Person that shall have become
a party hereto pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
Credit Agreement and any successive renewals or extensions thereof.
"Letter of Credit Commitment" means, with respect to the Issuing Bank,
the commitment of the Issuing Bank to issue Letters of Credit hereunder. The
amount of the Issuing Bank's Letter of Credit Commitment is $10,000,000.
"LIBO Rate" shall mean, for any applicable Interest Period with
respect to any Eurodollar Borrowings, the rate per annum quoted at or about
11:00 a.m. (London, England time) two Business Days before the commencement of
such Interest Period on that page of the Reuters, Telerate or Bloomberg
reporting service (as then being used by the Administrative Agent to obtain such
interest rate quotes) that displays British Bankers' Association interest
settlement rates for deposits in the applicable currency of such Eurodollar
Borrowing, or if such page or such service shall cease to be available, such
other page or other service (as the case may be) for the purpose of displaying
British Bankers' Association interest settlement rates as reasonably determined
by the Administrative Agent upon advising the Borrower as to the use of any such
other service. If for any reason any such settlement interest rate for such
Interest Period is not available through any such interest rate reporting
service, then "LIBOR" will be the rate at
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which the Administrative Agent is offered deposits for such applicable currency
in the Dollar Equivalent of $3,000,000 for a period approximately equal to such
Interest Period in the London interbank market at 10:00 a.m. (New York time) two
Business Days before the commencement of such Interest Period.
"Lien" means, with respect to any asset, (i) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (ii) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (iii) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" means this Credit Agreement, the Notes, the Security
Documents, the Guarantee Documents and the documentation in respect of each
Letter of Credit.
"Loan Parties" means the Borrower and the Subsidiary Guarantors.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Credit Agreement.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries, taken as a whole, (ii) the ability of any
Loan Party to perform any of its obligations under any Loan Document, or (iii)
the rights of or benefits available to any Credit Party under any Loan Document.
"Material Indebtedness" means Indebtedness (other than Indebtedness
under the Loan Documents) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary, as applicable, would be required to pay if such
Hedging Agreement were terminated at such time.
"Maturity Date" means January 2, 2007.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Debt Issuance Proceeds" shall mean with respect to any Debt
Issuance, the excess of the gross cash proceeds received by such Person for such
Debt Issuance after deduction of all transaction expenses (including, without
limitation, legal and accounting fees, underwriting discounts and commissions)
actually incurred in connection with such Debt Issuance.
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"Net Cash Equity Issuance Proceeds" shall mean with respect to any
Equity Issuance, the excess of the gross cash proceeds received by such Person
for such Equity Issuance after deduction of all transaction expenses (including,
without limitation, legal and accounting fees, underwriting discounts and
commissions) actually incurred in connection with such Equity Issuance.
"Net Cash Sale Proceeds" shall mean the net cash proceeds received by
a Person in respect of any Asset Sale, less the sum of (a) all out-of-pocket
fees, commissions and other expenses actually incurred in connection with such
Asset Sale, including the amount of any transfer or documentary taxes required
to be paid by such Person in connection with such Asset Sale, (b) all income,
transfer or other taxes payable in connection with such Asset Sale, whether
actually paid or estimated by the Borrower to be payable in connection with such
Asset Sale, (c) all reserves required to be established in accordance with GAAP
or the definitive agreements relating to such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations and (d) the aggregate amount of cash so received by such Person
which is required to be used to retire (in whole or in part) any Indebtedness
(other than under the Loan Documents) of such Person permitted by this Credit
Agreement that was secured by a lien or security interest permitted by this
Credit Agreement having priority over the liens and security interests (if any)
of the Administrative Agent (for the benefit of the Administrative Agent and the
Lenders) with respect to such assets transferred and which is required to be
repaid in whole or in part (which repayment, in the case of any other revolving
credit arrangement or multiple advance arrangement, reduces the commitment
thereunder) in connection with such Asset Sale.
"1940 Act" means the Investment Company Act of 1940, as amended, and
the rules promulgated thereunder, as amended.
"Notes" means, collectively, (i) with respect to each Lender's
Revolving Loans, a promissory note evidencing such Lender's Revolving Loans
payable to the order of such Lender (or, if required by such Lender, to such
Lender and its registered assigns) substantially in the form of Exhibit D-1 and
(ii) with respect to the Lender's Term Loans, a promissory note evidencing such
Lender's Term Loans payable to the order of the Lender substantially in the form
of Exhibit D-2.
"Obligations" means (a) the due and punctual payment of (i) principal
of and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations, including fees, commissions, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties to the
Credit Parties, or that are otherwise payable to any Credit Party, under the
Credit Agreement and the other Loan Documents, (b) the
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due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents and (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, all obligations of the Borrower, monetary or
otherwise, under each Hedging Agreement entered into with a counterparty and
that was a Lender (or an Affiliate thereof) at the time such Hedging Agreement
was entered into.
"Other Taxes" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, the Loan Documents.
"Participant" has the meaning assigned to such term in Section
10.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Pending Restatement" shall mean the pending restatement of the
Borrower's financial statements for the fiscal years ended June 30, 2002, 2003
and 2004, and the fiscal quarters ended September 30 and December 31, 2003 and
2004, as described in the Borrower's July 25, 2005 press release.
"Perfection Certificates" shall mean the Perfection Certificates as
defined in the Security Agreement.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 6.4;
(b) landlords', vendors', carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 6.4;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts
(other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute
an Event of Default under clause (k) of Article 8;
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(f) easements, zoning restrictions, rights of way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) Liens in favor of a financial institution encumbering
deposits (including the right of setoff) held by such financial institution
in the ordinary course of its business and which are within the general
parameters customary in the banking industry; and
(h) Liens on Margin Stock to the extent that a prohibition on
such Liens would violate Regulation U.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent that such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within six months from the date of acquisition thereof;
(b) dollar denominated investments in certificates of deposit,
banker's acceptances and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with any
Lender or any other bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating is (i) at least A-1
or the equivalent thereof from Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, or any successor thereto, or (ii) at
least P-1 or the equivalent thereof from ▇▇▇▇▇'▇ Investors Service, Inc. or
any successor thereto;
(c) investments in commercial paper maturing within six months
from the date of acquisition thereof (i) issued by any Lender or any other
bank satisfying the criteria described in clause (b) of this definition (or
by the parent company thereof), (ii) issued by, or guaranteed by, any
industrial or financial company whose unsecured non-credit supported
commercial paper rating is (A) at least A-1 or the equivalent thereof from
Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, or any successor thereto, or (B) at least P-1 or the equivalent
thereof from ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto or
(iii) guaranteed by any industrial or financial company with a long term
unsecured non-credit supported senior debt rating of at least A or A 2, or
the equivalent thereof, from Standard & Poor's Ratings Services, a division
of The McGraw Hill Companies, or any successor thereto or ▇▇▇▇▇'▇ Investors
Service, Inc. or any successor thereto;
(d) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, any State of the
United States of America or any political subdivision of any State or any
public instrumentality thereof, in each case
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maturing within six months from the date of acquisition thereof and, at the
time of acquisition thereof, having one of the two highest ratings
obtainable from Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, or any successor thereto or ▇▇▇▇▇'▇ Investors
Service, Inc. or any successor thereto;
(e) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) of this definition
and entered into with any Lender or any other bank satisfying the criteria
described in clause (b) of this definition; and
(f) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in
clauses (a) through (e) of this definition.
"Permitted Liens" has the meaning set forth in Section 7.2.
"Permitted Notes" has the meaning set forth in Section 7.1(a)(xv).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower,
any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" shall have the meaning provided in Section 4.17
"Pledged Collateral" shall mean all of the "Pledged Collateral" as
defined in the Pledge Agreement.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by SunTrust as its prime commercial lending rate at its
principal office in Letter; each change in the Prime Rate being effective from
and including the date such change is publicly announced as being effective. The
Prime Rate is not intended to be lowest rate of interest charged by SunTrust in
connection with extensions of credit to borrowers.
"Prior Credit Agreement" means the Credit Agreement, dated as of March
31, 2004, as amended, among the Borrower, the Lenders party thereto, Bank of
America N.A., as successor by merger to Fleet National Bank, JPMorgan Chase
Bank, SunTrust, and Wachovia Bank, National Association, as documentation agents
thereunder and The Bank of New York, as administrative agent thereunder.
"Prior Loan Documents" means, collectively, the Prior Credit
Agreement, all guarantees and other Loan Documents (as defined therein).
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"Recharacterized Subsidiary" shall mean a Domestic Subsidiary (which
is not an Exempt Subsidiary) which, solely as a result of the finalization of
the Pending Restatements, is determined to meet the thresholds for a Significant
Subsidiary but was not identified by the Borrower as a Subsidiary Guarantor on
the Agreement Date or Term Loan Funding Date because of its good faith belief
that such Subsidiary did not meet the applicable thresholds for a Significant
Subsidiary.
"Register" has the meaning assigned to such term in Section 10.4(c).
"Regulation D" means Regulation D of the Board.
"Regulation T" means Regulation T of the Board.
"Regulation U" means Regulation U of the Board.
"Regulation X" means Regulation X of the Board.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having unused
Commitments, LC Exposure and outstanding Loans representing greater than 50% of
the sum of the unused Commitments, LC Exposure, and outstanding Loans of all
Lenders.
"Responsible Officer" means as to any Person, its President, Chief
Financial Officer, Treasurer, General Counsel, Secretary, any Vice President,
Assistant Secretary, Assistant Treasurer, or any other individual responsible
for (i) the management of the Borrower or any of the Subsidiaries or (ii)
monitoring or ensuring compliance with the Loan Documents.
"Restricted Payment" means, as to any Person, (i) any dividend or
other distribution by such Person (whether in cash, securities or other
property) with respect to any Equity Interests of such Person, (ii) any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Equity Interest, (iii) any
payment of principal or interest or any purchase, redemption, retirement,
acquisition or defeasance with respect to any Indebtedness of such Person which
is subordinated to the payment of the Obligations and (iv) the acquisition for
value by such Person of any Equity Interests issued by such Person or any other
Person that Controls such Person.
"Revolving Commitment" means, with respect to each Lender having a
Revolving Commitment, the commitment of such Lender to make Revolving Loans and
to acquire participations in Letters of Credit in an aggregate outstanding
amount not exceeding the amount of such Lender's Revolving Commitment as set
forth on the signature page hereof, or in the Assignment and Acceptance pursuant
to which such Lender shall have assumed its Revolving Commitment, as applicable,
as such Revolving Commitment may be adjusted from time to time pursuant to
Section 2.7 or pursuant to assignments by or to such Lender pursuant to
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Section 10.4. The initial aggregate amount of the Revolving Commitments on the
Agreement Date is $100,000,000.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the aggregate outstanding principal amount of such Lender's
Revolving Loans and LC Exposure at such time.
"Revolving Loan" means a loan referred to in Section 2.1(a) and made
pursuant to Section 2.6.
"Rule 12b-1" means Rule 12b-1 promulgated under the 1940 Act.
"SEC Penalties" means any penalties imposed by the Securities and
Exchange Commission in connection with the SEC Investigation.
"SEC Investigation" shall mean the investigation by the Securities and
Exchange Agreement of the Borrower and its Subsidiaries relating to marketing
and distribution arrangements in the mutual fund services business.
"Security Agreement" shall have the meaning provided in Section 4.17.
"Security Agreement Collateral" shall mean all of the "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Security Agreements and the Pledge
Agreements.
"Significant Subsidiary" means any Subsidiary which, as of the last
day of the most recently completed fiscal quarter, satisfies any one or more of
the following three tests: (i) the Borrower's and the other Subsidiaries'
investments in and advances to such Subsidiary exceed 10% of Consolidated Total
Assets, (ii) the Borrower's and the other Subsidiaries' proportionate share of
Consolidated Total Assets (after intercompany eliminations) consisting of the
property of such Subsidiary exceeds 10% of Consolidated Total Assets or (iii)
the Borrower's and the other Subsidiaries' equity in the income (not to include
losses) from continuing operations before income taxes, extraordinary items and
the cumulative effect of a change in accounting principles of such Subsidiary
exceeds 10% of the income (to include losses) from continuing operations before
income taxes, extraordinary items and the cumulative effect of a change in
accounting principles of the Borrower and the Subsidiaries determined on a
consolidated basis in accordance with GAAP. Notwithstanding the foregoing, if
subsequent to the Term Loan Funding Date, (i) the Borrower's and the other
Subsidiaries' investments in and advances to all Significant Subsidiaries
determined in accordance with clauses (i) through (iii) above is less than 90%
of Consolidated Total Assets (excluding Consolidated Total Assets attributable
to the Exempt Subsidiaries and Foreign Subsidiaries), or (ii) the Borrower's and
the other Subsidiaries' proportionate share of Consolidated Total Assets (after
intercompany eliminations) consisting of the property of all Significant
Subsidiaries determined in accordance with clauses (i) through (iii) above is
less than 90% of Consolidated Total Assets (excluding Consolidated Total Assets
attributable to the Exempt Subsidiaries and Foreign Subsidiaries) or (iii) the
Borrower's and the other Subsidiaries' equity in the income (not to include
losses) from
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continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles of all Significant
Subsidiaries determined in accordance with clauses (i) through (iii) above is
less than 90% of the income (to include losses) from continuing operations
before income taxes, extraordinary items and the cumulative effect of a change
in accounting principles of the Borrower and the Subsidiaries (excluding Exempt
Subsidiaries and Foreign Subsidiaries) determined on a consolidated basis in
accordance with GAAP; then, the term "Significant Subsidiary" shall include such
additional subsidiaries such that the 90% threshold set forth in the immediately
preceding clauses (i), (ii) and/or (iii), as the case may be, is satisfied.
"Statutory Reserve Rate" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Subordinated Debt" means Indebtedness in respect of the Subordinated
Notes.
"Subordinated Indenture" means the Subordinated Indenture, dated as of
March 14, 2001, by and between the Borrower and Chase Manhattan Trust Company,
National Association, as Trustee, pursuant to which the Borrower issued
$300,000,000 principal amount of Subordinated Notes.
"Subordinated Notes" means the 4% Convertible Subordinated Notes, due
March 15, 2006, and issued by the Borrower pursuant to the Subordinated
Indenture.
"Subsidiary" means, with respect to any Person (the "parent"), as of
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power is or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held by the parent or one or more
subsidiaries of the parent. Unless the context indicates otherwise, each
reference herein or in any of the other Loan Documents to "Subsidiary" shall be
deemed a reference to a Subsidiary of the Borrower.
"Subsidiary Guarantor" means any Domestic Subsidiary (other than an
Exempt Subsidiary) that executes and delivers the Guarantee Agreement, in each
case in accordance with
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Sections 5.1(g) and 6.10; provided, that neither BISYS Information Solutions,
L.P. nor BISYS Document Solutions LLC, shall be a Subsidiary Guarantor hereunder
unless required by Section 6.13.
"SunTrust" means SunTrust Bank.
"Taxes" means any and all current or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means, with respect to each Lender having a Term
Commitment, the commitment of such Lender to make a Term Loan in an amount not
exceeding the amount of such Lender's Term Commitment as set forth on the
signature page hereof or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Term Commitment, as applicable, as such Term
Commitment may be adjusted from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.4. The aggregate amount of the Term
Commitments on the Agreement Date is $300,000,000.
"Term Loan" means a loan referred to in Section 2.1(b) and made
pursuant to Section 2.6.
"Term Loan Funding Date" means the date on which the Borrower borrows
the Term Loan in accordance with Section 2.1(b).
"Total Leverage Ratio" means, at any date of determination, the ratio
of (i) Consolidated Total Debt on such date to (ii) Consolidated Adjusted EBITDA
(as adjusted in the last sentence of this definition) for the four fiscal
quarter period ending on such date or, if such date is not the last day of a
fiscal quarter, for the immediately preceding four fiscal quarter period. For
purposes of this definition, "Consolidated Total Debt" shall not include any
Indebtedness incurred by the Borrower or any of the Subsidiaries in connection
with Compensation Financings to the extent permitted by Section 7.1(a)(xi). To
the extent that the SEC Penalties reduce Consolidated Net Income (and therefore
Consolidated Adjusted EBITDA), for purposes of calculating the Total Leverage
Ratio (i) for each four fiscal quarter period which includes the fiscal quarter
in which the SEC Penalties have been accrued but not paid, the amount thereof
shall be added to Consolidated Adjusted EBITDA for such four fiscal quarter
period and (ii) for each four fiscal quarter period which includes the fiscal
quarter in which the SEC Penalties are paid, the amount thereof shall be
deducted from Consolidated Adjusted EBITDA for such four fiscal quarter period.
"Transactions" means (i) the execution, delivery and performance by
each Loan Party of each Loan Document to which it is a party, (ii) the borrowing
of the Loans and the issuance of the Letters of Credit and (iii) the use of the
proceeds of the Loans and the Letters of Credit.
"12b-1 Fees" means all fees and distribution or other expenses
incurred under a plan adopted pursuant to Rule 12b-1 under the 1940 Act.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by
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reference to in the case of a Revolving Loan or Term Borrowing, the Adjusted
LIBO Rate or the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code in effect from to time.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans and Borrowings
For purposes of this Credit Agreement, Loans may be classified and
referred to by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar
Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings
may also be classified and referred to by Class (e.g., a "Revolving Borrowing")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
Section 1.3 Terms Generally
The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any definition of or reference to any
law shall be construed as referring to such law as from time to time amended and
any successor thereto and the rules and regulations promulgated from time to
time thereunder, (iii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iv) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Credit Agreement in its entirety and not to any particular provision
hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Credit Agreement, and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights. Any reference to an "applicable Lender" means (i)
in the case of Revolving Borrowings and Letters of Credit, Lenders having a
Revolving Commitment, and (ii) in the case of Term Borrowings, Lenders having a
Term Commitment or Term Loans.
Section 1.4 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date
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hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith. Unless the context otherwise requires, any reference to
a fiscal period shall refer to the relevant fiscal period of the Borrower.
ARTICLE 2.
THE CREDITS
Section 2.1 Commitments
(a) Subject to the terms and conditions hereof, each Lender having a
Revolving Commitment agrees to make Revolving Loans to the Borrower in
dollars from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving Commitment or (ii) the sum of
the total Revolving Credit Exposures exceeding the total Revolving
Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
(b) Subject to the terms and conditions hereof, each Lender having a
Term Commitment severally agrees to make a Term Loan to the Borrower in
dollars in a single draw on the Term Loan Funding Date in a principal
amount not exceeding such Term Commitment. If the Term Loan is not funded
on or before March 14, 2006, the Term Commitment shall automatically
terminate. Term Loans which are prepaid or repaid, in whole or in part, may
not be reborrowed.
Section 2.2 Loans and Borrowings
(a) Each (i) Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the applicable Lenders ratably in
accordance with their respective Revolving Commitments and (ii) each Term
Loan shall be made as part of a Borrowing consisting of Term Loans made by
the applicable Lenders in accordance with their respective Term
Commitments. The failure of any applicable Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations
hereunder, provided that the Revolving Commitments and Term Commitments of
the applicable Lenders are several, and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 3.4, each (i) Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as applicable and (ii)
each Term Borrowing shall be comprised entirely of ABR Loans or Eurodollar
Loans, as applicable, in each
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case as the Borrower may request in accordance with the provisions of this
Credit Agreement. Each applicable Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000. At the time
that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than
$1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Revolving
Commitments or the reimbursement of an LC Disbursement as contemplated by
Section 2.10(e). Borrowings of more than one Type may be outstanding at the
same time, provided that there shall not at any time be more than a total
of ten Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
Section 2.3 Requests for Revolving and Term Borrowings
(a) To request a Revolving Borrowing or a Term Borrowing, the Borrower
shall deliver a Credit Request to the Administrative Agent by hand or
facsimile (or transmit by electronic communication, if arrangements for
doing so have been approved by the Administrative Agent) or notify the
Administrative Agent by telephone, in each case to be promptly confirmed by
the delivery to the Administrative Agent of a signed Credit Request (i) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., Atlanta,
Georgia time, three Business Days before the date of the proposed Borrowing
or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m.,
Atlanta, Georgia time, on the date of the proposed Borrowing. Each such
Credit Request (including each such telephonic request) shall be
irrevocable and shall specify the following information in compliance with
Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Revolving Borrowing or a
Term Borrowing;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
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(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.6.
(b) If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Credit Request in accordance with
this Section, the Administrative Agent shall advise each applicable Lender
of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
Section 2.4 Intentionally Deleted
Section 2.5 Intentionally Deleted
Section 2.6 Funding of Borrowings
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by
1:00 p.m., Atlanta, Georgia time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the
Lenders. Subject to Section 5.3, the Administrative Agent will make such
Loans available to the Borrower by promptly crediting or otherwise
transferring the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent and designated by the
Borrower in the applicable Credit Request, provided that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided
in Section 2.10(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with Section 2.6(a) or
Section 2.10(e) and may, in reliance upon such assumption, make available
to the Borrower or the Issuing Bank, as applicable, a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower or the Issuing Bank, as applicable, to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate that
would be
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otherwise applicable to such Borrowing. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
Section 2.7 Termination, Reduction and Increase of Revolving
Commitments
(a) Unless previously terminated, the Term Commitments shall terminate
upon the earlier of (i) the making of the Term Loans on the Term Loan
Funding Date or (ii) March 14, 2006, and the Revolving Commitments
(together with the Letter of Credit Commitment) shall terminate on the last
day of the Availability Period.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments, provided that (i) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to
any concurrent prepayment of the Revolving Loans in accordance with Section
2.9, the sum of the Revolving Credit Exposures would exceed the total
Revolving Commitments (ii) each such reduction of the Revolving Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not
less than $3,000,000, and (iii) any reduction of the Revolving Commitments
to an amount below the LC Commitment shall be automatically reduce the LC
Commitment on a dollar for dollar basis.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Revolving Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable,
provided that a notice of termination of the Revolving Commitments --------
delivered by the Borrower may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may
be revoked by the Borrower (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.
Each reduction, and any termination, of the Revolving Commitments shall be
permanent and each reduction of the Revolving Commitments shall be made
ratably among the applicable Lenders in accordance with their respective
Revolving Commitments.
Section 2.8 Repayment of Loans; Evidence of Debt
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each applicable Lender the then
unpaid principal amount of each Revolving Loan and Term Loan on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the debt of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
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(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(c) or (d) of this Section shall, to the extent not inconsistent with any
entries made in the Notes, be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Credit Agreement.
(e) The Revolving Loans made by each Lender shall be evidenced by a
Note payable to the order of such Lender, substantially in the form of
Exhibit D-1 and Term Loans made by each Lender shall be evidenced by a Note
payable to the order of such Lender, substantially in the form of Exhibit
D-2. In addition, if requested by a Lender, its Note may be made payable to
such Lender and its registered assigns in which case all Loans evidenced by
such Note and interest thereon shall at all times (including after
assignment pursuant to Section 10.4) be represented by one or more Notes in
like form payable to the order of the payee named therein and its
registered assigns.
Section 2.9 Prepayment of Loans
(a) Voluntary Prepayments. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of this Section. The Borrower shall notify the
Administrative Agent by telephone (confirmed by facsimile) of any
prepayment hereunder (i) in the case of a prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., Atlanta, Georgia time, three Business
Days before the date of prepayment or (ii) in the case of prepayment of an
ABR Borrowing, not later than 11:00 a.m., Atlanta, Georgia time, one
Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid, provided that if a
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.7,
then such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.7. Promptly following receipt of
any such notice relating to a Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing under Section 2.9(a) shall, when added to the amount of
each concurrent reduction of the Revolving Commitments and prepayment of
Revolving Borrowings under such Sections, be in an integral multiple of
$1,000,000 and not less than $3,000,000. Each partial prepayment of any
Term Borrowing under Section 2.9(a) shall be in an integral multiple of
$1,000,000 and not less than $3,000,000. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required
by Section 3.1.
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(b) Mandatory Prepayments. Within five (5) Business Days of the
receipt by the Borrower or any of its Subsidiaries of:
(i) Net Cash Sale Proceeds from Asset Sales (other than Net Cash
Sale Proceeds from (A) the sale or other disposition of inventory in
the ordinary course of business consistent with past practices and (B)
the sale or other disposition of equipment in the ordinary course of
business, to the extent that the Borrower delivers a certificate to
the Administrative Agent within two (2) Business Days after the date
of receipt stating that such Net Cash Sale Proceeds shall be
reinvested in the ordinary course of business in replacement assets in
which the Administrative Agent shall have a perfected first priority
security interest for the benefit of the Administrative Agent and the
Lenders (subject only to Permitted Encumbrances) within a period
specified in such certificate not to exceed one hundred eighty (180)
days after the receipt of such Net Cash Sale Proceeds);
(ii) Net Cash Equity Issuance Proceeds;
(iii) Net Cash Debt Issuance Proceeds; or
(iv) Cash proceeds received from Casualty Events (other than the
proceeds of any business interruption insurance);
the Borrower shall pay to the Administrative Agent for the respective
accounts of the Lenders an amount equal to 100% of such Net Cash Proceeds
from Asset Sales, Net Cash Equity Issuance Proceeds, Net Cash Debt Issuance
Proceeds and cash proceeds received from Casualty Events, as the case may
be, to be applied to the Term Loans and, if there are no outstanding
amounts owed on the Term Loans, then to reduce the outstanding amount of
the Revolving Loans with a corresponding permanent reduction to the
Revolving Commitment by such amount; provided, however, that if a Default
has occurred and is continuing, all such payments shall be applied pari
passu to the outstanding Term Loan and the outstanding Revolving Loans,
unless Lenders holding 50% or more of the Revolving Credit Commitments (or
50.1% of the Revolving Credit Exposures if the Commitments have been
terminated) otherwise elect in writing; provided, further, however, that so
long as the Term Loan has not been funded, the Subordinated Notes remain
outstanding and no Default is continuing hereunder, the Borrower may use
the proceeds from the Information Services Group Sale, any Net Cash Debt
Issuance Proceeds and any Net Cash Equity Issuance Proceeds to prepay such
Subordinated Notes prior to making any prepayments to the Revolving Loans.
In addition, so long as the Term Loan has not been funded and no Default is
continuing hereunder, no such mandatory prepayments shall be required to
reduce the Revolving Loans (with a corresponding permanent reduction to the
Revolving Commitment by such amount) other than 100% of Net Cash Debt
Issuance Proceeds.
(c) Prepayments Resulting from the Reduction of the Total Revolving
Commitments. In the event of any partial reduction or termination of the
Revolving Commitments, then (i) at or prior to the date of such reduction
or termination, the Administrative Agent shall notify the Borrower and the
applicable Lenders of the sum of the Revolving Credit Exposures and (ii) if
such sum would exceed the total Revolving Commitments after giving effect
to such reduction or termination, then the Borrower
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shall, on the date of such reduction or termination, prepay Revolving
Borrowings in an amount sufficient to eliminate such excess.
(d) Breakage Fees. All prepayments under this Section 2.9 shall be
subject to Section 3.6, if applicable.
Section 2.10 Letters of Credit
(a) General. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit denominated in
dollars for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to
time during the period from the Closing Date to the thirtieth Business Day
preceding the last day of the Availability Period. In the event of any
inconsistency between the terms and conditions of this Credit Agreement and
the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the
Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Credit Agreement shall control.
(b) Notice of Issuance; Amendment; Renewal; Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or facsimile (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (not later
than three Business Days before the requested date of issuance, amendment,
renewal or extension) a Credit Request requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application
on the Issuing Bank's standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and, upon issuance, amendment, renewal or extension of
each Letter of Credit, the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension, the LC Exposure shall not exceed the Letter of Credit Commitment
and (ii) the total Revolving Credit Exposures shall not exceed the total
Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the tenth Business Day preceding the last day of
the Availability Period.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof), and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender having a Revolving Commitment,
and each such Lender hereby acquires from the Issuing Bank, a participation
in each Letter of Credit equal to such Lender's Applicable Percentage of
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the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each such Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Applicable Percentage of
each LC Disbursement made by the Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for
any reason. Each such Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever; provided, however, that no Lender shall be obligated
to make any payment to the Administrative Agent for any wrongful LC
Disbursement made by the Issuing Bank as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the
Issuing Bank.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such
LC Disbursement not later than 4:00 p.m., Atlanta, Georgia time, on the
date that such LC Disbursement is made, if the Borrower shall have received
written notice (by hand delivery or telecopy) of such LC Disbursement prior
to 12:00 noon, Atlanta, Georgia time, on such date, or if such written
notice has not been received by the Borrower prior to such time on such
date, then not later than 4:00 p.m., Atlanta, Georgia time, on (i) the
Business Day that the Borrower receives such written notice, if such
written notice is received prior to 12:00 noon, Atlanta, Georgia time, on
the day of receipt or (ii) the Business Day immediately following the day
that the Borrower receives such written notice, if such written notice is
not received prior to such time on the day of receipt, provided that (A) in
addition to such written notice, (x) the officers of the Administrative
Agent primarily responsible for the administration of this Agreement shall,
promptly after they receive notice that a draft in respect of such LC
Disbursement has been presented to the Issuing Bank, use reasonable efforts
to notify the Borrower of such draft by telephone and (y) the
Administrative Agent shall, promptly after it receives notice that such LC
Disbursement has been made, use reasonable efforts to notify the Borrower
of such LC Disbursement by telephone prior to the delivery of such written
notice, provided, further, that the failure of the Borrower to receive any
such telephonic notice from the Administrative Agent or any officer thereof
shall not in any manner affect the Borrower's obligation to reimburse such
LC Disbursement in accordance with the terms of this Section, and (B) if
such LC Disbursement is not less than $500,000, the Borrower may, subject
to the conditions of borrowing set forth herein, request in accordance with
Section 2.3 that such payment be financed with an ABR Revolving Borrowing
in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Borrowing. If the Borrower fails to make such payment under
this paragraph when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such
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notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.6 with respect to Loans made by such Lender (and
Section 2.6 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders
have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding
of ABR Revolving Loans as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligations to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Credit Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or any Loan Document, or any term or
provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent, insufficient or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's
obligations hereunder. Neither any Credit Party nor any of their respective
Related Parties shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to
the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with
the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept
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and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify (which may include telephonic notice, promptly
confirmed by facsimile) the Administrative Agent and the Borrower of such
demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the applicable Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 3.1(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.
(i) Cash Collateral. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the applicable Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of
any Event of Default with respect to the Borrower described in clause (h)
or (i) of Article 8. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the
Borrower under this Credit Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Such deposit shall not bear interest, nor
shall the Administrative Agent be under any obligation whatsoever to invest
the same, provided, however, that, at the request of the Borrower, such
deposit shall be invested by the Administrative Agent in direct short term
obligations of, or short term obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America, in
each case maturing no later than the expiry date of the Letter of Credit
giving rise to the relevant LC Exposure. Interest or profits, if any, on
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such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing greater than 50% of the
total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Credit Agreement. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all
Events of Default have been cured or waived.
Section 2.11 Payments Generally; Pro Rata Treatment; Sharing of
Setoffs
(a) Each Loan Party shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal of Loans,
LC Disbursements, interest or fees, or of amounts payable under Sections
3.5, 3.6, 3.7 or 10.3, or otherwise) prior to 12:00 noon, Atlanta, Georgia
time, on the date when due, in immediately available funds, without setoff
or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at its
office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other office as to which the Administrative Agent may notify the
other parties hereto, except payments to be made to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections
3.5, 3.6, 3.7 and 10.3 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of
any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) Each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of fees,
each reduction of the Revolving Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type
shall be allocated pro rata among the applicable Lenders in accordance with
their respective applicable Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal
amounts of their outstanding Loans). Each Lender agrees that in computing
such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount. If at
any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal of Loans,
unreimbursed LC Disbursements, interest, fees and commissions then due
hereunder, such funds shall be applied (i) first, towards payment of
interest, fees and commissions then due hereunder, ratably among the
parties entitled thereto in
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accordance with the amounts of interest, fees and commissions then due to
such parties and (ii) second, towards payment of principal of Loans and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal of Loans and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of,
or interest on, any of its Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other
applicable Lender, then the applicable Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements to the extent necessary so
that the benefit of all such payments shall be shared by the applicable
Lenders ratably in accordance with the aggregate amount of principal of,
and accrued interest on, their respective Loans and participations in LC
Disbursements, provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this
Credit Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each Loan Party consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of
setoff and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of such Loan Party in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from a
Loan Party prior to the date on which any payment is due to the
Administrative Agent for the account of the applicable Credit Parties
hereunder that such Loan Party will not make such payment, the
Administrative Agent may assume that such Loan Party has made such payment
on such date in accordance herewith and may, in reliance upon such
assumption, distribute to such Credit Parties the amount due. In such
event, if such Loan Party has not in fact made such payment, then each such
Credit Party severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Credit Party with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(e) If any Credit Party shall fail to make any payment required to be
made by it pursuant to Section 2.6(b) or 2.10(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter
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received by the Administrative Agent for the account of such Credit Party
to satisfy such Credit Party's obligations under such Sections until all
such unsatisfied obligations are fully paid.
ARTICLE 3.
INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 Interest
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable
Margin.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan, any reimbursement obligation in respect of any LC Disbursement or
any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a
rate annum equal to (i) in the case of overdue principal of any Loan, 2%
plus the rate otherwise applicable to such Loan as provided in the
preceding paragraph of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Revolving Borrowings and Term
Borrowings as provided in the preceding paragraph of this Section. In
addition, notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as such Event
of Default is continuing, all outstanding principal of each Loan and all
unreimbursed reimbursement obligations in respect of all LC Disbursements
shall, without duplication of amounts payable under the preceding sentence,
bear interest, after as well as before judgment, at a rate per annum equal
to 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraph of this Section or to such unreimbursed reimbursement
obligations in accordance with Section 2.10(h).
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan, provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Loan (other than the
prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment, (iii) in the event
of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on
the effective date of such conversion, and (iv) all accrued interest shall
be payable upon termination of the Revolving Commitments and on the
Maturity Date.
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(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent clearly demonstrable error.
Section 3.2 Interest Elections
(a) Each Borrowing initially shall be of the Type specified in the
applicable Credit Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Credit Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall
be allocated ratably among the applicable Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
deliver to the Administrative Agent a signed Interest Election Request in a
form approved by the Administrative Agent (or notify the Administrative
Agent by telephone, to be promptly confirmed by delivery to the
Administrative Agent of a signed Interest Election Request) by the time
that a Credit Request would be required under Section 2.3 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be
made on the effective date of such election.
(c) Each such telephonic and written Interest Election Request shall
be irrevocable and shall specify the following information:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
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If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such
Interest Period, such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing, (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
Section 3.3 Fees
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender having a Revolving Commitment, an unused fee, which
shall accrue at rate equal to .25% per annum multiplied by the daily amount
of the unused Revolving Commitment of such Lender during the Availability
Period; provided, that if such Lender continues to have any Revolving
Credit Exposure after termination of its Revolving Commitment, then the
unused fee shall continue to accrue on the amount of such Lender's unused
Revolving Commitment from and after the termination of its Revolving
Commitment, to the date that all of such Lender's Revolving Credit Exposure
has been paid in full. Accrued unused fees shall be payable in arrears on
the last day of each March, June, September and December of each year and
on the Commitment Termination Date, commencing on the first such date after
the Closing Date; provided further, that any unused fees accruing after the
termination of its Revolving Commitments shall be payable on demand. For
purposes of computing commitment fees with respect to the Revolving
Commitments, the Revolving Commitment of each Lender shall not include any
LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender having a Revolving Commitment a participation fee
with respect to its participations in Letters of Credit, which shall accrue
at a rate per annum equal to the Applicable Margin on the average daily
amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Closing Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure and (ii) to the Issuing Bank for its
own account a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and the Issuing Bank on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements)
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during the period from and including the Closing Date to but excluding the
later of the date of termination of the Revolving Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension
of any Letter of Credit or processing of drawings thereunder, provided that
for the purposes of this clause (ii) only, Letters of Credit shall be
deemed to have been issued pursuant to this Credit Agreement. Accrued
participation fees and fronting fees shall be payable in arrears on the
last day of March, June, September and December of each year, commencing on
the first such date to occur after the date hereof; provided that all such
fees shall be payable on the date on which the Revolving Commitments
terminate and any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees payable to
the Issuing Bank pursuant to this paragraph shall be payable within ten
days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to each Credit Party, for its own
account, fees and other amounts payable in the amounts and at the times
separately agreed upon between the Borrower and such Credit Party.
(d) All fees and other amounts payable hereunder shall be paid on the
dates due, in immediately available funds. Fees and other amounts paid
shall not be refundable under any circumstances.
Section 3.4 Alternate Rate of Interest
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any Lender that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lender of
making or maintaining its Loan included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Revolving Borrowing
shall be ineffective and any Eurodollar Revolving Borrowing so requested to be
continued shall be converted to an ABR Borrowing on the last day of the current
Interest Period with respect thereto and (ii) if any Borrowing Request requests
a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR
Borrowing.
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Section 3.5 Increased Costs; Illegality
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Credit Party (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Credit Party or the London interbank market
any other condition affecting this Credit Agreement, any Eurodollar
Loans made by such Credit Party or any participation therein or any
Letter of Credit or participation therein,
and the result of any of the foregoing shall be to increase the cost
to such Credit Party of making or maintaining any Eurodollar Loan or
to increase the cost to such Credit Party of issuing, participating in
or maintaining any Letter of Credit hereunder or to increase the cost
to such Credit Party or to reduce the amount of any sum received or
receivable by such Credit Party hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Credit
Party such additional amount or amounts as will compensate such Credit
Party for such additional costs incurred or reduction suffered.
Failure to demand compensation pursuant to this Section shall not
constitute a waiver of such Credit Party's right to demand such
compensation.
(b) If any Credit Party determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Credit Party's capital or on the capital of such Credit
Party's holding company, if any, as a consequence of this Credit Agreement
or the Loans made, the Letters of Credit issued or the participations
therein held, by such Credit Party to a level below that which such Credit
Party or such Credit Party's holding company could have achieved but for
such Change in Law (taking into consideration such Credit Party's policies
and the policies of such Credit Party's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such
Credit Party such additional amount or amounts as will compensate such
Credit Party or such Credit Party's holding company for any such reduction
suffered.
(c) A certificate of a Credit Party setting forth the amount or
amounts necessary to compensate such Credit Party or its holding company,
as applicable, as specified in paragraph (a) or (b) of this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Credit Party the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Credit Party to demand
compensation pursuant to this Section shall not constitute a waiver of such
Credit Party's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Credit Party pursuant to
this Section for any increased costs or reductions
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incurred more than 90 days prior to the date that such Credit Party
notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Credit Party's intention to claim
compensation therefor; and provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
90 day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding any other provision of this Credit Agreement, if,
after the Agreement Date, any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan,
then, by written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods) and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans, whereupon any request for a Eurodollar Borrowing or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing, as applicable, for an additional Interest Period
shall, as to such Lender only, be deemed a request for an ABR Loan (or
a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurodollar Loan into an ABR Loan, as
applicable), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans, as of
the effective date of such notice as provided in the last sentence of
this paragraph.
In the event any Lender shall exercise its rights under clause (i) or (ii) of
this paragraph, all payments and prepayments of principal that would otherwise
have been applied to repay the Eurodollar Loans that would have been made by
such Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting from
the conversion of, such Eurodollar Loans, as applicable. For purposes of this
paragraph, a notice to the Borrower by any Lender shall be effective as to each
Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
Section 3.6 Break Funding Payments
In the event of (a) the payment or prepayment (voluntary or otherwise)
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto, (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Eurodollar Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.9(c) and is revoked in accordance
therewith), or (d) the
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assignment of any Eurodollar Loan other than on the last day of the Interest
Period or maturity date applicable thereto as a result of a request by the
Borrower pursuant to Section 3.8(b), then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event, provided, however, that, notwithstanding anything to the contrary herein,
no such compensation shall be payable for any loss, cost or expense attributable
to any payment made by the Borrower to the Administrative Agent under Section
2.6(b). In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the
interest rate that such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
Section 3.7 Taxes
(a) Any and all payments by or on account of any obligation of any
Loan Party hereunder and under any other Loan Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other
Taxes, provided that, if such Loan Party shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that, after making all required
deductions (including deductions applicable to additional sums payable
under this Section), the applicable Credit Party receives an amount equal
to the sum it would have received had no such deductions been made, (ii)
such Loan Party shall make such deductions and (iii) such Loan Party shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify each Credit Party, within ten days
after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by such Credit Party on or with respect to any payment
by or on account of any obligation of such Loan Party under the Loan
Documents (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Credit Party, or by the Administrative Agent
on its own behalf or on behalf of a Credit Party, shall be conclusive
absent manifest error.
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(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
relevant Loan Party is located, or any treaty to which such jurisdiction is
a party, with respect to payments under the Loan Documents shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at
a reduced rate.
Section 3.8 Mitigation Obligations; Replacement of Lenders
(a) If any Credit Party requests compensation under Section 3.5, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.7, then such Credit Party shall use reasonable efforts to designate a
different lending office for funding or booking its Loans or Letters of
Credit (or any participation therein) hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates,
if, in the judgment of such Credit Party, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.5 or
3.7, as applicable, in the future and (ii) would not subject such Credit
Party to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Credit Party. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Credit Party in connection
with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.7, in an aggregate amount in excess of $10,000, or if any Lender on three
or more separate occasions fails to fulfill its obligations to fund any
Revolving Loan or to participate in any LC Disbursement, in each case on
the Business Day required therefor, then the Borrower may, at its sole
expense (including the fees referred to in Section 10.4(b)) and effort,
upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.4), all its interests,
rights and obligations under the Loan Documents, to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees
and all other
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amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 3.5 or payments
required to be made pursuant to Section 3.7, such assignment will result in
a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Credit Parties that:
Section 4.1 Organization; Powers
Each of the Borrower and the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 4.2 Authorization; Enforceability
The Transactions are within the corporate, partnership or other
analogous powers of each of the Borrower and the Subsidiary Guarantors to the
extent it is a party thereto and have been duly authorized by all necessary
corporate, partnership or other analogous and, if required, equityholder action.
Each Loan Document has been duly executed and delivered by each of the Borrower
and the Subsidiary Guarantors to the extent it is a party thereto and
constitutes a legal, valid and binding obligation thereof, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally.
Section 4.3 Governmental Approvals; No Conflicts
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by laws or
other organizational documents of the Borrower or any of the Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any material indenture, agreement or other instrument binding upon the
Borrower or any of the Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Subsidiaries.
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Section 4.4 Financial Condition; No Material Adverse Change
(a) The Borrower has heretofore furnished to the Credit Parties its
Draft Financial Statements. The Draft Financial Statements present fairly,
in all material respects, the financial position and results of operations
of the Borrower and consolidated Subsidiaries as of such dates and for the
indicated periods in accordance with GAAP and are consistent with the books
and records of the Borrower (which books and records are correct and
complete), subject to year end audit adjustments and the absence of
statements of cash flows and footnotes, and except as set forth in Schedule
4.4 and except for any changes required which arise out of the Pending
Restatement; provided that such changes in the aggregate will not result in
(y) the Borrower's Consolidated EBITDA for the four fiscal quarters ending
September 30, 2005, to be less than $163,000,000 or (z) the Borrower's
Consolidated Net Worth (excluding any adjustments made in clause (ii) of
the definition of Consolidated Net Worth) as of the fiscal quarter ending
September 30, 2005 to be less than $651,000,000.
(b) Since September 30, 2005, there has been no material adverse
change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and the Subsidiaries, taken as a
whole, except for any changes required which arise out of the Pending
Restatement provided that such changes in the aggregate will not result in
(y) the Borrower's Consolidated EBITDA for the four fiscal quarters ending
September 30, 2005, to be less than $163,000,000 or (z) the Borrower's
Consolidated Net Worth (excluding any adjustments made in clause (ii) of
the definition of Consolidated Net Worth) as of the fiscal quarter ending
September 30, 2005 to be less than $651,000,000.
Section 4.5 Properties
(a) Each of the Borrower and the Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is entitled to
use, all franchises, licenses, trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the use
thereof by the Borrower and the Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 4.6 Litigation and Environmental Matters
(a) Except for the Disclosed Matters, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of the Subsidiaries (i) that, if adversely
determined, could reasonably be expected, individually
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or in the aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve any Loan Document or the
Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, neither the Borrower
nor any of the Subsidiaries (i) have failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) have become
subject to any Environmental Liability, (iii) have received notice of any
claim with respect to any Environmental Liability or (iv) know of any basis
for any Environmental Liability.
(c) Since the date of this Credit Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
(d) Except with respect to Permitted Liens, there is no financing
statement, security agreement, chattel mortgage, real estate mortgage or
other document filed or recorded with any filing records, registry or other
public office, that purports to cover, affect or give notice of any present
or possible future Lien on any assets or property of a Loan Party or any
rights relating thereto.
Section 4.7 Compliance with Laws and Agreements
Except as disclosed on Schedule 4.7, each of the Borrower and the
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 4.8 Investment and Holding Company Status
Neither the Borrower nor any of the Subsidiaries are (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
Section 4.9 Taxes
Each of the Borrower and the Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid
or caused to be paid all Taxes required to have been paid by it, except (a)
Taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
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Section 4.10 ERISA
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $2,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $2,000,000 the fair
market value of the assets of all such underfunded Plans.
Section 4.11 Disclosure
The Borrower has disclosed to the Credit Parties (i) all agreements,
instruments and corporate or other restrictions to which it or any of the
Subsidiaries is subject and (ii) all other matters known to it, in each case
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower or
any Subsidiary to any Credit Party in connection with the negotiation of the
Loan Documents or delivered thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
Section 4.12 Subsidiaries
Schedule 4.12 sets forth the name of, and the ownership interest of
the Borrower in, each Subsidiary on the Agreement Date and identifies each such
Subsidiary as a Domestic Subsidiary, a Foreign Subsidiary, Exempt Subsidiary
and/or a Significant Subsidiary (as determined as of the Agreement Date). As of
the Term Loan Funding Date, the Borrower shall deliver a revised Schedule 4.12
setting forth the name of, and the ownership interest of the Borrower in, each
Subsidiary on the Term Loan Funding Date and identifying each such Subsidiary as
a Domestic Subsidiary, a Foreign Subsidiary, Exempt Subsidiary and/or a
Significant Subsidiary (as determined as of the Term Loan Funding Date).
Section 4.13 Insurance
Schedule 4.13 sets forth a description of all insurance maintained by
or on behalf of the Borrower and the Subsidiaries as of the Agreement Date. As
of the Agreement Date, all premiums in respect of such insurance that are due
and payable have been paid.
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Section 4.14 Labor Matters
As of the Agreement Date, there are no strikes, lockouts or slowdowns
against the Borrower or any Subsidiary pending or, to the knowledge of the
Borrower, threatened. The hours worked by and payments made to employees of the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, except where any such violations, individually and in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect. All material payments due from the Borrower or any Subsidiary, or for
which any claim may be made against the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary.
The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary is
bound.
Section 4.15 Solvency
Immediately following the making of each Loan, if any, and the
issuance of each Letter of Credit, if any, made or issued on the date thereof
and after giving effect to the application of the proceeds of such Loan and such
Letter of Credit, (a) the fair value of the assets of the Borrower and the
Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Borrower and the Subsidiaries, taken as a
whole, will be greater than the amount that will be required to pay the probable
liability of their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each of the Borrower and the Subsidiary Guarantors will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each of the Borrower and the
Subsidiary Guarantors will not have unreasonably small capital with which to
conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following such date.
Section 4.16 Federal Reserve Regulations
(a) Neither the Borrower nor any of the Subsidiaries are engaged
principally, or as one of their important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
Immediately before and after giving effect to the making of each Loan,
Margin Stock will constitute less than 25% of the Borrower's assets as
determined in accordance with Regulation U.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase, acquire or carry any Margin Stock, (ii) for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the
regulations of the Board, including Regulation T, U or X, or (iii) to make
a loan to any director or executive officer of the Borrower or any
Subsidiary.
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Section 4.17 The Security Documents
(a) Upon execution and delivery of the Security Agreements by each of
the Loan Parties, substantially in the form of Exhibit G hereto (the "Security
Agreement"), the provisions of the Security Agreement are effective to create in
favor of the Agent for the benefit of the Lenders a legal, valid and enforceable
security interest in all right, title and interest of the Loan Parties in the
Security Agreement Collateral described therein, and the Agent, for the benefit
of the Lenders, has a fully perfected first lien on, and security interest in,
all right, title and interest in all of the Security Agreement Collateral
described therein to the extent the Security Agreement Collateral consists of
the type of property in which a security interest may be perfected by filing a
financing statement under the UCC as enacted in any relevant jurisdiction,
subject to no other Liens other than Permitted Liens.
(b) Upon execution and delivery of the Pledge Agreements by each of
the Loan Parties, substantially in the form of Exhibit H hereto (the "Pledge
Agreement"), the security interests created in favor of the Agent, as secured
party, for the benefit of the Lenders, under the Pledge Agreement constitute
first priority perfected security interests in the Pledged Collateral described
therein, subject to no security interests of any other Person. Assuming the
continued possession by the Agent of the Pledged Collateral constituting
certificated securities, no filings or recordings are required in order to
perfect (or maintain the perfection or priority of) the security interests
created in the Pledged Collateral under the Pledge Agreements.
Section 4.18 Subordinated Notes
The subordination provisions contained in the Subordinated Notes and
the Subordinated Indenture are enforceable against the holders of the
Subordinated Notes subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (regardless
of whether enforcement is sought in equity or at law) and an implied covenant of
good faith and fair dealing. As of the Agreement Date, all Obligations of the
Borrower and the Subsidiary Guarantors constitute Designated Senior Indebtedness
(as defined in the Subordinated Notes and the Subordinated Indenture).
ARTICLE 5.
CONDITIONS
Section 5.1 Closing Date
The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived in accordance
with Section 10.2), and in the case of the Term Loan, satisfaction of the
conditions set forth in Section 5.4:
(a) Credit Agreement. The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counterpart of this
Credit Agreement signed
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on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include facsimile transmission of a signed
signature page of this Credit Agreement) that such party has signed a
counterpart of this Credit Agreement.
(b) Notes. The Administrative Agent shall have received a Revolving
Note and a Term Note for each Lender, signed on behalf of the Borrower.
(c) Legal Opinion. The Administrative Agent shall have received a
favorable written opinion (addressed to the Credit Parties and dated the
Closing Date) from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President, Secretary
and Acting General Counsel of the Borrower and counsel to the Subsidiary
Guarantors on behalf of the Loan Parties, substantially in the form of
Exhibit B, and covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver
such opinion.
(d) Organizational Documents, etc. The Administrative Agent shall have
received such documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the (i) organization, existence
and good standing of each Loan Party (including a certificate of
incorporation or formation of the Borrower and each Subsidiary Guarantor
and a certificate of good standing (or comparable certificates) for the
Borrower and each Subsidiary Guarantor, certified as of a recent date prior
to the Closing Date, by the Secretaries of State (or comparable official)
of the jurisdiction of its incorporation or formation), (ii) the
authorization of the Transactions, (iii) the incumbency of its officer or
officers who may sign the Loan Documents, including therein a signature
specimen of such officer or officers and (iv) any other legal matters
relating to the Loan Parties, the Loan Documents or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(e) Officer's Certificate. The Administrative Agent shall have
received a certificate, dated the Closing Date and signed by the President,
a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 5.3.
(f) Fees and Expenses. The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(g) Guarantee Agreement. The Administrative Agent shall have received
counterparts of the Guarantee Agreement signed on behalf of the Borrower
and each Significant Subsidiary existing as of the Agreement Date (other
than Exempt Subsidiaries, Foreign Subsidiaries, BISYS Information
Solutions, L.P. and BISYS Document Solutions LLC) determined in accordance
with the first sentence of the definition of Significant Subsidiary.
(h) No Violation. The performance by each Loan Party of its
obligations under each Loan Document shall not (i) violate any applicable
law, statute, rule or
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regulation or (ii) conflict with, or result in a default or event of
default under, any material agreement of any Loan Party or any other
Subsidiary, and the Administrative Agent shall have received a certificate,
dated the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, to the foregoing effects.
(i) No Litigation. The Lenders shall be reasonably satisfied (i) that,
except for the Disclosed Matters, there shall be no litigation or
administrative proceeding, or regulatory development, that would reasonably
be expected to have a material adverse effect on (a) the business, assets,
operations, prospects, condition (financial or otherwise) or material
agreements of the Borrower and the Subsidiaries, taken as a whole, (b) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to any Credit Party
under any Loan Document and (ii) with the current status of, and the terms
of any settlement or other resolution of, any litigation or other
proceedings brought against the Borrower or any Subsidiary by or on behalf
of its subscribers or by any Governmental Authority relating to its
business, and the Administrative Agent shall have received a certificate,
dated the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, to the foregoing effects.
(j) No Other Indebtedness or Equity Interests. After giving effect to
the Transactions, none of the Borrower or any of the Subsidiaries shall
have outstanding any shares of preferred equity securities or any
Indebtedness other than as permitted under Section 7.1, and the
Administrative Agent shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President or a Financial Officer
of the Borrower, to the foregoing effects.
(k) No Material Adverse Change. No material adverse change or material
adverse condition in the business, assets, operations, properties,
condition (financial or otherwise), liabilities (including contingent
liabilities), prospects or material agreements of the Borrower and the
Subsidiaries, taken as a whole, has occurred since September 30, 2005,
except for events related to changes which may arise out of the completion
of the Pending Restatement; provided that such changes in the aggregate
will not result in (y) the Borrower's Consolidated EBITDA for the four
fiscal quarters ending September 30, 2005, to be less than $163,000,000 or
(z) the Borrower's Consolidated Net Worth (excluding any adjustments made
in clause (ii) of the definition of Consolidated Net Worth) as of the
fiscal quarter ending September 30, 2005 to be less than $651,000,000, and
the Administrative Agent shall have received a certificate, dated the
Closing Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, to the foregoing effects.
(l) Pro Forma Compliance. The Administrative Agent shall have received
a certificate, dated the Closing Date and signed by a Financial Officer of
the Borrower, setting forth reasonably detailed calculations demonstrating
compliance with Section 7.12 on a pro forma basis immediately after giving
effect to the Transactions to occur on the Closing Date.
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(m) Intentionally Omitted.
(n) Engagement Documents. The Administrative Agent (or its counsel)
shall have received from each party hereto, in form and substance
satisfactory to the Administrative Agent a duly executed Fee Letter and
Commitment Letter/Engagement Letter, each in form and substance
satisfactory to the Administrative Agent.
The Administrative Agent shall be entitled to assume that each of the
conditions set forth in Sections 5.1(i) and 5.1(k) have been satisfied unless it
shall have received notice expressly to the contrary from a Credit Party or a
Loan Party. Notwithstanding the foregoing, the obligations of the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.2) at or prior to 3:00 p.m., Atlanta, Georgia time, on
January 4, 2006 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
Section 5.2 Conditions to Extensions of Credit in Connection with
Acquisitions Permitted under Section 7.4(l) of this Credit Agreement
In addition to the satisfaction on the Closing Date of the conditions
set forth in Section 5.1 and the satisfaction of the conditions set forth in
Section 5.3, the obligation of each Lender to make a Loan on the occasion of any
Borrowing and of the Issuing Bank to issue, amend, renew or extend a Letter of
Credit, in each case where the proceeds of which are to be used directly or
indirectly to make an acquisition permitted by Section 7.4(l) is subject to the
satisfaction of the following conditions precedent as of the date of such Loan
or such Letter of Credit:
(a) The Person to be acquired is engaged in substantially the same or
a related business as any Subsidiary of the Borrower, including the
software, financial services, transaction processing and outsourcing
businesses, or in the case of an acquisition of a business or assets, such
business is substantially the same as or related to, or such assets are
devoted to a business that is substantially the same as or related to, as
the case may be, the business of any Subsidiary of the Borrower.
(b) If the amount of such Borrowing exceeds $10,000,000 or the
acquisition cost of the acquisition exceeds $20,000,000, the Administrative
Agent and the Lenders shall have received historical financial statements
of the Person or business to be acquired for not less than three years to
the date of such acquisition or such lesser amount of time for which such
statements exist.
(c) The Administrative Agent shall have received a certificate (in
form and substance satisfactory to the Administrative Agent) of a Financial
Officer to the effect that (and including calculations in reasonable detail
indicating that), on a pro forma basis after giving effect to such
acquisition, (i) all of the representations and warranties in the Loan
Documents will be true and correct, (ii) no Default shall have occurred and
be continuing, and (iii) certifying compliance with subsections (a) and (b)
of Section 5.3.
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(d) The Borrower shall have completed and filed with the Securities
and Exchange Commission (i) the Pending Restatement and (ii) the annual
financial statements for the fiscal year ending June 30, 2005.
Section 5.3 Each Credit Event
The obligation of each Lender to make a Loan on the occasion of any
Borrowing (including the initial Revolving Loan and the Term Loan), and of the
Issuing Bank to issue, increase, amend, renew or extend a Letter of Credit,
(each such event being called a "Credit Event") is subject to the satisfaction
of the following conditions:
(a) Representations. The representations and warranties of the Loan
Parties set forth in the Loan Documents shall be true and correct on and as
of the date of such Borrowing or the date of such issuance, increase,
amendment, renewal or extension, as applicable.
(b) No Default. At the time of and immediately after giving effect to
such Borrowing or such issuance, increase, amendment, renewal or extension,
as applicable, no Default shall have occurred and be continuing.
(c) Other Matters. The Administrative Agent shall have received such
other documentation and assurances as shall be reasonably required by it in
connection therewith, including reasonably satisfactory evidence that the
Indebtedness under the Prior Loan Documents shall have been fully repaid,
the Prior Loan Documents (including any Hedging Agreements issued by a
lender or otherwise secured thereunder) shall have been canceled or
terminated, the Borrower and each of the Subsidiaries shall have been
released from all liability thereunder (other than indemnification
obligations under the Prior Loan Documents which, by their terms, survive
such termination and existing letters of credit issued under the Prior Loan
Documents which have been fully cash collateralized).
Each Borrowing and each issuance, increase, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
Section 5.4 Term Loan Funding Date
The obligations of the Lenders to make the Term Loan shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2):
(a) Credit Request. The Administrative Agent shall have received from
the Borrower a Credit Request instructing the Administrative Agent to use
the proceeds of the Term Loan to repay in full the obligations under the
Subordinated Notes;
(b) Pledged Collateral. The Administrative Agent shall have received
duly executed Pledge Agreements from each applicable Loan Party, together
with delivery of each certificated Equity Interests representing the
Pledged Collateral, together with all
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other filings, recordings, deliveries of instruments, legal opinions and
other actions necessary or desirable in the opinion of the Administrative
Agent to create, protect and preserve the Administrative Agent's Lien in
the Pledged Collateral, all in form and substance satisfactory to the
Administrative Agent and its counsel; and
(c) Subsidiary Guarantee. The Administrative Agent shall have received
counterparts of the Guarantee Agreement signed on behalf of each Subsidiary
required to become a Subsidiary Guarantor as a result of the funding of the
Term Loan as contemplated by the second sentence in the definition of
Significant Subsidiary and (ii) BISYS Information Solutions, L.P. and BISYS
Document Solutions LLC to the extent required under Section 6.13, together
with, in each case, such other documents, opinions and certificates
reasonably requested by the Administrative Agent.
(d) Fees and Expenses. The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Term Loan
Funding Date, including, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
Notwithstanding the foregoing, the obligations of the Lenders to make the Term
Loan shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m.,
Atlanta, Georgia time, on March 14, 2006 (and, in the event such conditions are
not so satisfied or waived, the Term Commitments shall terminate at such time).
ARTICLE 6.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees and other amounts payable under the Loan
Documents shall have been paid in full and all Letters of Credit have expired
and all LC Disbursements have been reimbursed, the Borrower covenants and agrees
with the Credit Parties that:
Section 6.1 Financial Statements and Other Information
The Borrower will furnish to the Administrative Agent (with a copy
thereof for each Lender, which shall be promptly delivered by the Administrative
Agent to such Lender):
(a) within 90 days after the end of each fiscal year beginning with
fiscal year ending June 30, 2006, (i) its Form 10-K containing its audited
consolidated balance sheet and related statements of income, stockholders'
equity and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on by PriceWaterhouseCoopers, LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements
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present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, (i) its Form 10-Q containing its consolidated
balance sheet and related statements of income and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, and (ii) unaudited financial
information for each of the Borrower's business lines, all certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and the
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year end audit adjustments and the
absence of footnotes; provided, however, that for any fiscal quarter, if
the Form 10-Q for such fiscal quarter shall not have been filed by the
Borrower, in lieu thereof the Borrower may deliver its draft consolidated
balance sheet and related draft statements of income and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, and (ii) unaudited
financial information for each of the Borrower's business lines, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and the consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 7.12 (provided that for calculation
for any financial covenants in Section 7.12 for any fiscal quarter, unless
and until the Borrower shall have filed its Form 10-Q for any quarter
relevant to the calculation, it shall use the Draft Financial Statements
and the draft financial statements delivered to the Lenders for the
applicable fiscal quarter in accordance with Section 5.1(b)), (iii) setting
forth the name of each Domestic Subsidiary which is a Significant
Subsidiary and certifying that such Subsidiary is a Subsidiary Guarantor or
an Exempt Subsidiary, and (iv) stating whether any material change in GAAP
or in the application thereof in any material respect has occurred since
September 30, 2005 (until delivery of the audited financial statements in
Section 6.1(a) and thereafter from the date of such audited financial
statements), and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental
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Authority succeeding to any or all of the functions of said Commission, or
with any national securities exchange, or distributed by the Borrower to
its shareholders generally, as the case may be;
(e) furnish to the Administrative Agent promptly such other
information with documentation required by bank regulatory authorities
under applicable "know your customer" and anti-money laundering rules and
regulations (including, without limitation, Section 326 of the USA Patriot
Act of 2001, 31 U.S.C. Section 5318), as from time to time may be
reasonably requested by the Administrative Agent; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may reasonably
request.
Section 6.2 Notices of Material Events
The Borrower will furnish to the Administrative Agent prompt written
notice of the following (with a copy thereof for each Lender, which shall be
promptly delivered by the Administrative Agent to such Lender):
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could in
the good faith opinion of the Borrower reasonably be expected to result in
a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and the Subsidiaries in an aggregate
amount exceeding $2,000,000;
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect; and
(e) Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
Section 6.3 Existence; Conduct of Business
The Borrower will, and will cause each of the Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business, provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 7.3.
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Section 6.4 Payment of Obligations
The Borrower will, and will cause each of the Subsidiaries to, pay its
obligations, including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
Section 6.5 Maintenance of Properties
The Borrower will, and will cause each of the Subsidiaries to, keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
Section 6.6 Books and Records; Inspection Rights
The Borrower will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
Section 6.7 Compliance with Laws
The Borrower will, and will cause each of the Subsidiaries to, comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. The Borrower will, and will cause each of its
Subsidiaries to, (a) duly and punctually comply with and perform and observe
each and all of its applicable obligations in respect of the receipt, deposit,
retention, segregation or disbursement of any cash it holds as a fiduciary
("Fiduciary Cash"), whether such obligations are imposed by law or not, and (b)
not, in breach of any such obligation, pay or deliver any Fiduciary Cash to
either Administrative Agent or any Lender or cause or permit any Fiduciary Cash
to be applied to the payment of any of the Obligations.
Section 6.8 Use of Proceeds
(a) The proceeds of the Revolving Loans will be used only (i) to
refinance or repay certain existing Indebtedness (ii) for repurchases by
the Borrower of its capital stock provided that the Pending Restatement has
been completed and filed and the Borrower is then current with all filings
required to be filed with the Securities and Exchange Commission; (iii) for
working capital of the Borrower and the Subsidiaries, (iv) to reimburse the
Issuing Bank in respect of LC Disbursements and (v) to finance
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acquisitions permitted by Section 7.4(l). Letters of Credit shall be issued
only in support of the obligation of the Borrower or a Subsidiary in favor
of a beneficiary who has requested the issuance of a letter of credit (x)
as a condition to a transaction entered into in the ordinary course of
business, or (y) as support for Indebtedness permitted by Section 7.1(a)
incurred by the Borrower in connection with an acquisition permitted by
Section 7.4(l). Notwithstanding anything in any Loan Document to the
contrary, the proceeds of the Revolving Loans may not be used to purchase,
repay, prepay, redeem, acquire, defease or otherwise retire all or any
portion of the Subordinated Notes. The proceeds of the Term Loans will be
used only to repay all of the outstanding obligations under the
Subordinated Notes.
(b) No part of the proceeds of any Loan or any Letter of Credit will
be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase, acquire or carry any Margin
Stock, (ii) for any purpose that entails a violation of any of the
regulations of the Board, including Regulations T, U and X or (iii) to make
a loan to any director or executive officer of the Borrower or any
Subsidiary.
(c) The Borrower acknowledges that Lenders are subject to, among other
laws, rules and regulations, Section 23A and Section 23B of the Federal
Reserve Act, as amended from time to time, and hereby covenants and agrees
not to use any Borrowing (or the proceeds thereof) or Letter of Credit for
the specific purpose of benefiting or transferring any such Borrowing (or
the proceeds thereof) or Letter of Credit to, any affiliate of any Lender,
including without limitation, any Investment Company sponsored or organized
by, or affiliated with any such Lender.
Section 6.9 Insurance
The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, adequate
insurance for its insurable properties, all to such extent and against such
risks, including fire, casualty, business interruption and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations.
Section 6.10 Additional Subsidiaries
If any Domestic Subsidiary (other than an Exempt Subsidiary) is formed
or acquired after the Closing Date and such Subsidiary is a Significant
Subsidiary or if any Domestic Subsidiary (other than an Exempt Subsidiary)
becomes a Significant Subsidiary, or if any Exempt Subsidiary that is a
Significant Subsidiary ceases to be an Exempt Subsidiary, the Borrower will
notify the Administrative Agent in writing thereof within ten Business Days
after the date on which such Domestic Subsidiary is formed or acquired, becomes
a Significant Subsidiary or ceases to be an Exempt Subsidiary, as applicable,
and the Borrower will cause such Domestic Subsidiary to execute and deliver the
Guarantee Agreement (or otherwise become a party thereto in the manner provided
therein) and each Security Document (or otherwise become a party thereto in the
manner provided therein) within thirty days after the date on which such
Subsidiary is formed or acquired, becomes a Significant Subsidiary or ceases to
be an
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Exempt Subsidiary, as applicable, together with such documents, certificates and
legal opinions and take such other actions as the Administrative Agent shall
require.
Section 6.11 Environmental Compliance
The Borrower shall, and shall cause each of the Subsidiaries to, use
and operate all of its facilities and property in compliance with all
Environmental Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect
and remain in compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except where noncompliance
with any of the foregoing could not reasonably be expected to have a Material
Adverse Effect.
Section 6.12 Collateral Grant.
(a) On or before the Term Loan Funding Date, the Borrower shall have
taken all actions, and caused its Subsidiaries to take all actions, necessary or
requested by the Administrative Agent (including delivery of the duly executed
Pledge Agreements from each applicable Loan Party, together with all other
filings, delivery of Pledged Collateral, recordings, deliveries of instruments,
legal opinions and other actions necessary or desirable in the opinion of the
Administrative Agent) to create, protect and preserve the Administrative Agents
Lien in the Pledged Collateral as contemplated in Sections 11.(a), 11.2(b) and
11.3, all in form and substance reasonably satisfactory to the Administrative
Agent and its counsel.
(b) On or before the Collateral Trigger Date, the Borrower shall have
taken all actions, and caused its Subsidiaries to take all actions necessary or
requested by the Administrative Agent (including delivery of the duly executed
Security Documents from each applicable Loan Party, together with all other
filings, recordings, deliveries of instruments, legal opinions and other actions
necessary or desirable in the opinion of the Administrative Agent) to create,
protect and preserve the Administrative Agents Lien in the Collateral as
contemplated in Sections 11.(b), 11.2(b), 11.3, 11.5, 11.6 and 11,7 hereof, all
in form and substance reasonably satisfactory to the Administrative Agent and
its counsel.
Section 6.13 Information Services Group.
Provided that the Information Business Group Sale has not been
consummated on or prior to the March 14, 2006, the Borrower shall cause each of
BISYS Information Solutions, L.P. and BISYS Document Solutions, LLC to be added
as additional Subsidiary Guarantors and to execute and deliver any documents,
certificates and legal opinions reasonably requested by the Administrative Agent
therewith.
Section 6.14 Recharacterized Subsidiaries.
Within 30 days of the filing of the financial statements in connection
with the Pending Restatement, the Borrower shall cause each Recharacterized
Subsidiary to become a Subsidiary Guarantor, and no Default shall be deemed to
have occurred as a result of the failure of the Borrower to identify the
Recharacterized Subsidiary as a Subsidiary Guarantor on the Agreement Date or
the Term Loan Funding Date. Within such 30 day period, the Borrower shall cause
such Recharacterized Subsidiary to execute and deliver the Guarantee Agreement
(or otherwise
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become a party thereto in the manner provided therein) and each Security
Document (or otherwise become a party thereto in the manner provided therein),
together with such documents, certificates and legal opinions and take such
other actions as the Administrative Agent shall require.
ARTICLE 7.
NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees and other amounts payable under the Loan
Documents shall have been paid in full and all Letters of Credit have expired
and all LC Disbursements have been reimbursed, the Borrower covenants and agrees
with the Credit Parties that:
Section 7.1 Indebtedness; Equity Securities
(a) The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) (A) Indebtedness existing on the date hereof and set forth
in Schedule 7.1, including, except as set forth in the proviso below,
refinancings thereof (other than the Subordinated Notes which shall
not be permitted to be refinanced) but not increases in the amount of
any thereof, provided that refinancings of such existing Indebtedness
shall not be permitted unless the interest rate on any such refinanced
Indebtedness is not in excess of the rate available for similar
borrowings by similar borrowers at the time of the refinancing, the
final maturity of such refinanced Indebtedness is not earlier than the
Maturity Date, and if the Indebtedness being refinanced is
subordinated to the Indebtedness under the Loan Documents, such
refinanced Indebtedness shall be so subordinated on the same terms and
to the same extent as such Indebtedness being so refinanced and (B)
Indebtedness under the Prior Agreement and all agreements, instruments
and other documents executed or delivered in connection therewith,
provided that such Indebtedness is fully repaid on or before the
Closing Date;
(iii) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof, provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B)
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the aggregate principal amount of Indebtedness permitted by this
clause (iii) shall not exceed $10,000,000 at any time outstanding;
(iv) Indebtedness of any Person that becomes a Subsidiary after
the date hereof or which is otherwise incurred in connection with an
acquisition permitted by Section 7.4(l), provided that (A) such
Indebtedness exists at the time such Person becomes a Subsidiary or
such acquisition, as applicable, and is not created in contemplation
of or in connection with such Person becoming a Subsidiary, or such
acquisition, as applicable, and (B) the aggregate principal amount of
Indebtedness permitted by this clause (iv) shall not exceed
$10,000,000 at any time outstanding;
(v) Indebtedness of (A) the Borrower to any Domestic Subsidiary
and of any Domestic Subsidiary to the Borrower or any other Domestic
Subsidiary and (B) to the extent permitted by Section 7.4(d), the
Borrower to any Foreign Subsidiary and of any Foreign Subsidiary to
the Borrower or any other Foreign Subsidiary or Domestic Subsidiary;
(vi) Guarantees by (A) the Borrower of Indebtedness of any
Domestic Subsidiary and by any Domestic Subsidiary of Indebtedness of
the Borrower or any other Domestic Subsidiary and (B) any Foreign
Subsidiary of Indebtedness of the Borrower and by any Foreign
Subsidiary of Indebtedness of any other Foreign Subsidiary or Domestic
Subsidiary so long as such underlying Indebtedness is permitted
hereby;
(vii) Indebtedness of the Borrower incurred in connection with an
acquisition permitted by Section 7.4(l), provided that (A) such
Indebtedness is subordinated to the Indebtedness under the Loan
Documents on terms and in form and substance satisfactory to the
Administrative Agent and Required Lenders and (B) at the time of the
incurrence thereof and immediately after giving effect thereto, no
Default shall have occurred and be continuing;
(viii) Acquisition Related Contingent Payments incurred after the
Closing Date with respect to acquisitions permitted by Section 7.4(l),
which, at the time of the incurrence thereof, are commercially
reasonable under the circumstances;
(ix) Indebtedness of the Borrower under performance Guarantees of
the obligations of the Subsidiaries, provided that (A) such Guarantee
is required as a condition of a Person retaining the services of a
Subsidiary of the Borrower, (B) the obligations which are Guaranteed
are not financial obligations (other than financial obligations
incurred in the ordinary course of business), and (C) to the extent
that any such obligations are financial obligations, (1) such
obligations are not in excess of $20,000,000 in the aggregate or (2)
the Guarantee in respect of such obligations is in a form to be
negotiated that is mutually satisfactory to the Administrative Agent
and the Borrower;
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(x) Indebtedness of the Borrower in respect of operating or
capital leases of one or more of the Subsidiaries provided that in the
case of Guarantees in respect of Capital Lease Obligations, such
Capital Lease Obligations are permitted to be incurred pursuant to
clause (iii) above;
(xi) Indebtedness of a Subsidiary of the Borrower in respect of
Compensation Financings, provided that (A) at the time of the
incurrence thereof and immediately after giving effect thereto, no
Default shall have occurred and be continuing, and (B) such
Indebtedness shall be unsecured or, if secured, shall be secured only
by the 12b-1 Fees and/or Contingent Deferred Sales Commissions to
which such Subsidiary is entitled from the Investment Company or its
shareholders which is the subject of such Compensation Financings;
(xii) in addition to Indebtedness permitted under clause (iii)
above, Capital Lease Obligations in connection with sale and leaseback
transactions to the extent permitted by Section 7.6;
(xiii) Intentionally Omitted;
(xiv) Indebtedness of the Borrower or any of the Subsidiaries
incurred in connection with a sale of receivables in respect of 12b-1
Fees and Contingent Deferred Sales Commissions, provided that at the
time of the incurrence thereof and immediately after giving effect
thereto, no Default shall have occurred and be continuing;
(xv) other unsecured Indebtedness of the Borrower (the "Permitted
Notes") in an aggregate principal amount not in excess of $10,000,000;
provided that (A) at the time of the incurrence thereof and
immediately after giving effect thereto, no Default shall have
occurred and be continuing, (B) the maturity date thereof shall be
later than the Maturity Date, (C) the covenants applicable thereto
shall be no more restrictive to the Borrower and the Subsidiaries than
the covenants in this Credit Agreement (D) the events of default
applicable thereto shall be no more extensive than the Events of
Default, and (E) prior to the issuance thereof the Borrower shall
deliver a certificate of a Financial Officer demonstrating pro forma
compliance with Section 7.12 (attaching calculations in reasonable
detail).
(b) The Borrower will not, and it will not permit any Subsidiary to,
(i) issue any equity securities which are of a class or series that, either
by its terms, by the terms of any security into which it is convertible or
exchangeable at the option of the holder thereof by contract or otherwise,
is, or upon the happening of an event or passage of time would be, required
to be redeemed prior to the Maturity Date or is redeemable at the option of
the holder thereof at any time on or prior to the Maturity Date, or is
convertible into or exchangeable at the option of the holder thereof for
debt securities at any time prior to the Maturity Date (as from time to
time extended), or (ii) be or become liable in respect of any obligation
(contingent or otherwise) to purchase, redeem, retire, acquire or make any
other payment in respect of any shares of equity securities of the Borrower
or
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any Subsidiary or any option, warrant or other right to acquire any such
shares of equity securities, except as permitted under Section 7.8.
Section 7.2 Liens
The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except for the
following (collectively, the "Permitted Liens"):
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 7.2,
provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and any extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary, provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as applicable, (ii) such
Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations that it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as applicable, and any extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary, provided that (i) such security
interests secure Indebtedness permitted by clause (iii) of Section 7.1,
(ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Borrower or any
Subsidiary; and
(f) Liens on receivables in respect of 12b-1 Fees and Contingent
Deferred Sales Commissions to secure Indebtedness permitted by Section
7.1(a)(xiv).
Section 7.3 Fundamental Changes; Line of Business; Fiscal Year
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate with any other Person, or permit any other Person
to merge into or
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consolidate with it, or sell, transfer, lease or otherwise dispose of (in
one transaction or in a series of transactions) all or substantially all of
its assets, or all or substantially all of the equity securities of any of
the Subsidiaries (in each case, whether now owned or hereafter acquired),
or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred and
be continuing:
(i) any Subsidiary may merge into the Borrower in a transaction
in which the Borrower is the surviving entity, any Subsidiary may
merge into any Subsidiary Guarantor in a transaction in which such
Subsidiary Guarantor is the surviving entity;
(ii) any Subsidiary may merge with any Person in a transaction
that is not permitted by clause (i) of this Section 7.3(a), provided
that such merger is permitted by Section 7.4 or 7.5, as applicable;
(iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to any Subsidiary Guarantor;
(iv) any Subsidiary that is not a Subsidiary Guarantor may merge
into another Subsidiary that is not a Subsidiary Guarantor;
(v) any Subsidiary Guarantor may merge into a Subsidiary that is
not a Subsidiary Guarantor; provided, that the surviving entity of
such merger shall become a Subsidiary Guarantor prior to the
effectiveness of such merger; and
(vi) the Borrower or any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets in a transaction that is not permitted
by clause (iii) of this Section 7.3(a), provided that such sale,
transfer, lease or other disposition is also permitted by Section 7.5.
(b) The Borrower will not, and will not permit any of the Subsidiaries
to, engage to any material extent in any business other than businesses of
the type conducted by the Borrower and the Subsidiaries on the date of
execution of this Credit Agreement and businesses directly related thereto.
(c) The Borrower will not, and will not permit any of the Subsidiaries
to, change its fiscal year, provided that a Subsidiary whose fiscal year
end is not June 30 may change to a June 30 fiscal year end.
Section 7.4 Investments, Loans, Advances, Guarantees and Acquisitions
The Borrower will not, and will not permit any of the Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger) any Equity
Interests, evidences of indebtedness or other securities (including any option,
warrant or other right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions (including
pursuant to any merger)) any assets of any other Person constituting a business
unit, except:
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(a) Permitted Investments;
(b) investments existing on the date hereof and set forth in Schedule
7.4;
(c) investments made (i) by the Borrower in the equity securities of
any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic
Subsidiary in the equity securities of any other wholly-owned Domestic
Subsidiary, (iii) by the Borrower or any Domestic Subsidiary in the equity
securities of any wholly-owned Foreign Subsidiary provided that the
aggregate amount of such investments shall not exceed $5,000,000, and (iv)
by any wholly-owned Foreign Subsidiary in the equity securities of any
other wholly-owned Subsidiary;
(d) loans or advances made (i) by the Borrower to any wholly-owned
Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary to the
Borrower or any wholly-owned Domestic Subsidiary, (iii) by any wholly-owned
Foreign Subsidiary to another wholly-owned Foreign Subsidiary, and (iv) by
the Borrower or any Subsidiary Guarantor to any Foreign Subsidiary;
provided that (A) such loans or advances shall be repayable on --------
demand, (B) at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, (C) the outstanding
principal amount of loans and advances described in clause (iv) shall not
exceed $20,000,000 outstanding at any time, (D) at such time as the
aggregate amount of loans and advances described in clause (iv) shall
exceed $10,000,000, demand promissory notes evidencing all loans and
advances described in clause (iv) shall be pledged as collateral to the
Administrative Agent pursuant to documentation in form and substance
satisfactory to the Administrative Agent and (E) the Borrower shall not
permit any Subsidiary that is an Investment Company within the meaning of
the 1940 Act or a Person deemed to be an "investment company" to incur
Indebtedness described in this subsection (d) as a result of the Borrower
or any other Subsidiary making an investment in such Subsidiary with the
proceeds of Loans or Letters of Credit;
(e) acquisitions made by the Borrower from any Domestic Subsidiary and
made by any Domestic Subsidiary from the Borrower or any other Domestic
Subsidiary;
(f) investments consisting of loans to employees of the Borrower or
any of the Subsidiaries made in the ordinary course of business, provided
that at the time of such loans and immediately after giving effect thereto
no Default shall have occurred and be continuing, provided further that no
such loans shall be made to any director or executive officer of (i) the
Borrower or (ii) any Subsidiary, in each case to the extent it will be a
violation of applicable law;
(g) investments consisting of minority interests in Persons
substantially the same or a related business to that of the Borrower or any
of the Subsidiaries in an aggregate amount not to exceed $20,000,000,
provided that at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing;
(h) investments in shares of an Investment Company for which a
Subsidiary is a principal underwriter named in such Investment Company's
registration statement
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under the 1940 Act, provided that (i) such shares are acquired by such
Subsidiary prior to the public offering of such Investment Company's
shares, (ii) such shares are acquired by such Subsidiary solely for
purposes of enabling such Investment Company to satisfy the net worth
requirement of Section 14(a)(1) of the 1940 Act, and (iii) the amount paid
for such shares is limited to the amount necessary to enable such
Investment Company to satisfy the net worth requirement of Section 14(a)(1)
of the 1940 Act plus an additional $20,000,000 in the aggregate for all
such investments, it being understood that nothing herein shall require the
sale of any such shares;
(i) investments in shares of open end management Investment Companies,
provided that after giving effect to any such investment, the consideration
paid for such shares, when aggregated with the consideration paid for all
other such shares then held by the Borrower and the Subsidiaries, shall not
exceed 10% of the value of Consolidated Total Assets as at such time of
such investment;
(j) in addition to investments permitted by subsection (c) above,
capital contributions by the Borrower or any Subsidiary thereof to Exempt
Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt
Subsidiary solely because of the applicability of clause (iii) of the
definition of "Exempt Subsidiary"), provided that (i) at the time thereof
and immediately after giving effect thereto no Default shall have occurred
and be continuing, and (ii) the amount of any such investment shall not
exceed the amount necessary to meet the net capital requirements applicable
to such Exempt Subsidiaries;
(k) acquisitions by the Borrower or any Subsidiary of rights under a
contract or group of related contracts with a customer that had previously
been a party to a similar contract or group of contracts with another
Person with respect to which the Borrower or such Subsidiary has agreed to
pay a fee to such Person upon the successful negotiation, execution and
delivery of a replacement contract or group of contracts with such customer
within a specified period of time provided, that (i) at the time thereof
and immediately after giving effect thereto no Default shall have occurred
and be continuing, (ii) the Total Leverage Ratio on a pro forma basis for
the period of four consecutive quarters immediately succeeding the date on
which such rights are acquired satisfies the applicable ratio set forth in
Section 7.12(a) and (iii) the Administrative Agent and the Lenders shall
have received a certificate (in form and substance satisfactory to the
Administrative Agent) of a Financial Officer of the Borrower to the
foregoing effect, setting forth calculations in reasonable detail; and
(l) in addition to the acquisition of rights described in subsection
(k) above, other investments, loans, advances, Guarantees and acquisitions,
provided that (i) at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing and (ii) in the
case of an acquisition financed in whole or in part with the proceeds of
Loans, the conditions set forth in Section 5.2 shall have been satisfied.
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Section 7.5 Asset Sales
The Borrower will not, and will not permit any of the Subsidiaries to,
sell, transfer, lease or otherwise dispose (including pursuant to a merger) of
any asset, including any Equity Interests, nor will the Borrower permit any of
the Subsidiaries to issue any additional shares of its equity securities,
except:
(a) sales, transfers, leases and other dispositions of inventory, used
or surplus equipment and Permitted Investments, in each case in the
ordinary course of business;
(b) sales, transfers, leases and other dispositions made by the
Borrower to any Domestic Subsidiary and made by any Domestic Subsidiary to
the Borrower or any other Domestic Subsidiary;
(c) if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, other sales, transfers,
leases and other dispositions of assets, provided that (i) the assets sold,
transferred, leased or otherwise disposed of shall have (x) contributed
less than 15% of Consolidated EBITDA during the immediately preceding four
fiscal quarters and (y) represent less than 15% of Consolidated Total
Assets as of the most recently completed fiscal quarter, (ii) the aggregate
fair market value of all assets, sold, transferred, leased or otherwise
disposed of in reliance upon this subsection (d) shall not exceed 15% of
Consolidated Total Assets as of the most recently completed fiscal quarter,
and (iii) all sales, transfers, leases and other dispositions permitted by
this subsection (d) shall be made for fair value and solely for cash
consideration;
(d) sales in respect of sale and leaseback transactions to the extent
permitted by Section 7.6;
(e) if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, sales of receivables in
respect of 12b-1 Fees and Contingent Deferred Sales Commissions, provided
that any Indebtedness incurred in connection with such receivables shall be
permitted by Section 7.1(a)(xiv);
(f) the Information Services Group Sale provided the proceeds are
applied in accordance with Section 2.9.
Section 7.6 Sale and Lease Back Transactions
The Borrower will not, and will not permit any of the Subsidiaries to,
enter into any arrangement, directly or indirectly, with any Person whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold or transferred if the
aggregate amount of rental payments to be made in connection with all such
transactions would exceed $20,000,000 in the aggregate.
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Section 7.7 Hedging Agreements
The Borrower will not, and will not permit any of the Subsidiaries to,
enter into any Hedging Agreement, other than Hedging Agreements entered into in
the ordinary course of business (including those entered into specifically in
connection with one or more underlying business transactions) to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
Section 7.8 Restricted Payments
The Borrower will not, and will not permit any of the Subsidiaries to,
declare or make, or agree to pay for or make, directly or indirectly, any
Restricted Payment, except that:
(a) the Borrower may declare and pay dividends with respect to its
equity securities payable solely in additional shares of its equity
securities;
(b) any wholly-owned Subsidiary may declare and pay dividends with
respect to its equity securities to the Borrower or any other Subsidiary;
(c) if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, the Borrower may
repurchase shares of its Equity Interests (including repurchases in
connection with the exercise of options granted to an employee of the
Borrower or any of its Subsidiaries under any stock option or employee
stock purchase plan of the Borrower); provided that such shares are used as
consideration for an acquisition permitted by Section 7.4(l) within one
hundred and twenty (120) days of such repurchase;
(d) if at the time thereof and immediately after giving effect thereto
(x) no Default shall have occurred and be continuing, (y) the Information
Services Group Sale shall have been consummated and (z) the Subordinated
Notes have been repaid in full, the Borrower may repurchase shares of its
Equity Interests, not subject to or included in the limitation set forth in
subsection 7.8(c), in an aggregate amount not in excess of $100,000,000 in
any fiscal year; and
(e) the Borrower may make regularly scheduled payments of interest on
the Subordinated Notes to the extent permitted by the subordination terms
applicable thereto.
Section 7.9 Transactions with Affiliates
The Borrower will not, and will not permit any of the Subsidiaries to,
sell, transfer, lease or otherwise dispose (including pursuant to a merger) any
property or assets to, or purchase, lease or otherwise acquire (including
pursuant to a merger) any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arms length basis from
unrelated third parties, provided that this Section shall not apply to any
transaction that is permitted under Section 7.1, 7.3, 7.4, 7.5 or 7.8, between
or among the Loan Parties and not involving any other Affiliate.
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Section 7.10 Restrictive Agreements
The Borrower will not, and will not permit any of the Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its equity securities or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary, provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Credit Agreement, (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof identified
on Schedule 7.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of this Section shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Credit Agreement if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of this Section shall not apply to
customary provisions in leases restricting the assignment thereof.
Section 7.11 Amendment of Material Documents
The Borrower will not, and will not permit any Subsidiary to, amend or
modify its certificate of incorporation, by laws or other organizational
documents, other than amendments, modifications or waivers that would not
reasonably be expected to adversely affect the Credit Parties.
Section 7.12 Financial Covenants
(a) Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio at any time (i) to be greater than 2.50:1.00 until such time
as the Borrower shall have completed and filed with the Securities and
Exchange Commission the Pending Restatement and shall have filed with the
Securities and Exchange Commission all of its annual and quarterly reports
that are required to have been filed at such time, and (ii) thereafter to
be greater than 3.00:1.00.
(b) Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio as of the end of any fiscal quarter to be less
than 2.00:1.00.
(c) Consolidated Net Worth. The Borrower will not permit Consolidated
Net Worth as of the last day of each fiscal quarter to be less than the
sum, without duplication, of (i) $651,000,000 plus (ii) 60% of Consolidated
Net Income (if positive) for each fiscal quarter commencing after September
30, 2005 to the date of such determination (exclusive of any gain realized
in respect of the Information Services Group Sale), plus (iii) 30% of the
gain, net of taxes, realized in respect of the Information Services Group
Sale, plus (iv) with respect to any issuance of by the Borrower of Equity
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Interests (other than treasury stock) after August 1, 2005, (A) in the case
of any such issuance in connection with an acquisition, 85% of the total
increase in its stockholder's equity as a result of such acquisition and
(B) in all other cases, 85% of the total net proceeds received by it from
such issuance.
ARTICLE 8.
EVENTS OF DEFAULT
If any of the following events (each an "Event of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or on any
reimbursement obligation in respect of any LC Disbursement or any fee,
commission or any other amount (other than an amount referred to in clause
(a) of this Article) payable under any Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied
for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party or any other Subsidiary in or in connection with any Loan
Document or any amendment or modification hereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification hereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.3, 6.8, 6.10 or 6.12 or in
Article 7, or any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any other Loan Document, in each case
to which it is a party;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document to which it is a
party (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30
days after a Responsible Officer of such Loan Party shall have obtained
knowledge thereof;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable (after giving effect to any applicable grace period);
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity (in each case after giving effect
to any applicable grace period), provided that this clause (g) shall not
apply to secured Indebtedness that becomes due solely as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower, any Significant Subsidiary or any other
Loan Party or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower, any Significant Subsidiary or any other Loan Party or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower, any Significant Subsidiary or any other Loan Party
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower, any Significant Subsidiary or any other Loan
Party or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower, any Significant Subsidiary or any other Loan Party
shall become unable, admit in writing its inability or fail generally to
pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 (exclusive of amounts covered by insurance
issued by an insurer not an Affiliate of the Borrower that does not dispute
coverage) shall be rendered against the Borrower or any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
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(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) any Loan Document shall cease, for any reason, to be in full force
and effect, or any Loan Party shall so assert in writing or shall disavow
any of its obligations thereunder, or the Administrative Agent's Liens in a
material portion of the Collateral shall cease to be perfected, or shall
cease to have the priority contemplated by the Security Documents, in each
case otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Required
Lenders;
(n) a Change in Control shall occur;
(o) The SEC Investigation results in a liability to the Borrower or
its subsidiaries (whether through settlement, decree, or judgment) in
excess of $30,000,000 or otherwise has a Material Adverse Effect;
(p) The investigation of the Securities and Exchange Commission
relating to the Pending Restatement results in the occurrence of a Material
Adverse Effect; or
(q) The Borrower shall have completed and filed with the Securities
and Exchange Commission (i) the Pending Restatement and (ii) the financial
statements required to be filed for fiscal quarters ending March 31, 2005,
June 30, 2005 and September 30, 2005 and as a result, it is determined that
(y) the Borrower's Consolidated EBITDA for the four fiscal quarters ending
September 30, 2005, is less than $163,000,000 or (z) the Borrower's
Consolidated Net Worth (excluding any adjustments made in clause (ii) of
the definition of Consolidated Net Worth) as of the fiscal quarter ending
September 30, 2005 is less than $651,000,000.
then, and in every such event (other than an event described in clause (h) or
(i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions
(whether before or after the Closing Date), at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately and (ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of each Loan Party accrued
under the Loan Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate (whether
before or after the Closing Date) and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of each Loan Party accrued under the Loan Documents, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
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ARTICLE 9.
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent.
Each Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent under this Agreement and the
other Loan Documents, together with all such actions and powers that are
reasonably incidental thereto. The Administrative Agent may perform any of its
duties hereunder by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent and the Related Parties of the
Administrative Agent and any such sub-agent and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Section 9.2 Nature of Duties of Administrative Agent.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable (provided that the Borrower reserves
any and all rights and claims against any Lender, including the Administrative
Agent in its capacity as a Lender) for any action taken or not taken by it with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or
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document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent
Each of the Lenders, acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each of the Lenders also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, continue to make its own decisions in
taking or not taking of any action under or based on this Agreement, any related
agreement or any document furnished hereunder or thereunder.
Section 9.4 Certain Rights of the Administrative Agent
If the Administrative Agent shall request instructions from the
Required Lenders with respect to any action or actions (including the failure to
act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall
have received instructions from such Lenders; and the Administrative Agent shall
not incur liability to any Person (provided that the Borrower reserves any and
all rights and claims against any Lender, including the Administrative Agent in
its capacity as a Lender) by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or not taken
by it in accordance with the advice of such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual Capacity.
The bank serving as the Administrative Agent shall have the same
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates
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may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
Section 9.7 Successor Administrative Agent
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Event of
Default shall exist at such time. If no successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or
any state thereof or a bank which maintains an office in the United States,
having a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. If within 45
days after written notice is given of the retiring Administrative Agent's
resignation under this Section 9.7 no successor Administrative Agent shall
have been appointed and shall have accepted such appointment, then on such
45th day (i) the retiring Administrative Agent's resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and
(iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as
the Required Lenders appoint a successor Administrative Agent as provided
above. After any retiring Administrative Agent's resignation hereunder, the
provisions of this Article VIII shall continue in effect for the benefit of
such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.
Section 9.8 Additional Agencies; No Duties Imposed Upon Syndication
Agents or Documentation Agents.
(a) The Administrative Agent shall have the right from time to time to
designate one or more Syndication Agents and Documentation Agents. Upon any
such designation, the Administrative Agent shall have the right to replace
the cover page to this Agreement to reflect the addition of such Person as
Syndication Agent and Documentation Agent, as the case may be.
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(b) None of the Persons designated as a "Syndication Agent" or
"Documentation Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any of the other Loan
Documents other than, if such Person is a Lender, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Persons
designated as a "Syndication Agent" or "Documentation Agent" shall have or
be deemed to have any fiduciary duty to or fiduciary relationship with any
Lender. In addition to the agreements set forth in Section 9.8, each of the
Lenders acknowledges that it has not relied, and will not rely, on any of
the Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Notices.
Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
facsimile, as follows:
(a)
To the Borrower:
The BISYS Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telelcopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The BISYS Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Administrative Agent:
SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E.,
24th Floor, Atlanta, Georgia 30308
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. ▇./▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
(b) if to any other Credit Party, to it at its address (or facsimile
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Credit Agreement shall be deemed to have been given on
the date of receipt.
Section 10.2 Waivers; Amendments
(a) No failure or delay by any Credit Party in exercising any right or
power under any Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Credit Parties under the
Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any
Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan and/or the
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issuance, amendment, extension or renewal of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether any Credit
Party may have had notice or knowledge of such Default at the time.
(b) Neither any Loan Document nor any provision thereof may be waived,
amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required
Lenders, provided that no such agreement shall (i) increase any Commitment
of any Lender without the written consent of such Lender, or increase the
amount of the Letter of Credit Commitment without the consent of the
Issuing Bank, (ii) reduce the principal amount of any Loan or any
reimbursement obligation with respect to a LC Disbursement, or reduce the
rate of any interest (other than under Section 3.1(d)), or reduce any fees,
payable under the Loan Documents, without the written consent of each
Credit Party affected thereby, (iii) postpone the date of payment at stated
maturity of any Loan, the date of any amortization payment under Section
2.8(b) or the date of payment of any reimbursement obligation with respect
to an LC Disbursement, any interest or any fees payable under the Loan
Documents, or reduce the amount of, waive or excuse any such payment, or
postpone the stated termination or expiration of the Revolving Commitments
without the written consent of each Credit Party affected thereby, (iv)
change any provision hereof in a manner that would alter the pro rata
sharing of payments required by Section 2.11(b), without the written
consent of each Credit Party affected thereby, (v) change any of the
provisions of this Section or the definitions of the terms "Required
Lenders" any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, or change the currency in
which Loans are to be made, Letters of Credit are to be issued or payment
under the Loan Documents is to be made, or add additional borrowers,
without the written consent of each Lender, (vi) release any Subsidiary
Guarantor from its Guarantee under the Guarantee Documents (except as
expressly provided therein or in this Credit Agreement, including Section
6.13), or limit its liability in respect of such Guarantee, without the
written consent of each Lender, provided that a Subsidiary Guarantor which,
as of the last day of the most recently completed fiscal quarter,
represented less than 3% of Consolidated Total Assets and which represented
less than 3% of Consolidated EBITDA for the four consecutive quarter period
ending on such day, may be released from its Guarantee under the Guarantee
Documents or its liability limited in respect of such Guarantee so long as
the sum of the percentages of Consolidated Total Assets and Consolidated
EBITDA for all Subsidiary Guarantors released under this proviso does not
exceed 10% and the Required Lenders consent thereto in writing, and
provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the Issuing Bank
hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank, as applicable.
Section 10.3 Expenses; Indemnity; Damage Waiver
(a) The Borrower shall pay (i) all reasonable out-of-pocket costs and
expenses incurred by the Administrative Agent and its Affiliates, including
the reasonable fees,
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charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for
herein, the preparation and administration of each Loan Document or any
amendments, modifications or waivers of the provisions thereof (whether or
not the transactions contemplated thereby shall be consummated), (ii) all
out-of-pocket costs and expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit
or any demand for payment thereunder and (iii) all out-of-pocket costs and
expenses incurred by any Credit Party, including the reasonable fees,
charges and disbursements of any counsel for any Credit Party and any
consultant or expert witness fees and expenses, in connection with the
enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
reasonable out-of-pocket costs and expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall defend and indemnify each Credit Party and each
Related Party thereof (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the reasonable
fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with,
or as a result of (i) the execution or delivery of any Loan Document or any
agreement or instrument contemplated thereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
thereof including any refusal of the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any
of the Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of the Subsidiaries or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or, the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent or the Issuing Bank, as applicable, an amount
equal to the product of such unpaid amount multiplied by a fraction, the
numerator of which is the sum of such Lender's unused Commitments, the
outstanding principal balance of such Lender's Loans and such Lender's LC
Exposure and the denominator of which is the sum of the unused Commitments,
the outstanding principal balance of all Lenders Loans and the LC Exposure
of all Lenders (in each case determined as of the time that the applicable
unreimbursed expense or indemnity
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payment is sought or, in the event that no Lender shall have any unused
Commitments, outstanding Loans or LC Exposure at such time, as of the last
time at which any Lender had any unused Commitments, outstanding Loans or
LC Exposure), provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as applicable, was incurred by
or asserted against the Administrative Agent or the Issuing Bank, as
applicable, in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct and actual damages) arising out of, in connection with,
or as a result of, any Loan Document or any agreement, instrument or other
document contemplated thereby, the Transactions or any Loan or any Letter
of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly but
in no event later than ten days after written demand therefor.
Section 10.4 Successors and Assigns
(a) The provisions of the Loan Documents shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Credit Party (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void).
Nothing in the Loan Documents, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each Credit Party) any legal or
equitable right, remedy or claim under or by reason of any Loan Document.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under the Loan Documents (including all or a
portion of its Revolving Commitment or obligations in respect of its LC
Exposure and/or Term Commitment and the applicable Loans at the time owing
to it), provided that (i) except in the case of an assignment to a Lender
or an Affiliate or an Approved Fund of a Lender, each of the Borrower and
the Administrative Agent (and, in the case of an assignment of all or any
portion of its Revolving Commitment or obligations in respect of its LC
Exposure, the Issuing Bank) must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed)),
(ii) except in the case of an assignment to a Lender or an Affiliate or an
Approved Fund of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Revolving Commitment and/or Term Commitment, as
applicable, and the applicable Loans at the time owing to it, the aggregate
amount of the Revolving Commitment and/or Term Commitment (or Term Loans),
as applicable, of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $1,000,000 unless the Borrower and the Administrative Agent otherwise
consent, (iii) no
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assignments to the Borrower or any of its Affiliates shall be permitted,
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance together with, unless
otherwise agreed by the Administrative Agent, a processing and recordation
fee of $3,500, and (v) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire, and
provided, further, that any consent of the Borrower otherwise required
under this paragraph shall not be required if a Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under the Loan
Documents, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations
under the Loan Documents, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 3.5, 3.6, 3.7 and
10.3). Any assignment or transfer by a Lender of rights or obligations
under the Loan Documents that does not comply with this paragraph shall be
treated for purposes of the Loan Documents as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of
the Loans owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive
absent clearly demonstrable error, and the Borrower and each Credit Party
may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Credit Party, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and promptly record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Credit Agreement unless it has been recorded in the Register as
provided in this paragraph. Unless an assignee shall already be a Lender
hereunder, the Borrower shall execute and deliver a Note to such assignee.
(e) Any Lender may, without the consent of the Borrower or any Credit
Party, sell participations to one or more banks or other entities other
than the Borrower or any of its Affiliates (each such bank or other entity
being called a "Participant") in all or a
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portion of such Lender's rights and obligations under the Loan Documents
(including all or a portion of its Commitments, LC Exposure and outstanding
Loans owing to it), provided that (i) such Lender's obligations under the
Loan Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (iii) the Loan Parties and the Credit Parties shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of any Loan Documents, provided that such agreement
or instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver described
in the first proviso to Section 10.2(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.5, 3.6 and 3.7
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits
of Section 10.8 as though it were a Lender, provided that such Participant
agrees to be subject to Section 2.11(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 3.5 or 3.7 than the Lender that sold the participation to
such Participant would have been entitled to receive with respect to the
interest in the Loan Documents subject to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 3.7 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.7(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under the Loan Documents to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest, provided that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations under the Loan Documents or substitute any such pledgee
or assignee for such Lender as a party hereto.
Section 10.5 Survival
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Credit Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of any Loan Document and the
making of any Loans and the issuance of any Letter of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Credit Party may have had notice or knowledge of any Default or
incorrect representation or
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warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any LC Disbursement or any fee or any other amount payable under the
Loan Documents is outstanding and unpaid or any Letter of Credit is outstanding
and so long as the Commitments have not expired or terminated. The provisions of
Sections 3.5, 3.6, 3.7 and 10.3, 10.9, 10.10 and Article 9 shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans and the LC
Disbursements, the expiration or termination of the Letters of Credit and the
termination of the Commitments or the termination of this Credit Agreement or
any provision hereof.
Section 10.6 Counterparts; Integration; Effectiveness
This Credit Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract. This Credit Agreement and any separate letter agreements with
respect to fees payable to any Credit Party or the syndication of the credit
facilities established hereunder constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.1, this Credit Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of this
Credit Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Credit Agreement.
Section 10.7 Severability
In the event any one or more of the provisions contained in this
Credit Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
Section 10.8 Right of Setoff
If an Event of Default shall have occurred and be continuing, each of
the Lenders and their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to setoff
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by it to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Credit
Agreement and the other Loan Documents held by it, irrespective of whether or
not it shall have made any demand therefor and although such obligations may be
unmatured. The rights of each of the Lenders and
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their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that it may have. Each Lender
agrees (i) to notify the Administrative Agent in writing within three business
days after each such set-off and application made by such lender and (ii) to
comply with Section 2.11(c) of this Agreement.
Section 10.9 Governing Law; Jurisdiction; Consent to Service of
Process
(a) This Credit Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United
States District Court of the Southern District of New York, and of any
state court of the State of New York located in New York County and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Credit Agreement or the other
Loan Documents in any court referred to in paragraph (b) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) The Borrower irrevocably consents to service of process in the
manner provided for notices in Section 10.1. Nothing in this Credit
Agreement will affect the right of any party to this Credit Agreement to
serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
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HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.11 Headings
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Credit Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Credit Agreement.
Section 10.12 Interest Rate Limitation
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan or LC Disbursement, together with all fees,
charges and other amounts that are treated as interest thereon under applicable
law (collectively the "charges"), shall exceed the maximum lawful rate (the
"maximum rate") that may be contracted for, charged, taken, received or reserved
by the Lender holding an interest in such Loan or LC Disbursement in accordance
with applicable law, the rate of interest payable in respect of such Loan or LC
Disbursement hereunder, together with all of the charges payable in respect
thereof, shall be limited to the maximum rate and, to the extent lawful, the
interest and the charges that would have been payable in respect of such Loan or
LC Disbursement but were not payable as a result of the operation of this
Section shall be cumulated, and the interest and the charges payable to such
Lender in respect of other Loans or LC Disbursements or periods shall be
increased (but not above the maximum rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
Section 10.13 Treatment of Certain Information
Each Credit Party agrees to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature, all non-public information supplied
by the Borrower or any Subsidiary pursuant to this Credit Agreement which (a) is
clearly identified by such Person as being confidential at the time the same is
delivered to such Credit Party, or (b) constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder,
provided, however, that nothing herein shall limit the disclosure of any such
information (i) to such of their respective Related Parties as need to know such
information, (ii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, or requested by any bank regulatory
authority, (iii) on a confidential basis, to prospective lenders (i.e. assignees
and/or Participants) or their counsel, (iv) to auditors or accountants, and any
analogous counterpart thereof, (v) to any other Credit Party, (vi) in connection
with any litigation to which any one or more of the Credit Parties is a party,
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(vii) to the extent such information (A) becomes publicly available other than
as a result of a breach of this Credit Agreement, (B) becomes available to any
of the Credit Parties on a non-confidential basis from a source other than the
Borrower or any Subsidiary, or (C) was available to the Credit Parties on a
non-confidential basis prior to its disclosure to any of them by the Borrower or
any Subsidiary; and (viii) to the extent the Borrower shall have consented to
such disclosure in writing.
ARTICLE 11.
COLLATERAL SECURITY
Section 11.1 Security of Borrower.
(a) On and after the Term Loan Funding Date, the Obligations shall be
secured by a perfected first priority pledge (subject only to Permitted
Liens entitled to priority under applicable law) by the Borrower of one
hundred percent (100%) of the Equity Interests of each of its direct
Significant Subsidiaries, pursuant to the terms of the Pledge Agreement to
which it is a party; provided, however, that the Borrower shall only be
required to pledge sixty-five percent (65%) of the shares of Equity
Interests of any Foreign Subsidiary; and, provided, further, that the
Equity Interests of any Exempt Subsidiary shall not be pledged.
(b) On and after the Collateral Trigger Date, the Obligations shall be
secured by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under applicable law) in certain
assets of the Borrower (including the Equity Interests of any direct
Subsidiary which is not a Significant Subsidiary provided, that the
original certificates representing the Equity Interests of such
Subsidiaries shall not be required to delivered to the Administrative Agent
and provided, further, that the security interest shall cover only
sixty-five percent (65%) of the shares of Equity Interests of any Foreign
Subsidiary), whether now owned or hereafter acquired, pursuant to the terms
of the Security Documents to which the Borrower is a party; provided,
however, such security interest shall not be required unless the Term Loan
has been funded; and, provided, further, that the Equity Interests of any
Exempt Subsidiary shall not be subject to the security interest.
Section 11.2 Security of Subsidiaries.
(a) On and after the Term Loan Funding Date, the obligations of the
Subsidiary Guarantors under the Guarantee Agreement shall be in turn
secured by a perfected first priority pledge by one hundred percent (100%)
of the Equity Interests of each such Subsidiary's direct Significant
Subsidiaries, pursuant to the terms of the Pledge Agreement to which it is
a party; provided, however, that such Subsidiaries shall only be required
to pledge sixty-five percent (65%) of the shares of Equity Interests of any
Foreign Subsidiary; and, provided, further, that the original certificates
representing the Equity Interests of any Subsidiary that is not a
Significant Subsidiary shall not be
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required to delivered to the Administrative Agent; and provided, further,
that the Equity Interests of any Exempt Subsidiary shall not be pledged.
(b) On an after the Collateral Trigger Date, the obligations of the
Subsidiary Guarantors under the Guarantee Agreement shall be in turn
secured by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under applicable law) in certain
assets of each such Subsidiary Guarantor (including the Equity Interests of
any direct Subsidiary which is not a Significant Subsidiary provided, that
the original certificates representing the Equity Interests of such
Subsidiaries shall not be required to delivered to the Administrative Agent
and provided, further, that the security interest shall cover only
sixty-five percent (65%) of the shares of Equity Interests of any Foreign
Subsidiary), whether now owned or hereafter acquired, pursuant to the terms
of the Security Documents to which such Subsidiary is a party; provided,
however, such security interest shall not be required unless the Term Loan
has been funded; and provided, further, that the Equity Interests of any
Exempt Subsidiary shall not be subject to the security interest.
Section 11.3 Validity of Liens.
When granted, the Security Documents shall be effective to create in
favor of the Administrative Agent a legal, valid and enforceable first priority
(except for Permitted Liens entitled to priority under applicable law) security
interest in and Lien upon the Collateral, including all bank accounts. All
filings, recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Administrative Agent to protect and preserve
such security interests shall have been duly effected. The Administrative Agent
shall have received evidence thereof in form and substance satisfactory to the
Administrative Agent.
Section 11.4 Perfection Certificates and UCC Search Results.
On or before the Collateral Trigger Date, the Administrative Agent
shall have received from the Borrower and the Subsidiary Guarantors a completed
and fully executed Perfection Certificate and the results of UCC searches (and
the equivalent thereof in all applicable foreign jurisdictions) with respect to
the Collateral, indicating no Liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Administrative Agent.
Section 11.5 Certificates of Insurance.
On or before the Collateral Trigger Date, the Administrative Agent
shall have received (a) a certificate of insurance from an independent insurance
broker dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, listing the Administrative Agent as loss
payee and additional insured, and otherwise describing the insurance obtained in
accordance with the provisions of the Security Agreements and (b) certified
copies of all policies evidencing such insurance (or certificates therefore
signed by the insurer or an agent authorized to bind the insurer); provided,
however, such items shall not be required unless the Term Loan has been funded.
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THE BISYS GROUP, INC.
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE BISYS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President & CFO
SUNTRUST BANK, as a Lender, Issuing
Bank, and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Director
Revolving Commitment: $100,000,000
Term Commitment: $300,000,000