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Proc-Type: 2001,MIC-CLEAR
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<SEC-DOCUMENT>0000931763-02-000622.txt : 20020415
<SEC-HEADER>0000931763-02-000622.hdr.sgml : 20020415
ACCESSION NUMBER: 0000931763-02-000622
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 7
CONFORMED PERIOD OF REPORT: 20011231
FILED AS OF DATE: 20020312
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: EQUIFAX INC
CENTRAL INDEX KEY: 0000033185
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-CONSUMER CREDIT REPORTING, COLLECTION AGENCIES [7320]
IRS NUMBER: 580401110
STATE OF INCORPORATION: GA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-06605
FILM NUMBER: 02573603
BUSINESS ADDRESS:
STREET 1: 1600 PEACHTREE ST NW
CITY: ATLANTA
STATE: GA
ZIP: 30302
BUSINESS PHONE: 4048858000
MAIL ADDRESS:
STREET 1: 1600 PEACHTREE ST NW
CITY: ATLANTA
STATE: GA
ZIP: 30309
FORMER COMPANY:
FORMER CONFORMED NAME: RETAIL CREDIT CO
DATE OF NAME CHANGE: 19760222
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>d10k.txt
<DESCRIPTION>FORM 10-K
<TEXT>
<PAGE>
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] Annual Report pursuant to Section 13 or 15(d)of the Securities
Exchange Act of 1934 for the fiscal year ended 12-31-01 or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period from
_______________________ to _______________________
Commission file number 1-6605
--------------------------------------------------------
EQUIFAX INC.
- -------------------------------------------------------------------------------
Exact name of Registrant as specified in its Charter)
GEORGIA 58-0401110
- -------------------------------- -------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1550 Peachtree St., N.W., Atlanta, GA 30309
- ---------------------------------------- -------------------------------------
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code) (404) 885-8000
--------------------------
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock
($1.25 Par Value) New York Stock Exchange
- ------------------------------ -------------------------------------------
Securities registered pursuant to Section 12(g) of the Act:
None
- -------------------------------------------------------------------------------
(Title of class)
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS.
YES [X] NO [ ]
INDICATE BY CHECK MARK IF DISCLOSURE OF DELINQUENT FILERS PURSUANT TO ITEM 405
OF REGULATION S-K (SECTION 229.405 OF THIS CHAPTER) IS NOT CONTAINED HEREIN, AND
WILL NOT BE CONTAINED, TO THE BEST OF REGISTRANT'S KNOWLEDGE, IN DEFINITIVE
PROXY OR INFORMATION STATEMENTS INCORPORATED BY REFERENCE IN PART III OF THIS
FORM 10-K OR ANY AMENDMENT TO THIS FORM 10-K. [ ]
THE AGGREGATE MARKET VALUE OF THE VOTING STOCK HELD BY NON-AFFILIATES (WHICH FOR
PURPOSES HEREOF ARE ALL HOLDERS OTHER THAN CURRENT EXECUTIVE OFFICERS, DIRECTORS
AND HOLDERS OF 5% OR MORE OF THE OUTSTANDING COMMON STOCK) OF THE REGISTRANT,
AS OF FEBRUARY 20, 2002 WAS $3,427,302,969 BASED ON THE CLOSING SALES PRICE OF
THE COMMON STOCK AS REPORTED BY THE NEW YORK STOCK EXCHANGE ON SUCH DATE. SEE
ITEM 12.
INDICATE THE NUMBER OF SHARES OUTSTANDING OF EACH OF THE REGISTRANT'S CLASSES OF
COMMON STOCK, AS OF THE LATEST PRACTICABLE DATE.
Class Outstanding at February 20, 2002
----- --------------------------------
COMMON STOCK, $1.25 PAR VALUE 143,813,683
DOCUMENTS INCORPORATED BY REFERENCE THE PROXY STATEMENT FOR THE ANNUAL MEETING
OF SHAREHOLDERS TO BE HELD ON MAY 1, 2002, TO BE FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, IS INCORPORATED BY REFERENCE, TO THE EXTENT INDICATED UNDER
ITEMS 10, 11, 12, 13 AND 14, INTO PARTS III AND IV OF THIS FORM 10-K.
<PAGE>
Equifax Inc.
2001 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I. .....................................................................2
ITEM 1. BUSINESS .........................................................2
ITEM 2. PROPERTIES .......................................................6
ITEM 3. LEGAL PROCEEDINGS ................................................6
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ..............6
PART II. ....................................................................6
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY ........................6
ITEM 6. SELECTED FINANCIAL DATA ..........................................7
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS .............................8
CERTAIN FACTORS AFFECTING FORWARD LOOKING STATEMENTS ..................14
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK .......16
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA .....................17
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ...................39
PART III. ..................................................................39
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT ..............39
ITEM 11. EXECUTIVE COMPENSATION ..........................................39
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT ..39
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS ..................39
PART IV. ...................................................................40
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K .40
SIGNATURES ............................................................43
INDEX TO EXHIBITS .....................................................45
<PAGE>
PART I.
ITEM 1. BUSINESS
Equifax Inc. is a leading source of consumer and commercial credit information
worldwide. The Company provides to a wide range of customers information
management, consumer credit information, marketing, business information, and
identity verification services to enable credit and business decisions. The
Company, through its Consumer Direct business, provides credit reporting and
identity theft monitoring services direct to consumers enabling them to
proactively manage their credit health and safeguard against identity theft. The
Company is the market leader for credit information services in North America.
The Company operates in 13 countries: North America (the United States and
Canada), Europe (the United Kingdom, Ireland, Spain, Italy, and Portugal) and
Latin America (Argentina, Brazil, Chile, El Salvador, Peru, and Uruguay).
2001 HIGHLIGHTS
In 2001, Equifax continued to refocus and realign its businesses to drive
shareholder value. Mid-year, the Company completed the spin-off of its Payment
Services division. Excluding discontinued operations and divested businesses,
Equifax reported record operating results, which were largely attributable to
performance in our North American Information Services segment. Other 2001
financial highlights include the following (excluding divested and discontinued
operations):
. Consolidated revenues increased 8% to $1.1 billion.
. Diluted earnings per share increased 5% to $1.15, before restructuring and
other charges of $60 million (pre-tax).
. Consolidated operating margins were 29%.
. North American revenues increased 13% and operating income increased 14%.
. U.S. consumer reporting volumes grew 20%.
. The Consumer Direct business more than tripled revenues.
. Free cash flow grew to $208 million, a 72% increase over 2000.
DESCRIPTION OF BUSINESS
The Company was founded as a credit reporting agency under the name "Retail
Credit Company" in Atlanta, Georgia, in 1899 and soon expanded into
investigation of applicants for insurance. The company has continued to expand
on a domestic and international basis and to diversify by means of internal
development and strategic acquisitions. We have been publicly owned since 1965,
listed on the New York Stock Exchange since 1971, and are a member of the S&P
500. In 1975, the Company changed its name from "Retail Credit Company" to
"Equifax Inc."
The Company expanded operations into credit card services with the acquisition
of Telecredit in 1990 and into direct marketing in 2000 with the purchase of the
Consumer Information Solutions Group of R.L. Polk & Co. During the last five
years, the Company has redefined and sharpened its business focus with the goal
of creating additional shareholder value. In 1997, the Company divested its
insurance services operations through the spin-off of a subsidiary company to
shareholders. In 2000, the Company sold its risk management collections
businesses in the United States, Canada and the U.K. And in July 2001, the
Company completed the spin-off of its Payment Services segment (the acquired
Telecredit business) by distributing to its shareholders the common stock of
Certegy Inc. ("Certegy"), as a tax free dividend.
Equifax is a holding company that conducts its business operations through
subsidiary companies. The Company's business areas are divided into separate
groups and are conducted on a "profit center" basis with self-contained
functional integrity. Equifax supplies centralized overall financial, legal,
communications, media relations, tax and similar services.
Equifax is not dependent on any single customer, and the Company's largest
customer provides less than 3% of the Company's total revenues.
The Company reports its financial results in five segments -- North American
Information Services, Equifax Europe, Equifax Latin America, Other, and Divested
Operations. Detailed financial results and segment information are provided
under the heading "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and in Note 12 of Notes to Consolidated Financial
Statements.
A description of the Company's products and services by line of business is
provided below:
2
<PAGE>
INFORMATION SERVICES
Information Services, which is our largest line of business, maintains
value-added information on more than 400 million consumers and businesses, and
is the market leader in credit information services in North America.
Information Services encompasses a number of businesses, all of which derive
their products and services from our proprietary databases and expert knowledge.
We will seek continued growth by developing innovative products and services,
maintaining the quality of our databases, and delivering superior service.
For financial reporting purposes, the Information Services business is reported
geographically in North American Information Services, Equifax Europe and
Equifax Latin America segments. The principle lines of business are:
Consumer Services. Our consumer reporting business maintains files on over 300
million individuals worldwide with information updated constantly. Our consumer
products provide information about individuals in a variety of services that
include credit reporting, credit scoring, risk management, fraud detection,
identity verification, modeling and analytics. Customers access our products
largely through electronic distribution, including direct real-time access,
which facilitates instant decisions.
Customers include banks, mortgage lenders, retailers, financial institutions,
automotive manufacturers and dealers, telecommunications and utility companies,
brokerage firms, insurance companies, and government. Our customers utilize the
information we provide to make decisions for a wide range of credit and business
purposes, such as mortgage or auto loans, credit card applications, identity
verification and similar business uses.
Marketing Services. This line of business includes our credit marketing, risk
management and decisioning, and direct marketing services businesses. Credit
marketing offers prescreening services, which facilitate pre-approved offers of
credit by banks and financial institutions. Equifax risk management and fraud
detection and prevention services enable banks and financial institutions to
minimize their default rates by proactively managing their existing credit card
accounts. Our decisioning analytics and platforms enable customers to make
credit, cross-selling, and other business decisions instantaneously while
streamlining application processing.
Our direct marketing services business provides consumer, demographic and
lifestyle information. Direct marketing products include data capture, database
management and registration card programs for consumer durable goods
manufacturers. Our products enable customers to target specifically defined
market segments and design more effective and economically efficient marketing
campaigns. Customers include financial institutions, insurers, catalogers,
publishers, technology companies, and manufacturers.
Commercial Services. Our commercial business consists of selling products and
services based on information that we maintain about businesses. Consistent with
our strategy of expanding markets, in 2001 we continued to develop our
commercial business in the United States by growing our Small Business Financial
Exchange, a facility which brings together more than 20 of the leading financial
institutions and small business lenders to report and maintain comprehensive
trade line data on small businesses. We also operate the proprietary National
Telecommunication Data Exchange, which includes default commercial account
information from 72 telecommunications companies.
Our subsidiaries in Canada, the U.K., and Spain also sell commercial information
to a wide variety of customers, and our subsidiary in Brazil is the leading
commercial credit information vendor in that country.
CONSUMER DIRECT SERVICES
In 2000, the Company began offering credit information direct to consumers in
the United States via the Internet at www.equifax.com. Equifax Credit
Profile(R),our first product, provides secure online access to a user-friendly
credit report. In 2001, the Company introduced Equifax Credit Watch(TM), our
credit monitoring service, which is a subscription service that provides the
consumer with several Equifax Credit Profiles and e-mail alerts whenever there
has been an inquiry to his/her credit file. Once alerted, the consumer can view
the details of the inquiry on-line and protect against identity fraud. In 2001,
Equifax Credit Watch(TM) was named one of the 25 "Best Products of 2001" by
Business Week Magazine.
Also in 2001, we introduced ScorePower(TM), the only on-line service that allows
consumers access to their BEACON(TM) score. ScorePower purchasers receive their
Equifax Credit Profile, the Beacon Score calculated from that profile, together
with an explanation regarding their score and suggestions on how to favorably
affect it.
3
<PAGE>
Consumer Direct more than tripled its revenues in 2001 and offers strong growth
potential for the Company. We intend to continue to prudently expand the product
offerings, expand geographically, and develop creative marketing strategies for
profitable growth. Customers of Consumer Direct include consumers, as well as
businesses that offer Consumer Direct products to their employees or customers.
Consumer Direct is reported in the North American Information Services segment.
PRODUCTS
Our businesses offer a variety of products that enable customers to operate
their businesses with efficiency. We are constantly seeking to expand our
product and service offerings. Generally, we expand product offerings through
internal development or by acquisition. Recent new products generated through
internal development include our patented eIDverifier(R) Internet identity
verification products and our decisioning platforms. We may also partner with a
third party to provide a product. The recent acquisition of our Direct Marketing
Services business provided us with a range of proven marketing products. We
continue to leverage our investments in our proprietary databases to develop and
deliver progressively more value-added products across all our businesses.
Distribution of products and services to customers is made primarily through
electronic data interfaces. We seek to manage costs and provide superior
customer service through technological innovation. Our web-based initiative
Equifax ePORT(TM), which enables delivery of information to customers via a
secured Internet connection, is an example of our creative use of technology.
We will continue to capitalize on the most efficient and effective means of
delivering products and services.
DATA SOURCES
We rely extensively upon data from external sources to maintain our proprietary
and non-proprietary databases, including data received from customers and
various government and public record services. Additionally, we also rely on
certain contractual relationships with certain affiliated third party-credit
reporting agencies to provide us data in certain geographic areas.
Our Direct Marketing Services business provides us with a proprietary database
consisting of consumer, lifestyle and demographic information. This database
provides us the opportunity to develop new products and to explore cross-selling
synergies with our existing data businesses. Similarly, through our acquisition
in October 2000 of Compliance Data Center, Inc., we acquired the leading
database for customer information services to the brokerage industry.
We are committed to enhancing, expanding and maintaining the integrity of our
proprietary databases.
COMPETITION
Equifax operates in a number of geographic, product and service markets, which
are highly competitive. We primarily compete with two global consumer credit
reporting companies, Experian Information Solutions, Inc. and Trans Union LLC,
which offer credit-reporting products that are similar to those we offer. We
also compete with these and other companies that offer marketing information
products and services, including Acxiom Corporation and InfoUSA, Inc. In
commercial reporting, our primary competitor is D&B.
EMPLOYEES
The Company had approximately 5,200 employees in 13 countries as of December 31,
2001. None of our employees are subject to a collective bargaining agreement.
REGULATORY
Because our business involves the collection of consumer and business data and
distribution of such information to businesses making credit and marketing
decisions, certain of our activities and services are subject to regulation
under various U. S. federal laws including the Fair Credit Reporting Act and the
Gramm-Leach-Bliley Act, as well as similar state laws. We are also subject to
privacy and consumer credit laws and regulations in foreign countries where we
do business. It is the Company's policy to treat all information with a high
degree of security reflecting our recognition of individuals' privacy concerns.
Certain of our businesses, notably our Direct Marketing Services business, are
less regulated than the credit-based portions of our business.
4
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
The Company's officers as of February 28, 2002 are listed below:
<TABLE>
<CAPTION>
Officer
Name Position With Company Age Since
- ---- --------------------- --- -------
<S> <C> <C> <C>
Thomas F. Chapman Chairman and Chief Executive Officer 58 1991
William V. Catucci Executive Vice President - Global Operations 63 1999
John Chandler Vice President, Financial Administration 54 2002
Virgil P. Gardaya Corporate Vice President and General Manager, Consumer 55 2000
Direct
Karen H. Gaston Corporate Vice President and Chief Administrative Officer 49 1998
Mitchell J. Haws Vice President of Investor Relations & Public Relations 38 2001
Kent E. Mast Corporate Vice President, General Counsel and Secretary 58 2000
Philip J. Mazzilli Executive Vice President and Chief Financial Officer 61 2000
Michael G. Schirk Vice President and Treasurer 52 1999
Dennis B. Story Vice President and Corporate Controller 38 2001
</TABLE>
There are no family relationships among the officers of the Company, nor are
there any arrangements or understandings between any of the officers and any
other persons pursuant to which they were selected as officers.
Mr. Chapman also serves as a Director. Messrs Chapman, Chandler, Schirk, and Ms.
Gaston have all been employed with the Company in executive positions for the
previous five years.
Mr. Catucci joined the Company in October 1999 as Group Executive, North America
Information Services and was promoted to his current position in October 2000.
Prior to joining the Company, Mr. Catucci served as President and Chief
Executive Officer of Unitel/AT&T Canada Long Distance Services from 1996 to
1999.
Mr. Gardaya joined the Company in November 1998 as Senior Vice President, Global
Communications Micro/LAN Services. Prior to being named to his current position
in September 2001, Mr. Gardaya also served as Corporate Vice President and Chief
Technology Officer. Prior to that, Mr. Gardaya served as Vice President and
Chief Information Officer for GTE Wireless and GTE Airfone, and in various
executive positions with GTE for more than five years.
Mr. Haws joined the Company as Vice President of Investor Relations in April
2001 and assumed responsibility for public relations in February 2002. Prior to
joining the Company, since 1996, he served as Vice President, Investor Relations
for the Reynolds & Reynolds Co., which provides a full range of retail and
enterprise management systems and related services for automobile retailers and
manufacturers.
Mr. Mast joined the Company in November 2000, and prior to that was a Senior
Partner of Kilpatrick Stockton LLP, an international law firm, from 1990.
Mr. Mazzilli served as Corporate Vice President, Treasurer and Controller of the
Company from 1992 through June 1999. In 1999, he became Executive Vice President
and Chief Financial Officer of Nova Corporation, which provides transaction
processing and related software application products to small merchants. He
rejoined the Company in his current position in February 2000.
Mr. Story joined the Company in March 2000 and was Vice President and Group
Controller for Global Technology and Equifax Internet Solutions before being
promoted to his current position in August 2001. Prior to joining Equifax, Mr.
Story served as Chief Financial Officer, Zep Manufacturing Company from 1999 to
2000, and prior to that he was Vice President of Finance for Alumax Inc. from
1994 to 1998.
5
<PAGE>
ITEM 2. PROPERTIES
The Company ordinarily leases office space for conducting its business and is
obligated under approximately 146 leases and other rental arrangements for its
headquarters and field locations. The Company's operating leases involve
principally office space.
The Company owns three office buildings, one of which is located in Wexford,
Ireland; one in Sao Paolo, Brazil; and one in Santiago, Chile. The Company owns
approximately 23.5 acres in Windward Office Park located in Alpharetta, Georgia,
adjacent to office space currently under lease by the Company.
ITEM 3. LEGAL PROCEEDINGS
Reference is made to Note 10 of the Notes to Consolidated Financial Statements
(Commitments and Contingencies - Litigation).
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted during the fourth quarter of 2001 to a vote of
security holders.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The Company's common stock is listed and traded on the New York Stock Exchange
under the ticker symbol "EFX".
The high and low sales prices and dividends declared per share of the Company's
common stock for each quarter during the last two fiscal years are below. The
amount of our quarterly dividend was reduced in the third quarter of 2001 due to
the spin-off of Certegy Inc. While we have historically paid dividends to common
shareholders, the declaration and payment of future dividends will depend on
many factors, including our earnings, financial condition, business development
needs, and regulatory considerations and is at the discretion of our Board of
Directors.
DIVIDENDS PER SHARE
- ----------------------------------------------------------------------------
Quarter 2000 2001
- ----------------------------------------------------------------------------
First $0.093 $0.093
Second 0.093 0.093
Third 0.093 0.020
Fourth 0.093 0.020
- ----------------------------------------------------------------------------
Year $0.370 $0.225
- ----------------------------------------------------------------------------
On July 7, 2001, we completed the spin-off of Certegy Inc., and the Company's
shareholders received .5 share of Certegy stock for each share of common stock
held as of June 27, 2001, the record date. The high and low sales prices of the
Company's common stock shown below have been adjusted to reflect the spin-off.
STOCK PRICE
- ----------------------------------------------------------------------------
(In Dollars) 2000 2001
- ----------------------------------------------------------------------------
High Low High Low
First Quarter 15.10 11.77 19.58 16.24
Second Quarter 17.57 13.84 22.94 17.52
Third Quarter 16.13 13.76 27.41 18.60
Fourth Quarter 21.61 15.39 25.33 21.45
- ----------------------------------------------------------------------------
Year 21.61 11.77 27.41 16.24
- ----------------------------------------------------------------------------
As of February 20, 2002, there were approximately 10,268 holders of record of
the Company's common stock.
6
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The table below summarizes selected historical financial information of Equifax
Inc. for each of the last five years. Certain historical financial information
for 1997 through 2000 has been restated to reflect the spin-off of Certegy (see
Note 2 of Notes to Consolidated Financial Statements).
<TABLE>
<CAPTION>
(In millions, except per share amounts and number of employees)
- ----------------------------------------------------------------------------------------------------------------------
Year ended December 31 2001 2000 1999 1998 1997
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Operating revenue $1,139.0 $1,189.2 $1,092.7 $1,055.8 $ 880.8
Operating expenses before restructuring and other charges 824.8 880.6 806.4 793.9 640.1
Restructuring and other charges (1) (60.4) - - - (25.0)
--------------------------------------------------------
Operating income $ 253.8 $ 308.6 $ 286.3 $ 261.9 $ 215.7
========================================================
Income from continuing operations (1) $ 117.3 $ 141.1 $ 147.7 $ 135.2 $ 136.2
Dividends paid $ 32.3 $ 52.3 $ 52.0 $ 52.1 $ 52.0
PER COMMON SHARE (diluted)
Income from continuing operations (1) $ 0.84 $ 1.04 $ 1.06 $ 0.94 $ 0.92
Dividends $ 0.225 $ 0.370 $ 0.363 $ 0.353 $ 0.345
Weighted average common shares outstanding (diluted) 139.0 136.0 139.6 144.4 147.8
BALANCE SHEET DATA (at December 31)
Total assets $1,422.6 $1,893.1 $1,607.9 $1,675.6 $1,053.3
Long-term debt $ 693.6 $ 993.4 $ 933.4 $ 868.8 $ 338.5
Shareholders' equity $ 243.5 $ 383.6 $ 215.6 $ 366.5 $ 349.4
Common shares outstanding 136.2 135.8 134.0 140.0 142.6
OTHER INFORMATION (at December 31)
Stock price per share (2) $ 24.15 $ 16.98 $ 13.95 $ 20.24 $ 20.98
Market capitalization (2) $3,288.4 $2,306.9 $1,869.0 $2,834.2 $2,991.6
Employees - continuing operations 5,200 6,500 7,800 9,500 7,200
</TABLE>
- ----------
(1) In 2001, the Company recorded restructuring and other charges of $60.4
million ($35.3 million after tax, or $0.25 per share) for employee
severance, facilities consolidation, and the write down of certain
technology investments (see Note 5 of Notes to Consolidated Financial
Statements). In 1997, the Company recorded a charge of $25 million ($14.9
million after tax, or $0.10 per share) related to a pending acquisition.
(2) Stock price and market capitalization prior to 2001 have been adjusted to
reflect the spin-off of Certegy.
7
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
For an understanding of the significant factors that influenced the Company's
results, the following discussion should be read in conjunction with the
consolidated financial statements and related notes.
Equifax Inc. is a leading source of consumer and commercial credit information
worldwide. The Company provides to a wide range of customers information
management, consumer credit information, marketing, business information, and
identity verification services to enable credit and business decisions. The
Company, through its Consumer Direct business, provides credit reporting and
identity theft monitoring services direct to consumers enabling them to
proactively manage their credit health and safeguard against identity theft. The
Company is the market leader for credit information services in North America.
Equifax Inc.'s 2001 financial reporting was significantly impacted by the
spin-off of its Payment Services business ("Certegy"), divestitures of non-core
businesses ("Divested Operations"), and restructuring and other charges recorded
in the fourth quarter of 2001. Excluding these transactions, Equifax reported
record revenues, earnings and cash flow for its core business, largely
attributable to performance in its North American Information Services
businesses. Significant 2001 financial highlights were:
- Consolidated revenues increased 8% to $1.1 billion.
- Diluted earnings per share increased 5% to $1.15, before restructuring
and other charges of $60 million (pre-tax).
- Consolidated operating margins were 29%.
- North American revenues increased 13% and operating income increased 14%.
- U.S. consumer reporting volumes grew 20%.
- The Consumer Direct business more than tripled revenues.
- Free cash flow grew to $208 million, a 72% increase over 2000.
Significant Transactions
On July 7, 2001, Equifax completed the spin-off of Certegy into a separate,
publicly traded company. The spin-off permitted both companies to focus on
growth in their core businesses with dedicated resources, and the continued
creation of shareholder value. As a result of the spin-off, the Company's
financial statements have been prepared with Certegy's net assets, results of
operations and cash flows classified as "discontinued operations," with all
historical financial statements restated to conform to this presentation.
In October 2001, the Company divested its City Directory business and, in the
fourth quarter of 2000, sold its global risk management and U.K. vehicle
information businesses. Combined revenues for these businesses in 2001 and 2000
were $29 million and $162 million, respectively, with a 2001 operating loss of
$3.6 million and 2000 operating income of $9.0 million. The operating results of
these businesses are classified in Divested Operations for segment reporting
purposes.
In the fourth quarter of 2001, restructuring and other charges were recorded in
connection with efforts to properly size and configure our post-spin business
and to align our cost structure in our international operations. The charge
totaled $60 million ($35 million after tax or $0.25 per diluted share) and
consisted of approximately $37 million for employee severance and facilities
consolidation and $23 million to write down several technology investments.
8
<PAGE>
Financial Results
The following table summarizes Equifax's Core Business and As Reported results
from continuing operations for each of the three years in the period ended
December 31, 2001.
<TABLE>
<CAPTION>
Core Business As Reported
---------------------------- --------------------------------
(In millions, except per share) 2001 2000 1999 2001 2000 1999
- --------------------------------------------------------------------------------- --------------------------------
<S> <C> <C> <C> <C> <C> <C>
Revenue $1,109.8 $1,027.2 $917.0 $1,139.0 $1,189.2 $1,092.7
Operating income $ 317.8 $ 299.6 $267.4 $ 253.8 $ 308.6 $ 286.3
Other income (expense), net $ 4.7 $ 11.1 $ 11.0 $ (1.2) $ 3.7 $ 10.8
Interest expense $ (47.8) $ (48.3) $(32.9) $ (47.8) $ (55.8) $ (42.2)
Income from continuing operations $ 159.7 $ 150.2 $140.1 $ 117.3 $ 141.1 $ 147.7
Diluted earnings per share
from continuing operations $ 1.15 $ 1.10 $ 1.00 $ 0.84 $ 1.04 $ 1.06
</TABLE>
Management believes the Core Business results are more useful in analyzing the
underlying business by providing a consistent comparison of the Company's
historical operating performance. Adjustments to reconcile the As Reported
results for each of the three years in the period ended December 31, 2001 to the
Core Business results and the associated impact on diluted earnings per share
are as follows:
- Exclude the operating results and disposition gains and losses of Divested
Operations
- Exclude the 2001 restructuring and other charges
- Adjust other income and interest expense to reflect the impact of the
proceeds from Divested Operations
- Adjust the effective income tax rate, which reflects the above adjustments
See Exhibit 99.8 to this report for a more detailed analysis of the reconciling
adjustments for Core Business results of operations.
<TABLE>
<CAPTION>
Earnings Per Share (Diluted): 2001 2000 1999
- ----------------------------------------------------------------------------------
<S> <C> <C> <C>
Continuing operations, As Reported $0.84 $1.04 $ 1.06
Adjustments:
- -Exclude the 2001 restructuring and other charges 0.25 - -
- -Adjust for the impacts of Divested Operations 0.05 0.03 (0.05)
- -Adjust income taxes - 0.04 (0.01)
-----------------------------
Continuing operations, Core Business $1.15 $1.10 $ 1.00
-----------------------------
</TABLE>
The following discussion of revenue, operating income, and segment results is on
a Core Business basis (as previously described). The discussion of other income
(expense), net, interest expense, and effective tax rates is on an As Reported
basis.
Revenue
Revenues of $1.1 billion in 2001 increased 8% over 2000, driven by our
North American Information Services segment's record consumer credit reporting
volumes and growth in our Consumer Direct business. In 2001, North America
accounted for 77% of the Company's total revenue and 90% of the operating income
before corporate expense. Revenue growth in North America was 13%. The
strengthening of the U.S. dollar against foreign currencies, particularly in
Latin America, negatively impacted revenue $27 million or 3%. Incremental
revenues from our acquisitions in 2000 positively impacted revenue growth
approximately 4%.
Revenues of $1.0 billion in 2000 increased 12% over 1999. Revenue growth was
significantly influenced by the May 2000 acquisition of our Direct Marketing
Services business, formerly the Consumer Information Solutions Group ("CIS")
from R.L. Polk & Co. Excluding the impact of the CIS acquisition, revenue growth
was 3%. The strengthening of the U.S. dollar against foreign currencies during
2000, particularly the British pound and Spanish peseta, reduced 2000 revenue by
approximately $15 million or 2%.
9
<PAGE>
Operating Income
Operating income in 2001 increased 6% to $317.8 million on operating
margins of 29%. North America's operating income growth of 14% and 40 basis
point margin improvement driven by consumer reporting and Consumer Direct offset
margin deterioration in our international operations, particularly in Europe.
Operating income in 2000 grew 12% to $299.6 million with operating margins
of 29%. Excluding the CIS acquisition, profit growth was 7%. Operating income
growth in our traditional U.S. credit marketing services business, Canada's
consumer reporting business and improved operating expenses drove 2000
performance.
Other Income (Expense), Net
Other income (expense), net includes interest income on cash balances of
$3.2 million in 2001, $7.5 million in 2000, and $5.8 million in 1999. Lower cash
balances in foreign operations combined with lower interest rates accounted for
the decline in 2001. Other income (expense), net in 2001 and 2000 includes
losses associated with the disposition of Divested Operations. In October 2001,
the Company sold its City Directory business, which generated a pre-tax loss of
$5.8 million. The sale of the risk management and vehicle information businesses
generated pre-tax losses of $4.2 million in 2000. In 1999, the Company sold
three risk management offices located in the U.S. that resulted in a pre-tax
gain of $4.1 million.
Interest Expense
Interest expense decreased $8.0 million in 2001 and increased $13.6 million
in 2000, as compared with prior years. The decrease in 2001 from 2000 was due to
lower average debt outstanding and lower effective borrowing rates. The increase
in 2000 resulted from higher average debt outstanding associated with 2000
acquisition activity and 1999 treasury stock purchases. After adjusting for the
$275 million debt reduction related to the spin-off of Certegy, average total
debt outstanding was $775.4 million in 2001, $824.8 million in 2000 and $699.0
million in 1999.
Effective Tax Rates
The effective tax rates from continuing operations were 42.1%, 43.4% and
40.3% in 2001, 2000 and 1999, respectively. Changes in the levels of
non-deductible goodwill associated with divestitures and in the levels of
foreign earnings accounted for the changes in effective tax rates between
periods. The effective rate in 2002 is expected to decline to approximately 40%,
due to the elimination of goodwill amortization and the effects of tax planning
strategies.
Segment Results
The following table summarizes the segment results for each of the three years
in the period ended December 31, 2001. The results of businesses sold in October
2001 and in the fourth quarter of 2000 are classified as Divested Operations.
The Company's previous Consumer Information Services segment results are now
reported in the North American Information Services segment.
<TABLE>
<CAPTION>
Revenue Operating Income (Loss)
------------------------------ ------------------------------
(In millions) 2001 2000 1999 2001 2000 1999
- -------------------------------------------------------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
North American Information Services $ 852.4 $ 755.2 $ 633.1 $327.5 $287.2 $261.0
Equifax Europe 141.1 142.9 148.7 1.8 13.7 4.7
Equifax Latin America 106.7 119.5 125.5 24.4 31.5 28.8
Other 9.6 9.6 9.6 8.9 8.9 8.9
General Corporate Expense - - - (44.8) (41.7) (36.0)
------------------------------- ------------------------------
Core Business 1,109.8 1,027.2 917.0 317.8 299.6 267.4
Divested Operations 29.2 162.0 175.7 (3.6) 9.0 18.9
Restructuring and Other Charges (Note 5) - - - (60.4) - -
------------------------------- ------------------------------
As Reported $1,139.0 $1,189.2 $1,092.7 $253.8 $308.6 $286.3
=============================== ==============================
</TABLE>
10
<PAGE>
North American Information Services
North American Information Services accounted for $852.4 million, or 77% of
the Company's revenues in 2001 and $327.5 million, or 90% of the operating
income, before corporate expense. This segment includes U.S. Credit Information
Services, Mortgage Services, Credit Marketing Services, Direct Marketing
Services, Canadian Operations and Consumer Direct. Segment revenues increased
13% in 2001 and 19% in 2000. Excluding the impact of the May 2000 CIS
acquisition, North America's revenue increased 8% in 2001 and 6% in 2000.
U.S. Credit Information Services 2001 revenue increased 13% compared to 1%
growth in 2000, with 2001 growth driven by a record credit reporting volume
increase of 20%. The key industry growth drivers were: mortgage,
telecommunications, financial services and automotive. Lower interest rates
helped generate record volumes in mortgage refinancing, cellular usage
increased, and automakers' zero rate financing incentives drove consolidated
volumes with consecutive quarterly growth in 2001. In 2000, volumes increased
11%. Volume growth was partially offset by average unit price declines of 6% in
2001 and 9% in 2000. Average pricing is impacted by mix of business, with many
of our large customers driving increased volumes at lower average unit prices.
U.S. Credit Information Services compounded annual volume growth since 1990 is
approximately 13%. In 2002, we expect volume growth to return to levels more
indicative of historical performance. Canadian revenue increased 14% in 2001 on
strong consumer credit volume growth compared to almost flat growth in 2000.
During 2001, increasing demand for information from mortgage industry
customers, caused by a declining interest rate environment, resulted in 73%
growth in Mortgage Services revenue to $44.4 million, compared with a 21%
decrease in 2000. In 2002, we expect this business to decline from 2001 levels,
as refinancing activity moderates.
Our Credit Marketing Services and Direct Marketing Services businesses
generated combined revenue of $259.3 million, or 2% growth, compared to $253.6
million in 2000. Excluding the Direct Marketing Services incremental revenues of
$33.2 million from the May 2000 acquisition, 2001 revenues declined 11% largely
due to the economic impact of companies reducing advertising and marketing
expenditures. In Credit Marketing Services, which includes pre-screening,
portfolio review, database and other marketing products, 2001 revenues declined
6% versus a 2000 record year of 28% growth. Lower revenues in 2001 were
principally due to product mix shifts to lower priced risk management products,
some price compression due to customer consolidation, and fewer marketing
campaigns. Our Direct Marketing Services business experienced a 22% sales
decline in comparable sales in 2001 versus 2000, principally driven by a
significant contraction in advertising and marketing expenditures by its
customers due to the slowing U.S. economy.
Consumer Direct more than tripled revenues to $21.9 million in 2001 largely
due to $10 million of incremental sales from the new ScorePower(TM) credit score
product launched in March 2001 and increased sales of the Equifax Credit
Profile(R) credit report and Equifax Credit Watch(TM) credit monitoring
service. Consumer Direct sales in 2000 totaled $5.5 million.
Operating income for North American Information Services increased 14% in
2001 compared to 10% in 2000. Excluding the impact of the CIS acquisition,
operating income growth for 2001 and 2000 was 13% and 5%, respectively.
Operating margins were 38% in 2001 and 2000, compared to 41% in 1999. Lower
margins in 2001 and 2000 are attributable to the Company's investment in its
marketing services businesses, Consumer Direct and identity authentication
services.
Equifax Europe
Revenue in Equifax Europe, which consists of operations in the United
Kingdom, Ireland, Spain, Portugal and Italy, grew 3% and 4% in 2001 and 2000,
respectively, on a local currency basis. The local currency growth in 2001 is
attributable to the November 2000 acquisition of SEK in Italy. The strengthening
of the U.S. dollar against the British pound and Spanish peseta reduced Equifax
Europe's revenue by approximately $6.0 million in 2001 and $12.5 million in
2000.
Operating income in 2001 of $1.8 million declined $11.9 million from 2000 on
lower revenues in the United Kingdom and Spain primarily due to slower economic
growth. In 2000, operating income improved $9.0 million over 1999, substantially
driven by expense reductions. We continue to focus on driving operational
efficiencies in our European businesses and expect improved margins in 2002.
Equifax Latin America
Equifax Latin America generated revenue of $106.7 million and an operating
margin of 23% in 2001. The Company has operations in Brazil, Argentina, Chile,
Peru, Uruguay and El Salvador. In local currency, revenues increased 3% in 2001
while declining 3% in 2000. The strengthening of the U.S. dollar against the
Brazilian real and the Chilean peso reduced this segment's revenue by
approximately $17.5 million and $2.3 million in 2001 and 2000, respectively.
11
<PAGE>
Operating income in 2001 decreased $7.1 million mainly due to weak
currencies and economic conditions in the region compared to a $2.7 million
increase in 2000. Cost containment measures have helped stabilize and maintain
attractive margins of 23% in 2001 and 26% in 2000.
This segment's operating results will be adversely affected in 2002 by the
recent economic events in Argentina. These events have impacted both the
conversion rates of the Argentine peso to the U.S. dollar and also the general
business conditions in Argentina. 2001 revenue and operating income for our
business in Argentina totaled $26.0 million and $9.1 million, respectively, and
the Company's investment in that business totaled approximately $26 million at
December 31, 2001.
Other
Other consists solely of a subcontract, which expires at the end of May
2002, relating to the Company's lottery subsidiary. Revenue and operating income
remained comparable at $9.6 million and $8.9 million, respectively, in all
periods.
General Corporate
General corporate expense in 2001 increased $3.1 million on higher incentive
plan expense and increased $5.7 million in 2000 primarily due to higher
technology costs and one-time expenses associated with our headquarters
relocation.
Financial Condition
Cash provided by operations increased 32% to $255.1 million in 2001, and
free cash flow (operating cash flow less capital expenditures) increased 72% to
$208 million. The improvement over 2000 was largely influenced by higher
operating income from Core Businesses, aggressive management of receivables
(days sales outstanding declined from 75 days in 2000 to 63 days in 2001), and a
$24.8 million reduction in capital expenditures. Cash provided by operations in
2000 was $192.8 million. Operating cash flow has been sufficient to fund capital
expenditures, dividend payments and scheduled maturities of long-term debt.
During 2001, the Company's cash used in investing activities totaled $106.5
million compared to $263.0 million in 2000. The Company was less acquisitive in
2001 versus 2000 as its major focus was the spin-off of Certegy. Capital
expenditures, exclusive of acquisitions and investments, amounted to $47.1
million in 2001 compared to $71.9 million in 2000. Total capital expenditures in
2002 are expected to approximate $50 million. Acquisitions and investments, net
of cash acquired, declined from $346.8 million in 2000 to $68.7 million in 2001,
largely due to the May 2000 CIS acquisition. Cash proceeds generated from the
sale of businesses and other assets amounted to $12.4 million in 2001 and $157.5
million in 2000, and are principally associated with the City Directory sale in
2001 and the sales of our risk management and vehicle information businesses in
2000.
In 2001, cash used by financing activities totaled $325.5 million compared
to $16.4 million of cash generated in 2000. In 2001, the Company reduced its
long-term debt $298.9 million through the repayment of borrowings under its
revolving credit facility. Debt repayments were funded through operating cash
flows and the cash dividend received from Certegy in conjunction with the
spin-off. During the year, the Company acquired 2.15 million shares of stock at
an investment of $49.5 million. Stock repurchases in 2000 amounted to $6.5
million, down from $210.2 million in 1999. The repurchases were temporarily
suspended in 2000 to enable the Company to apply available cash to the repayment
of debt incurred in connection with the CIS acquisition. At December 31, 2001,
the Company's remaining authorization for share repurchases was approximately
$45 million, and in February 2002, the Company's Board of Directors approved an
additional $250 million for share repurchases. The Company continued its 89-year
history of paying dividends, which totaled $32.3 million in 2001. Dividends were
$20.0 million lower than 2000 as the Company reduced its quarterly dividend
after the Certegy spin-off from $0.093 to $0.02 per share.
At December 31, 2001, $367.5 million was available to the Company under its
new $465 million revolving credit facility. Should CSC exercise its option to
sell its credit reporting business to the Company (Note 10), additional sources
of financing would be required. However, management believes the Company has
sufficiently broad access to the capital markets to enable it to arrange
alternative sources of financing. Alternative sources of funding available would
include the public debt markets and additional bank lines of credit.
Inflation
We do not believe that the rate of inflation has had a material effect on
our operating results. However, inflation could adversely affect our future
operating results if it were to result in a substantial weakening in economic
conditions.
12
<PAGE>
Critical Accounting Policies and Estimates
The Company's consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the United States.
The preparation of these financial statements requires management to make
estimates and assumptions that affect: the reported amounts of assets and
liabilities at the date of the financial statements; the disclosure of
contingent assets and liabilities at the date of the financial statements; and
the reported amounts of revenues and expenses during the reporting period.
Management regularly evaluates its estimates and assumptions. These estimates
and assumptions are based on historical experience and on various other factors
that are believed to be reasonable under the circumstances, and form the basis
for making judgments about the carrying values of assets and liabilities that
are not readily apparent from other sources. Actual results may differ from
these estimates under different assumptions or conditions.
The Company's significant accounting policies are described in Note 1 of
Notes to Consolidated Financial Statements. Management believes that the
following accounting policies involve a higher degree of complexity and warrant
specific description.
Valuation of Long-Lived Assets
The Company regularly evaluates whether events or circumstances have occurred
which indicate that the carrying amounts of long-lived assets (principally
goodwill, purchased data files, systems development and other deferred costs,
and investments in unconsolidated subsidiaries) may be impaired or not
recoverable. The significant factors that are considered that could trigger an
impairment review include: changes in business strategy, market conditions, or
the manner of use of an asset; underperformance relative to historical or
expected future operating results; and negative industry or economic trends. In
evaluating an asset for possible impairment, management estimates that asset's
future undiscounted cash flows to measure whether the asset is recoverable. If
it is determined that the asset is not recoverable, the Company measures the
impairment based on the projected discounted cash flows of the asset over its
remaining life. While the Company believes that its estimates of future cash
flows are reasonable, different assumptions regarding such cash flows could
materially affect these evaluations. In 2001, the FASB issued Statement No. 142,
"Goodwill and Other Intangible Assets," which among other things, eliminates the
amortization of goodwill and certain other intangible assets and requires that
goodwill be evaluated annually for impairment by applying a fair value-based
test. The Company adopted the standard effective January 1, 2002 for
acquisitions prior to June 30, 2001, and, in accordance with the standard, will
complete its first fair value-based impairment tests by June 30, 2002.
Deferred Tax Assets
The Company estimates levels of future taxable income and utilizes prudent
and feasible tax planning strategies in establishing and maintaining deferred
tax assets (see Note 7 of Notes to Consolidated Financial Statements). If the
Company is unable to realize all or part of its deferred tax assets in the
future, the Company's effective tax rate could increase.
13
<PAGE>
CERTAIN FACTORS AFFECTING FORWARD LOOKING STATEMENTS
The management's discussion and analysis, and other portions of this Form
10-K, include "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995 and the Securities Exchange Act of
1934. These forward-looking statements may include, among others, statements
concerning the Company's outlook for 2002, volume and pricing trends, cost
control measures and their results, effective income tax rates, the Company's
expectations as to funding its capital expenditures and operations, and other
statements relative to future plans and strategies. These statements are based
on a number of assumptions that are inherently subject to significant
uncertainties, many of which are beyond Equifax's control.
Important factors that either individually or in the aggregate could cause
actual results to differ materially from those expressed in the forward-looking
statements include, but are not limited to, the following: a change in the
growth rate of the economies within which the Company conducts business,
particularly in the U.S., such that consumer spending and related consumer debt
are impacted; a decline or change in the marketing techniques of credit card
issuers; unexpected pricing pressures above and beyond the levels experienced in
the past; U.S. and international regulatory or legislative changes which may
adversely affect the businesses conducted by the Company; successful integration
of acquisitions; risks associated with investments and operations in foreign
countries, including regulatory environments, exchange rate fluctuations, and
local political, social and economic factors; successful development and
marketing of new products and services to existing and new industries;
protection and validity of patent and other intellectual property rights;
successful incorporation of technological change; control and reduction of cost
and expense; interest rate fluctuations; changes in U.S. and global financial
and equity markets, including market disruptions and significant interest rate
fluctuations, which may impede the Company's access to, or increase the cost of,
external financing; increased competitive pressures both domestically and
internationally; and other risks or unforeseen factors including those described
below.
We depend on our customers' requirements for consumer credit information. If
these requirements decrease, our business might be adversely affected.
Our core product is our consumer credit reports. In general, the usage of credit
reports and related services is driven by consumer demand for credit via new
credit cards, automobile loans, home mortgages and refinancings and other
consumer loans and lenders' efforts to develop new, and monitor existing, credit
relationships. Consumer demand for credit tends to increase during periods of
economic expansion. On the other hand, lenders' efforts to monitor existing
credit relationships tend to increase during periods of economic contraction.
Consequently, revenue from consumer credit information products is influenced by
cyclical economic trends related to consumer spending and debt.
We rely on demand for consumer information services. Our business might be
negatively affected by a decline in demand.
We provide value-added consumer information services including direct marketing
products and services to our traditional customers, as well as to catalog,
publishing, high-tech, travel and manufacturing clients. Direct marketing
products also include data capture, database management, and registration card
programs for consumer durable goods manufacturers. In the event that consumers
begin to buy fewer of the types of products and services that have in the past
been marketed and sold through direct marketing, or if direct marketing loses
effectiveness in comparison to other methods of advertising, use of our direct
marketing products and services could lessen and, consequently, our revenues and
profits could decline.
We rely on external data sources. Loss of access to credit and other data from
external sources could negatively impact our business.
We rely extensively upon data from external sources to maintain our proprietary
and non-proprietary databases, including data received from customers and
various government and public record services. The continued availability of
such data sources cannot be assured. Although we have no reason to believe that
access to current data sources will become restricted, loss of access to, or the
availability of, data in the future due to government regulation or otherwise
could have a material adverse effect on our business, financial condition and
results of operations.
Changes in government regulation could increase our costs or otherwise affect
our profits.
Our business involves collection of consumer and business data and distribution
of such information to businesses making credit and marketing decisions.
Consequently, certain of our activities and services are subject to regulation
under various federal laws, including the Fair Credit Reporting Act and the
Gramm-Leach-Bliley Act, as well as similar state laws. We are also subject to
privacy and consumer credit laws and regulations in foreign countries where we
do business.
14
<PAGE>
We have no reason to believe that additional regulations will be imposed that
will have a material adverse effect on our business. However, further federal,
state and local data use regulations may affect our operations with increased
compliance requirements and potential loss of revenue or decrease in profits.
Competition could hurt our business.
Equifax operates in a number of geographic, product and service markets, which
are highly competitive. We primarily compete with two global consumer credit
reporting companies, Experian Information Solutions, Inc. and Trans Union LLC,
which offer credit reporting products that are similar to those we offer. We
also compete with these and other companies that offer marketing information
products and services, including Acxiom Corporation and InfoUSA, Inc.
In each of our markets, we compete on the basis of responsiveness to customer
needs as well as the quality and range of products and services offered.
Although we believe that we offer a broader range of products and services in
more geographic markets than our competitors, we face strong competition in
certain geographic, product and service markets which, if successful, may have
adverse effects on our operations.
The above factors that may affect future performance and the accuracy of
forward-looking statements are illustrative and by no means exhaustive. All
forward-looking statements should be evaluated with the understanding of their
inherent uncertainty.
15
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The Company is exposed to market risk, primarily from changes in foreign
currency exchange rates and changes in interest rates.
In the normal course of business, the balance sheets and results of operations
of the Company's foreign subsidiaries can be impacted by changes in foreign
currency exchange rates. The Company's position is to not hedge translational
foreign currency exchange risks. However, the Company does hedge material
transactional foreign currency exchange risks, and at December 31, 2001, the
exchange risks associated with the Company's intercompany advances to its U.K.
operations, as well as the intercompany balances associated with funding its
Italy acquisition were hedged by having a portion of the borrowings under its
revolving credit facility denominated in those respective currencies.
The Company manages its exposure to changes in interest rates by (1) maintaining
an appropriate weighted average debt maturity and (2) controlling the mix of
fixed and variable rate debt, in part by using interest rate swap agreements.
The Company's earnings can be affected by the impact that changes in interest
rates have on its variable-rate obligations. At December 31, 2001, approximately
$358 million (47%) of the Company's short-term and long-term debt was in
variable-rate facilities. At this level, if market interest rates increased 1%,
interest expense would increase approximately $3.6 million per year (pre-tax).
16
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Index to Financial Statements
Consolidated Statements of Income for each of the three years ended
December 31, 2001 18
Consolidated Statements of Cash Flows for each of the three years ended
December 31, 2001 19
Consolidated Balance Sheets at December 31, 2001 and 2000 20
Consolidated Statements of Shareholders' Equity and Comprehensive Income
for each of the three years ended December 31, 2001 21
Notes to Consolidated Financial Statements 22
Report of Independent Public Accountants 38
17
<PAGE>
EQUIFAX INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
(In millions, except per share amounts)
- -------------------------------------------------------------------------------------------
Year Ended December 31 2001 2000 1999
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Operating revenue $1,139.0 $1,189.2 $1,092.7
-------- -------- --------
Costs and expenses:
Costs of services 488.7 562.3 559.9
Selling, general and administrative expenses 336.1 318.3 246.5
Restructuring and other charges (Note 5) 60.4 - -
-------- -------- --------
Total costs and expenses 885.2 880.6 806.4
-------- -------- --------
Operating income 253.8 308.6 286.3
Other income (expense), net (1.2) 3.7 10.8
Interest expense (47.8) (55.8) (42.2)
Minority interests in earnings (2.2) (7.1) (7.3)
-------- -------- --------
Income from continuing operations before income taxes 202.6 249.4 247.6
Provision for income taxes (85.3) (108.3) (99.9)
-------- -------- --------
Income from continuing operations 117.3 141.1 147.7
-------- -------- --------
Discontinued operations (Note 2):
Income from discontinued operations, net of income
taxes of $21.4, $49.1, and $50.2, respectively 33.6 86.9 68.2
Costs associated with effecting the spin-off, net of
income tax benefit of $8.1 (28.4) - -
-------- -------- --------
Total discontinued operations 5.2 86.9 68.2
-------- -------- --------
Net income $ 122.5 $ 228.0 $ 215.9
======== ======== ========
Per common share (basic):
Income from continuing operations $ 0.86 $ 1.05 $ 1.07
Discontinued operations 0.04 0.65 0.50
-------- -------- --------
Net income $ 0.90 $ 1.70 $ 1.57
======== ======== ========
Shares used in computing basic earnings per share 136.8 134.4 137.5
======== ======== ========
Per common share (diluted):
Income from continuing operations $ 0.84 $ 1.04 $ 1.06
Discontinued operations 0.04 0.64 0.49
-------- -------- --------
Net income $ 0.88 $ 1.68 $ 1.55
======== ======== ========
Shares used in computing diluted earnings per share 139.0 136.0 139.6
======== ======== ========
Dividends per common share $ 0.225 $ 0.370 $ 0.363
======== ======== ========
</TABLE>
See notes to consolidated financial statements.
18
<PAGE>
EQUIFAX INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
(In millions)
- -------------------------------------------------------------------------------------------------------------
Year Ended December 31 2001 2000 1999
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 122.5 $ 228.0 $ 215.9
Adjustments to reconcile net income to net cash provided
by operating activities of continuing operations:
Income from discontinued operations (33.6) (86.9) (68.2)
Costs associated with effecting the spin-off 28.4 - -
Depreciation and amortization 106.2 106.2 89.6
Restructuring and other charges 60.4 - -
Income tax benefit from stock plans 4.5 5.6 2.0
Loss (gain) from sale of businesses 5.8 4.2 (4.1)
Changes in assets and liabilities, excluding effects of
acquisitions:
Accounts receivable, net 16.1 (33.4) (5.4)
Current liabilities, excluding debt (31.3) (7.3) (22.2)
Other current assets (0.6) (13.0) 5.0
Deferred income taxes 8.2 19.6 18.2
Other long-term liabilities, excluding debt (17.4) (13.0) (5.4)
Other assets (14.1) (17.2) (36.8)
------- ------- -------
Cash provided by operating activities 255.1 192.8 188.6
------- ------- -------
Investing activities:
Additions to property and equipment (13.0) (26.0) (29.6)
Additions to other assets, net (34.1) (45.9) (41.1)
Acquisitions, net of cash acquired (43.5) (336.6) (24.2)
Investments in unconsolidated affiliates (25.2) (10.2) -
Proceeds from sale of businesses 5.4 149.2 8.1
Proceeds from sale of assets 7.0 8.3 -
Deferred payments on prior year acquisitions (3.1) (1.8) -
------- ------- -------
Cash used by investing activities (106.5) (263.0) (86.8)
------- ------- -------
Financing activities:
Net short-term borrowings 9.3 (21.0) 33.1
Additions to long-term debt - 73.0 70.2
Payments on long-term debt (298.9) (3.3) (5.4)
Treasury stock purchases (42.3) (6.5) (210.2)
Dividends paid (32.3) (52.3) (52.0)
Proceeds from exercise of stock options 36.4 23.2 7.0
Other 2.3 3.3 3.1
------- ------- -------
Cash (used) provided by financing activities (325.5) 16.4 (154.2)
------- ------- -------
Effect of foreign currency exchange rates on cash (5.6) (5.3) (7.2)
Cash provided by discontinued operations 156.1 15.7 94.8
------- ------- -------
(Decrease) increase in cash and cash equivalents (26.4) (43.4) 35.2
Cash and cash equivalents, beginning of year 59.6 103.0 67.8
------- ------- -------
Cash and cash equivalents, end of year $ 33.2 $ 59.6 $ 103.0
======= ======= =======
</TABLE>
See notes to consolidated financial statements.
19
<PAGE>
<TABLE>
<CAPTION>
EQUIFAX INC.
CONSOLIDATED BALANCE SHEETS
(In millions, except par values)
- --------------------------------------------------------------------------------------------------
December 31 2001 2000
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 33.2 $ 59.6
Trade accounts receivable, net of allowance for doubtful
accounts of $14.0 in 2001 and $16.5 in 2000 197.0 226.0
Other receivables 69.2 66.2
Deferred income tax assets 26.4 18.4
Other current assets 32.2 33.6
-------- --------
Total current assets 358.0 403.8
-------- --------
Property and Equipment:
Land, buildings and improvements 32.3 31.0
Data processing equipment and furniture 134.9 150.5
-------- --------
167.2 181.5
Less accumulated depreciation 112.0 115.5
-------- --------
55.2 66.0
-------- --------
Goodwill 516.5 557.0
Purchased Data Files 207.0 209.4
Other Assets 285.9 329.1
Net Assets of Discontinued Operations - 327.8
-------- --------
$1,422.6 $1,893.1
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Short-term debt and current maturities $ 62.0 $ 54.2
Accounts payable 13.2 16.8
Accrued salaries and bonuses 26.5 24.5
Income taxes payable 4.0 16.4
Other current liabilities 170.2 155.2
-------- --------
Total current liabilities 275.9 267.1
Long-Term Debt 693.6 993.4
Deferred Revenue 17.2 32.9
Deferred Income Tax Liabilities 88.6 80.1
Other Long-Term Liabilities 103.8 136.0
-------- --------
Total liabilities 1,179.1 1,509.5
-------- --------
Commitments and Contingencies (Note 10)
Shareholders' Equity:
Preferred stock, $0.01 par value: Authorized - 10.0; Issued - none - -
Common stock, $1.25 par value:
Authorized shares - 300.0
Issued shares - 178.4 in 2001 and 176.0 in 2000
Outstanding shares - 136.2 in 2001 and 135.8 in 2000 223.0 220.0
Paid-in capital 376.7 336.5
Retained earnings 758.8 902.5
Accumulated other comprehensive income (197.2) (206.1)
Treasury stock, at cost, 35.2 shares in 2001
and 33.1 shares in 2000 (Note 8) (828.0) (779.0)
Stock held by employee benefits trusts, at cost,
7.0 shares in 2001 and 7.1 shares in 2000 (Note 8) (89.8) (90.3)
-------- --------
Total shareholders' equity 243.5 383.6
-------- --------
$1,422.6 $1,893.1
======== ========
</TABLE>
See notes to consolidated financial statements.
20
<PAGE>
<TABLE>
<CAPTION>
EQUIFAX INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY AND COMPREHENSIVE INCOME
Common Stock: Accumulative Stock Held Total
------------------- Other By Employee Share-
Shares Paid-In Retained Comprehensive Treasury Benefits holders'
(In millions) Outstanding Amount Capital Earnings Income Stock Trusts Equity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1998 140.0 $ 217.2 $ 286.5 $562.9 $ (35.1) $(606.1) $ (59.0) $ 366.4
Net income - - - 215.9 - - - 215.9
Other comprehensive income - - - - (126.9) - - (126.9)
Shares issued under stock plans 0.6 0.6 6.9 - - 0.1 0.6 8.2
Shares contributed to U.S.
retirement plan 0.3 - 7.0 - - - 3.0 10.0
Treasury stock purchased (6.9) - - - - (210.2) - (210.2)
Cash dividends - - - (52.0) - - - (52.0)
Income tax benefit from stock plans - - 2.1 - - - - 2.1
Dividends from employee benefits trusts - - 2.0 - - - - 2.0
---------------------------------------------------------------------------------------
Balance, December 31, 1999 134.0 217.8 304.5 726.8 (162.0) (816.2) (55.4) 215.5
Net income - - - 228.0 - - - 228.0
Other comprehensive income - - - - (44.1) - - (44.1)
Shares issued under stock plans 1.8 2.2 21.1 - - 0.4 0.4 24.1
Treasury stock purchased (0.3) - - - - (6.5) - (6.5)
Treasury stock reissued for
acquisitions 0.3 - 2.6 - - 8.0 - 10.6
Cost of treasury stock transferred to
employee benefits trust - - - - - 35.3 (35.3) -
Cash dividends - - - (52.3) - - - (52.3)
Income tax benefit from stock plans - - 5.6 - - - - 5.6
Dividends from employee benefits trusts - - 2.7 - - - - 2.7
---------------------------------------------------------------------------------------
Balance, December 31, 2000 135.8 220.0 336.5 902.5 (206.1) (779.0) (90.3) 383.6
Net income - - - 122.5 - - - 122.5
Other comprehensive income - - - - (67.3) - - (67.3)
Shares issued under stock plans 2.5 3.0 33.7 - - 0.5 0.5 37.7
Treasury stock purchased (2.1) - - - - (49.5) - (49.5)
Cash dividends - - - (32.3) - - - (32.3)
Spin-off of Certegy Inc. - - - (233.9) 76.2 - - (157.7)
Income tax benefit from stock plans - - 4.9 - - - - 4.9
Dividends from employee benefits trusts - - 1.6 - - - - 1.6
---------------------------------------------------------------------------------------
Balance, December 31, 2001 136.2 $ 223.0 $ 376.7 $ 758.8 $(197.2) $(828.0) $ (89.8) $ 243.5
=======================================================================================
<CAPTION>
Accumulated Other Comprehensive Income consists of the following components at December 31:
2001 2000 1999 1998
------------------------------------
<S> <C> <C> <C> <C>
Foreign currency translation $(191.8) $(202.8) $(157.3) $(29.0)
Minimum liability under supplemental
retirement plan (4.6) (3.3) (4.7) (6.1)
Cash flow hedging transactions (0.8) - - -
------------------------------------
$(197.2) $(206.1) $(162.0) $(35.1)
====================================
</TABLE>
Comprehensive Income is as follows:
2001 2000 1999
----------------------------
Net income $ 122.5 $ 228.0 $ 215.9
Other comprehensive income:
Foreign currency translation adjustment (65.2) (45.5) (128.3)
Adjustment for minimum liability under
supplemental retirement plan (1.3) 1.4 1.4
Change in cumulative loss from
cash flow hedging transactions (0.8) - -
----------------------------
$ 55.2 $ 183.9 $ 89.0
============================
See notes to consolidated financial statements.
21
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING AND REPORTING POLICIES
Principles of Consolidation The consolidated financial statements include the
accounts of the Company and its majority-owned and controlled subsidiaries. All
significant intercompany transactions and balances have been eliminated. Certain
prior year amounts have been reclassified to conform with the current year
presentation. The historical financial statements presented have been restated
to reflect the spin-off of Certegy Inc. (Note 2).
Nature of Operations The Company principally provides information services to
businesses to help them grant credit and market to their customers (see Note 12
for segment information). The primary markets include retailers, banks and other
financial institutions, the transportation, telecommunications, utility, and
manufacturing industries, as well as consumers and government. The Company's
operations are predominantly located within the United States, with foreign
operations principally located in Canada, the United Kingdom, and Brazil.
Use of Estimates The preparation of financial statements in conformity with
accounting principles generally accepted in the United States requires
management to make estimates and assumptions. These estimates and assumptions
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements as
well as reported amounts of revenues and expenses during the reporting period.
Actual results could differ from these estimates.
Revenue Recognition and Deferred Revenue Revenues from the delivery of
consumer and commercial credit information and related products and services are
recognized at the time of delivery based on a fixed unit price or, in the case
of subscription contracts, which provide credit reports or products to customers
for a specified period of time, revenues are recognized over the subscription
term. Revenues from credit marketing services are based on the number of records
sold and are recognized as data is delivered and accepted by the customer.
Revenues from direct marketing products and services are based on the number of
records processed or delivered and are recognized when products are delivered or
services are performed. The Company also licenses its direct marketing data to
customers and recognizes revenues when the data is delivered. For arrangements
that include ongoing data updates and other significant obligations throughout
the license term, revenues are recognized over the license term.
Amounts billed in advance are recorded as current or long-term deferred revenue
on the balance sheet, with current deferred revenue reflecting services expected
to be provided within the next twelve months. Current deferred revenue is
included with other current liabilities in the accompanying consolidated balance
sheets, and as of December 31, 2001 and 2000, totaled $21.8 million and $32.2
million, respectively. In 1996, the Company received a one-time payment of $58
million related to a lottery subcontract and recognized $5.4 million in revenue.
The remaining balance is being recognized as revenue over the term of the
contract, with $9.6 million per year recognized in 1997 through 2001. The
unrecognized balance at December 31, 2001, totaled $4.4 million. In conjunction
with the divestiture of the Company's U.S. risk management and Canadian risk
management businesses in October 2000 (Note 4), certain of the proceeds received
related to contracts to provide credit information products and services to the
buyers over the next five to six years and were recorded in current and
long-term deferred revenue. At December 31, 2001, $19.0 million remained
unrecognized, with $14.7 million included in long-term deferred revenue in the
accompanying consolidated balance sheets. This deferred revenue will be
recognized as the contracted products and services are provided.
Earnings Per Share Basic EPS is calculated as income available to common
stockholders divided by the weighted average number of common shares outstanding
during the period. Diluted EPS is calculated to reflect the potential dilution
that would occur if stock options or other contracts to issue common stock were
exercised and resulted in additional common shares outstanding. The income
amount used in the Company's EPS calculations is the same for both basic and
diluted EPS. A reconciliation of the average outstanding shares used in the two
calculations is as follows:
(In millions) 2001 2000 1999
- ------------------------------------------------------------------------
Weighted average shares outstanding (basic) 136.8 134.4 137.5
Effect of dilutive securities:
Stock options 2.1 1.4 1.9
Long-term incentive plans 0.1 0.2 0.2
- ------------------------------------------------------------------------
Weighted average shares outstanding (diluted) 139.0 136.0 139.6
========================================================================
22
<PAGE>
Property and Equipment The cost of property and equipment is depreciated
primarily on the straight-line basis over estimated asset lives of 30 to 50
years for buildings; useful lives, not to exceed lease terms, for leasehold
improvements; three to five years for data processing equipment; and eight to 20
years for other fixed assets.
Goodwill Goodwill is amortized on a straight-line basis predominantly over
periods from 20 to 40 years. Amortization expense was $25.4 million in 2001,
$24.4 million in 2000, and $19.7 million in 1999. As of December 31, 2001 and
2000, accumulated amortization balances were $94.5 million and $75.8 million,
respectively.
In 2001, the FASB issued Statement No. 141, "Business Combinations" (SFAS 141)
and Statement No. 142, "Goodwill and Other Intangible Assets" (SFAS 142). SFAS
141 eliminates pooling-of-interests accounting and requires all business
combinations initiated after June 30, 2001 to be accounted for using the
purchase method. SFAS 142 eliminates the amortization of goodwill and certain
other intangible assets and requires that goodwill be evaluated for impairment
by applying a fair value-based test. The Company adopted the standard effective
June 30, 2001 for all subsequent acquisitions, and adopted the standard
effective January 1, 2002 for all acquisitions that occurred prior to June 30,
2001. The Company expects to complete its first fair value-based impairment
tests by June 30, 2002.
Purchased Data Files Purchased data files are amortized on a straight-line
basis primarily over 15 years. Amortization expense was $21.8 million in 2001,
$20.2 million in 2000, and $17.6 million in 1999. As of December 31, 2001 and
2000, accumulated amortization balances were $136.6 million and $118.0 million,
respectively.
Other Assets Other assets at December 31, 2001 and 2000 consist of the
following:
(In millions) 2001 2000
- --------------------------------------------------------------------------
Systems development and other deferred costs $81.5 $86.3
Purchased software 28.6 49.3
Prepaid pension cost 97.3 98.2
Risk management purchased paper (Note 4) 31.2 59.1
Investments in unconsolidated companies 26.3 12.4
Other 21.0 23.8
- --------------------------------------------------------------------------
$285.9 $329.1
==========================================================================
Purchased software and systems development and other deferred costs are being
amortized on a straight-line basis over five to ten years. Amortization expense
for other assets was $38.7 million in 2001, $36.7 million in 2000, and $27.9
million in 1999. As of December 31, 2001 and 2000, accumulated amortization
balances were $117.6 million and $121.5 million, respectively. The Company has
entered into several strategic investments in privately held companies totaling
$26.3 million and $12.4 million at December 31, 2001 and 2000, respectively.
These investments are accounted for under either the cost method or the equity
method, depending on the level of influence the Company has over the investment
entity. The Company regularly reviews these investments for impairment issues,
and in the fourth quarter 2001, the Company wrote off investments totaling $6.9
million (Note 5). The Company believes that these investments are appropriately
valued at December 31, 2001.
Long-Lived Assets Long-lived assets include property and equipment, goodwill,
purchased data files, and other assets. The Company regularly evaluates whether
events and circumstances have occurred which indicate that the carrying amount
of long-lived assets may warrant revision or may not be recoverable. When
factors indicate that long-lived assets should be evaluated for possible
impairment, the Company uses an estimate of the future undiscounted net cash
flows of the related business over the remaining life of the asset in measuring
whether the asset is recoverable.
Foreign Currency Translation The functional currency of the Company's foreign
subsidiaries are those subsidiaries' local currencies. The assets and
liabilities of foreign subsidiaries are translated at the year-end rate of
exchange, and income statement items are translated at the average rates
prevailing during the year. The resulting translation adjustment is recorded as
a component of shareholders' equity. Gains and losses resulting from the
translation of intercompany balances of a long-term investment nature are also
recorded as a component of shareholders' equity. Other foreign currency
translation gains and losses, which are not material, are recorded in the
consolidated statements of income.
23
<PAGE>
Consolidated Statements of Cash Flows The Company considers cash equivalents
to be short-term cash investments with original maturities of three months or
less.
Cash paid for income taxes and interest from continuing operations is as
follows:
(In millions) 2001 2000 1999
- ----------------------------------------------------------------------------
Income taxes, net of amounts refunded $78.4 $81.7 $93.7
Interest 49.7 56.0 41.6
In 2001, 2000, and 1999, the Company acquired various businesses that were
accounted for as purchases (Note 3). In conjunction with these transactions,
liabilities were recorded as follows:
(In millions) 2001 2000 1999
- ---------------------------------------------------------------------------
Fair value of assets acquired $50.4 $368.2 $24.8
Cash paid for acquisitions 44.4 334.8 22.2
Value of treasury stock reissued for acquisitions -- 10.6 --
- ---------------------------------------------------------------------------
Liabilities recorded $ 6.0 $ 22.8 $ 2.6
===========================================================================
Financial Instruments The Company's financial instruments consist primarily of
cash and cash equivalents, accounts and notes receivable, accounts payable, and
short-term and long-term debt. The carrying amounts of these items, other than
long-term debt, approximate their fair market values due to their short
maturity. As of December 31, 2001, the fair value of the Company's long-term
debt (determined primarily by broker quotes) was $686.7 million compared to its
carrying value of $693.6 million.
Derivative Instruments and Hedging Activities Effective January 1, 2001, the
Company adopted FASB Statement No. 133, "Accounting for Derivative Instruments
and Hedging Activities" (SFAS 133). SFAS 133 requires that a company recognize
derivatives as assets or liabilities on its balance sheet, and also requires
that the gain or loss related to the effective portion of derivatives designated
as cash flow hedges be recorded as a component of other comprehensive income.
At December 31, 2001, the Company has an interest rate swap agreement in effect
that fixes the interest rate for one of its variable rate obligations through
its duration in 2010. This derivative has been designated as a cash flow hedge,
was documented as fully effective, and at December 31, 2001, was valued as a
liability totaling $1.4 million. This liability is included with other current
liabilities in the accompanying consolidated balance sheets, and the related
loss was recorded, net of income tax, as a component of accumulated other
comprehensive loss.
At December 31, 2001, the Company also has interest rate swap agreements in
place to float the interest rate on $200 million of its fixed rate senior notes
through their maturity date in 2005. These derivatives have been designated as
fair value hedges and are fully effective. The value of these swaps was $1.7
million at December 31, 2001, and was recorded as an asset along with a
corresponding increase in long-term debt.
2. DISCONTINUED OPERATIONS
On July 7, 2001, the Company completed the spin-off of its Payment Services
business segment (Certegy Inc. or Certegy) through a tax free dividend of all of
its Certegy stock to Equifax shareholders. Shareholders received a dividend of
one share of Certegy stock for each two shares of Equifax stock owned. This
non-cash dividend totaled $233.9 million. Also in connection with the spin-off,
the Company reduced debt by $275 million in July 2001 following Certegy's cash
dividend of that amount to the Company.
As a result of the spin-off, the Company's financial statements have been
prepared with Certegy's net assets, results of operations, and cash flows
isolated and shown as "discontinued operations." All historical statements have
been restated to conform with this presentation. Also as a result of the
spin-off, during the second quarter of 2001 the Company recorded an expense of
$36.5 million ($28.4 million after tax, or $0.21 per share) to accrue the costs
associated with effecting the spin-off. These costs include fees for investment
bankers, legal and accounting services, duplicate software licenses, and various
other directly related expenses. This expense has been included as a component
of discontinued operations in the accompanying statements of income and cash
flows. In 2001, charges to this reserve totaled $33.5 million, and the remaining
reserve of $3.0 million at December 31, 2001 is included in other current
liabilities in the accompanying consolidated balance sheets.
24
<PAGE>
Summarized financial information for the discontinued operation is as follows:
(In millions) 2001 2000 1999
- -----------------------------------------------------------------------
Revenue $398.3 $776.7 $680.0
Income before income taxes 56.0 137.1 118.3
Net Income 33.6 86.9 68.2
(In millions) December 31, 2000
- ------------------------------------------------------------------------------
Current assets $201.2
Total assets 504.4
Current liabilities 159.1
Total liabilities 176.6
Net assets of discontinued operations 327.8
3. ACQUISITIONS
In 2001, the Company acquired the credit files of five affiliated credit
reporting agencies located in the United States and 13 agencies in Canada, as
well as an information services business in Uruguay. These acquisitions were
accounted for as purchases and had a total purchase price of $48.9 million. They
were acquired for cash of $44.4 million and notes payable of $4.5 million. They
resulted in $20.5 million of goodwill and $27.2 million of purchased data files.
Their results of operations have been included in the consolidated statements of
income from their respective dates of acquisition and were not material. During
the first quarter of 2002, the Company expects to complete the purchase of the
remaining 20% of its 80% owned information services company in Brazil. The
purchase price is currently estimated to be approximately $36 million.
During 2000, the Company acquired or increased its ownership in the following
businesses:
<TABLE>
<CAPTION>
Month Industry Percentage
Business Acquired Segment Ownership
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Organizacion Veraz S.A. (Argentina) December Latin America 79.5% 1
SEK S.r.l. and AIF Gruppo Securitas S.r.l. (Italy) November Europe 100.0%
Compliance Data Center, Inc. October North America 100.0%
Consumer Information Solutions (CIS) Group
of R.L. Polk & Co. May North America 100.0%
Propago, S.A. (Chile) January Latin America 100.0%
</TABLE>
1 Increased to 79.5% from 66.7% acquired in 1997 and 1994
In 2000, in addition to the businesses above, the Company acquired the credit
files of 12 credit affiliates located in the United States and 14 affiliates in
Canada. All of the 2000 acquisitions were accounted for as purchases and had an
aggregate purchase price of $348.4 million, with $218.1 million allocated to
goodwill and $78.8 million allocated to purchased data files. They were
purchased with a combination of cash totaling $334.8 million, the re-issuance of
treasury stock with a fair market value of $10.6 million, and notes payable of
$3.0 million. Their results of operations have been included in the consolidated
statements of income from the dates of acquisition and were not material.
In 1999, the Company acquired the credit files of 14 credit affiliates located
in the United States and three credit affiliates in Canada. They were accounted
for as purchases and had an aggregate purchase price of $24.2 million, with $7.5
million allocated to goodwill and $16.0 million allocated to purchased data
files. Their results of operations have been included in the consolidated
statements of income from the dates of acquisition and were not material.
4. DIVESTITURES
In October 2001, the Company sold its City Directory business which had been
acquired from R.L. Polk & Co. in May 2000. The resulting pre-tax loss of $5.8
million ($4.9 million after tax, or $0.035 per share) was recorded in the
consolidated statement of income as a charge to other income in September 2001.
In October 2000, the Company sold its risk management businesses located in the
U.S., Canada, and the U.K., and in December 2000, sold its vehicle information
business in the U.K., as well as a direct marketing business in Canada that was
a small component of the CIS group acquired earlier in the year from R.L. Polk &
Co. Proceeds from these sales included cash of $149.2 million (net of cash sold)
and a $41 million note receivable from one of the buyers, and resulted in a
pre-tax loss of $4.2 million recorded in other income. Approximately $25.5
million of the proceeds received in the U.S. and Canadian risk management sales
related to exclusive contracts to
25
<PAGE>
provide the buyers with credit information products and services over several
years, and was recorded in current and long-term deferred revenue. In
conjunction with the U.S. risk management sale, the Company guaranteed
approximately $60 million of the buyer's third-party acquisition financing which
related to a portfolio of purchased paper. Since this purchased paper financing
was entirely guaranteed by the Company, the amount guaranteed has been recorded
in other assets and other long-term liabilities in the accompanying consolidated
balance sheets. These corresponding asset and liability balances will be reduced
as the buyer makes principal payments on their loan and the Company's guarantee
is reduced. The balances totaled $59.1 million at December 31, 2000, and $31.2
million at December 31, 2001.
In June 1999, the Company sold three risk management offices located in the U.S.
Proceeds from these sales totaled $8.1 million and resulted in a gain of $4.1
million recorded in other income ($1.7 million after tax, or $.01 per share).
5. RESTRUCTURING AND OTHER CHARGES
In the fourth quarter of 2001, the Company recorded restructuring and other
charges (discussed below) of $60.4 million ($35.3 million after tax, or $0.25
per share).
The Company implemented a restructuring plan to align the Company's cost
structure with changing market conditions, reduce expenses and improve
efficiencies, particularly in international operations. The plan includes
headcount reductions of approximately 700 employees, primarily located in the
Company's international operations. The restructuring charge totaled $37.2
million, and consists of severance costs associated with headcount reductions
and other related costs, including reserves to reflect the Company's estimated
exposure on facilities to be vacated or consolidated. In 2001, charges to the
restructuring reserve totaled $8.8 million, and the remaining reserve of $28.4
million at December 31, 2001 is included in other current liabilities in the
accompanying consolidated balance sheets. The majority of the remaining
severance and related charges are expected to be incurred in 2002, with charges
related to real estate rental obligations being incurred over the next several
years.
Due to changes in market conditions and the Company's technology strategy, the
Company recorded an impairment charge of $23.2 million to write down certain
technology investments, including $6.9 million of investments in several third
party technology companies.
6. LONG-TERM DEBT AND SHORT-TERM BORROWINGS
Long-term debt at December 31, 2001 and 2000 was as follows:
<TABLE>
<CAPTION>
(In millions) 2001 2000
- --------------------------------------------------------------------------------------
<S> <C> <C>
Senior Notes, 6.5%, due 2003, net of unamortized
discount of $0.2 million in 2001 and $0.3 million in 2000 $199.8 $199.7
Senior Notes, 6.3%, due 2005, net of unamortized
discount of $0.6 million in 2001 and $0.8 million in 2000 249.4 249.2
Senior Debentures, 6.9%, due 2028, net of unamortized
discount of $1.3 million in 2001 and $1.4 million in 2000 148.7 148.6
Borrowings under revolving credit facilities,
weighted average rate of 3.0% at December 31, 2001 90.9 390.5
Other 8.7 8.1
- --------------------------------------------------------------------------------------
697.5 996.1
Less current maturities 3.9 2.7
- --------------------------------------------------------------------------------------
$693.6 $993.4
======================================================================================
</TABLE>
In October 2001, the Company replaced its $750 million revolving credit facility
with a new, committed $465 million revolving credit facility with a group of
commercial and investment banks. The new facility is composed of a $160 million,
364-day portion and a $305 million, multi-year portion. The multi-year portion
expires in October 2004. The agreement provides for borrowings tied to Base
Rate, LIBOR and competitive bid interest rate options and contains certain
financial covenants related to interest coverage, funded debt to cash flow, and
limitations on subsidiary indebtedness. At December 31, 2001, $27.5 million of
the revolving credit facility's outstanding balance was denominated in foreign
currencies. Portions of these foreign denominated obligations are used to hedge
the impacts of foreign exchange rate fluctuations related to inter-company
advances between the Company and several of its foreign subsidiaries.
26
<PAGE>
Scheduled maturities of long-term debt during the five years subsequent to
December 31, 2001, are as follows:
(In millions) Amount
----------------------------------------
2002 $ 3.9
2003 201.1
2004 92.4
2005 251.2
2006 0.1
The Company's short-term borrowings at December 31, 2001 and 2000, totaled $58.1
million and $51.5 million, respectively, and consisted primarily of notes
payable to banks. These notes had a weighted average interest rate of 3.30% at
December 31, 2001 and 6.25% at December 31, 2000. In October 2001, a Canadian
subsidiary of the Company entered into a C$100 million loan, renewable annually,
with a bank. The loan agreement provides interest rate options tied to Prime,
Base Rate, LIBOR, and Canadian Banker's Acceptances, and contains financial
covenants related to interest coverage, funded debt to cash flow, and
limitations on subsidiary indebtedness. Borrowings under this loan (which are
included in the short-term borrowings totals above) at December 31, 2001 and
2000 were C$76.0 million and C$69.0 million, respectively.
7. INCOME TAXES
The Company records deferred income taxes using enacted tax laws and rates for
the years in which the taxes are expected to be paid. Deferred income tax assets
and liabilities are recorded based on the differences between the financial
reporting and income tax bases of assets and liabilities.
The provision for income taxes from continuing operations consists of the
following:
(In millions) 2001 2000 1999
- ------------------------------------------------------------------------
Current:
Federal $65.7 $60.6 $58.6
State 8.4 2.9 8.9
Foreign 5.7 25.6 16.8
- ------------------------------------------------------------------------
79.8 89.1 84.3
- ------------------------------------------------------------------------
Deferred:
Federal 5.7 10.8 6.5
State (2.5) 2.2 1.7
Foreign 2.3 6.2 7.4
- ------------------------------------------------------------------------
5.5 19.2 15.6
- ------------------------------------------------------------------------
$85.3 $108.3 $99.9
========================================================================
The provision for income taxes from continuing operations is based on income
from continuing operations before income taxes, as follows:
(In millions) 2001 2000 1999
- --------------------------------------------------------------------------
United States $197.6 $216.3 $211.7
Foreign 5.0 33.1 35.9
- --------------------------------------------------------------------------
$202.6 $249.4 $247.6
==========================================================================
The provision for income taxes from continuing operations is reconciled with the
federal statutory rate, as follows:
<TABLE>
<CAPTION>
(In millions) 2001 2000 1999
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Federal statutory rate 35.0% 35.0% 35.0%
- -------------------------------------------------------------------------------------------------
Provision computed at federal statutory rate $70.9 $ 87.3 $86.7
State and local taxes, net of federal tax benefit 3.8 3.3 6.9
Nondeductible goodwill (including amounts related to divestitures) 6.7 8.8 4.4
Foreign 1.3 4.0 2.1
Other 2.6 4.9 (0.2)
- -------------------------------------------------------------------------------------------------
$85.3 $108.3 $99.9
=================================================================================================
</TABLE>
27
<PAGE>
Components of the Company's deferred income tax assets and liabilities at
December 31, 2001 and 2000 are as follows:
(In millions) 2001 2000
- -------------------------------------------------------------------------------
Deferred income tax assets:
Reserves and accrued expenses $ 30.0 $ 15.5
Postretirement benefits 10.0 9.7
Employee compensation programs 9.9 13.5
Deferred revenue 4.7 9.9
Net operating loss carryforwards of subsidiaries 1.3 1.4
Foreign tax credit carryforwards 28.5 26.6
Other 4.6 8.0
- -------------------------------------------------------------------------------
89.0 84.6
===============================================================================
Deferred income tax liabilities:
Data files and other assets (54.4) (60.6)
Depreciation (0.5) (2.0)
Pension expense (40.8) (38.3)
Undistributed earnings of foreign subsidiaries (36.3) (33.6)
Other (19.2) (11.8)
- -------------------------------------------------------------------------------
(151.2) (146.3)
- -------------------------------------------------------------------------------
Net deferred income tax liability $ (62.2) $ (61.7)
===============================================================================
The Company's deferred income tax assets and liabilities at December 31, 2001
and 2000, are included in the accompanying consolidated balance sheets as
follows:
(In millions) 2001 2000
- ----------------------------------------------------------------------
Deferred income tax assets $ 26.4 $ 18.4
Deferred income tax liabilities (88.6) (80.1)
- ----------------------------------------------------------------------
Net deferred income tax liability $(62.2) $(61.7)
======================================================================
Accumulated undistributed retained earnings of Canadian subsidiaries amounted to
approximately $38.8 million at December 31, 2001. No provision for Canadian
withholding taxes or United States federal income taxes is made on these
earnings, because they are considered by management to be permanently invested
in those subsidiaries and, under the tax laws, are not subject to such taxes
until distributed as dividends. If the earnings were not considered permanently
invested, approximately $1.9 million of deferred income taxes would have been
provided. Such taxes, if ultimately paid, may be recoverable as foreign tax
credits in the United States.
28
<PAGE>
8. SHAREHOLDERS' EQUITY
Rights Plan In 1995, the Company's Board of Directors adopted a Shareholder
Rights Plan (Rights Plan). The Rights Plan contains provisions to protect the
Company's shareholders in the event of an unsolicited offer to acquire the
Company, including offers that do not treat all shareholders equally, the
acquisition in the open market of shares constituting control without offering
fair value to all shareholders, and other coercive, unfair or inadequate
takeover bids and practices that could impair the ability of the Board to
represent shareholders' interests fully. Pursuant to the Rights Plan, the Board
declared a dividend of one Share Purchase Right (a Right) for each outstanding
share of the Company's common stock, with distribution to be made to
shareholders of record as of November 24, 1995. The Rights, which will expire in
November 2005, initially will be represented by, and traded together with, the
Company's common stock. The Rights are not currently exercisable and do not
become exercisable unless certain triggering events occur. Among the triggering
events is the acquisition of 20% or more of the Company's common stock by a
person or group of affiliated or associated persons. Unless previously redeemed,
upon the occurrence of one of the specified triggering events, each Right that
is not held by the 20% or more shareholder will entitle its holder to purchase
one share of common stock or, under certain circumstances, additional shares of
common stock at a discounted price.
Treasury Stock and Employee Benefits Trusts During 2001, 2000, and 1999, the
Company repurchased 2.15 million, 0.3 million, and 6.9 million of its own common
shares through open market transactions at an aggregate investment of $49.5
million, $6.5 million, and $210.2 million, respectively. At December 31, 2001,
approximately $45 million remained available for future purchases, and at its
February 2002 meeting, the Company's Board of Directors authorized an additional
$250 million for share repurchases. During 2000, the Company reissued 0.3
million treasury shares in connection with an acquisition (Note 3).
In 1993, the Company established the Equifax Inc. Employee Stock Benefits Trust
to fund various employee benefit plans and compensation programs and transferred
6.2 million treasury shares to the Trust. In 1994 and 2000, the Company
transferred 0.6 million and 1.5 million treasury shares, respectively, to two
other employee benefits trusts. Shares held by the trusts are not considered
outstanding for earnings per share calculations until released to the employee
benefit plans or programs. During 2001 and 2000, 48,593 shares and 39,830
shares, respectively, were used for various employee incentive programs. In
1999, 364,354 shares were used, with 304,183 shares contributed to the Company's
U.S. Retirement Plan and 60,171 shares used for various employee incentive
programs.
Stock Options The Company's shareholders have approved several stock option
plans which provide that qualified and nonqualified options may be granted to
officers and employees. The Company's Board of Directors has also approved a
nonqualified stock option plan that cannot be used to grant shares to directors
or executive officers. All plans require that options be granted at exercise
prices not less than market value on the date of grant. Generally, options vest
over periods of up to four years and are exercisable for ten years from grant
date. Certain of the plans also provide for awards of restricted shares of the
Company's common stock. At December 31, 2001, there were 5.5 million shares
available for future option grants and restricted stock awards.
The number of options outstanding and their exercise prices were adjusted in
July 2001 pursuant to a formula as a result of the spin-off of Certegy. The
adjustment increased the number of options outstanding in 2001 by approximately
2.1 million shares. A summary of changes in outstanding options and the related
weighted average exercise price per share is shown in the following table:
<TABLE>
<CAPTION>
2001 2000 1999
----------------- ------------------ ----------------
Average Average Average
(Shares in thousands) Shares Price Shares Price Shares Price
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance, beginning of year 9,698 $25.22 10,563 $24.14 7,820 $22.40
Adjustment due to spin-off 2,055 -- -- -- -- --
Granted (all at market price) 2,680 $28.27 1,841 $22.39 3,924 $27.62
Canceled (1,171) $22.25 (924) $28.75 (591) $34.42
Exercised (2,353) $16.91 (1,782) $13.70 (590) $13.39
- -----------------------------------------------------------------------------------------------------
Balance, end of year 10,909 $16.37 9,698 $25.22 10,563 $24.14
=====================================================================================================
Exercisable at end of year 7,743 $15.66 6,069 $22.13 5,165 $17.95
=====================================================================================================
</TABLE>
29
<PAGE>
The following table summarizes information about stock options outstanding at
December 31, 2001 (shares in thousands):
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------------------ ------------------------------
Weighted Average Weighted Weighted
Range of Remaining Average Average
Exercise Contractual Exercise Exercise
Prices Shares Life in Years Price Shares Price
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$4.20 to $13.62 3,656 5.9 $11.41 3,134 $11.10
$14.44 to $17.21 3,910 8.0 $16.14 2,475 $15.88
$17.39 to $24.18 3,026 6.1 $21.43 1,844 $21.15
$25.15 to $37.25 317 6.1 $28.00 290 $28.16
- --------------------------------------------------------------------------------------------------------------------
10,909 6.7 $16.37 7,743 $15.66
====================================================================================================================
</TABLE>
The weighted-average grant-date fair value per share of options granted in 2001,
2000, and 1999 is as follows:
2001 2000 1999
- -------------------------------------------------------------------------------
Grants (all at market price) $8.80 $6.14 $9.95
The fair value of options granted in 2001, 2000, and 1999 is estimated on the
date of grant using the Black-Scholes option pricing model based on the
following weighted average assumptions:
2001 2000 1999
- -------------------------------------------------------------------------------
Dividend yield 0.5% 1.7% 1.4%
Expected volatility 41.0% 42.0% 42.4%
Risk-free interest rate 4.2% 6.5% 5.6%
Expected life in years 2.6 2.3 4.0
Long-Term Incentive Plans The Company has key management long-term incentive
plans for certain key officers that provide for cash awards at the end of
various length measurement periods based on the growth in earnings per share
and/or various other criteria over the measurement period. For certain awards,
the employee may elect to receive some or all of their distribution as an equity
interest in the Company.
Expense for these plans can vary between years due to revisions of estimates of
future distributions under the plans, which are based on the likelihood that the
performance criteria will be met. The total expense under these plans was $4.5
million in 2001, and credits to expense of $3.1 million in 2000 and $0.9 million
in 1999.
Pro Forma Information In accordance with the provisions of Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" (SFAS No. 123), the Company has elected to apply APB Opinion No.
25 and related interpretations in accounting for its stock option and
performance share plans. Accordingly, the Company does not recognize
compensation cost in connection with its stock option plans and records
compensation expense related to its performance share plan based on the current
market price of the Company's common stock and the extent to which performance
criteria are being met. If the Company had elected to recognize compensation
cost for these plans based on the fair value at grant date as prescribed by SFAS
No. 123, net income and net income per share would have been reduced to the pro
forma amounts indicated in the table below (in millions, except per share
amounts):
<TABLE>
<CAPTION>
2001 2000 1999
--------------------- ---------------------- ----------------------
Reported Pro forma Reported Pro forma Reported Pro forma
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net income $122.5 $102.6 $228.0 $211.9 $215.9 $201.0
====================================================================================================================
Net income per share (basic) $0.90 $0.75 $1.70 $1.58 $1.57 $1.46
====================================================================================================================
Net income per share (diluted) $0.88 $0.74 $1.68 $1.56 $1.55 $1.44
====================================================================================================================
</TABLE>
30
<PAGE>
9. EMPLOYEE BENEFITS
In 1998, the Company adopted Statement of Financial Accounting Standards No.
132, "Employers' Disclosures about Pensions and Other Postretirement Benefits."
This statement revises employers' disclosures about pension and other
postretirement benefit plans. It does not change the measurement or recognition
of these plans.
U.S. Retirement Plan The Company has a non-contributory qualified retirement
plan covering most U.S. salaried employees. Benefits are primarily a function of
salary and years of service. A reconciliation of the benefit obligation, plan
assets, and funded status of the plan is as follows (in millions):
Change in benefit obligation 2001 2000
- -------------------------------------------------------------------------------
Benefit obligation at beginning of year $372.8 $387.0
Service cost 4.8 4.5
Interest cost 28.4 29.0
Actuarial loss (gain) 44.7 (17.2)
Curtailments (1.5) (1.3)
Spin-off of Certegy (27.3) --
Benefits paid (30.1) (29.2)
- -------------------------------------------------------------------------------
Benefit obligation at end of year $391.8 $372.8
===============================================================================
Change in plan assets 2001 2000
- -------------------------------------------------------------------------------
Fair value of plan assets at beginning of year $513.1 $500.6
Actual return on plan assets (34.9) 41.7
Employer contribution 10.0 --
Spin-off of Certegy (45.0) --
Benefits paid (30.1) (29.2)
- -------------------------------------------------------------------------------
Fair value of plan assets at end of year $413.1 $513.1
===============================================================================
Funded status $ 21.3 $140.3
Unrecognized actuarial loss (gain) 64.2 (54.9)
Unrecognized prior service cost -- 0.2
- -------------------------------------------------------------------------------
Prepaid pension cost $ 85.5 $ 85.6
===============================================================================
Assumptions used in accounting for the plan are as follows: 2001 2000
- -------------------------------------------------------------------------------
Discount rate 7.25% 8.00%
Expected return on plan assets 9.50% 9.50%
Rate of compensation increase 4.25% 4.25%
Net pension income for the plan includes the following (income) expense
components:
(In millions) 2001 2000 1999
- ----------------------------------------------------------------------------
Service cost $ 4.8 $ 4.5 $ 5.1
Interest cost 28.3 29.0 27.6
Expected return on plan assets (44.3) (43.3) (40.1)
Amortization of prior service cost 0.2 0.3 0.4
Recognized actuarial loss -- -- 0.4
Curtailment gain -- (1.3) (3.8)
- ----------------------------------------------------------------------------
Net pension income $(11.0) $(10.8) $(10.4)
============================================================================
The net pension income shown above includes income amounts allocated to
discontinued operations of $2.1 million in 2001, $3.3 million in 2000 and $3.4
million in 1999. The 2000 curtailment gain of $1.3 million related to the sale
of the U.S. risk management business (Note 4), and was included as a component
of the loss on sale of businesses recorded in other income. The 1999 curtailment
gain of $3.8 million resulted from workforce reductions related to outsourcing
certain administrative and data processing functions and the sale of three risk
management offices.
At December 31, 2001, the plan's assets included 1.76 million shares of the
Company's common stock with a market value of approximately $42.6 million.
31
<PAGE>
Foreign Retirement Plans The Company maintains a defined benefit plan for most
salaried employees in Canada. The aggregate fair market value of the Canadian
plan assets approximates the plan's projected benefit obligation, which totaled
$23.6 million and $24.9 million at December 31, 2001 and 2000, respectively.
Prepaid pension cost for this plan was $11.8 million and $12.5 million at
December 31, 2001 and 2000, respectively. The Company also maintains defined
contribution plans for certain employees in the United Kingdom.
Supplemental Retirement Plan The Company maintains a supplemental executive
retirement program for certain key employees. The plan, which is unfunded,
provides supplemental retirement payments based on salary and years of service.
The expense for this plan was $2.4 million in 2001, $3.0 million in 2000, and
$3.1 million in 1999. The accrued liability for this plan at December 31, 2001
and 2000 was $26.3 million and $24.2 million, respectively, and is included in
other long-term liabilities in the accompanying consolidated balance sheets.
Employee Retirement Savings Plans The Company's retirement savings plans
provide for annual contributions, within specified ranges, determined at the
discretion of the Board of Directors for the benefit of eligible employees in
the form of cash or shares of the Company's common stock. Employees may sell
their Company stock, including shares contributed as the Company match, at any
time. Expense for these plans was $2.5 million in 2001, $2.4 million in 2000,
and $3.4 million in 1999.
Postretirement Benefits The Company maintains certain unfunded healthcare and
life insurance benefit plans for eligible retired employees. Substantially all
of the Company's U.S. employees may become eligible for these benefits if they
reach retirement age while working for the Company and satisfy certain years of
service requirements. The Company accrues the cost of providing these benefits
over the active service period of the employee. Expense for these plans was $1.5
million in 2001, $0.1 million in 2000, and $0.9 million in 1999. Expense in 2000
was reduced by a $0.8 million curtailment gain related to the sale of the U.S.
risk management business (Note 4). The curtailment gain was included as a
component of the loss on sale of businesses recorded in other income. The
accrued liability for these plans at December 31, 2001 and 2000, was $21.4
million and $24.0 million, respectively, and is included in other long-term
liabilities in the accompanying consolidated balance sheets.
10. COMMITMENTS AND CONTINGENCIES
Leases The Company's operating leases involve principally office space and
office equipment. Under the terms of its headquarters building operating lease,
which commenced in 1999, the Company has guaranteed a portion of the residual
value of the building at the end of the lease in 2010. The maximum exposure
under the guarantee is approximately $23 million.
Rental expense related to the Company's operating leases was $23.8 million in
2001, $28.4 in 2000, and $28.4 million in 1999. Future minimum payment
obligations for noncancelable operating leases exceeding one year are as follows
as of December 31, 2001:
(In millions) Amount
- -----------------------------------------------
2002 $ 16.3
2003 11.7
2004 9.2
2005 7.9
2006 7.8
Thereafter 76.7
- -----------------------------------------------
$129.6
===============================================
Agreement with Computer Sciences Corporation The Company has an agreement with
Computer Sciences Corporation and certain of its affiliates (CSC) under which
CSC-owned credit reporting agencies utilize the Company's computerized credit
database services. CSC retains ownership of its credit files and the revenues
generated by its credit reporting activity. The Company receives a processing
fee for maintaining the database and for each report supplied. The initial term
of the agreement expired in July 1998 and was renewed by CSC for the ten-year
period beginning August 1, 1998. The agreement provides CSC with an option to
sell its credit reporting businesses to the Company and provides the Company
with an option to purchase CSC's credit reporting businesses if CSC does not
elect to renew the agreement or if there is a change in control of CSC while the
agreement is in effect. Both options expire in 2013. The option price is
determined by appraisal.
Data Processing and Outsourcing Services Agreements The Company has separate
agreements with IBM, PwCES LLC, Polk/Acxiom, Seisint Inc., and Xerox Connect,
Inc. which outsource portions of its computer data processing operations and
related functions and certain administrative functions. The agreements expire
between 2003 and 2010. The aggregate contractual obligation remaining under
these agreements is currently estimated to be approximately $869 million as of
December 31, 2001, with no future
32
<PAGE>
year expected to exceed $150 million. However, these amounts could be more or
less depending on various factors such as the inflation rate, the introduction
of significant new technologies, or changes in the Company's servicing needs as
a result of acquisitions or divestitures. Under certain circumstances (e.g., a
change in control of the Company, or for the Company's convenience), the Company
may terminate these agreements. However, some of the agreements provide that the
Company must pay a significant termination charge in the event of such a
termination.
Change in Control Agreements The Company has agreements with 15 of its
officers which provide certain severance pay and benefits in the event of a
termination of the officer's employment under certain circumstances following a
"change in control" of the Company. "Change in control" is defined as the
accumulation by any person, entity, or group of 20% or more of the combined
voting power of the Company's voting stock or the occurrence of certain other
specified events. In the event of a "change in control," the Company's
performance share plan provides that all shares designated for future
distribution will become fully vested and payable, subject to the achievement of
certain levels of growth in earnings per share and certain other criteria. At
December 31, 2001, the maximum contingent liability under the agreements and
plans was approximately $20.1 million.
Litigation A number of lawsuits seeking damages are brought against the
Company each year, primarily as a result of reports issued by the Company. Two
lawsuits, 1600 Peachtree, L.L.C. v. Equifax Inc. and SouthTrust Bank, f/k/a
South Trust Bank National Association v. Equifax Inc., allege breach of a
guaranty agreement relating to the Company's prior headquarters building, and
seek damages of approximately $43 million, substantially all of which represents
future rent contingencies. The Company contends that the guaranty is void.
The Company provides for estimated legal fees and settlements relating to
pending lawsuits. In the opinion of management, the ultimate resolution of these
matters will not have a materially adverse effect on the Company's financial
position, liquidity, or results of operations.
33
<PAGE>
11. QUARTERLY FINANCIAL DATA (UNAUDITED)
Quarterly financial data for 2001 and 2000 are as follows (in millions, except
per share amounts):
<TABLE>
<CAPTION>
2001 First Second Third Fourth
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Operating revenue before divested operations $272.5 $281.4 $274.0 $281.9
Divested operations 12.7 8.1 8.4 -
- ---------------------------------------------------------------------------------------
Operating revenue, as reported $285.2 $289.5 $282.4 $281.9
=======================================================================================
Operating income before divested operations
and restructuring and other charges $ 69.4 $ 79.2 $ 82.0 $ 87.2
Divested operations 0.9 (3.0) (1.4) -
Restructuring and other charges - - - (60.4)
- ---------------------------------------------------------------------------------------
Operating income, as reported $ 70.3 $ 76.2 $ 80.5 $ 26.8
=======================================================================================
Income from continuing operations $ 34.1 $ 38.3 $ 35.8 $ 9.1
=======================================================================================
Net income $ 48.1 $ 29.5 $ 35.8 $ 9.1
=======================================================================================
Per common share (basic):
Income from continuing operations $ 0.25 $ 0.28 $ 0.26 $ 0.07
=======================================================================================
Net income $ 0.35 $ 0.22 $ 0.26 $ 0.07
=======================================================================================
Per common share (diluted):
Income from continuing operations $ 0.24 $ 0.28 $ 0.26 $ 0.07
=======================================================================================
Net income $ 0.35 $ 0.21 $ 0.26 $ 0.07
=======================================================================================
2000 First Second Third Fourth
- ---------------------------------------------------------------------------------------
Operating revenue before divested operations $230.9 $258.2 $270.1 $268.0
Divested operations 42.9 47.3 53.8 17.9
- ---------------------------------------------------------------------------------------
Operating revenue, as reported $273.8 $305.5 $323.9 $285.9
=======================================================================================
Operating income before divested operations $ 57.8 $ 70.2 $ 82.3 $ 89.3
Divested operations 4.7 1.2 3.4 (0.3)
- ---------------------------------------------------------------------------------------
Operating income, as reported $ 62.5 $ 71.4 $ 85.7 $ 89.0
=======================================================================================
Income from continuing operations $ 28.6 $ 32.0 $ 38.3 $ 42.2
=======================================================================================
Net income $ 42.2 $ 53.1 $ 64.3 $ 68.4
=======================================================================================
Per common share (basic):
Income from continuing operations $ 0.21 $ 0.24 $ 0.29 $ 0.31
=======================================================================================
Net income $ 0.32 $ 0.40 $ 0.48 $ 0.51
=======================================================================================
Per common share (diluted):
Income from continuing operations $ 0.21 $ 0.24 $ 0.28 $ 0.31
=======================================================================================
Net income $ 0.31 $ 0.39 $ 0.47 $ 0.50
=======================================================================================
</TABLE>
34
<PAGE>
12. SEGMENT INFORMATION
The Company's operations are primarily organized in five reportable segments,
with three segments based on credit and marketing related products within
geographic regions (North America, Europe, and Latin America), and two segments
based on other criteria (Other and Divested Operations). The accounting policies
of the segments are the same as those described in the Company's summary of
significant accounting and reporting policies (Note 1). The Company evaluates
the segment performance based on its operating income before unusual items (if
any). Intersegment sales and transfers are not material.
In the fourth quarter of 2001, the Company changed its segment reporting
structure to more closely match management's internal reporting of business
operations by merging the previous Consumer Information Services segment into
North American Information Services. The 2000 and 1999 segment data has been
restated to conform with the current year presentation.
A description of segment products and services is as follows:
North American Information Services Consumer credit information; credit card
marketing services; locate services; fraud detection and prevention services;
mortgage loan origination information; analytics and consulting; commercial
credit reporting in Canada; identity verification services; and consumer
demographic and lifestyle information.
Equifax Europe Consumer and commercial credit information and marketing
services, and credit scoring and modeling services.
Equifax Latin America Consumer and commercial credit information and other
commercial, financial, and consumer information.
Other Lottery services.
Divested Operations Includes businesses divested in the fourth quarter of 2001
and 2000 (City Directory, the risk management businesses in the U.S., Canada,
and the U.K., as well as the vehicle information business in the U.K.) (Note 4).
35
<PAGE>
Segment information for 2001, 2000, and 1999 is as follows (in millions):
<TABLE>
<CAPTION>
2001 2000 1999
------------ ------------ -----------
<S> <C> <C> <C>
Operating Revenue:
North American Information Services $ 852.4 $ 755.2 $ 633.1
Equifax Europe 141.1 142.9 148.7
Equifax Latin America 106.7 119.5 125.5
Other 9.6 9.6 9.6
------------ ------------ -----------
1,109.8 1,027.2 917.0
Divested Operations 29.2 162.0 175.7
------------ ------------ -----------
$1,139.0 $1,189.2 $1,092.7
------------ ------------ -----------
Operating Income (Loss):
North American Information Services $327.5 $ 287.2 $ 261.0
Equifax Europe 1.8 13.7 4.7
Equifax Latin America 24.4 31.5 28.8
Other 8.9 8.9 8.9
General Corporate Expense (44.8) (41.7) (36.0)
------------ ------------ -----------
317.8 299.6 267.4
Divested Operations (3.6) 9.0 18.9
Restructuring and Other Charges (Note 5) (60.4) -- --
------------ ------------ -----------
$ 253.8 $ 308.6 $ 286.3
------------ ------------ -----------
Total Assets at December 31:
North American Information Services $ 825.5 $ 832.9 $ 490.3
Equifax Europe 192.4 225.0 224.9
Equifax Latin America 190.6 251.6 277.0
Other 3.7 2.9 4.0
Corporate 210.3 213.5 145.2
------------ ------------ -----------
1,422.6 1,525.9 1,141.4
Divested Operations -- 39.3 193.8
Net Assets of Discontinued Operations -- 327.8 272.7
------------ ------------ -----------
$1,422.6 $1,893.1 $1,607.9
------------ ------------ -----------
</TABLE>
36
<PAGE>
<TABLE>
<CAPTION>
2001 2000 1999
------ ------ -----
<S> <C> <C> <C>
Depreciation and Amortization:
North American Information Services $ 64.4 $ 57.2 $40.3
Equifax Europe 18.5 17.9 17.1
Equifax Latin America 14.4 15.7 16.4
Other 0.8 0.8 0.8
Corporate 6.9 5.5 5.2
------ ------ -----
105.0 97.0 79.8
Divested Operations 1.2 9.2 9.8
------ ------ -----
$106.2 $106.2 $89.6
------ ------ -----
2001 2000 1999
------ ------ -----
Capital Expenditures (excluding property and
equipment and other assets acquired in acquisitions):
North American Information Services $ 20.1 $ 40.3 $35.5
Equifax Europe 12.3 13.8 14.6
Equifax Latin America 8.6 12.3 10.1
Other -- -- --
Corporate 5.5 3.9 5.7
------ ------ -----
46.5 70.3 65.9
Divested Operations 0.6 1.6 4.8
------ ------ -----
$ 47.1 $ 71.9 $70.7
------ ------ -----
</TABLE>
Financial information by geographic area is as follows:
<TABLE>
<CAPTION>
2001 2000 1999
------------------- ------------------ --------------------
Amount % Amount % Amount %
------------ ----- ----------- ------ ------------ ------
<S> <C> <C> <C> <C> <C> <C>
Operating Revenue (based
on location of customer):
United States $ 813.8 71% $ 801.6 67% $ 687.0 63%
Canada 77.5 7 94.6 8 91.8 8
United Kingdom 97.6 9 137.7 12 151.1 14
Brazil 49.5 4 60.9 5 61.1 6
Other 100.6 9 94.4 8 101.7 9
------------ ----- ----------- ------ ------------ ------
$1,139.0 100% $1,189.2 100% $1,092.7 100%
------------ ----- ----------- ------ ------------ ------
Long-Lived Assets of Continuing
Operations at December 31:
United States $ 665.2 63% $ 717.1 62% $ 424.0 45%
Canada 100.8 9 96.7 8 107.6 11
United Kingdom 78.8 7 88.2 8 174.3 18
Brazil 97.3 9 119.3 10 126.1 13
Other 122.5 12 140.2 12 125.2 13
------------ ----- ----------- ------ ------------ ------
$1,064.6 100% $1,161.5 100% $ 957.2 100%
------------ ----- ----------- ------ ------------ ------
</TABLE>
37
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Equifax Inc.:
We have audited the accompanying consolidated balance sheets of Equifax Inc. (a
Georgia corporation) and subsidiaries as of December 31, 2001 and 2000 and the
related consolidated statements of income, changes in shareholders' equity and
comprehensive income, and cash flows for each of the three years in the period
ended December 31, 2001. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Equifax Inc. and subsidiaries
as of December 31, 2001 and 2000 and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 2001 in
conformity with accounting principles generally accepted in the United States.
/s/ Arthur Andersen LLP
Atlanta, Georgia
February 13, 2002
38
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Company's Proxy Statement for the Annual Meeting of Shareholders to be held
on May 1, 2002, to be filed with the Securities and Exchange Commission, will
contain under the heading "Directors and Corporate Governance," information
relating to the Company's Directors and persons nominated to become Directors,
which is herein incorporated by reference. Information relating to the Executive
Officers of the Company is included in Item 1 of this Report.
The Company's Proxy Statement for the Annual Meeting of Shareholders to be held
on May 1, 2002, to be filed with the Securities and Exchange Commission, will
contain under the heading "Stock Ownership Reporting Compliance" information
relating to the Company's Directors and Executive Officers who failed to file on
a timely basis reports required by Section 16(c) of the Exchange Act, which is
incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The Company's Proxy Statement for the Annual Meeting of Shareholders to be held
on May 1, 2002, to be filed with the Securities and Exchange Commission, will
contain under the heading "Compensation of Directors," information relating to
compensation of Directors and under the heading "Executive Officer
Compensation," information relating to Executive Officer compensation, which is
incorporated herein by reference. In no event shall the information contained in
the Proxy Statement under the heading "Report of the Compensation and Human
Resources Committee on Executive Compensation" be deemed incorporated herein by
such reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The Company's Proxy Statement for the Annual Meeting of Shareholders to be held
on May 1, 2002, to be filed with the Securities and Exchange Commission, will
contain under the heading "Stock Ownership of Directors and Executive Officers,"
information relating to security ownership of certain beneficial owners and
management, which is incorporated herein by reference.
For purposes of determining the aggregate market value of the Company's voting
stock held by non-affiliates, shares held by all current directors, executive
officers and holders of more than 5% or more of the outstanding common stock of
the Company have been excluded. The exclusion of such shares is not intended to,
and shall not, constitute a determination as to which persons or entities may be
"affiliates" of the Company as defined by the Commission.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company's Proxy Statement for the Annual Meeting of Shareholders to be held
on May 1, 2002, to be filed with the Securities and Exchange Commission, will
contain under the heading "Certain Relationships and Related Transactions,"
information relating to certain relationships and related transactions between
the Company and certain of its directors and executive officers, which is
incorporated herein by reference.
39
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) DOCUMENTS FILED WITH THIS REPORT
(1) Financial Statements
The following financial statements are filed with this Report.
. Consolidated Balance Sheets - December 31, 2001 and 2000
. Consolidated Statements of Income for the Years Ended December 31, 2001,
2000 and 1999
. Consolidated Statements of Cash Flows for the Years Ended December 31,
2001, 2000 and 1999
. Consolidated Statements of Shareholders' Equity and Comprehensive
Income for the Years Ended December 31, 2001, 2000 and 1999
. Notes to Consolidated Financial Statements
. Report of Independent Public Accountants
(2) Financial Statement Schedules
All schedules have been omitted because they are not applicable or the required
information is included in the consolidated financial statements or notes to
these statements.
(3) Exhibits
The following is a complete list of exhibits included as part of this Report
including those incorporated by reference. A list of those documents filed with
this Report is set forth on the Index to Exhibits appearing elsewhere in this
Report and is incorporated by reference.
Exhibit No. Description
- ----------- -----------
2.1 Distribution Agreement, Plan of Reorganization and
Distribution dated as of June 30, 2001 by and between Equifax
Inc. and Certegy Inc. previously filed as an Exhibit to Form
8-K, filed July 20, 2001, and incorporated by reference.
3.1 Amended and Restated Articles of Incorporation previously
filed as an Exhibit on Schedule 14A, filed March 26, 1996,
and incorporated by reference.
3.2 Bylaws of Equifax Inc. as Amended and Restated on August 1,
2001 previously filed as an Exhibit on Form 10-Q filed
November 13, 2001, and incorporated by reference.
4.1 Loan Agreement dated October 4, 2001.
4.2 Portion of Prospectus and Trust Indenture previously filed
as pages 8 through 16 and Exhibit 4.1 on Amendment No. 1 to
Form S-3, Registration Statement No. 33-62820, filed June 17,
1993, and incorporated by reference.
4.3 Rights Agreement, dated October 25, 1995, between Equifax
Inc. and SunTrust Bank, Atlanta with Form of Right
Certificate attached as Exhibit "A" previously filed as an
Exhibit on Form 10-K, filed March 29, 2001, and incorporated
by reference.
40
<PAGE>
4.3(a) Amendment to Rights Agreement, dated as of July 7, 2001,
amending the Rights Agreement dated October 25, 1995 between
the Company and SunTrust Bank, previously filed as an Exhibit
on Form 8-A/A (Amendment No. 1), filed July 9, 2002 and
incorporated by reference.
4.4 Indenture Relating to Debt Securities previously filed as an
Exhibit on Form 10-K, filed March 31, 1999, and incorporated
by reference.
10.1 Equifax Inc. 1988 Performance Share Plan for Officers, as
amended previously filed as an Exhibit on Form 10-K, filed
March 31, 1998, and incorporated by reference.(1)
10.2 Equifax Inc. Executive Incentive Plan previously filed as an
Exhibit on Form 10-K, filed March 31, 1998, and incorporated
by reference.(1)
10.3 Deferred Compensation Plan previously filed as an Exhibit on
Form 10-K, filed April 1, 1996, as amended on Form 10-K/A,
filed April 4, 1996, and incorporated by reference.(1)
10.4 Form of Change in Control Agreement previously filed as an
Exhibit to Form 10-K, filed March 31, 1998, and incorporated
by reference.(1)
10.5 Equifax Inc. Omnibus Stock Incentive Plan, as amended
previously filed as an Exhibit on Form 10-K, filed March 31,
1998, and incorporated by reference. (1)
10.6 Equifax Inc. Non-Employee Director Stock Option Plan and
Agreement previously filed as an Exhibit on Form 10-K, filed
March 31, 1999, and incorporated by reference.(1)
10.7 Equifax Inc. Supplemental Executive Retirement Plan and
subsequent Amendment previously filed as an Exhibit on Form
10-K, filed March 29, 2001, and incorporated by reference.(1)
10.8 Equifax Inc. Executive Life and Supplemental Retirement
Benefit Plan (U.S.) previously filed as an Exhibit on Form
10-K, filed March 29, 2001, and incorporated by reference.(1)
10.9 Agreement For Computerized Credit Reporting Services
previously filed as an Exhibit on Form 10-K filed March 30,
2000 and incorporated by reference.
10.10 Amendments to Agreement for Computerized Credit Reporting
Services and related documents previously filed as an Exhibit
on Form 10-K, filed March 31, 1997, and incorporated by
reference.
10.11 Amendment to Agreement for Computerized Credit Reporting
Services previously filed as pages 8 through 16 and Exhibit
4.1 on Amendment No. 1 to Form S-3, Registration Statement
No. 33-62820, filed June 17, 1993, and incorporated by
reference.
10.12 Fifth Amendment to Agreement for Computerized Credit
Reporting Services previously filed as an Exhibit on Form
10-K filed March 30, 2000 and incorporated by reference.
10.14 Computer and Network Operations Agreement (redacted version)
previously filed as an Exhibit on Form 10-Q, filed November
16, 1998, and incorporated by reference.(2)
10.15 Lease Agreement previously filed as an Exhibit on Form 10-K
filed March 30, 2000 and incorporated by reference.
10.16 Lease Agreement previously filed as an Exhibit on Form 10-K,
filed March 31, 1999, and incorporated by reference.
10.17 Transaction Document #1 previously filed as an Exhibit on
Form 10-K filed March 30, 2000 and incorporated by
reference.(2)
10.18 Master Agreement previously filed as an Exhibit on Form 10-K
filed March 30, 2000 and incorporated by reference.(2)
41
<PAGE>
10.19 Human Resources Business Process and Support Services
Agreement with First Amendment and schedule of omitted
exhibits previously filed as an Exhibit on Form 10-K filed
March 30, 2000 and incorporated by reference.
10.20 Finance & Accounting Business Process and Support Services
Agreement, with First Amendment and schedule of omitted
exhibits previously filed as an Exhibit on Form 10-K filed
March 30, 2000 and incorporated by reference.
10.21 Employment Agreement previously filed as an Exhibit on
Form 10-K, filed March 29, 2001, and incorporated by
reference.(1)
10.22 Equifax Inc. Key Management Long-Term Incentive Plan
previously filed as an Exhibit on Form 10-K, filed March 29,
2001, and incorporated by reference.(1)
10.23 Equifax Inc. 2000 Stock Incentive Plan previously filed as
an Exhibit on Form 10-K, filed March 29, 2001, and
incorporated by reference.(1)
10.24 Bonus Exchange Program previously filed as an Exhibit on
Form 10-K, filed March 29, 2001, and incorporated by
reference.(1)
10.25 Bonus Deferral Arrangement.(1)
10.26 Amended and Restated Master Business Process and Support
Services Agreement.
21 Subsidiaries of the Registrant.
23 Consent of Independent Public Accountants to incorporation
by reference.
24 Power of Attorney - Set forth on Signature Page.
99.1 Tax Sharing and Indemnification Agreement dated as of
June 30, 2001, by and between Equifax Inc. and Certegy Inc.,
previously filed as an Exhibit to Form 8-K, filed July 20,
2001 and incorporated by reference.
99.2 Employee Benefits Agreement dated as of June 30, 2001, by
and between Equifax Inc. and Certegy Inc., previously filed
as an Exhibit to Form 8-K, filed July 20, 2001 and
incorporated by reference.
99.3 Intercompany Data Purchase Agreement dated as of June 30,
2001, by and between Equifax Inc. and Certegy Inc.,
previously filed as an Exhibit to Form 8-K, filed July 20,
2001 and incorporated by reference.
99.4 Transition Support Agreement dated as of June 30, 2001, by
and between Equifax Inc. and Certegy Inc., previously filed
as an Exhibit to Form 8-K, filed July 20, 2001 and
incorporated by reference.
99.5 Intellectual Property Agreement dated as of June 30, 2001,
by and between Equifax Inc. and Certegy Inc., previously
filed as an Exhibit to Form 8-K, filed July 20, 2001 and
incorporated by reference.
99.6 Agreement regarding Leases dated as of June 30, 2001, by and
between Equifax Inc. and Certegy Inc., previously filed as an
Exhibit to Form 8-K, filed July 20, 2001 and incorporated by
reference.
99.7 Form of Proxy Statement for the Annual Meeting of
Shareholders to be held May 1, 2002, to be filed with the
Securities and Exchange Commission.
99.8 Core Business Results of Operations.
(b) REPORTS ON FORM 8-K - None have been filed during the last quarter of the
period covered by this Form 10-K.
- ----------------------------
(1)Management Contract or Compensatory Plan.
(2) Document omits information pursuant to a Request for Confidential Treatment
under Rule 406 of the Securities Act of 1933.
42
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned duly authorized officer.
Date: March 12, 2002 /s/Kent E. Mast
----------------------------------------
By: Kent E. Mast
Corporate Vice President, General Counsel
And Secretary
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Thomas F. Chapman, Kent E. Mast and Philip J. Mazzilli
and either of them, as attorneys-in-fact, with power of substitution, for him in
any and all capacities, to sign any amendments to this Report on Form 10-K, and
to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
Date: March 12, 2002 /s/Thomas F. Chapman
--------------------------------------------
Thomas F. Chapman, Chairman of the Board
and Chief Executive Officer
Date: March 12, 2002 /s/Philip J. Mazzilli
--------------------------------------------
Philip J. Mazzilli, Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
Date: March 12, 2002 /s/Dennis B. Story
--------------------------------------------
Dennis B. Story, Vice President and
Corporate Controller
(Principal Accounting Officer)
Date: March 6, 2002 /s/Lee A. Ault
--------------------------------------------
Lee A. Ault, III, Director
Date: March 4, 2002 /s/John L. Clendenin
--------------------------------------------
John L. Clendenin, Director
Date: March 4, 2002 /s/A. W. Dahlberg
--------------------------------------------
A. W. Dahlberg, Director
Date: March 4, 2002 /s/L. Phillip Humann
--------------------------------------------
L. Phillip Humann, Director
43
<PAGE>
Date: March 4, 2002 /s/Larry L. Prince
--------------------------------------------
Larry L. Prince, Director
Date: March 5, 2002 /s/D. Raymond Riddle
--------------------------------------------
D. Raymond Riddle, Director
Date: March 2, 2002 /s/Louis W. Sullivan
--------------------------------------------
Dr. Louis W. Sullivan, Director
Date: March 5, 2002 /s/Jacquelyn M. Ward
--------------------------------------------
Jacquelyn M. Ward, Director
44
<PAGE>
INDEX TO EXHIBITS
The following documents are being filed with this Report.
Exhibit No. Description
- ----------- ------------------------------------------------------------
4.1 Loan Agreement dated October 4, 2001.
10.25 Bonus Deferral Arrangement.(1)
10.26 Amended and Restated Master Business Process and Support
Services Agreement.
21 Subsidiaries of the Registrant.
23 Consent of Independent Public Accountants to incorporation by
reference.
99.8 Core Business Results of Operations.
- -------------------
(1) Management Contract or Compensatory Plan.
45
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.1
<SEQUENCE>3
<FILENAME>dex41.txt
<DESCRIPTION>CREDIT AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 4.1
CREDIT AGREEMENT
among
EQUIFAX INC.
as a Borrower and as a Guarantor
EQUIFAX PLC
as a Designated Borrower
CERTAIN OTHER SUBSIDIARIES OF EQUIFAX INC.
FROM TIME TO TIME PARTY HERETO
as Designated Borrowers
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
BANK OF AMERICA, N.A.
as Administrative Agent
Dated as of October 4, 2001
- --------------------------------------------------------------------------------
BANC OF AMERICA SECURITIES LLC
Sole Lead Arranger and Sole Book Manager
SUNTRUST ROBINSON HUMPHREY CAPITAL MARKETS
Co-Arranger
SUNTRUST BANK
Syndication Agent
and
WACHOVIA BANK, N.A.
Documentation Agent
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS, ETC.............................................................................. 1
-----------------
SECTION 1.1 Definitions............................................................... 1
-----------
SECTION 1.2 General................................................................... 24
--------
SECTION 1.3 Other Definitions and Provisions.......................................... 24
---------------------------------
SECTION 1.4 Currency Equivalents Generally............................................ 24
-------------------------------
SECTION 1.5 Introduction of Euro; National Currency Unit Advances; Etc................ 24
----------------------------------------------------------
ARTICLE II CREDIT FACILITIES............................................................................ 25
-----------------
SECTION 2.1 Amount and Terms of Credit................................................ 25
--------------------------
SECTION 2.2 Procedure for Advances of Revolving Credit Loans.......................... 26
------------------------------------------------
SECTION 2.3 Repayment of Loans........................................................ 27
------------------
SECTION 2.4 Revolving Credit Notes.................................................... 29
-----------------------
SECTION 2.5 Competitive Bid Loans and Procedure....................................... 29
------------------------------------
SECTION 2.6 Swingline Loans and Procedure............................................. 33
-----------------------------
SECTION 2.7 Commitment Reductions and Increases....................................... 36
-----------------------------------
SECTION 2.8 Termination; Extension Options............................................ 37
-------------------------------
SECTION 2.9 Utilization of Revolving Commitments in Offshore Currencies............... 39
-----------------------------------------------------------
SECTION 2.10 Designated Borrowers...................................................... 40
--------------------
SECTION 2.11 Limitation on Liability................................................... 41
-----------------------
ARTICLE III LETTER OF CREDIT FACILITY................................................................... 41
SECTION 3.1 L/C Commitment............................................................ 41
--------------
SECTION 3.2 Procedure for Issuance of Letters of Credit............................... 42
-------------------------------------------
SECTION 3.3 Fees and Other Charges.................................................... 43
----------------------
SECTION 3.4 L/C Participations........................................................ 44
------------------
SECTION 3.5 Reimbursement Obligation of the Borrowers; Limitation on Liability........ 45
------------------------------------------------------------------
SECTION 3.6 Obligations Absolute...................................................... 46
--------------------
SECTION 3.7 Effect of L/C Application................................................. 47
-------------------------
ARTICLE IV GENERAL LOAN PROVISIONS...................................................................... 47
-----------------------
SECTION 4.1 Interest.................................................................. 47
--------
SECTION 4.2 Conversion and Continuation of Revolving Credit Loans..................... 50
-----------------------------------------------------
SECTION 4.3 Fees...................................................................... 51
----
SECTION 4.4 Manner of Payment......................................................... 51
-----------------
SECTION 4.5 Crediting of Payments and Proceeds........................................ 52
----------------------------------
SECTION 4.6 Adjustments............................................................... 53
-----------
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit;
-----------------------------------------------------------------
Assumption by the Administrative Agent.................................... 53
--------------------------------------
SECTION 4.8 Changed Circumstances..................................................... 54
---------------------
SECTION 4.9 Indemnity................................................................. 56
---------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 4.10 Capital Requirements...................................................... 57
--------------------
SECTION 4.11 Taxes..................................................................... 57
-----
SECTION 4.12 Mitigation of Obligations; Replacement of Lenders......................... 60
-------------------------------------------------
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING.................................................. 61
--------------------------------------------
SECTION 5.1 Conditions to Closing..................................................... 61
---------------------
SECTION 5.2 Conditions to All Extensions of Credit.................................... 64
--------------------------------------
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES......................................... 65
----------------------------------------------------
SECTION 6.1 Representations and Warranties............................................ 65
------------------------------
SECTION 6.2 Survival of Representations and Warranties, Etc........................... 70
-----------------------------------------------
ARTICLE VII FINANCIAL INFORMATION AND NOTICES........................................................... 71
---------------------------------
SECTION 7.1 Financial Statements, Etc................................................. 71
-------------------------
SECTION 7.2 Officer's Compliance Certificate.......................................... 72
--------------------------------
SECTION 7.3 Accountants' Certificate.................................................. 72
------------------------
SECTION 7.4 Other Reports............................................................. 72
-------------
SECTION 7.5 Notice of Litigation and Other Matters.................................... 73
--------------------------------------
SECTION 7.6 Ratings Change............................................................ 73
--------------
SECTION 7.7 Accuracy of Information................................................... 74
-----------------------
ARTICLE VIII AFFIRMATIVE COVENANTS...................................................................... 74
---------------------
SECTION 8.1 Preservation of Corporate Existence and Related Matters................... 74
-------------------------------------------------------
SECTION 8.2 Maintenance of Property................................................... 74
-----------------------
SECTION 8.3 Insurance................................................................. 75
---------
SECTION 8.4 Accounting Methods and Financial Records.................................. 75
----------------------------------------
SECTION 8.5 Payment and Performance of Obligations.................................... 75
--------------------------------------
SECTION 8.6 Compliance With Laws and Approvals........................................ 75
-----------------------------------
SECTION 8.7 Environmental Laws........................................................ 76
-------------------
SECTION 8.8 Compliance with ERISA..................................................... 76
----------------------
SECTION 8.9 Conduct of Business....................................................... 76
-------------------
SECTION 8.10 Visits and Inspections.................................................... 77
----------------------
SECTION 8.11 Use of Proceeds........................................................... 77
---------------
ARTICLE IX NEGATIVE COVENANTS........................................................................... 77
------------------
SECTION 9.1 Financial Covenants....................................................... 77
-------------------
SECTION 9.2 Limitations on Liens...................................................... 77
--------------------
SECTION 9.3 Limitations on Subsidiary Debt............................................ 79
------------------------------
SECTION 9.4 Limitations on Mergers and Liquidation.................................... 80
--------------------------------------
SECTION 9.5 Limitation on Asset Dispositions.......................................... 81
--------------------------------
SECTION 9.6 Limitations on Acquisitions............................................... 81
---------------------------
SECTION 9.7 Limitation on Restricted Investments...................................... 82
------------------------------------
SECTION 9.8 Limitation on Restricted Payments......................................... 82
---------------------------------
SECTION 9.9 Limitation on Transactions with Affiliates................................ 82
-------------------------------------------
SECTION 9.10 Limitation on Certain Accounting Changes.................................. 82
-----------------------------------------
SECTION 9.11 Limitation of Restricting Subsidiary Dividends and Distributions.......... 82
----------------------------------------------------------------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE X GUARANTY OF THE COMPANY......................................................................... 83
-----------------------
SECTION 10.1 Guaranty of Payment......................................................... 83
-------------------
SECTION 10.2 Obligations Unconditional................................................... 83
-------------------------
SECTION 10.3 Modifications............................................................... 84
-------------
SECTION 10.4 Waiver of Rights............................................................ 84
----------------
SECTION 10.5 Reinstatement............................................................... 85
-------------
SECTION 10.6 Remedies.................................................................... 85
--------
SECTION 10.7 Limitation of Guaranty...................................................... 85
----------------------
ARTICLE XI DEFAULT AND REMEDIES........................................................................... 85
SECTION 11.1 Events of Default........................................................... 86
-----------------
SECTION 11.2 Remedies.................................................................... 89
---------
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc............................. 90
-----------------------------------------------
ARTICLE XII THE ADMINISTRATIVE AGENT...................................................................... 90
------------------------
SECTION 12.1 Appointment................................................................. 90
------------
SECTION 12.2 Delegation of Duties........................................................ 91
--------------------
SECTION 12.3 Exculpatory Provisions...................................................... 91
-----------------------
SECTION 12.4 Reliance by the Administrative Agent........................................ 91
------------------------------------
SECTION 12.5 Notice of Default........................................................... 92
-----------------
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.................. 92
----------------------------------------------------------
SECTION 12.7 Indemnification............................................................. 93
---------------
SECTION 12.8 The Administrative Agent in Its Individual Capacity......................... 93
---------------------------------------------------
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent.... 93
------------------------------------------------------------------------
SECTION 12.10 Other Agents; Lead Managers................................................. 94
---------------------------
ARTICLE XIII MISCELLANEOUS................................................................................ 94
-------------
SECTION 13.1 Notices..................................................................... 94
-------
SECTION 13.2 Expenses, Indemnity......................................................... 96
-------------------
SECTION 13.3 Set-off..................................................................... 97
-------
SECTION 13.4 Governing Law............................................................... 97
-------------
SECTION 13.5 Consent to Jurisdiction..................................................... 97
-----------------------
SECTION 13.6 Waiver of Jury Trial........................................................ 98
--------------------
SECTION 13.7 Reversal of Payments........................................................ 98
--------------------
SECTION 13.8 Accounting Matters.......................................................... 98
------------------
SECTION 13.9 Successors and Assigns; Participations...................................... 98
--------------------------------------
SECTION 13.10 Confidentiality............................................................. 102
---------------
SECTION 13.11 Amendments, Waivers and Consents............................................ 103
--------------------------------
SECTION 13.12 Performance of Duties....................................................... 104
---------------------
SECTION 13.13 All Powers Coupled with Interest............................................ 04
--------------------------------
SECTION 13.14 Survival of Indemnities..................................................... 104
-----------------------
SECTION 13.15 Titles and Captions......................................................... 104
-------------------
SECTION 13.16 Severability of Provisions.................................................. 104
--------------------------
SECTION 13.17 Counterparts................................................................ 105
------------
SECTION 13.18 Term of Agreement........................................................... 105
------------------
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 13.19 Inconsistencies with Other Documents; Independent Effect of Covenants....... 105
---------------------------------------------------------------------
SECTION 13.20 Judgment Currency........................................................... 105
-----------------
SECTION 13.21 Several Obligations of the Borrowers........................................ 106
-------------------------------------
SECTION 13.22 Subordination of Company's Claims Against the Designated Borrowers.......... 106
-------------------------------------------------------------------
</TABLE>
iv
<PAGE>
SCHEDULES
Schedule 1.1(a) - Commitments as of Closing Date
Schedule 4.1(f) - Calculation of MLA Cost
Schedule 6.1(b) - Subsidiaries of the Company
Schedule 6.1(h) - Environmental Matters
Schedule 6.1(p) - Debt and Support Obligations of the Borrowers and
any Subsidiary as of Closing Date
Schedule 9.2. - Liens as of Closing Date
Schedule 9.11 - Restrictions on Subsidiary Dividends and Distributions
as of Closing Date
Schedule 13.1 - Notice Addresses for Lenders
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note for Company
Exhibit A-2 - Form of Revolving Credit Note for Designated Borrowers
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Swingline Borrowing
Exhibit C- - Form of Notice of Account Designation
Exhibit D- - Form of Notice of Prepayment
Exhibit E- - Form of New Commitment Agreement
Exhibit F- - Form of Borrower Joinder Agreement
Exhibit G- - Form of Notice of Conversion/Continuation
Exhibit H - Form of Officer's Compliance Certificate
Exhibit I - Form of Assignment and Acceptance
v
<PAGE>
CREDIT AGREEMENT dated as of October 4, 2001 among EQUIFAX INC., a Georgia
corporation (the "Company"), EQUIFAX PLC, a public company limited by shares
-------
organized under the laws of England and Wales ("Equifax Plc"), certain other
-----------
Wholly-Owned Subsidiaries of the Company from time to time party hereto
(together with Equifax Plc, each a "Designated Borrower," and together with the
-------------------
Company and Equifax Plc, the "Borrowers," and each, a "Borrower"), the Lenders
--------- --------
from time to time party hereto and BANK OF AMERICA, N.A., as Administrative
Agent (all capitalized terms used herein and defined in Section 1.1 are used
herein as therein defined).
STATEMENT OF PURPOSE
--------------------
WHEREAS, the Borrowers wish to establish with the Lenders credit facilities
providing for revolving loans and letters of credit of initially, up to
$465,000,000 in the aggregate maximum principal amount at any time outstanding,
with the option to increase such facilities to up to $525,000,000 in the
aggregate principal amount at any time outstanding, and the Lenders and the
Administrative Agent are willing to establish such credit facilities on the
terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
-----------------
SECTION 1.1 Definitions.
-----------
The following terms when used in this Agreement shall have the meanings
assigned to them below:
"364 Day Facility" means the short term revolving credit facility
----------------
established pursuant to Section 2.1 hereof.
"364 Day Facility Commitment" means (a) as to any Lender, the obligation of
---------------------------
such Lender to make Revolving Credit Loans under the 364 Day Facility for the
accounts of the Borrowers in an aggregate principal Dollar Equivalent amount at
any time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1(a) hereto, as such amount may be reduced or modified at any
---------------
time or from time to time pursuant to the terms hereof and (b) as to all
Lenders, the aggregate 364 Day Facility Commitment of all Lenders to make
Revolving Credit Loans under the 364 Day Facility, as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof. The 364 Day
<PAGE>
Facility Commitment of all Lenders on the Closing Date shall be One Hundred
Sixty Million Dollars ($160,000,000).
"364 Day Facility Commitment Percentage" means, as to any Lender at any
--------------------------------------
time, the ratio of (a) the amount of the 364 Day Facility Commitment of such
Lender to (b) the aggregate 364 Day Facility Commitment of all of the Lenders.
"364 Day Facility Fee" shall have the meaning assigned thereto in Section
--------------------
4.3(a).
"364 Day Facility Specified Maturity Date" means October 3, 2002 or such
----------------------------------------
later date as determined pursuant to Section 2.8(c).
"364 Day Facility Termination Date" means the earliest of the dates
---------------------------------
referred to in Section 2.8(a).
"Administrative Agent" means Bank of America in its capacity as
--------------------
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Fee Letter" means that certain letter agreement,
---------------------------------
dated as of July 25, 2001, among the Administrative Agent, the Arranger and the
Company, as amended, modified, supplemented or replaced from time to time.
"Administrative Agent's Office" means the office of the Administrative
-----------------------------
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person which
---------
directly or indirectly through one or more intermediaries (a) controls, or is
controlled by, or is under common control with, such first Person or any of its
Subsidiaries or (b) owns or holds ten percent (10%) or more of the Capital Stock
in such first Person or any of its Subsidiaries. The term "control" means the
possession, directly or indirectly, of any power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Aggregate Revolving Credit Commitment" means (a) as to any Lender, the
-------------------------------------
aggregate of such Lender's 364 Day Facility Commitment and Multi-Year Facility
Commitment, as such amount may be reduced or modified at any time or from time
to time pursuant to the terms hereof and (b) as to all Lenders, the aggregate
364 Day Facility Commitment and Multi-Year Facility Commitment of all Lenders,
as such amount may be increased or reduced or modified at any time or from time
to time pursuant to the terms hereof. The Aggregate Revolving Credit Commitment
of all Lenders on the Closing Date shall be Four Hundred Sixty-Five Million
Dollars ($465,000,000).
"Aggregate Revolving Credit Commitment Percentage" means, as to any Lender
------------------------------------------------
at any time, the ratio of (a) such Lender's Aggregate Revolving Credit
Commitment to (b) the Aggregate Revolving Credit Commitment of all of the
Lenders.
"Agreed Alternative Currency" shall have the meaning assigned thereto in
---------------------------
Section 2.9(e).
2
<PAGE>
"Agreement" means this Credit Agreement, as amended, restated, supplemented
---------
or otherwise modified.
"Applicable Currency" means, as to any particular Revolving Credit Loan,
-------------------
Competitive Bid Loan, Letter of Credit or payment, Dollars or the Offshore
Currency in which such Loan, Letter of Credit or payment is denominated or is
payable.
"Applicable Law" means all applicable provisions of constitutions, laws,
--------------
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of Governmental Authorities and all orders
and decrees of all courts and arbitrators.
"Applicable Percentage" means, for purposes of calculating (a) the interest
---------------------
rate applicable to Offshore Rate Loans for purposes of Section 4.1(a); (b) the
L/C Fee for purposes of Section 3.3(a); (c) the 364 Day Facility Fee for
purposes of Section 4.3(a), (d) the Multi-Year Facility Fee for purposes of
Section 4.3(b); or (e) the Utilization Fee for purposes of Section 4.3(d), the
rate set forth below opposite the Applicable Rating then in effect:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Offshore
Rate Loans
Offshore under the
Rate Loans Multi-Year
under the 364 Day Facility Multi-Year
Pricing 364 Day Facility and L/C Facility
Level Applicable Rating Facility Fee Fee Fee Utilization Fee
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
I ** A/A2 0.295% 0.080% 0.275% 0.100% 0.125%
-----------------------------------------------------------------------------------------------------------------------
II A-/A3 0.400% 0.100% 0.375% 0.125% 0.125%
-----------------------------------------------------------------------------------------------------------------------
III BBB+/Baa1 0.500% 0.125% 0.475% 0.150% 0.125%
-----------------------------------------------------------------------------------------------------------------------
IV BBB/Baa2 0.600% 0.150% 0.575% 0.175% 0.250%
-----------------------------------------------------------------------------------------------------------------------
V *BBB/Baa2 0.800% 0.200% 0.750% 0.250% 0.250%
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
For purposes of the foregoing, (i) if the Applicable Ratings established by
Moody's and S&P are different but correspond to consecutive Pricing Levels,
then the Pricing Level with the lower number (i.e., corresponding to the
better rating) shall apply (e.g., if Moody's and S&P's Applicable Ratings
correspond to Pricing Levels I and II, respectively, then Pricing Level I
will apply), (ii) if the Applicable Ratings established by Moody's and S&P
are different and correspond to non-consecutive Pricing Levels, then the
Pricing Level with a number equal to the higher Pricing Level number (i.e.,
corresponding to the worse rating) minus one shall apply (e.g., if Moody's
and S&P's Applicable Ratings correspond to Pricing Levels I and IV,
respectively, then Pricing Level III will apply), (iii) if only one
Applicable Rating is available as a result of either S&P or Moody's failure
to continue to rate any issuer's senior, unsecured, long-term, non-credit
enhanced debt for borrowed money, then the Pricing Level shall be based on
such Applicable Rating that remains available (e.g., if Moody's Applicable
Rating corresponds to Pricing Level I and S&P is no longer in the business
of rating any issuer's senior, unsecured, long-term, non-credit enhanced
debt for borrowed money, then Pricing Level I will apply), (iv) if S&P or
Moody's withdraws its Applicable Rating and the remaining
* denotes less than.
** denotes greater than or equal to.
3
<PAGE>
Applicable Rating is below BBB+/Baa1, as applicable, then such remaining
Applicable Rating shall apply for sixty (60) days from the date of such
withdraw by either S&P or Moody's of its Applicable Rating and thereafter
Pricing Level V shall apply until the earlier of (A) such time as S&P
and/or Moody's provides another Applicable Rating or (B) the Required
Lenders have agreed to an alternative pricing grid or other method for
determining Pricing Levels pursuant to an effective amendment to this
Credit Agreement, (v) if S&P or Moody's withdraws its Applicable Rating and
the remaining Applicable Rating is BBB+/Baa1 or above, as applicable, then
the Pricing Level shall correspond to the remaining Applicable Rating, and
(vi) if both S&P and Moody's withdraw their Applicable Ratings, then
Pricing Level V shall apply until the earlier of (A) such time as S&P
and/or Moody's provides another Applicable Rating or (B) the Required
Lenders have agreed to an alternative pricing grid or other method for
determining Pricing Levels pursuant to an effective amendment to this
Credit Agreement.
The Applicable Percentage shall be determined and adjusted as of the date
on which any change in an Applicable Rating is announced by the relevant
rating agency (each such adjustment date, a "Rate Determination Date").
-----------------------
Each Applicable Percentage shall be effective from a Rate Determination
Date until the next such Rate Determination Date. The Administrative Agent
shall determine the appropriate Applicable Percentages in the pricing
matrix promptly upon notice of a ratings change by the Company as required
pursuant to Section 7.6 and shall promptly notify the Company and the
Lenders of any change thereof. Such determinations by the Administrative
Agent shall be conclusive absent manifest error. Adjustments in the
Applicable Percentages shall be effective as to existing Extensions of
Credit as well as any new Extension of Credit made thereafter. The
Applicable Percentage from the Closing Date shall be based on Pricing Level
II, subject to adjustment as provided herein.
"Applicable Rating" means as to each of Moody's and S&P, its rating of the
-----------------
Company's senior, unsecured, long-term, non-credit enhanced debt for borrowed
money.
"Applicant Borrower" shall have the meaning assigned thereto in Section
------------------
2.10(a).
"Approved Fund" means any Fund that is administered or managed by (a) a
-------------
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC in its capacity as Sole
--------
Lead Arranger and Sole Book Manager for the Credit Facility.
"Asset Disposition" means the disposition of any or all of the assets
-----------------
(including without limitation the disposition of accounts and notes receivable,
the sale of the Capital Stock of a Subsidiary to a Person other than the Company
or a Subsidiary of the Company and any Equity Issuance of Capital Stock of a
Subsidiary to a Person other than the Company or a Subsidiary of the Company) of
the Company or any of its Subsidiaries whether by sale, lease, transfer or
otherwise. The term "Asset Disposition" shall not include (i) the sale of
inventory or Cash
4
<PAGE>
Equivalents in the ordinary course of business, (ii) the sale or disposition of
fixed assets no longer used or useful in the conduct of such Person's business,
(iii) any Equity Issuance of Capital Stock of the Company, (iv) transfers of
assets to the Company or from a Subsidiary of the Company to a Wholly-Owned
Subsidiary of the Company, (v) transfers of assets required in connection with
any Permitted Securitization Transaction or (vi) transfers of assets which
individually account for less than $1,000,000 of the Consolidated Operating
Profit for the immediately preceding Fiscal Year.
"Assignment and Acceptance" shall have the meaning assigned thereto in
-------------------------
Section 13.9(b)(iii).
"Available EMU Currency" means French Franc, Belgian Franc, German Mark,
----------------------
Irish Punt, Italian Lira, Dutch Guilder and Spanish Peseta.
"Bank of America" means Bank of America, N.A., a national banking
---------------
association and its successors.
"Bankruptcy Event" means any of the events set forth in Section 11.1(i) or
----------------
(j) or any of those events which with the passage of time, the giving of notice
or any other condition would constitute such an event, in respect of any of the
Borrowers or any of their Subsidiaries.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and (b)
---------
the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in the
----
Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan denominated in Dollars and bearing interest
--------------
at a rate based upon the Base Rate as provided in Section 4.1(a).
"Borrower Joinder Agreement" means a Borrower Joinder Agreement executed by
--------------------------
an Applicant Borrower, the Company and the Administrative Agent in substantially
the form of Exhibit E, as amended, restated, supplemented or otherwise modified.
---------
"Borrowers" means, collectively, the Company, Equifax Plc and the
---------
Designated Borrowers; "Borrower" means any one of them.
--------
"Business Day" shall, with respect to dates for the payment or purchase of
------------
any amount denominated in euro or National Currency Units (including without
limitation dates for determining LIBOR for such amount), be deemed to mean a
TARGET Business Day. The definition of "Business Day" shall, for all other
purposes, including without limitation the giving and receiving of notices
hereunder for Offshore Currency Loans denominated in euro or National Currency
Units, be deemed to mean a TARGET Business Day on which banks are generally open
for business in London, England, Frankfurt, Germany, Charlotte, North Carolina,
San Francisco, California and/or in any other principal financial center as the
Administrative Agent shall from time to time determine for this purpose.
5
<PAGE>
"Capital Lease" means, with respect to any Person, any lease of any
-------------
property that should, in accordance with GAAP, be classified and accounted for
as a capital lease on a Consolidated balance sheet of such Person and its
Consolidated Subsidiaries.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
-------------
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalent" means (a) securities issued or directly and fully
---------------
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time and demand deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
-------------
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements with a bank or
trust company (including any of the Lenders) or securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions having capital of at least $500,000,000
and the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"Certegy" means Certegy Inc., a Georgia corporation.
-------
"Change in Control" shall have the meaning assigned thereto in Section
-----------------
11.1(h).
"Closing Date" means the date of this Agreement or such later Business Day
------------
upon which each condition described in Section 5.1 shall be satisfied or waived
in all respects.
"Code" means the Internal Revenue Code of 1986, and the rules and
----
regulations thereunder, each as amended, supplemented or otherwise modified from
time to time.
"Commitment" means, as to any Lender at any time, such Lender's 364 Day
----------
Facility Commitment, Multi-Year Facility Commitment or Aggregate Revolving
Credit Commitment, as the context requires.
6
<PAGE>
"Commitment Percentage" means, as to any Lender at any time, such Lender's
---------------------
364 Day Facility Commitment Percentage, Multi-Year Facility Commitment
Percentage or Aggregate Revolving Credit Commitment Percentage, as the context
requires.
"Company" means Equifax Inc., a Georgia corporation.
-------
"Competitive Bid" means an offer by a Lender to make a Competitive Bid Loan
---------------
in accordance with Section 2.5.
"Competitive Bid Loans" means any Loan made pursuant to Section 2.5 and all
---------------------
such Loans collectively as the context requires.
"Competitive Bid Rate" means the rate of interest per annum expressed in
--------------------
multiples of l/100th of one percent offered with respect to any Competitive Bid
Loan offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Company, on behalf of a
-----------------------
Borrower, for Competitive Bids in accordance with Section 2.5.
"Consolidated" means, when used with reference to financial statements or
------------
financial statement items of a Person and its Subsidiaries, such statements or
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated EBITDA" means, for any period, as applied to the Company and
-------------------
its Consolidated Subsidiaries without duplication, the sum of the amounts for
such period of: (a) Consolidated Net Income, plus (b) an amount which, in the
----
determination of Consolidated Net Income has been deducted for (i) Consolidated
Interest Expense, (ii) all federal and state income tax expense, and (iii)
depreciation and amortization expense, all of the foregoing as determined and
computed on a Consolidated basis in accordance with GAAP.
"Consolidated Funded Debt" means, as of any date, without duplication, all
------------------------
Debt of the Company and its Consolidated Subsidiaries of the type referred to in
clauses (a), (b), (f), (g), (h), (j) (but in the case of clause (j), only to the
extent of any drawn amount of such letters of credit) and (l) and (m) of the
definition of "Debt" set forth in this Section 1.1, all of the foregoing as
determined and computed on a Consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, as applied to the
------------------------------------
Company and its Consolidated Subsidiaries, all interest expense (whether paid or
accrued) and capitalized interest, including without limitation (a) the
amortization of debt discount and premium, (b) the interest component under
Capital Leases and synthetic leases and (c) the implied interest component,
discount or other similar fees or charges in connection with any asset
securitization program, in each case as determined and computed on a
Consolidated basis in accordance with GAAP.
7
<PAGE>
"Consolidated Net Income" means, for any period, the net income, after
-----------------------
taxes, of the Company and its Consolidated Subsidiaries for such period as
determined and computed on a Consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means, as of any date, Consolidated
--------------------------------
Total Assets, less the sum of the value, as set forth or reflected in the most
recent Consolidated balance sheet of the Company and its Consolidated
Subsidiaries, prepared in accordance with GAAP of:
(i) All assets which would be treated as intangible assets for
balance sheet presentation purposes under GAAP, excluding "Purchased Data
Files," but including, without limitation, goodwill (as determined by the
Company in a manner consistent with its past accounting practices and in
accordance with GAAP), trademarks, tradenames, copyrights, patents and
technologies, and unamortized debt discount and expense;
(ii) To the extent not included in (i) of this definition, any amount
at which shares of Capital Stock of the Company appear as an asset on the
balance sheet of its Consolidated Subsidiaries; and
(iii) To the extent not included in (i) of this definition, deferred
expenses.
"Consolidated Operating Profit" means, for any period, the Operating Profit
-----------------------------
of the Company and its Consolidated Subsidiaries, all of the foregoing as
determined and computed on a Consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means, at any date, any Subsidiary or other
-----------------------
entity the accounts of which, in accordance with GAAP, are Consolidated with
those of the Company in its Consolidated financial statements as of such date.
"Consolidated Total Assets" means, as of any date, the assets and
-------------------------
properties of the Company and its Consolidated Subsidiaries, as determined and
computed on a Consolidated basis in accordance with GAAP.
"Credit Facility" means the collective reference to the 364 Day Facility,
---------------
the Multi-Year Facility and the L/C Facility or any one of them, as the context
requires.
"CSC" means Computer Sciences Corporation, a Nevada corporation.
---
"CSC Agreement" means the Agreement for Computerized Credit Reporting
-------------
Services and Options to Purchase and Sell Assets, dated as of the 1st day of
August, 1988, among EIS, the Company, CSC and certain other parties, as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"CSC Put" means the right of certain subsidiaries of CSC under the CSC
-------
Agreement to, require EIS to purchase their credit reporting businesses within
180 days after notice.
8
<PAGE>
"Debt" of any Person means at any date, without duplication: (a) all
----
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such Person issued
or assumed as the deferred purchase price of Property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business
on terms customary in the trade) which would appear as liabilities on a balance
sheet of such Person and any obligation relating to or arising out of the CSC
Put after the receipt by the Company or any of its Subsidiaries of notice from
CSC or any of its Subsidiaries regarding the intent to exercise the CSC Put, (e)
all obligations of such Person under take or pay or similar arrangements or
under commodities agreements, (f) all Debt of others secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, provided that for purposes hereof the amount
--------
of such Debt shall be limited to the greater of (i) the amount of such Debt as
to which there is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (g) all Support Obligations of such
Person with respect to a Debt of another Person, (h) the principal portion of
all obligations of such Person under Capital Leases, (i) all net obligations of
such Person in respect of Hedging Agreements, (j) the maximum amount of all
standby letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed or not cash collateralized), (k) all preferred stock
issued by such Person and required by the terms thereof to be redeemed, or for
which mandatory sinking fund payments are due, by a fixed date, (l) the
outstanding attributed principal amount under any asset securitization program
of such Person (including without limitation any notes or accounts receivable
financing program) and (m) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP. The Debt of any Person
shall include the Debt of any partnership or joint venture in which such Person
is a general partner or a joint venturer, but only to the extent to which there
is recourse to the assets (other than the ownership interest in such partnership
or joint venture) of such Person for payment of such Debt.
"Default" means any of the events specified in Section 11.1 which, with the
-------
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
-----------------
Lender Default is in effect.
"Designated Borrower" means any Applicant Borrower that becomes a Borrower
-------------------
under this Agreement in accordance with the provisions of Section 2.10.
"Designating Lender" has the meaning set forth in Section 13.9(i).
------------------
"Determination Date" shall have the meaning assigned thereto in Section
------------------
2.9(a).
9
<PAGE>
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
--------------
currency of the United States.
"Dollar Equivalent" means, at any time, (a) as to any amount denominated in
-----------------
Dollars, the amount thereof at such time, and (b) as to any amount denominated
in an Offshore Currency, the equivalent amount in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate for the purchase
of Dollars with such Offshore Currency on the most recent Determination Date
provided for in Section 2.9(a).
"EIS" means Equifax Information Services, LLC, formerly known as Equifax
---
Credit Information Services, Inc.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender or any
-----------------
fund that invests in bank loans and is managed by an investment advisor to a
Lender; and (c) any other Person approved by the Administrative Agent and,
unless a Default or Event of Default has occurred and is continuing at the time
any assignment is effected in accordance with Section 13.9, the Company (such
approval not to be unreasonably withheld or delayed by the Company and such
approval to be deemed given by the Company if no objection is received by the
assigning Lender and the Administrative Agent from the Company within five (5)
Business Days after notice of such proposed assignment has been provided by the
assigning Lender to the Company); provided, however, that neither a Borrower nor
-------- -------
an Affiliate of a Borrower shall qualify as an Eligible Assignee.
"Employee Benefit Plan" means any employee benefit plan within the meaning
---------------------
of Section 3(3) of ERISA which (a) is maintained for employees of a Borrower or
any ERISA Affiliate or (b) has at any time within the preceding six years been
maintained for the employees of a Borrower or any current or former ERISA
Affiliate.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
---
European Union.
"EMU Legislation" means legislative measures of the European Council
---------------
(including without limitation European Council regulations) for the introduction
of, changeover to, or operation of, the euro.
"Environmental Laws" means any and all federal, state, local and foreign
------------------
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
binding interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"Environmental Permits" shall have the meaning assigned thereto in Section
---------------------
6.1(h).
"Equity Issuance" means any issuance by the Company or any of its
---------------
Subsidiaries to any Person other than the Company or any of its Subsidiaries of
(a) shares of its Capital Stock,
10
<PAGE>
(b) any shares of its Capital Stock pursuant to the exercise of options or
warrants or (c) any shares of its Capital Stock pursuant to the conversion of
any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
-----
rules and regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
"ERISA Affiliate" means any Person who together with a Borrower is treated
---------------
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b) of ERISA.
"euro" means the single currency of Participating Member States of the
----
European Community.
"Eurodollar Reserve Percentage" means, for any day, the percentage
-----------------------------
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"European Community" means those European countries that are signatories to
------------------
the Treaty on European Union.
"Event of Default" means any of the events specified in Section 11.1,
----------------
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount equal
--------------------
to the sum of (a) the aggregate principal amount of all Revolving Credit Loans
made by such Lender then outstanding, (b) such Lender's Multi-Year Facility
Commitment Percentage of the L/C Obligations then outstanding, (c) the aggregate
principal amount of all Competitive Bid Loans made by such Lender then
outstanding and (d) such Lender's Multi-Year Facility Commitment Percentage of
all Swingline Loans then outstanding. "Extension of Credit" means, as to any
-------------------
Lender (a) any component of such Lender's Extensions of Credit or (b) the making
of, or participation in, a Loan by such Lender or the issuance or extension of,
or participation in, a Letter of Credit by such Lender, as the context may
require.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
----
thereto.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards to the nearest 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 on the Business Day next succeeding such day; provided that
--------
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the
11
<PAGE>
next succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
"Fiscal Year" means the fiscal year of the Company and its Subsidiaries
-----------
ending on or about December 31.
"Foreign Lender" means any Lender that is organized under the laws of a
--------------
jurisdiction other than that in which the Company 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 Pension Plan" shall mean any plan, fund (including, without
--------------------
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by a Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of such Borrower or
such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" means each Subsidiary of the Company that is not
------------------
incorporated under the laws of the United States or any State or territory
thereof.
"Fund" means any Person (other than a natural Person) that is (or will be)
----
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles, as recognized by the
----
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained on a consistent basis
throughout the period indicated.
"Governmental Approvals" means all authorizations, consents, approvals,
----------------------
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
----------------------
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" means, without duplication, all of the Obligations
----------------------
of the Designated Borrowers to the Lenders and the Administrative Agent,
whenever arising, under this Agreement, the Borrower Joinder Agreements, any L/C
Applications, the Notes and any other Loan Documents (including, but not limited
to, obligations with respect to principal, interest and fees).
12
<PAGE>
"Hazardous Materials" means any substances or materials (a) which are or
-------------------
become regulated or defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
to human health or the environment and are or become regulated by any
Governmental Authority, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Applicable Law or other
Governmental Approval, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest rate
-----------------
swap, collar, cap, floor or forward rate agreement, foreign currency agreement
or other agreement regarding the hedging of interest rate risk exposure executed
in connection with hedging the interest rate exposure of any Person, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated or otherwise modified from time to time.
"Interest Coverage Ratio" means, as of the last day of any fiscal quarter,
-----------------------
the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in
each case for the period of four (4) consecutive fiscal quarters ending as of
such day.
"Interest Period" shall have the meaning assigned thereto in Section
---------------
4.1(b).
"Investment" in any Person means (a) the acquisition (whether for cash,
----------
property, services, assumption of Debt, securities or otherwise) of shares of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or securities issued by such Person, (b) any deposit with,
or advance, loan or other extension of credit to, such Person (other than those
made in connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to or
investment in such Person including, without limitation, any Support Obligation
(including any support for a letter of credit issued on behalf of such person)
incurred for the benefit of such Person.
"Irrevocable Conversion Rate" with respect to any Available EMU Currency,
---------------------------
means the rate adopted and irrevocably fixed by the European Council (in
accordance with Article 109l(4) of the Treaty on European Union) on December 31,
1998 as the official exchange rate at which National Currency Units of such
Available EMU Currency shall be converted into euro, and euro shall be converted
into National Currency Units of such Available EMU Currency.
"Issuing Lender" means with respect to any Letter of Credit, Bank of
--------------
America in its capacity as issuer of such Letter of Credit.
"Italian Lira" means the former national currency of Italy.
------------
"L/C Application" means an application, in the form specified by any
---------------
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
13
<PAGE>
"L/C Commitment" means Fifty Million Dollars ($50,000,000).
--------------
"L/C Facility" means the letter of credit facility established pursuant to
------------
Article III hereof.
"L/C Fee" shall have the meaning assigned thereto in Section 3.3(a).
-------
"L/C Obligations" means at any time, an amount equal to the sum of (a) the
---------------
Dollar Equivalent of the aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the Dollar Equivalent of the aggregate
amount of drawings under Letters of Credit which have not then been reimbursed
pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders having
----------------
a Multi-Year Facility Commitment other than the applicable Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender as set
------
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.9(b), other than any
party hereto that ceases to be a party hereto pursuant to any Assignment and
Acceptance.
"Lender Default" means (a) the refusal (which has not been retracted) or
--------------
the failure of a Lender to make available its portion of any Mandatory Borrowing
or (b) a Lender having notified in writing the Company and/or the Administrative
Agent that such Lender does not intend to comply with its obligations under
Section 2.6(b), in the case of either clause (a) or (b) as a result of any
takeover or control of such Lender by any Governmental Authority.
"Lending Office" means, with respect to any Lender, the office of such
--------------
Lender maintaining such Lender's Aggregate Revolving Credit Commitment
Percentage of the Revolving Credit Loans.
"Letter of Credit" means any standby or commercial letter of credit issued
----------------
hereunder.
"Leverage Ratio" means, as of the last day of any fiscal quarter, the ratio
--------------
of (a) Consolidated Funded Debt on such day to (b) Consolidated EBITDA for the
period of four (4) consecutive fiscal quarters ending as of such day.
"LIBOR" means, for any Offshore Rate Loan for any Interest Period therefor,
-----
the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
in each case determined by the Administrative Agent to be equal to:
(i) the offered rate that appears on the Dow Jones Telerate Screen
Page 3750 (or any successor page) that displays an average British Bankers
Association Interest Settlement Rate for deposits in the Applicable
Currency (for delivery on the first day of the applicable Interest Period)
for a term equivalent to the applicable Interest Period at approximately
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period; or
14
<PAGE>
(ii) if for any reason the foregoing rate in clause (i) is
unavailable or undeterminable, the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the Applicable Currency (for delivery on
the first day of the applicable Interest Period) for a term equivalent to
the applicable Interest Period at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of the applicable Interest Period;
or
(iii) if for any reason the foregoing rates in clauses (i) and (ii)
are unavailable or undeterminable, the rate of interest at which deposits
in the Applicable Currency for delivery on the first day of the applicable
Interest in same day funds in the approximate amount of the applicable
Offshore Rate Loan for a term equivalent to the applicable Interest Period
would be offered by the London branch of Bank of America to major banks in
the offshore market for such Applicable Currency at approximately 11:00
a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease (excluding,
however, any synthetic leases) or other title retention agreement relating to
such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Administrative Agent's Fee Letter, the L/C Applications, any Borrower Joinder
Agreement and each other document, instrument and agreement executed and
delivered by any Borrower, its Subsidiaries in connection with this Agreement or
otherwise contemplated hereby, all as may be amended, restated or otherwise
modified.
"Loans" means the collective reference to the Revolving Credit Loans, the
-----
Competitive Bid Loans and the Swingline Loans; "Loan" means any one of such
----
Loans.
"Mandatory Borrowing" shall have the meaning assigned thereto in Section
-------------------
2.6(b).
"Material Adverse Effect" means any of (a) a material adverse effect on the
-----------------------
business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole, (b) a material adverse effect on the ability of any Borrower to
perform its obligations under the Loan Documents, in each case to which it is a
party, or (c) a material adverse effect on the rights or remedies of the Lenders
or the Administrative Agent hereunder or under any other Loan Document.
"Material Subsidiary" shall mean at any time any direct or indirect
-------------------
Subsidiary of the Company having: (a) assets in an amount equal to at least 5%
of the total assets of the Company and its Subsidiaries determined on a
consolidated basis as of the last day of the most recent fiscal quarter of the
Company at such time; or (b) revenues or net income in an amount equal to at
least 5% of the total revenues or net income of the Company and its Subsidiaries
on a consolidated
15
<PAGE>
basis for the 12-month period ending on the last day of the most recent fiscal
quarter of the Company at such time.
"MLA Cost" means an addition to the interest rate on a Revolving Credit
--------
Loan to compensate any Lender for the cost imputed to a Lender in respect of any
Revolving Credit Loan made in an Offshore Currency during the term of such Loan
resulting from the imposition from time to time under or pursuant to the Bank of
England Act 1998 (the "Act") and/or by the Bank of England and/or the Financial
---
Services Authority (the "FSA") (or other United Kingdom governmental authorities
---
or agencies) of a requirement to place non-interest-bearing cash ratio deposits
or Special Deposits (whether interest bearing or not) with the Bank of England
and/or pay fees to the FSA calculated by reference to liabilities used to fund
the Revolving Credit Loan made in such Offshore Currency, as determined in
accordance with Schedule 4.1(f).
---------------
"Moody's" means Moody's Investors Service, Inc. or any successor or
-------
assignee in the business of rating securities.
"Multi-Year Facility" means the multi-year revolving credit facility
-------------------
established pursuant to Section 2.1 hereof.
"Multi-Year Facility Commitment" means (a) as to any Lender, the obligation
------------------------------
of such Lender to make Revolving Credit Loans under the Multi-Year Facility for
the accounts of the Borrowers in an aggregate principal Dollar Equivalent amount
at any time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1.1(a) hereto as such amount may be reduced or
---------------
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate Multi-Year Facility Commitment of all Lenders
to make Revolving Credit Loans under the Multi-Year Facility, as such amount may
be increased, reduced or modified at any time or from time to time pursuant to
the terms hereof. The Multi-Year Facility Commitment of all Lenders on the
Closing Date shall be Three Hundred Five Million Dollars ($305,000,000).
"Multi-Year Facility Commitment Percentage" means, as to any Lender at any
-----------------------------------------
time, the ratio of (a) the amount of the Multi-Year Facility Commitment of such
Lender to (b) the aggregate Multi-Year Facility Commitment of all of the
Lenders.
"Multi-Year Facility Fee" shall have the meaning assigned thereto in
-----------------------
Section 4.3(b).
"Multi-Year Facility Specified Maturity Date" means October 4, 2004.
-------------------------------------------
"Multi-Year Facility Termination Date" means the earliest of the dates
------------------------------------
referred to in Section 2.8(b).
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
------------------
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is making, has
made, is accruing or has accrued an obligation to make, contributions within the
preceding six years.
16
<PAGE>
"National Currency Unit" means a fraction or multiple of one euro expressed
----------------------
in units of an Available EMU Currency. Offshore Currency Loans requested to be
denominated in National Currency Units shall be available only in accordance
with Section 1.5.
"Notes" means the collective reference to the Revolving Credit Notes;
-----
"Note" means any one of such Notes.
----
"Notice of Account Designation" shall have the meaning assigned thereto in
-----------------------------
Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning assigned thereto
---------------------------------
in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in Section
--------------------
2.3(c).
"Notice of Revolving Credit Borrowing" shall have the meaning assigned
------------------------------------
thereto in Section 2.2(a).
"Notice of Swingline Borrowing" shall have the meaning assigned thereto in
-----------------------------
Section 2.6(d).
"Obligations" means, in each case, whether now in existence or hereafter
-----------
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, and (b) all other
fees and commissions (including reasonable and actual attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrowers to the Lenders or the Administrative
Agent, of every kind, nature and description, direct or indirect, absolute or
contingent, due or to become due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note, in each case under or in
respect of this Agreement, any Note, or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned thereto
--------------------------------
in Section 7.2.
"Offshore Currency" means euro, any National Currency Unit, Australian
-----------------
Dollars, Canadian Dollars, Japanese Yen, New Zealand Dollars, Sterling and Swiss
Franc, and any Agreed Alternative Currency determined in accordance with Section
2.9(e).
"Offshore Currency Loan" means any Offshore Rate Loan or Competitive Bid
----------------------
Loan denominated in an Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect to an Offshore
-------------
Rate Loan, the rate of interest per annum (rounded upward to the next 1/100/th/
of 1%) determined by the Administrative Agent as follows:
17
<PAGE>
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loan" means a Revolving Credit Loan or a Swingline Loan
------------------
bearing interest at a rate based upon the Offshore Rate as provided in Section
4.1(a) and, if a Revolving Credit Loan made under the Multi-Year Facility, may
be an Offshore Currency Loan or a Revolving Credit Loan denominated in Dollars.
"Operating Lease" shall mean, as to any Person, as determined in accordance
---------------
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.
"Operating Profit" means, as applied to any Person for any period, the
----------------
operating revenue of such Person for such period, less (i) its costs of services
for such period and (ii) its selling, general and administrative costs for such
period but excluding therefrom all extraordinary gains or losses, all as
determined and computed in accordance with GAAP
"Other Taxes" shall have the meaning assigned thereto in Section 4.11(b).
-----------
"Participating Member State" means each country so described in any EMU
--------------------------
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
------------
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and is maintained for the employees of a Borrower or any of its ERISA
Affiliates.
"Permitted Securitization Subsidiary" shall mean any Subsidiary of the
-----------------------------------
Company that (i) is directly or indirectly wholly-owned by the Company, (ii) is
formed and operated solely for purposes of a Permitted Securitization
Transaction, (iii) has organizational documents which limit the permitted
activities of such Permitted Securitization Subsidiary to the acquisition of
accounts receivable and related rights from the Company or one or more of its
Consolidated Subsidiaries or another Permitted Securitization Subsidiary, the
securitization or other financing of such accounts receivable and related rights
and activities necessary or incidental to the foregoing and (iv) such Permitted
Securitization Subsidiary shall at all times be subject to each of the
following: (A) it shall have at least one (1) member, manager, director or other
similar person whose affirmative vote is required to permit such person to file
a voluntary bankruptcy proceeding or to amend its formation documents, which
member, manager, director or other similar person is not affiliated with the
Company or any of its Consolidated Subsidiaries or a current or prior officer,
director or employee of any of them, (B) it shall not be permitted to incur any
Debt other than the Debt related to the Permitted Securitization Transaction,
unless such Debt is non-recourse to such Permitted Securitization Subsidiary and
is subordinated to the Debt
18
<PAGE>
incurred in connection with the Permitted Securitization Transaction, (C) it
will not be permitted to merge or consolidate with any person other than another
Permitted Securitization Subsidiary and (D) its formation documents shall
contain and it shall be subject to such restrictive covenants relating to its
operations as shall be required by independent counsel in order for such counsel
to deliver a reasoned, market-standard "non-consolidation" opinion.
"Permitted Securitization Transaction" shall mean the transfer by the
------------------------------------
Company or one or more of its Consolidated Subsidiaries of receivables and
rights related thereto to one or more Permitted Securitization Subsidiaries and
the related financing of such receivables and rights related thereto; provided
that (i) such transaction is non-recourse to the Company and its Consolidated
Subsidiaries (excluding any related Permitted Securitization Subsidiary), except
for Standard Securitization Undertakings and (ii) the aggregate total amount of
all Debt outstanding to third parties under all Permitted Securitization
Transactions shall not exceed $250,000,000 in the aggregate outstanding at any
time.
"Person" means an individual, corporation, limited liability company,
------
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Pricing Level" means the level on the table of Applicable Percentages
-------------
corresponding to the Applicable Rating of the Company then in effect.
"Prime Rate" means, at any time, the rate of interest per annum in effect
----------
at such time as publicly announced from time to time by Bank of America as its
"prime rate". The rate publicly announced by Bank of America as its "prime rate"
is set by Bank of America based upon various factors including Bank of America's
cost and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above
or below such announced rate. Any change in the "prime rate" publicly announced
by Bank of America shall take effect as of the opening of business on the day
specified in the public announcement of such change.
"Prior Bank Commitment" means the Company's committed credit facility
---------------------
evidenced by that certain Credit Agreement dated as of November 21, 1997 among
the Company, the several financial institutions from time to time party thereto
and Wachovia Bank, N.A., as administrative agent, as amended and modified prior
to the Closing Date.
"Property" means any interest in any kind of property or asset, whether
--------
real, personal or mixed, or tangible or intangible.
"Real Property" of any Person shall mean all the right, title and interest
-------------
of such Person in and to land, improvements and fixtures, including leaseholds.
"Reimbursement Obligation" means the obligation of a Borrower to reimburse
------------------------
each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit issued at the request of the Company, on behalf of such Borrower.
19
<PAGE>
"Register" shall have the meaning assigned thereto in Section 13.9(c).
--------
"Reportable Event" shall mean an event described in Section 4043(c) of
----------------
ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
than those events as to which the 30-day notice period is waived under
subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" means, at any date, any combination of Lenders whose
----------------
Aggregate Revolving Credit Commitment Percentage equals at least fifty-one
percent (51%) of the Aggregate Revolving Credit Commitment or, if the Aggregate
Revolving Credit Commitment has been terminated, any combination of Lenders who
collectively hold at least fifty-one percent (51%) of the aggregate unpaid
principal amount of the Extensions of Credit (excluding the aggregate unpaid
principal amount of Competitive Bid Loans); provided that, for purposes of
--------
declaring the Loans to be due and payable pursuant to Article XI, and for all
purposes after the Loans become due and payable pursuant to Article XI, the
outstanding Competitive Bid Loans of the Lenders shall be included in the
Lenders' respective Aggregate Revolving Credit Commitment or Extensions of
Credit, as applicable, in determining the Required Lenders.
"Responsible Officer" means any of the following: the chairman, president,
-------------------
chief executive officer, chief financial officer or treasurer of the Company or
any other officer of the Company reasonably acceptable to the Administrative
Agent; provided that the term "Responsible Officer" shall be deemed to refer to
--------
only the treasurer or chief financial officer of the Company in connection with
any matters involving the determination of financial covenant compliance or the
certification of financial statements.
"Restricted Investments" means Investments in joint ventures and other
----------------------
Persons which are not Consolidated Subsidiaries. Restricted Investments shall
not include Investments made in the acquisition of a Person which becomes a
Consolidated Subsidiary upon the closing of such acquisition.
"Restricted Payment" means (i) any dividend or other payment or
------------------
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Company or any of its Subsidiaries, now or hereafter
outstanding (including without limitation any payment in connection with any
dissolution, merger, consolidation or disposition involving any of the Company
or any of its Subsidiaries), or to the holders, in their capacity as such, of
any shares of any class of Capital Stock of the Company or any of its
Subsidiaries, now or hereafter outstanding (other than dividends or
distributions payable in Capital Stock of the applicable Person and dividends or
distributions payable (directly or indirectly through Subsidiaries) to the
Company or any Wholly-Owned Subsidiary of the Company), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock of the
Company or any of its Subsidiaries, now or hereafter outstanding (other than
such transactions payable (directly or indirectly through Subsidiaries) to the
Company or any Wholly-Owned Subsidiary of the Company) and (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of Capital Stock of the Company
or any of its Subsidiaries (other than such payments payable (directly or
indirectly through Subsidiaries) to the Company or any Wholly-Owned Subsidiary
of the Company).
20
<PAGE>
"Revolving Credit Loans" means the collective reference to the revolving
----------------------
loans made to a Borrower pursuant to Section 2.2 under the 364 Day Facility or
the Multi-Year Facility; "Revolving Credit Loan" means any of such Revolving
Credit Loans.
"Revolving Credit Notes" means the collective reference to the Revolving
----------------------
Credit Notes made by the applicable Borrower payable to the order of each Lender
with a Multi-Year Facility Commitment or a 364 Day Facility Commitment,
substantially in the form of Exhibit A-1 hereto or Exhibit A-2 hereto, as
----------- -----------
appropriate, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extensions thereof, in
whole or in part; "Revolving Credit Note" means any of such Revolving Credit
---------------------
Notes.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw-Hill Companies, Inc. or any successor or assignee in the business of
rating securities.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
------------------------------
with any Person or to which any such Person is a party, providing for the
leasing to any Borrower or Subsidiary thereof of any Property, whether owned by
such Borrower or Subsidiary as of the Closing Date or later acquired, which has
been or is to be sold or transferred by such Borrower or Subsidiary to such
Person or to any other Person from whom funds have been, or are to be, advanced
by such Person on the security of such Property.
"SEC Reports" shall have the meaning assigned thereto in Section 6.1(w).
-----------
"Spot Rate" for a currency means the rate quoted by the Administrative
---------
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange trading office at
approximately 8:00 a.m. (Charlotte time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
"Standard Securitization Undertakings" shall mean any obligations and
------------------------------------
undertakings of the Company and any Consolidated Subsidiary consisting of
representations, warranties, covenants, and indeminities standard in
securitization transactions and related servicing of receivables.
"Sterling" means the currency of the United Kingdom.
--------
"Subordinated Debt" means the collective reference to Debt of the Borrowers
-----------------
or any Subsidiary thereof subordinated in right and time of payment to the
Obligations and otherwise permitted hereunder.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
---------- ------
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be Consolidated with those of the parent in
the parent's Consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case
21
<PAGE>
of a partnership, more than fifty percent (50%) of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise qualified, references to "Subsidiary" or "Subsidiaries" herein shall
refer to those of the Company.
"Support Obligation" means, with respect to any Person and its
------------------
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
any such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement condition or
otherwise) or (b) entered into for the purpose of assuring in any other manner
the obligee of such Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided that the term
--------
Support Obligation shall not include (i) endorsements for collection or deposit
in the ordinary course of business or (ii) a contractual commitment by one
Person to invest in another Person for so long as such investment is expected to
constitute a Permitted Investment.
"Swingline Lender" means Bank of America in its capacity as issuer of
----------------
any Swingline Loan.
"Swingline Loans" means the collective reference to the revolving loans
---------------
made pursuant to Section 2.6; "Swingline Loan" means any of such Swingline
Loans.
"Swingline Maximum" means Thirty-Five Million Dollars ($35,000,000).
-----------------
"Swingline Termination Date" means the earlier to occur of (a) the
--------------------------
resignation of Bank of America as Swingline Lender and (b) the Multi-Year
Facility Termination Date.
"TARGET" means the Trans-European Automated Real-time Gross settlement
------
Express Transfer system.
"TARGET Business Day" means a day when TARGET is open for business.
-------------------
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
-----
"Termination Date" means the 364 Day Facility Termination Date or the
----------------
Multi-Year Facility Termination Date, as the context requires.
"Termination Event" means any of the following: (a) the occurrence of a
----------------
Reportable Event, or (b) the withdrawal of a Borrower or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or
22
<PAGE>
(d) the institution of proceedings to terminate, or to seek the appointment of a
trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer any Pension Plan,
or (f) the partial or complete withdrawal of a Borrower or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA, or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, (i) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA or (j) the withdrawal or partial withdrawal of any
Borrower or ERISA Affiliate from a Multiemployer Plan.
"Transition Period" means the period established by EMU Legislation,
-----------------
beginning on January 1, 1999 and ending on the Transition Period Cutoff Date,
during which sums of money in the Participating Member States may be denominated
in either euro or National Currency Units.
"Transition Period Cutoff Date" shall mean December 31, 2001, or such
-----------------------------
other date as may be established by EMU Legislation.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
------------------------
as amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"UCC" means, with respect to any Letter of Credit, the Uniform
---
Commercial Code as in effect in the State in which the corporate headquarters of
the relevant Issuing Lender is located or such other jurisdiction as is
acceptable to the relevant Issuing Lender, as amended, restated or otherwise
modified from time to time.
"Unfunded Current Liability" of any Pension Plan means the amount, if
--------------------------
any, by which the actuarial present value of the accumulated plan benefits under
the Pension Plan as of the close of its most recent year, determined in
accordance with actuarial assumptions at such time consistent with Statement of
Financial Accounting Standards No 87, exceeds the sum of (a) the market value of
the assets allocable thereto and (b) $100,000.
"United States" means the United States of America.
-------------
"Utilization Fee" shall have the meaning assigned thereto in Section
---------------
4.3(d).
"Utilization Fee Period" shall have the meaning assigned thereto in
----------------------
Section 4.3(d).
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
------------
shares of capital stock or other ownership interests of such Subsidiary (except
directors' qualifying shares, or, in the case of any Subsidiary which is not
organized or created under the laws of the United States of America or any
political subdivision thereof, such nominal ownership interests which are
required to be held by third parties under the laws of the foreign jurisdiction
under which such
23
<PAGE>
Subsidiary was incorporated or organized) are, directly or indirectly, owned or
controlled by any Borrower and/or one or more of its Wholly-Owned Subsidiaries.
SECTION 1.2 General.
-------
Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, Schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine and
neuter. Any reference herein to "Charlotte time," "San Francisco time" or
"London time" shall refer to the applicable time of day in Charlotte, North
Carolina, San Francisco, California or London, England, as applicable.
SECTION 1.3 Other Definitions and Provisions.
--------------------------------
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
------------------------
capitalized terms defined in this Agreement shall have the defined meanings
provided herein when used in this Agreement, the Notes and the other Loan
Documents or any certificate, report or other document made or delivered
pursuant to this Agreement.
(b) Miscellaneous. The words "hereof," "herein" and "hereunder" and
-------------
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
SECTION 1.4 Currency Equivalents Generally.
------------------------------
For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Offshore Currency or other currency of an amount in Dollars,
and the equivalent in Dollars of an amount in any Offshore Currency or other
currency, shall be determined at the Spot Rate.
SECTION 1.5 Introduction of Euro; National Currency Unit Advances
-----------------------------------------------------
; Etc.
- -----
(a) National Currency Unit Advances. Prior to the Transition Period
-------------------------------
Cutoff Date, and upon request by the Company, on behalf of a Borrower, in
accordance with Section 2.2(a), Revolving Credit Loans that are Offshore
Currency Loans may be funded and maintained in National Currency Units of the
Available EMU Currency designated by such Borrower in its Notice of Revolving
Credit Borrowing. Repayments of Offshore Currency Loans that were funded in
National Currency Units pursuant to this Section shall be made in such National
Currency Units; provided, however, that any Offshore Currency Loan that is (i)
-----------------
denominated in National Currency Units and (ii) outstanding as of the Transition
Period Cutoff Date shall be automatically redenominated into euro as of the
close of business on such date at the applicable Irrevocable Conversion Rate;
and provided further that repayments of all such Offshore Currency Loans made
----------------
after the Transition Period Cutoff Date shall be denominated in euro.
24
<PAGE>
After the Transition Period Cutoff Date, Offshore Currency Loans shall no longer
be funded in National Currency Units.
(b) Conversions to Euro. For the avoidance of doubt, the parties hereto
-------------------
affirm and agree that neither the fixation of the conversion rate of an
Available EMU Currency against the euro as a single currency, in accordance with
the Treaty on European Union, nor the conversion of any Obligations under the
Loan Documents from an Available EMU Currency, or National Currency Units, into
euro, shall require the early termination of this Agreement or the prepayment of
any amount due under the Loan Documents or create any liability of one party to
another party for any direct or consequential loss arising from any of such
events.
(c) Currency Translations; Rounding. Any translation from one currency
-------------------------------
or currency unit to another shall be at the rate specified herein or, if not so
specified, then at the official rate of exchange legally recognized by the
central bank of the country issuing such currency for the conversion of that
currency or currency unit into the other. Any such translation shall be rounded
up or down by the Administrative Agent acting in accordance with any Applicable
Law on rounding or, if there is no such law, acting reasonably in accordance
with its market practice.
(d) Changes in Currency. If a change in any currency of a country
-------------------
occurs, the Borrowers agree to negotiate promptly and in good faith an amendment
to this Agreement that effectuates those modifications the Administrative Agent
(acting reasonably and in consultation with the Company) specifies to be
necessary to reflect the change in currency and to put the parties hereto in the
same position, as far as possible, that they would have been in if no change in
currency had occurred; provided that any such amendments will not adversely
--------
affect the Lenders.
ARTICLE II
CREDIT FACILITIES
-----------------
SECTION 2.1 Amount and Terms of Credit.
--------------------------
(a) Description of Facilities. Upon the terms and subject to the
-------------------------
conditions set forth in this Agreement: (i) the Lenders hereby grant to the
Borrowers a short term revolving credit facility (the "364 Day Facility") and a
---------------------
multi-year revolving credit facility (the "Multi-Year Facility") pursuant to
------------------------
which each Lender severally agrees to make Revolving Credit Loans to the
respective Borrowers in (x) in the case of the 364 Day Facility, Dollars and (y)
in the case of the Multi-Year Facility, Dollars and Offshore Currencies, each in
accordance with Section 2.2, and the Swingline Lender agrees to make Swingline
Loans to the Company in Dollars in accordance with Section 2.6 and (ii) the
parties hereto agree that each Lender may, in its sole discretion, make bids to
make Competitive Bid Loans to the respective Borrowers in Dollars and Offshore
Currencies, in accordance with Section 2.5; provided that (A) the aggregate
--------
principal Dollar Equivalent amount of all outstanding Revolving Credit Loans
(after giving effect to any amount requested) made under the 364 Day Facility
shall not exceed the 364 Day Facility Commitment; and the principal Dollar
Equivalent amount of outstanding Revolving Credit Loans made under
25
<PAGE>
the 364 Day Facility by any Lender shall not at any time exceed such Lender's
364 Day Facility Commitment; and (B) the aggregate principal Dollar Equivalent
amount of all outstanding Revolving Credit Loans (after giving effect to any
amount requested) made under the Multi-Year Facility plus the aggregate
----
principal amount of all outstanding Swingline Loans made under the Multi-Year
Facility (after giving effect to the amount of any Swingline Loans requested
under the Multi-Year Facility and exclusive of Swingline Loans made under the
Multi-Year Facility which are repaid with the proceeds of, and simultaneously
with the incurrence of, Revolving Credit Loans under the Multi-Year Facility)
shall not exceed the Multi-Year Facility Commitment less the sum of (x) all
----
outstanding L/C Obligations plus (y) the aggregate principal Dollar Equivalent
----
amount of all outstanding Competitive Bid Loans made under the Multi-Year
Facility; and the principal Dollar Equivalent amount of outstanding Revolving
Credit Loans made under the Multi-Year Facility by any Lender plus such Lender's
----
pro rata share of its participation interests in all outstanding L/C Obligations
and Swingline Loans shall not at any time exceed such Lender's Multi-Year
Facility Commitment. Each Revolving Credit Loan made by a Lender under the 364
Day Facility or the Multi-Year Facility shall be in a principal Dollar
Equivalent amount equal to such Lender's Commitment Percentage of the aggregate
principal Dollar Equivalent amount of Revolving Credit Loans requested under
such facility on such occasion.
(b) Application of Facilities. The Credit Facility established
-------------------------
hereby shall be used by the Borrowers and their respective Subsidiaries to:
(i) refinance existing Debt of the Company and its
Subsidiaries, including without limitation, Debt outstanding under the
Prior Bank Commitment and Swingline Loans;
(ii) finance non-hostile acquisitions by the Company and
its Subsidiaries that are permitted hereunder; and
(iii) finance the working capital, capital expenditures and
other lawful corporate purposes of the Company and its Subsidiaries;
and, accordingly, each of the Borrowers shall apply all amounts raised by such
Borrower hereunder in or towards satisfaction of such purposes and neither the
Administrative Agent and the Lenders nor any of them shall be obliged to concern
themselves with such application.
SECTION 2.2 Procedure for Advances of Revolving Credit Loans.
------------------------------------------------
(a) Requests for Revolving Credit Loans. The Company, on behalf
-----------------------------------
of a Borrower, shall give the Administrative Agent irrevocable prior written
notice in the form attached hereto as Exhibit B-1 (a "Notice of Revolving Credit
----------- --------------------------
Borrowing") not later than 11:00 a.m. (Charlotte time) (i) on the same Business
- ---------
Day of the date of borrowing for each Base Rate Loan, (ii) at least two (2)
Business Days before each Offshore Rate Loan denominated in Dollars, and (iii)
at least three (3) Business Days before each Offshore Currency Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) whether such Revolving Credit Loan is to be made under the 364
Day Facility or the Multi-Year Facility, (C)
26
<PAGE>
the amount of such borrowing, which shall be in an amount equal to the unused
amount of the 364 Day Facility Commitment or the Multi-Year Facility Commitment,
as applicable, or if less, (x) with respect to Base Rate Loans, in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, (y)
with respect to Offshore Rate Loans denominated in Dollars, in an aggregate
principal amount of $5,000,000 or a whole multiple of $500,000 in excess thereof
and (z) with respect to Offshore Rate Loans denominated in an Offshore Currency,
in an aggregate principal amount of a whole multiple of 500,000 units of such
Offshore Currency in excess of an amount of such Offshore Currency having a
Dollar Equivalent of $5,000,000, (D) whether such Revolving Credit Loan is to be
an Offshore Rate Loan or Base Rate Loan, (E) in the case of an Offshore Rate
Loan, the duration of the Interest Period applicable thereto and in the case of
Offshore Rate Loans made under the Multi-Year Facility, the Applicable Currency
and (F) the name of the applicable Borrower. Notices received after 11:00 a.m.
(Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Revolving Credit Borrowing. The Dollar Equivalent amount of an Offshore Currency
Loan will be determined by the Administrative Agent for such Offshore Currency
Loan on the Determination Date therefor in accordance with Section 2.9(a).
(b) Disbursement of Revolving Credit Loans. Each Lender will make
--------------------------------------
available to the Administrative Agent, for the accounts of the respective
Borrowers, at the Administrative Agent's Office in funds immediately available
to the Administrative Agent, such Lender's Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date (i) in the case of a
Revolving Credit Loan denominated in Dollars, no later than 2:00 p.m. (Charlotte
time) on the proposed borrowing date and (ii) in the case of a Revolving Credit
Loan that is an Offshore Currency Loan, by such time as the Administrative Agent
may determine to be necessary for such funds to be credited on such date in
accordance with normal banking practices in the place of payment. Each Borrower
hereby irrevocably authorizes the Administrative Agent, and the Administrative
Agent hereby agrees, to disburse the proceeds of each borrowing requested by the
Company, on behalf of such Borrower, pursuant to this Section 2.2 in immediately
available funds by no later than 3:00 p.m. (Charlotte time) on the proposed
borrowing date by crediting or wiring such proceeds to the deposit account of
such Borrower identified in the most recent notice of account designation,
substantially in the form of Exhibit C hereto (a "Notice of Account
--------- --------------------
Designation"), delivered by the Company, on behalf of such Borrower, to the
- -----------
Administrative Agent or as may be otherwise agreed upon by such Borrower and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 for
which any Lender is responsible to the extent that such Lender has not made
available to the Administrative Agent its Commitment Percentage of such
Revolving Credit Loan.
SECTION 2.3 Repayment of Loans.
------------------
(a) Repayment on Termination Date. Each Borrower agrees to repay the
-----------------------------
outstanding principal amount of all Loans made to it under the 364 Day Facility
in full on the 364 Day Facility Termination Date, with all accrued but unpaid
interest thereon. Each Borrower agrees to repay the outstanding principal amount
of all Loans made to it under, and its Reimbursement
27
<PAGE>
Obligation under, the Multi-Year Facility in full on the Multi-Year Facility
Termination Date, with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Loans.
----------------------------
(i) If at any time (A) the outstanding principal Dollar
Equivalent amount of all Loans made under the 364 Day Facility exceeds
the 364 Day Facility Commitment of all Lenders or (B) the sum of the
outstanding principal Dollar Equivalent amount of all Loans made under
the Multi-Year Facility and all outstanding L/C Obligations exceeds the
Multi-Year Facility Commitment of all Lenders, in each case other than
solely as a result of a change in applicable rates of exchange between
Dollars and Offshore Currencies, the Borrowers agree to repay
immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, Revolving
Credit Loans, Swingline Loans or Competitive Bid Loans made to it, L/C
Obligations incurred by it and/or furnish cash collateral reasonably
satisfactory to the Administrative Agent, in an amount equal to such
excess. Such cash collateral shall be applied in accordance with
Section 11.2(b).
(ii) If on any Determination Date, the Administrative Agent
shall have determined that the aggregate principal Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding exceeds the
Aggregate Revolving Credit Commitment by more than $5,000,000 due to a
change in applicable rates of exchange between Dollars and Offshore
Currencies, then the Administrative Agent shall give notice to the
Company that a prepayment is required under this Section 2.3(b)(ii) and
each of the Borrowers agrees thereupon to make prepayments of Loans
made to it within two (2) Business Days after the Company's receipt of
such notice such that, after giving effect to such prepayments, the
aggregate Dollar Equivalent amount of all Loans and L/C Obligations
then outstanding does not exceed the Aggregate Revolving Credit
Commitment.
(iii) Notwithstanding anything to the contrary in Section
2.3(b)(ii), the mandatory repayment described in such Section of any
Offshore Rate Loans may be delayed until the last day of the Interest
Period applicable to such Offshore Rate Loans; provided, that if the
--------
Borrowers so delay repayment of Offshore Rate Loans, the Borrowers
shall deposit or cause to be deposited, on the day repayment would have
otherwise been required, in a cash collateral account opened by the
Administrative Agent, an amount equal to the aggregate principal amount
of such delayed mandatory repayment of Offshore Rate Loans and any
accrued but unpaid interest thereon. Any repayment of Offshore Rate
Loans hereunder other than on the last day of the Interest Period
applicable thereto shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof.
(c) Optional Repayments. Each Borrower may at any time and from
-------------------
time to time repay the Revolving Credit Loans or Swingline Loans made to it, in
whole or in part, upon at least two (2) Business Days irrevocable notice by the
Company to the Administrative Agent with respect to Offshore Rate Loans and
prior irrevocable notice on the same Business Day as the date of prepayment with
respect to Base Rate Loans, in the form attached hereto as Exhibit D (a
---------
28
<PAGE>
"Notice of Prepayment") specifying the date and amount of repayment; whether the
- ---------------------
repayment is of Revolving Credit Loans or Swingline Loans and whether such loans
were made under the 364 Day Facility or the Multi-Year Facility, or a
combination thereof, and, if a combination, the amount allocable to each; and
whether the repayment is of Offshore Rate Loans, Base Rate Loans, or a
combination thereof, and, if of a combination, the amount allocable to each.
Upon receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in an aggregate amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof with respect to Base Rate Loans, $500,000 or a whole multiple
of $100,000 in excess thereof with respect to Swingline Loans and $5,000,000 or
a whole multiple of $1,000,000 in excess thereof with respect to Offshore Rate
Loans.
(d) Limitation on Repayment of Offshore Rate Loans. The Borrowers may
----------------------------------------------
not repay any Offshore Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
(e) Limitation on Repayment of Competitive Bid Loans. The Borrowers may
------------------------------------------------
not repay any Competitive Bid Loan on any day other than on the last day of the
Interest Period applicable thereto except, and on such terms, as agreed to by
the Borrower to which the Competitive Bid Loan was made and the Lender which
made such Competitive Bid Loan.
SECTION 2.4 Revolving Credit Notes.
----------------------
Each Lender's Revolving Credit Loans and the obligation of each
Borrower to repay such Revolving Credit Loans made to it shall be evidenced by
separate Revolving Credit Notes executed by each Borrower payable to the order
of such Lender. Each Revolving Credit Note shall be dated the date hereof and
shall bear interest on the unpaid principal amount thereof at the applicable
interest rate per annum specified in Section 4.1.
SECTION 2.5 Competitive Bid Loans and Procedure.
-----------------------------------
(a) Subject to the terms and conditions set forth herein, from time to
time until the Multi-Year Facility Termination Date, the Company, on behalf of
each Borrower, may request Competitive Bids under the Multi-Year Facility, and
may (but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Bid Loans, which shall be denominated in Dollars or Offshore
Currencies; provided that the sum of the aggregate principal Dollar Equivalent
--------
amount of outstanding Revolving Credit Loans and Swingline Loans made under the
Multi-Year Facility plus the aggregate principal Dollar Equivalent amount of
----
outstanding Competitive Bid Loans made thereunder at any time shall not exceed
the Multi-Year Facility Commitment less the sum of all outstanding L/C
----
Obligations. To request Competitive Bids, the Company, on behalf of a Borrower,
shall notify the Administrative Agent of such request by telephone, not later
than 11:00 a.m. (Charlotte time) four (4) Business Days before the date of the
proposed borrowing. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid
29
<PAGE>
Request in a form approved by the Administrative Agent and signed by the
Company. Each such telephonic and written Competitive Bid Request shall specify
the following information:
(i) the identity of the Borrower;
(ii) the aggregate amount of the requested borrowing, which shall
be a minimum of $5,000,000 (or the Dollar Equivalent thereof) and an
integral multiple of 1,000,000 units of the applicable currency in excess
thereof;
(iii) whether such borrowing is to be made in Dollars or an Offshore
Currency, and if an Offshore Currency, specifying such currency;
(iv) the date of such borrowing, which shall be a Business Day;
(v) the Interest Period to be applicable to such borrowing, 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.
The Company (on behalf of such Borrower) may request offers to make Competitive
Bid Loans having up to 2 different stated maturity dates in a single Competitive
Bid Request; provided that the request for each separate stated maturity date
shall be deemed to be a separate Competitive Bid Request for a separate
Competitive Bid Loans. Promptly following receipt of a Competitive Bid Request
in accordance with this Section, the Administrative Agent shall notify the
Lenders of the details thereof by telecopy, inviting the Lenders to submit
Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to a Borrower in response to a Competitive Bid Request.
Such Competitive Bids by a Lender may be for an amount greater than (or less
than) such Lender's respective Commitments. Each Competitive Bid by a Lender
must be in a form approved by the Administrative Agent and must be received by
the Administrative Agent by telecopy, not later than 11:00 a.m. (Charlotte time)
on the date which is three (3) Business Days' prior to the proposed date of such
borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 (or the Dollar Equivalent
thereof) and an integral multiple of 1,000,000 units of the applicable currency
in excess thereof and which may equal the entire principal amount of the
borrowing requested by the Borrower) of the Competitive Bid Loan or Loans that
the applicable Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which such Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places), (iii) the Interest Period applicable to each such Loan and the last day
thereof, and (iv) the identity of the quoting Lender. Unless otherwise agreed by
the Administrative Agent and the Borrower, no Competitive Bid Request shall
contain qualifying, conditional or similar language or propose terms other than
or in addition to those set forth in the
30
<PAGE>
applicable Competitive Bid Request (other than setting forth the maximum
principal amounts of the Competitive Bid Loan which the quoting Lender is
willing to make for the applicable Interest Period) and, in particular, no
Competitive Bid Request may be conditioned upon acceptance by the Borrower of
all (or some specified minimum) of the principal amount of the Competitive Bid
Loan for which such Competitive Bid Request is being made.
(c) The Administrative Agent shall promptly (but in any event by no later
than 3:00 p.m. (Charlotte time) on the date which is three (3) Business Days'
prior to the proposed borrowing date) notify the Company, on behalf of the
Borrower requesting Competitive Bids, by telecopy of the Competitive Bid Rate
and the principal amount specified in each Competitive Bid and the identity of
the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company, on
behalf of the Borrower requesting Competitive Bids, may accept or reject any
Competitive Bid. The Company, on behalf of such Borrower, shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, not later than 10:30 a.m. (Charlotte time) on the
date which is two (2) Business Days prior to the date of the proposed borrowing;
provided that (i) the failure of the Company to give such notice shall be deemed
- --------
to be a rejection of each Competitive Bid, (ii) such Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the aggregate amount of the requested borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, such Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 (or the
Dollar Equivalent thereof) and an integral multiple of l,000,000 units of the
applicable currency in excess thereof; provided further that if a Competitive
-------- -------
Bid Loan must be in an amount less than $5,000,000 (or the Dollar Equivalent
thereof) because of the provisions of clause (iv) above, such Competitive Bid
Loan may be for a minimum of 1,000,000 units of the applicable currency or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) above the amounts shall be rounded to integral
multiples of 1,000,000 units of the applicable currency in a manner determined
by the Borrower. A notice given by a Borrower pursuant to this paragraph shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Bid Loan in respect of which its Competitive Bid has been accepted.
31
<PAGE>
(f) Not later than 2:00 p.m. (Charlotte time) on the proposed borrowing
date, each Lender whose Competitive Bid has been accepted will make available to
the Administrative Agent, for the account of the Borrower to whom the
Competitive Bid Loan is to be made, at the office of the Administrative Agent in
funds immediately available to the Administrative Agent, the amount of the
Competitive Bid Loan to be made on such borrowing date by such Lender. Each
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.5 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
such Borrower identified in its most recent Notice of Account Designation or as
may be otherwise agreed upon by such Borrower and the Administrative Agent from
time to time. Subject to Section 4.7 hereof, the Administrative Agent shall not
be obligated to disburse the proceeds of any Competitive Bid Loan requested
pursuant to this Section 2.5 for which any Lender is responsible to the extent
that such Lender has not made available to the Administrative Agent the amount
of such Competitive Bid Loan.
(g) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Company, on behalf of the Borrower requesting Competitive Bids, at least one
quarter of an hour earlier than the time by which the other Lenders are required
to submit their Competitive Bids to the Administrative Agent pursuant to
paragraph (b) of this Section.
(h) While any Competitive Bid Loan made under the Multi-Year Facility is
outstanding, the Multi-Year Facility Commitment of each Lender shall be deemed
used for all purposes by an amount equal to its pro rata share (based on its
respective Multi-Year Facility Commitment Percentage) of the principal Dollar
Equivalent amount of such Competitive Bid Loan.
(i) (i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Competitive Bid Loan made by
such Lender to such Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(ii) The entries maintained in the accounts maintained pursuant to
paragraph (i) shall be prima facie evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the failure of
-------- -------
the Administrative Agent or any Lender to maintain such accounts or any
error therein shall not in any manner affect the obligation of each
Borrower to repay the Obligations in accordance with their terms.
(iii) The Competitive Bid Loans made by each Lender shall be
evidenced by such Lender's respective Revolving Credit Notes.
(j) Each Borrower shall repay the outstanding principal amount of each
Competitive Bid Loan made to it in full on the last day of the Interest Period
applicable thereto, with all accrued but unpaid interest thereon. Competitive
Bid Loans may not be repaid prior to the last day of the applicable Interest
Period except in accordance with Section 2.3(b) and (e).
32
<PAGE>
(k) Each Borrower shall pay a fee to the Administrative Agent equal to
$1,200 for each Competitive Bid Loan requested by such Borrower.
SECTION 2.6 Swingline Loans and Procedure.
-----------------------------
(a) Swingline Loans. Subject to the terms and conditions set forth herein,
---------------
from time to time until the Swingline Termination Date, the Swingline Lender, at
the request of the Company and at the sole discretion of the Swingline Lender,
may make, under the Multi-Year Facility, a revolving loan or revolving loans
(each a "Swingline Loan" and, collectively, the "Swingline Loans") to the
-------------- ---------------
Company, which Swingline Loans (i) shall be denominated in Dollars, (ii) may be
repaid and reborrowed in accordance with the provisions hereof, (iii) shall not
exceed in aggregate principal amount at any time outstanding, when combined with
the sum of the aggregate principal Dollar Equivalent amount of outstanding
Revolving Credit Loans made under the Multi-Year Facility plus the aggregate
----
principal amount of Competitive Bid Loans made thereunder at any time, the
Multi-Year Facility Commitment less the sum of all outstanding L/C Obligations,
----
(iv) shall not exceed in aggregate principal amount at any time outstanding the
Swingline Maximum and (v) shall bear interest at the Base Rate. Notwithstanding
anything to the contrary contained in this Section 2.6(a), (x) the Swingline
Lender shall not be obligated to make any Swingline Loans at a time when a
Lender Default exists unless the Swingline Lender has entered into arrangements
satisfactory to it and the Company to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Lenders' participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender's or Lenders'
Commitment Percentage of the outstanding Swingline Loans and (y) the Swingline
Lender shall not make any Swingline Loan after it has received written notice
from any Borrower or the Required Lenders stating that a Default or an Event of
Default exists and is continuing until such time as the Swingline Lender shall
have received written notice (A) of rescission of all such notices from the
party or parties originally delivering such notice or (B) of the waiver of such
Default or Event of Default by the Required Lenders.
(b) Mandatory Borrowings.
--------------------
(i) On any Business Day, the Swingline Lender may, in its sole
discretion, advise the Administrative Agent to give notice to the Lenders
that the Swingline Lender's outstanding Swingline Loans under the
Multi-Year Facility shall be funded with one or more borrowings of
Revolving Credit Loans made to the Company and denominated in Dollars
(provided that such notice shall be deemed to have been automatically given
--------
with respect to outstanding Swingline Loans upon the occurrence of a
Default or an Event of Default under Section 11.1(i) or (j)), in which case
one or more borrowings of Revolving Credit Loans under the Multi-Year
Facility constituting Base Rate Loans (each such Borrowing, a "Mandatory
---------
Borrowing") shall be made on the immediately succeeding Business Day by all
---------
Lenders in accordance with each Lender's Commitment Percentage and the
proceeds thereof shall be applied directly by the Administrative Agent to
repay the Swingline Lender for such outstanding Swingline Loans. Each
Lender hereby irrevocably agrees to make Revolving Credit Loans to the
Company upon one Business Day's notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on
the date specified in writing by the
33
<PAGE>
Administrative Agent notwithstanding (A) the amount of the Mandatory
Borrowing may not comply with the minimum borrowing amount otherwise
required hereunder, (B) whether any conditions specified in Section 5.2 are
then satisfied, (C) whether a Default or an Event of Default then exists,
(D) the date of such Mandatory Borrowing and (E) whether the Revolving
Credit Loans comprising the Mandatory Borrowing would, when combined with
the sum of the aggregate principal amount of outstanding Revolving Credit
Loans made under the Multi-Year Facility, outstanding L/C Obligations and
the aggregate principal amount of Competitive Bid Loans made under the
Multi-Year Facility, exceed the Multi-Year Facility Commitment at such time
(so long as outstanding Swingline Loans do not exceed the Swingline
Maximum). In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the occurrence of a Bankruptcy Event with
respect to any Borrower), then each Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the respective
Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans
made under the Multi-Year Facility as shall be necessary to cause the
Lenders to share in such Swingline Loans ratably based upon their
respective Commitment Percentages, provided that (x) all interest payable
--------
on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is required to be
purchased and, to the extent attributable to the purchased participation,
shall be payable to the participant from and after such date and (y) at the
time any purchase of participations pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay the Swingline Lender
interest on the principal amount of participations purchased for each day
from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days
and at the rate otherwise applicable to Base Rate Loans hereunder for each
day thereafter.
(ii) To the extent amounts received from the Lenders pursuant to
Section 2.6(b)(i) above are not sufficient to repay in full the outstanding
Swingline Loans requested or required to be repaid, the Company agrees to
pay to the Swingline Lender on demand the amount required to repay such
Swingline Loans in full. In addition, the Company hereby authorizes the
Administrative Agent to charge any account maintained by the Company with
the Swingline Lender (up to the amount available therein) in order to
immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Lenders are not sufficient to repay in
full the outstanding Swingline Loans requested or required to be repaid. If
any portion of any such amount paid to the Swingline Lender shall be
recovered by or on behalf of the Company from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Lenders in accordance with their respective
Commitment Percentages.
(c) Amount of Each Swingline Borrowing. Each Swingline Loan shall be made
----------------------------------
in an aggregate principal amount of $500,000 or a whole multiple of $l00,000 in
excess thereof.
34
<PAGE>
(d) Notice of Borrowing.
-------------------
(i) The Company shall give the Swingline Lender irrevocable prior
written notice (a "Notice of Swingline Borrowing") substantially in the
---------------------------------
form attached as Exhibit B-2 no later than 11:30 a.m. (Charlotte time) on
-----------
the same Business Day as each Base Rate Loan of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day,
and (B) the amount of such borrowing, which shall be in an amount equal to
the unused amount of the Swingline Maximum or less. Notices received after
11:30 a.m. (Charlotte time) shall be deemed received on the next Business
Day.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 2.6(b), with the Company irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth
in Section 2.6(b).
(e) Disbursement of Funds. Not later than 2:00 p.m. (Charlotte time) on
---------------------
the proposed borrowing date, the Swingline Lender will make available to the
Administrative Agent, for the account of the Company, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
the amount of the Swingline Loan to be made on such borrowing date. In the case
of Mandatory Borrowings, no later than 2:00 p.m. (Charlotte time) on the date
specified in Section 2.6(b), each Lender will make available to the
Administrative Agent, for the account of the Company, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Commitment Percentage of Mandatory Borrowings to be made on such
borrowing date. The Company hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.6 in immediately available funds by crediting or wiring such proceeds
to the deposit account of the Company identified in the most recent Notice of
Account Designation or as may be otherwise agreed upon by the Company and the
Administrative Agent from time to time or, in the case of Mandatory Borrowings,
in the manner specified in Section 2.6(b)(i). Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the proceeds of any
Swingline Loan requested pursuant to this Section 2.6 to the extent that the
Swingline Lender has not made available to the Administrative Agent the amount
of such Swingline Loan.
(f) Notes. The Swingline Lender's Swingline Loans shall be evidenced by
-----
such Lender's respective Revolving Credit Notes issued by the Company.
(g) Usage Under Multi-Year Facility Commitments. While any Swingline Loan
-------------------------------------------
made under the Multi-Year Facility is outstanding, the Multi-Year Facility
Commitment of each Lender shall be deemed used for all purposes by an amount
equal to its pro rata share (based on its respective Multi-Year Facility
Commitment Percentage) of the principal amount of such Swingline Loan.
(h) Notice to the Administrative Agent. The Swingline Lender shall
----------------------------------
promptly give notice to the Administrative Agent of all Swingline Loans made
hereunder, and all repayments of such Swingline Loans.
35
<PAGE>
SECTION 2.7 Commitment Reductions and Increases.
-----------------------------------
(a) Voluntary Reduction. The Borrowers shall have the right at any time
-------------------
and from time to time, upon at least four (4) Business Days' prior written
notice by the Company to the Administrative Agent, to permanently reduce,
without premium or penalty (except as provided below), (i) (A) the entire 364
Day Facility Commitment at any time or (B) portions of the 364 Day Facility
Commitment from time to time in an aggregate principal Dollar Equivalent amount
not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof
or (ii) (A) the entire Multi-Year Facility Commitment at any time or (B)
portions of the Multi-Year Facility Commitment from time to time, in an
aggregate principal Dollar Equivalent amount not less than $5,000,000 or any
whole multiple of $1,000,000 in excess thereof.
(b) Payments Related to a Commitment Reduction.
------------------------------------------
(i) Each permanent reduction of the 364 Day Facility Commitment
made pursuant to this Section 2.7 or otherwise shall be accompanied, if
necessary, by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans made under the 364 Day Facility to the
amount of the new 364 Day Facility Commitment after such reduction to the
364 Day Facility Commitment. Any permanent reduction of the 364 Day
Facility Commitment to zero (including upon termination of the 364 Day
Facility on the 364 Day Facility Termination Date) shall be accompanied by
payment of all outstanding Revolving Credit Loans made under the 364 Day
Facility and shall result in the termination of the 364 Day Facility
Commitment and the 364 Day Facility. If the reduction of the 364 Day
Facility Commitment requires the repayment of any Offshore Rate Loan, such
repayment shall be accompanied by any amount required to be paid pursuant
to Section 4.9 hereof.
(ii) Each permanent reduction of the Multi-Year Facility Commitment
made pursuant to this Section 2.7 or otherwise shall be accompanied, if
necessary, by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and Swingline Loans made under the
Multi-Year Facility and L/C Obligations, as applicable, to the amount of
the new Multi-Year Facility Commitment after such reduction to the
Multi-Year Facility Commitment and, if the Multi-Year Facility Commitment
as so reduced is less than the aggregate amount of all outstanding Letters
of Credit, the Borrowers shall be required to deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the amount by
which the aggregate then undrawn and unexpired amount of such Letters of
Credit exceeds the Multi-Year Facility Commitment as so reduced. Such cash
collateral shall be applied in accordance with Section 11.2(b). Any
permanent reduction of the Multi-Year Facility Commitment to zero
(including upon termination of the Multi-Year Facility on the Multi-Year
Facility Termination Date) shall be accompanied by payment of all
outstanding Revolving Credit Loans and Swingline Loans made under the
Multi-Year Facility (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Multi-Year Facility Commitment and the Multi-Year
Facility. If the reduction of the Multi-Year Facility Commitment requires
the repayment
36
<PAGE>
of any Offshore Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9 hereof. Notwithstanding
anything herein to the contrary, the Multi-Year Facility Commitment may not
be permanently reduced by such an amount so that after such reduction, the
Multi-Year Facility Commitment is less than the aggregate amount of all
unpaid principal of and interest on outstanding Competitive Bid Loans made
under the Multi-Year Facility.
(c) Commitment Increases. Subject to the terms and conditions set forth
--------------------
herein, upon five (5) Business Days' advance written notice to the
Administrative Agent, the Borrowers shall have the right, at any time and from
time to time from the Closing Date until December 31, 2001, to increase the
Aggregate Revolving Credit Commitment to up to $525,000,000; provided that (i)
--------
the 364 Day Facility Commitment and the Multi-Year Facility Commitment shall be
increased on a pro rata basis, (ii) any such increase shall be in a minimum
--- ----
principal amount of $10,000,000 and an integral multiple of $5,000,000 in excess
thereof, (iii) if any Revolving Credit Loans are outstanding under a Credit
Facility at the time of any such increase, the Company shall make such payments
and adjustments on such Revolving Credit Loans (including payment of any
break-funding amount owing under Section 4.9) as are necessary to give effect to
the revised commitment percentages and commitment amounts of the Lenders, (iv)
the conditions to an Extension of Credit in Sections 5.2 shall be satisfied
after giving effect to any such increase and (v) the effective date of such
increase shall be a Business Day. It is hereby agreed that no Lender hereunder
shall be under any obligation under this Section 2.7(c) to increase its
Commitment. The requested Aggregate Revolving Credit Commitment increase shall
be effective on such date only to the extent that, on or before such date, (A)
the Administrative Agent shall have received and accepted a corresponding amount
of additional Commitment(s) pursuant to a commitment letter(s) acceptable to the
Administrative Agent from one or more Lenders acceptable to the Administrative
Agent and, with respect to any Lender that is not at such time a Lender
hereunder, to the Borrowers, and (B) each such Lender has executed an agreement
in the form of Exhibit E hereto (each such agreement a "New Commitment
--------- --------------
Agreement"), accepted in writing therein by the Administrative Agent and, with
- ---------
respect to any Lender that is not at such time a Lender hereunder, by the
Borrowers, with respect to the additional Commitment of such Lender.
Upon the effectiveness of the Aggregate Revolving Credit Commitment
increase, the Administrative Agent shall replace Schedule 1.1(a) with a new
---------------
schedule to reflect any increased Commitments of the Lenders and/or any new
Lenders.
SECTION 2.8 Termination; Extension Options.
------------------------------
(a) Termination of 364 Day Facility. The 364 Day Facility shall terminate
-------------------------------
on the earliest of (a) the 364 Day Facility Specified Maturity Date, unless the
364 Day Facility Specified Maturity Date is otherwise extended by the Lenders,
in their sole and absolute discretion, (b) the date of termination of the 364
Day Facility Commitment by the Company pursuant to Section 2.7(a), and (c) the
date of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 11.2(a). Upon the written request of the Company, which
request shall be delivered to the Administrative Agent no more than 60 days, and
not less than 30 days, prior to the then existing the 364 Day Facility Specified
Maturity Date, the Lenders shall have the option (without any obligation
whatsoever so to do) of extending the 364 Day Facility
37
<PAGE>
Specified Maturity Date for additional 364-day periods on each then existing the
364 Day Facility Specified Maturity Date. Each Lender shall notify the Company
and the Administrative Agent no more than 30 days, and not less than 20 days,
prior to the then existing the 364 Day Facility Specified Maturity Date whether
or not it chooses to extend the 364 Day Facility Specified Maturity Date for
such an additional 364-day period (but any Lender which fails to give such
notice within such period shall be deemed not to have extended); provided, that
the 364 Day Facility Specified Maturity Date shall not be extended with respect
to any of the Lenders unless, on or before the then existing the 364 Day
Facility Specified Maturity Date, as to the Commitment of any Lender which gave
notice that it chooses not to extend, or which is deemed pursuant to the
foregoing not to have extended (any such Lender being a "Terminating Lender"),
one of the following shall occur:
(i) the remaining Lenders shall purchase ratable assignments
(without any obligation so to do) from such Terminating Lender (in the form of
an Assignment and Acceptance) in accordance with their respective percentage of
the remaining Aggregate Commitments; provided, that, such Lenders shall be
provided such opportunity (which opportunity shall allow such Lenders at least
50 Business Days in which to make a decision) prior to the Company finding
another bank pursuant to the immediately succeeding clause (ii); and, provided,
further, that, should any of the remaining Lenders elect not to purchase such an
assignment, then, such other remaining Lenders shall be entitled to purchase an
assignment from any Terminating Lender which includes the ratable interest that
was otherwise available to such non-purchasing remaining Lender or Lenders, as
the case may be, or
(ii) the Company shall find another lender, acceptable to the
Administrative Agent, willing to accept an assignment from such Terminating
Lender (in the form of an Assignment and Acceptance) on or before the then
existing 364 Day Facility Specified Maturity Date, or
(iii) on the then existing 364 Day Facility Specified Maturity
Date, the Company shall reduce the aggregate Commitments in an amount equal to
the Commitment of any such Terminating Lender and pay all amounts due to such
Terminating Lender at that time.
(b) Termination of Multi-Year Facility. The Multi-Year Facility shall
----------------------------------
terminate on the earliest of (a) the Multi-Year Facility Specified Maturity
Date, (b) the date of termination of the Multi-Year Facility Commitment by the
Company pursuant to Section 2.7(a), and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a).
(c) Term Out Option. At the Company's election and subject to the
---------------
terms and conditions set forth herein, in the event of a CSC Put and not less
than ten (10) Business Days prior to the making of any payment by the Company or
its Subsidiaries in connection with the CSC Put, the Company may deliver to the
Administrative Agent a written notice requesting an extension of the 364 Day
Specified Maturity Date (which notice the Administrative Agent shall promptly
transmit to each Lender), such extension to become effective upon the earlier of
the consummation of the CSC Put and the 364 Day Specified Maturity Date (the
"Extension Effective Date"). So long as no Default or Event of Default exists on
------------------------
the Extension Effective Date, the otherwise applicable 364 Day Specified
Maturity Date shall be automatically (without
38
<PAGE>
any Lender or Administrative Agent consent) extended to the first anniversary of
the Extension Effective Date. No additional borrowings may be made under the 364
Day Facility following the Extension Effective Date and any amounts repaid on
Loans outstanding under such facility after the Extension Effective Date may not
be reborrowed.
SECTION 2.9 Utilization of Revolving Commitments in Offshore Currencies.
-----------------------------------------------------------
(a) The Administrative Agent will determine the Dollar Equivalent
amount with respect to any (i) Revolving Credit Loan or Competitive Bid Loan
that is an Offshore Currency Loan as of the requested borrowing date and as of
any requested continuation date, (ii) outstanding Offshore Currency Loan, as of
each Interest Payment Date relating to such Loan and (iii) Letters of Credit
denominated in an Offshore Currency, as of the requested issuance date and the
first Business Day of each calendar month, and, during the occurrence and
continuation of an Event of Default, such other dates as may be requested by the
Required Lenders (but in no event more frequently than once a week) (each such
date under clause (i), (ii) and (iii), a "Determination Date").
------------------
(b) The Lenders shall be under no obligation to make Revolving Credit
Loans in a requested Offshore Currency if the Administrative Agent has received
notice from the Required Lenders by 12:30 p.m. (Charlotte time) two Business
Days prior to the date of a requested borrowing of an Offshore Currency Loan
that deposits in the relevant Offshore Currency (in the applicable amounts) are
not being offered to such Lenders in the interbank eurocurrency market for such
Interest Period in which event the Administrative Agent will give notice to the
Company, on behalf of such Borrower requesting such Offshore Currency Loan, no
later than 1:30 p.m. (Charlotte time) on the second Business Day prior to the
requested date of such borrowing that the borrowing in the requested Offshore
Currency is not then available, and notice thereof will also be given promptly
by the Administrative Agent to the Lenders. If the Administrative Agent shall
have notified the Company that any requested Offshore Currency Loan is not then
available, the Notice of Revolving Credit Borrowing relating to such requested
Offshore Currency Loan shall be deemed to be withdrawn, the borrowing requested
therein shall not occur and the Administrative Agent will promptly so notify
each Lender.
(c) In the case of a proposed continuation of an Offshore Currency
Loan for an additional Interest Period pursuant to Section 4.2, the Lenders
shall be under no obligation to continue such Offshore Currency Loan if the
Administrative Agent has received notice from the Required Lenders by 12:30 p.m.
(Charlotte time) two Business Days prior to the requested date of such
continuation that deposits in the relevant Offshore Currency (in the applicable
amounts) are not being offered to such Lenders in the interbank eurocurrency
market for such Interest Period in which event the Administrative Agent will
give notice to the Company, on behalf of the Borrower requesting such
continuation, no later than 1:30 p.m. (Charlotte time) on the second Business
Day prior to the requested date of such continuation that the continuation of
such Offshore Currency Loan is not then available, and notice thereof will also
be given promptly by the Administrative Agent to the Lenders. If the
Administrative Agent shall have notified the Company, on behalf of the Borrower
requesting continuation of an Offshore Currency Loan, that the requested
continuation is not then available, the Notice of Continuation
39
<PAGE>
with respect thereto shall be deemed to be withdrawn and such Offshore Currency
Loan shall be repaid on the last day of the Interest Period with respect
thereto.
(d) Notwithstanding anything herein to the contrary, during the
existence of a payment Default or an Event of Default, and at the request of the
Required Lenders (or, in the case of a Competitive Bid Loan made in an Offshore
Currency, the Lender that has made such Loan), all or any part of outstanding
Offshore Currency Loans shall be redenominated and converted into their Dollar
Equivalent of Base Rate Loans in Dollars on the last day of the Interest Period
applicable to any such Offshore Currency Loans. The Administrative Agent will
promptly notify the Company and the Lenders of any such redenomination and
conversion request.
(e) The Company shall be entitled to request that Revolving Credit
Loans hereunder also be permitted to be made to a Borrower in any other lawful
currency (other than Dollars), in addition to the currencies specified in the
definition of "Offshore Currency" in Section 1.1, that in the opinion of the
Administrative Agent and all of the Lenders is at such time freely traded in the
offshore interbank foreign exchange markets, freely transferable and freely
convertible into Dollars and readily utilized for the settlement of private
international debt transactions (an "Agreed Alternative Currency"). The Company
---------------------------
shall deliver in writing to the Administrative Agent any request for designation
of an Agreed Alternative Currency in accordance with Section 13.1, to be
received by the Administrative Agent not later than 11:00 a.m. (Charlotte time)
at least 10 Business Days in advance of the date of any borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the Lenders thereof,
and each Lender will use its commercially reasonable efforts to respond to such
request within five (5) Business Days of receipt thereof. Each Lender may grant
or accept such request in its sole discretion. The Administrative Agent will
promptly notify the Company of the acceptance or rejection of any such request.
SECTION 2.10 Designated Borrowers.
--------------------
(a) Addition of Designated Borrower. Equifax Plc constitutes a
-------------------------------
Designated Borrower as of the Closing Date. The Company may request designation
of any of its other Wholly-Owned Subsidiaries (an "Applicant Borrower") as a
------------------
Designated Borrower hereunder by delivery of such a request to the
Administrative Agent together with an executed copy of a Borrower Joinder
Agreement in substantially the form attached hereto as Exhibit F. The
---------
Administrative Agent will promptly notify the Lenders of any such request
together with a copy of the Borrower Joinder Agreement executed by the Applicant
Borrower. The joinder of each Applicant Borrower as a designated Borrower will
be subject to delivery of executed promissory notes, if any, required in
connection therewith, and supporting resolutions, articles of incorporation,
incumbency certificates, opinions of counsel and such other items as the
Administrative Agent and/or the Required Lenders may reasonably request. Any
such addition of a Designated Borrower shall be effective five Business Days
after receipt by the Administrative Agent of the items required by the
Administrative Agent and/or the Required Lenders in connection therewith. Such
Designated Borrower shall thereupon become a party hereto and a Designated
Borrower hereunder and shall be (i) entitled to all rights and benefits of
40
<PAGE>
a Borrower hereunder and under each instrument executed pursuant hereto and (ii)
subject to all obligations of a Borrower hereunder and thereunder.
(b) Removal of a Designated Borrower. The Company may request that any
--------------------------------
of its Wholly-Owned Subsidiaries that is a Designated Borrower hereunder cease
to be a Designated Borrower by delivering to the Administrative Agent (which
shall promptly deliver copies thereof to each Lender) a written notice to such
effect. Such Designated Borrower shall cease to be a Borrower hereunder and be
released of all of its obligations and liabilities as a Borrower hereunder and
under the other Loan Documents on the later to occur of (i) the date the
Administrative Agent receives such request and (ii) the date such Borrower has
paid all of its Loans and all accrued and unpaid interest, fees and other
Obligations owing by it hereunder or in connection herewith.
SECTION 2.11 Limitation on Liability.
-----------------------
Notwithstanding anything in this Article II or in any other provision of
this Agreement or any other Loan Document to the contrary, the obligations of
the Borrowers (other than the Company) to repay the Lenders for any Loans made
available to the Borrowers hereunder are several and not joint and several
obligations of the Borrowers. Accordingly, no Borrower (other than the Company)
shall be obligated to repay the principal amount of or to pay accrued interest
on any Loans made by the Lenders to any other Borrower.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment.
--------------
Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue standby and/or commercial Letters of Credit for the account of
the requesting Borrower on any Business Day from the Closing Date through but
not including the Multi-Year Facility Termination Date in such form as may be
approved from time to time by such Issuing Lender; provided that no Issuing
--------
Lender shall issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b) the sum
of (i) the aggregate principal Dollar Equivalent amount of outstanding Revolving
Credit Loans made under the Multi-Year Facility, (ii) the aggregate principal
amount of outstanding Swingline Loans made under the Multi-Year Facility, (iii)
the aggregate principal amount of L/C Obligations and (iv) the aggregate
principal amount of Competitive Bid Loans made under the Multi-Year Facility,
would exceed the Multi-Year Facility Commitment. Each Letter of Credit shall (A)
be denominated in Dollars or an Offshore Currency, (B) be a letter of credit
issued to support obligations of a Borrower or any of its Subsidiaries,
contingent or otherwise, permitted to be incurred hereunder, (C) not have an
original expiry date more than one year from the date of issuance thereof
(provided that any such Letter of Credit (x) may contain customary "evergreen"
provisions pursuant to which the expiry date is automatically extended by a
specific time period unless the Issuing Lender gives notice to the beneficiary
of such Letter of Credit at least a specified
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time period prior to the expiry date then in effect and/or (y) may have an
expiration date more than one year from the date of issuance if required under
related industrial revenue bond documents and agreed to by the Issuing Lender)
and (D) as originally issued or as extended, have an expiry date extending
beyond the date five (5) days prior to the Termination Date. Unless otherwise
expressly agreed by the Issuing Lender and the applicable Borrower when a Letter
of Credit is issued, (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) (the "ISP")
---
shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (including
---
the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to
each commercial Letter of Credit. No Issuing Lender shall at any time be
obligated to issue any Letter of Credit hereunder if (a) any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain such Issuing Lender from issuing such Letter of Credit, (b)
any Applicable Law applicable to such Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority having
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular, (c) any Applicable Law applicable to such
Issuing Lender shall impose upon such Issuing Lender with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which such
Issuing Lender would not otherwise be compensated hereunder) which was not in
effect on the Closing Date and which such Issuing Lender in good faith deems
material to it, (d) any Applicable Law applicable to such Issuing Lender shall
impose upon such Issuing Lender with respect to such Letter of Credit any loss,
cost or expense (for which such Issuing Lender would not otherwise be reimbursed
hereunder) which was not applicable on the Closing Date and which such Issuing
Lender in good faith deems material to it, or (e) the issuance of such Letter of
Credit would violate one or more policies of the Issuing Lender. References
herein to "issue" and derivations thereof with respect to Letters of Credit
shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit.
-------------------------------------------
(a) The Company, on behalf of any Borrower, may from time to time
request that any Issuing Lender issue a Letter of Credit (or amend, extend or
renew an outstanding Letter of Credit) by delivering to such Issuing Lender
(with a copy to the Administrative Agent) at the office of the Issuing Lender
set forth on Schedule 13.1 or such other office mutually acceptable to such
Borrower and such Issuing Lender an L/C Application therefor, completed to the
satisfaction of such Issuing Lender and signed by a Responsible Officer. The L/C
Application must be received by the relevant Issuing Lender (and the
Administrative Agent) by no later than 11:00 a.m. Charlotte time at least two
(2) Business Days (or such later date and time as the relevant Issuing Lender
may agree in a particular instance in its sole discretion) prior to the
requested issuance date (or requested amendment, extension or renewal date). In
the case of a request for an initial issuance of a Letter of Credit, the L/C
Application shall specify in form and detail satisfactory to the relevant
Issuing Lender: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry date
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thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the Applicable Currency; (H) the name of the Borrower
account party and (I) such other matters as the relevant Issuing Lender may
require. In the case of a request for an amendment of any outstanding Letter of
Credit, the L/C Application shall specify in form and detail satisfactory to the
relevant Issuing Lender: (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the relevant
Issuing Lender may require.
(b) Promptly after receipt of any L/C Application, the relevant
Issuing Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such L/C
Application from the applicable Borrower and, if not, the relevant Issuing
Lender will provide the Administrative Agent with a copy thereof. Upon receipt
by the relevant Issuing Lender of confirmation from the Administrative Agent
that the requested issuance or amendment is permitted in accordance with the
terms hereof, then, subject to the terms and conditions hereof, the relevant
Issuing Lender shall, on the requested date, issue a Letter of Credit for the
account of such Borrower or enter into the applicable amendment, as the case may
be, in each case in accordance with the relevant Issuing Lender's usual and
customary business practices.
(c) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the relevant Issuing Lender will also deliver to the
applicable Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(d) On the last Business Day of each calendar quarter, each Issuing
Lender (or the Administrative Agent if the Administrative Agent agrees to
undertake such action) shall report to each Lender all Letters of Credit issued
by it during the previous calendar quarter and the average daily undrawn and
unexpired amounts for all Letters of Credit for each day in such calendar
quarter.
SECTION 3.3 Fees and Other Charges.
----------------------
(a) Each Borrower agrees to pay to the Administrative Agent, for the
account of each Issuing Lender and the L/C Participants, a letter of credit fee
(the "L/C Fee") with respect to each Letter of Credit requested by the Company
-------
on behalf of such Borrower and issued by such Issuing Lender in an amount equal
to the Applicable Percentage for L/C Fee times the average daily undrawn amount
-----
of such issued Letters of Credit as reported by such Issuing Lender (or the
Administrative Agent) pursuant to Section 3.2. Such fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter,
commencing on the first of such dates to occur after the Closing, and on the
Multi-Year Facility Termination Date. Subject to Section 11.3, (x) in the case
of any Event of Default under Section 11.1 (a), (b), (d)(i), (g), (h), (i), (j),
(m) and (n), unless otherwise agreed by the Required Lenders, upon the
occurrence and during the continuance of such Event of Default, the L/C Fee
shall accrue at a rate per annum equal to two
43
<PAGE>
percent (2%) in excess of the rate then applicable for the L/C Fee, and (y) in
the case of any other Event of Default, at the option of the Required Lenders
exercised by written notice to the Company, upon the occurrence and during the
continuance of such Event of Default, the L/C Fee shall accrue at a rate per
annum equal to two percent (2%) in excess of the rate then applicable for the
L/C Fee.
(b) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Issuing Lender and the L/C Participants the L/C Fees
received by such Issuing Lender in accordance with their respective Multi-Year
Facility Commitment Percentages.
(c) In addition to the L/C Fees, each Borrower agrees to pay to the
relevant Issuing Lender that has issued a Letter of Credit at the request of the
Company, on behalf of such Borrower, for such Issuing Lender's own account
without sharing by the other Lenders, (i) a fronting fee of 0.125% per annum on
the aggregate stated amount of such Letter of Credit, due and payable quarterly
in arrears on the last Business Day of each calendar quarter, commencing on the
first of such dates to occur after the Closing Date, and on the Multi-Year
Facility Termination Date, and (ii) the normal issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the relevant
Issuing Lender relating to such Letter of Credit as from time to time in effect,
due and payable on demand therefor by the relevant Issuing Lender.
SECTION 3.4 L/C Participations.
------------------
(a) Each Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce such Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from such Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk,
an undivided interest equal to such L/C Participant's Multi-Year Facility
Commitment Percentage in such Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by such
Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with each Issuing Lender that, if a draft is paid under any Letter of
Credit for which such Issuing Lender is not reimbursed in full by the Borrowers
in accordance with the terms of this Agreement, such L/C Participant shall pay
to such Issuing Lender upon demand at such Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Multi-Year Facility
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to any Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit, the Administrative Agent shall notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall pay
to such Issuing Lender the amount specified on the applicable due date. If any
such amount is paid to such Issuing Lender after the date such payment is due,
such L/C Participant shall pay to such Issuing Lender on demand, in addition to
such amount, the product of (i) such amount, times (ii) the daily average
-----
Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the
44
<PAGE>
date on which such payment is immediately available to such Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
- -----
during such period and the denominator of which is 360. With respect to payment
to any Issuing Lender of the unreimbursed amounts described in this Section
3.4(b), if the L/C Participants receive notice that any such payment is due (A)
prior to 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be
due that Business Day, and (B) after 1:00 p.m. (Charlotte time) on any Business
Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after any Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Multi-Year
Facility Commitment Percentage of such payment in accordance with this Section
3.4, such Issuing Lender receives any payment related to such Letter of Credit
(whether directly from a Borrower or otherwise, or any payment of interest on
account thereof), such Issuing Lender will distribute to such L/C Participant
its pro rata share thereof in accordance with such L/C Participant's Multi-Year
--- ----
Facility Commitment Percentage; provided, that in the event that any such
--------
payment received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrowers; Limitation on
--------------------------------------------------------
Liability.
- ----------
(a) Reimbursement Obligation of the Borrowers. Each Borrower agrees to
-----------------------------------------
reimburse each Issuing Lender on each date such Issuing Lender notifies the
Company, on behalf of such Borrower, of the date and amount of a draft paid
under any Letter of Credit requested by the Company, on behalf of such Borrower,
for the amount of (i) such draft so paid and (ii) any taxes, fees, charges or
other costs or expenses incurred by any Issuing Lender in connection with such
payment. Each such payment shall be made to any Issuing Lender at its address
for notices specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by any Borrower under this Article III from the date such
amounts become payable (which date shall be the date such draft is paid, whether
at stated maturity, by acceleration or otherwise) until payment in full at the
rate which would be payable on any outstanding Base Rate Loans which were then
overdue. If any Borrower fails to timely reimburse such Issuing Lender on the
date the Company, on behalf of such Borrower, receives the notice referred to in
this Section 3.5, such Borrower shall be deemed to have timely given a Notice of
Revolving Credit Borrowing pursuant to Section 2.2 hereunder to the
Administrative Agent requesting the Lenders to make a Base Rate Loan under the
Multi-Year Facility on such date in an amount equal to the amount of such draft
paid, together with any taxes, fees, charges or other costs or expenses incurred
by any Issuing Lender and to be reimbursed pursuant to this Section 3.5 and,
regardless of whether or not the conditions precedent specified in Article VI
have been satisfied, the Lenders shall make Base Rate Loans in such amount, the
proceeds of which shall be applied to reimburse such Issuing Lender for the
amount of the related drawing and costs and expenses. Notwithstanding the
foregoing, nothing in this Section 3.5 shall obligate the Lenders to make such
Base Rate Loans if the making of such Base Rate Loans would violate the
automatic stay under federal bankruptcy laws.
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<PAGE>
(b) Limitation on Liability of Borrowers for Reimbursement Obligations.
------------------------------------------------------------------
Notwithstanding anything in this Section 3.5 or in any other provision of this
Agreement or any other Loan Document to the contrary, the obligations of the
Borrowers (other than the Company) to reimburse the Lenders for any drawings
under any Letters of Credit or for any taxes, fees, charges or other costs or
expenses incurred by any Issuing Lender in connection with the payment of any
drafts by the Issuing Lender with respect to any Letters of Credit are several
and not joint and several obligations of the Borrowers. Accordingly, no Borrower
(other than the Company) shall be obligated to reimburse the Lenders for any
drawings under Letters of Credit that were not requested by such Borrower (or by
the Company on behalf of such Borrower), or for any taxes, fees, charges or
other costs or expenses incurred by any Issuing Lender in connection with the
payment of any drafts relating to Letters of Credit that were not requested by
such Borrower or by the Company on behalf of such Borrower. The Company shall be
jointly and severally liable to reimburse the Lenders for any drawings under any
Letters of Credit and for any taxes, fees, charges or other costs or expenses
incurred by any Issuing Lender in connection with the payment of any drafts by
the Issuing Lender with respect to any Letters of Credit.
SECTION 3.6 Obligations Absolute.
--------------------
Each Borrower's obligations under this Article III (including without
limitation the Reimbursement Obligation) shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other
right that any Borrower may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable Issuing
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the applicable Issuing Lender under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any
46
<PAGE>
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any
Borrower.
No Issuing Lender shall be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Issuing Lender's gross negligence or willful misconduct
as determined by a final non-appealable decision of a court of competent
jurisdiction. Each Borrower agrees that any action taken or omitted by any
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the ICC or
ISP, as applicable, and, to the extent not inconsistent therewith, the UCC,
shall be binding on such Borrower and shall not result in any liability of any
Issuing Lender to such Borrower. The responsibility of each Issuing Lender to
such Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit. Each Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with the applicable Borrower's instructions or other irregularity, such Borrower
will promptly notify the applicable Issuing Lender. Each Borrower shall be
conclusively deemed to have waived any such claim against the applicable Issuing
Lender and its correspondents unless such notice is given as aforesaid.
SECTION 3.7 Effect of L/C Application.
-------------------------
To the extent that any provision of any L/C Application related to any
Letter of Credit is inconsistent with the provisions of this Article III, the
provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
-----------------------
SECTION 4.1 Interest.
--------
(a) Interest Rate Options. Subject to the provisions of this Section 4.1,
---------------------
at the election of a Borrower, the aggregate principal balance of any Revolving
Credit Loans shall bear interest at (i) the Base Rate or (ii) the Offshore Rate
plus the Applicable Percentage for Offshore Rate Loans under the 364 Day
- ----
Facility or the Multi-Year Facility, as applicable; provided that (A) such
--------
interest rate shall be increased by any amount required pursuant to Section
4.1(f) and (B) Offshore Rate Loans shall not be available until three (3)
Business Days after the Closing Date. Such Borrower shall select the rate of
interest, Interest Period, if any, and Applicable Currency,
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<PAGE>
in the case of an Offshore Currency Loan, applicable to any Revolving Credit
Loan at the time a Notice of Revolving Credit Borrowing is given pursuant to
Section 2.2, or at the time a Notice of Conversion/Continuation is given
pursuant to Section 4.2. Each Revolving Credit Loan, Swingline Loan, or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate Loan," and
each Revolving Credit Loan or portion thereof bearing interest based on the
Offshore Rate shall be an "Offshore Rate Loan." Any Revolving Credit Loan or any
portion thereof as to which the Company, on behalf of a Borrower, requesting
such Revolving Credit Loan has not duly specified an interest rate as provided
herein shall be deemed a Base Rate Loan. A Competitive Bid Loan will bear
interest at the Competitive Bid Rate specified in the Competitive Bid accepted
by the Borrower with respect to such Competitive Bid Loan. Swingline Loans shall
bear interest at the Base Rate.
(b) Interest Periods. In connection with each Offshore Rate Loan and each
----------------
Competitive Bid Loan, the Company, on behalf of a Borrower, by giving notice at
the times described in Section 4.1(a), shall elect an interest period (each, an
"Interest Period") to be applicable to such Revolving Credit Loan or such
---------------
Competitive Bid Loan, which Interest Period shall, unless otherwise agreed by
the Administrative Agent and the Lenders, be a period of one (1), two (2), three
(3), or, if available to all Lenders for the requested Available Currency, six
(6) months with respect to each Offshore Rate Loan, a period of seven (7) days
to 180 days with respect to each Dollar Competitive Bid Loan and a period of
seven (7) to sixty (60) days with respect to Offshore Currency Competitive Bid
Loans; provided that:
--------
(i) the Interest Period shall commence on the date of advance of or
conversion to any Offshore Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence
on the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect
--------
to an Offshore Rate Loan would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iii) any Interest Period with respect to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Termination Date of
the facility under which the Loan with respect to which such Interest
Period relates was made; and
(v) there shall be no more than twelve (12) Offshore Rate Loans
(exclusive of Competitive Bid Loans) outstanding hereunder at any time (it
being understood that, for purposes hereof, Offshore Rate Loans with
different Interest Periods shall be considered as separate Offshore Rate
Loans, even if they begin on the same date, although
48
<PAGE>
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined by a Borrower at the end of existing
Interest Periods to constitute a new Offshore Rate Loan with a single
Interest Period).
(c) Default Rate, etc. Subject to Section 11.3, (x) in the case of any
-----------------
Event of Default under Section 11.1 (a), (b), (d)(i), (g), (h), (i), (j), (m)
and (n), unless otherwise agreed by the Required Lenders, upon the occurrence
and during the continuance of such Event of Default, (i) the Company, on behalf
of the Borrowers, shall no longer have the option to request Offshore Rate
Loans, (ii) all outstanding Offshore Rate Loans shall bear interest at a rate
per annum equal to two percent (2%) in excess of the rate then applicable to
such Offshore Rate Loans until the end of the applicable Interest Period and
thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, (iii) all outstanding Base Rate Loans shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans and (iv) each outstanding Competitive Bid
Loan shall bear interest at a rate per annum equal to two percent (2%) in excess
of the rate then applicable to such Competitive Bid Loan and (y) in the case of
any other Event of Default, at the option of the Required Lenders exercised by
written notice to the Company, upon the occurrence and during the continuance of
such Event of Default, (i) the Company, on behalf of the Borrowers, shall no
longer have the option to request Offshore Rate Loans, (ii) all outstanding
Offshore Rate Loans shall bear interest at a rate per annum equal to two percent
(2%) in excess of the rate then applicable to such Offshore Rate Loans until the
end of the applicable Interest Period and thereafter at a rate equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans and (iv)
each outstanding Competitive Bid Loan shall bear interest at a rate per annum
equal to two percent (2%) in excess of the rate then applicable to such
Competitive Bid Loan. To the greatest extent permitted by law, interest shall
continue to accrue on the amount of Loans outstanding after the filing by or
against a Borrower of any petition seeking any relief in bankruptcy or under any
act or law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(d) Interest Payment and Computation. Interest on each Base Rate Loan
--------------------------------
shall be payable in arrears on the last Business Day of each calendar quarter
commencing on the first of such dates to occur after the Closing Date, and
interest on each Offshore Rate Loan and each Competitive Bid Loan shall be
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period exceeds three (3) months, at the end of each three (3) month
interval during such Interest Period. Interest on all Loans and all fees payable
hereunder shall be computed on the basis of a 360-day year and assessed for the
actual number of days elapsed; provided that interest on Loans bearing interest
--------
at a rate based upon the Base Rate shall be computed on the basis of a 365- or
366-day year, as applicable.
(e) Maximum Rate. In no contingency or event whatsoever shall the
------------
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder
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<PAGE>
shall automatically be reduced to the maximum rate permitted by Applicable Law
and the Lenders shall at the Administrative Agent's option (i) promptly refund
to the Borrowers any interest received by Lenders in excess of the maximum
lawful rate or (ii) shall apply such excess to the principal balance of the
Obligations. It is the intent hereof that the Borrowers not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by the Borrowers under Applicable Law.
(f) Mandatory Costs. In the case of a Revolving Credit Loan that is an
---------------
Offshore Currency Loan, the otherwise applicable interest rate determined
pursuant to Section 4.1(a) shall be increased by the MLA Cost associated with
such Loan, computed in the manner set forth in Schedule 4.1(f) attached hereto.
---------------
SECTION 4.2 Conversion and Continuation of Revolving Credit Loans.
-----------------------------------------------------
Provided that no Default or Event of Default has occurred and is then
continuing, and subject to the terms of this Agreement, any Borrower shall have
the option (a) to convert all or any portion of its outstanding Base Rate Loans
in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in
excess thereof into one or more Offshore Rate Loans denominated in Dollars or an
Offshore Currency and (b)(i) to convert all or any part of its outstanding
Offshore Rate Loans in a principal amount equal to $1,000,000 or a whole
multiple of $1,000,000 in excess thereof into Base Rate Loans denominated in
Dollars or (ii) to continue Offshore Rate Loans, whether denominated in Dollars
or Offshore Currency Loans, as Offshore Rate Loans in the same currency for an
additional Interest Period; provided that if any conversion or continuation is
--------
made on a day other than the last day of any Interest Period, such Borrower
shall pay any amount required to be paid pursuant to Section 4.9 hereof.
Whenever a Borrower desires to convert or continue Revolving Credit Loans or
Swingline Loans as provided above, the Company, on behalf of such Borrower,
shall give the Administrative Agent irrevocable prior written notice in the form
attached as Exhibit G (a "Notice of Conversion/Continuation") not later than
--------- ---------------------------------
11:00 a.m. (Charlotte time) three (3) Business Days before the day on which a
proposed conversion or continuation of such Revolving Credit Loan or Swingline
Loan is to be effective (except in the case of a conversion of an Offshore Rate
Loan denominated in Dollars to a Base Rate Loan, in which case same day notice
not later than 11:00 a.m. (Charlotte time) by the Borrower shall be sufficient)
specifying (A) the Revolving Credit Loans or Swingline Loans to be converted or
continued, the facility under which such Loans were made and, in the case of any
Offshore Rate Loan to be converted or continued, the last day of the Interest
Period therefor, (B) the effective date of such conversion or continuation
(which shall be a Business Day), (C) the principal Dollar Equivalent amount of
such Revolving Credit Loans to be converted or continued, (D) the Interest
Period to be applicable to such converted or continued Offshore Rate Loan and
(E) in the case of any continued Offshore Rate Loan which is an Offshore
Currency Loan, the Applicable Currency. The Administrative Agent shall promptly
notify the Lenders of such Notice of Conversion/Continuation.
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SECTION 4.3 Fees.
----
(a) 364 Day Facility. The Company agrees to pay to the Administrative
----------------
Agent, for the account of the Lenders, a non-refundable facility fee (the "364
---
Day Facility Fee") at a rate per annum equal to the Applicable Percentage for
- ----------------
Facility Fee for the 364 Day Facility on the average daily amount of the
aggregate 364 Day Facility Commitment during the applicable period, regardless
of usage. The 364 Day Facility Fee shall apply to the period commencing on the
Closing Date and ending on the termination of the 364 Day Facility Commitment
and shall be payable in arrears on the last Business Day of each calendar
quarter for the immediately preceding calendar quarter (or portion thereof),
beginning with the first such date to occur after the Closing Date. Such 364 Day
Facility Fee shall be distributed by the Administrative Agent to the Lenders pro
---
rata in accordance with the Lenders' respective 364 Day Facility Commitment
- ----
Percentages.
(b) Multi-Year Facility. The Company agrees to pay to the Administrative
-------------------
Agent, for the account of the Lenders, a non-refundable facility fee (the
"Multi-Year Facility Fee") at a rate per annum equal to the Applicable
-----------------------
Percentage for Facility Fee for the Multi-Year Facility on the average daily
amount of the aggregate Multi-Year Facility Commitment during the applicable
period, regardless of usage. The Multi-Year Facility Fee shall apply to the
period commencing on the Closing Date and ending on the termination of the
Multi-Year Facility Commitment and shall be payable in arrears on the last
Business Day of each calendar quarter for the immediately preceding calendar
quarter (or portion thereof), beginning with the first such date to occur after
the Closing Date. Such Multi-Year Facility Fee shall be distributed by the
Administrative Agent to the Lenders pro rata in accordance with the Lenders'
--------
respective Multi-Year Facility Commitment Percentages.
(c) Administrative Fees. The Company agrees to pay to the Administrative
-------------------
Agent, for its own account, the fees referred to in the Administrative Agent's
Fee Letter.
(d) Utilization Fee. During such periods as the aggregate principal amount
---------------
of all outstanding Loans is greater than or equal to 33% of the Aggregate
Revolving Credit Commitment (each a "Utilization Fee Period"), the Company
----------------------
agrees to pay to the Administrative Agent for the account of each Lender a fee
(the "Utilization Fee") on all Loans by such Lender outstanding during each such
---------------
Utilization Fee Period computed at a per annum rate for each day during such
period equal to the Applicable Percentage for the Utilization Fee in effect from
time to time. The Utilization Fee shall be due and payable in arrears on the
last Business Day of each calendar quarter (and any Termination Date) for all
Utilization Fee Periods occurring during the immediately preceding quarter (or
portion thereof), beginning with the first of such dates to occur after the
Closing Date.
SECTION 4.4 Manner of Payment.
-----------------
Each payment by a Borrower on account of the principal of or interest on
the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement or any
Note shall be made on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account
51
<PAGE>
of the Lenders (other than as set forth below), in Dollars (other than as set
forth below), in immediately available funds and shall be made without any
set-off, counterclaim or deduction whatsoever. Payment of principal of, interest
on or any other amount relating to any Offshore Currency Loan shall be made in
the Offshore Currency in which such Loan is denominated or payable. Such
payments, if denominated in Dollars, shall be made no later than 2:00 p.m.
(Charlotte time) on the relevant date and, if denominated in an Offshore
Currency, by such time as the Administrative Agent may determine to be necessary
for such funds to be credited on such date in accordance with normal banking
practices in the place of payment. Any payment denominated in Dollars received
after 1:00 p.m. (Charlotte time) but before 2:00 p.m. (Charlotte time) on a due
date shall be deemed a payment on such date for the purposes of Section 11.1,
but for all other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment denominated in Dollars received after 2:00
p.m. (Charlotte time), or any payment denominated in an Offshore Currency
received after the relevant time determined by the Administrative Agent, shall
be deemed to have been made on the next succeeding Business Day for all
purposes. Each payment to the Administrative Agent of the L/C Fees shall be made
in like manner, but for the account of the Issuing Lenders and the L/C
Participants. Each payment to the Administrative Agent of Administrative Agent's
fees or expenses shall be made for the account of the Administrative Agent and
any amount payable to any Lender under Section 2.5, 2.6, 4.8, 4.9, 4.10, 4.11 or
13.2 shall be paid to the Administrative Agent for the account of the applicable
Lender. The Administrative Agent shall distribute any such payments received by
it for the account of any other Lender to such Lender promptly following receipt
thereof and shall wire advice of the amount of such credit to such Lender.
Subject to Section 4.l(b)(ii), if any payment under this Agreement or any Note
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing any interest if payable along
with such payment.
SECTION 4.5 Crediting of Payments and Proceeds.
----------------------------------
In the event that any Borrower shall fail to pay any of the Obligations
when due and the Obligations have been accelerated pursuant to Section 11.2, all
payments received by the Lenders upon the Notes and the other Obligations and
all net proceeds from the enforcement of the Obligations of such Borrower shall
be applied first to all expenses then due and payable by such Borrower
hereunder, then to all indemnity obligations then due and payable by such
Borrower hereunder, then to all Administrative Agent's fees then due and payable
allocable to such Borrower, then to all commitment and other fees and
commissions then due and payable allocable to such Borrower, then to accrued and
unpaid interest on the Notes issued by such Borrower and L/C Fees owing from
such Borrower, then to the principal amount of the Notes and Reimbursement
Obligations of such Borrower and then to the cash collateral account described
in Section 11.2(b) hereof to the extent of any L/C Obligations of such Borrower
then outstanding, in that order (in each case, if applicable, pro rata in
accordance with all such amounts due).
52
<PAGE>
SECTION 4.6 Adjustments.
-----------
If any Lender (a "Benefited Lender") shall at any time receive any
----------------
payment of all or part of the Obligations owing to it, or interest thereon, or
if any Lender shall at any time receive any collateral in respect to the
Obligations owing to it (whether voluntarily or involuntarily, by set- off or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided that if all or any portion
--------
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. Each Borrower
agrees that each Lender so purchasing a portion of another Lender's Extensions
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions
-----------------------------------------------------
of Credit; Assumption by the Administrative Agent
- -------------------------------------------------
(a) The obligations of the Lenders under this Agreement to make the
Loans and issue or participate in Letters of Credit are several and are not
joint or joint and several.
(b) Unless any Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that such Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
such Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if any Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the applicable Borrower to the date such amount
is recovered by the Administrative Agent (the "Compensation Period") at
-------------------
a rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such
53
<PAGE>
Lender's Loan, as the case may be, included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may
make a demand therefor upon the applicable Borrower, and such Borrower
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Aggregate Revolving Credit Commitment or to prejudice any
rights which the Administrative Agent or any Borrower may have against
any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.
SECTION 4.8 Changed Circumstances.
----------------------
(a) Circumstances Affecting Offshore Rate Availability. If with respect
--------------------------------------------------
to any Interest Period: (i) the Administrative Agent or any Lender (after
consultation with the Administrative Agent) shall determine that for any reason
adequate and reasonable means do not exist for determining the Offshore Rate for
any requested Interest Period with respect to a proposed Offshore Rate Loan or
(ii) the Required Lenders reasonably determine (which determination shall be
conclusive) and notify the Administrative Agent that the LIBOR Rate will not
adequately and fairly reflect the cost to the Required Lenders of funding
Offshore Rate Loans for such Interest Period, then the Administrative Agent
shall forthwith give notice thereof to the Company. Thereafter, until the
Administrative Agent notifies the Borrowers that such circumstances no longer
exist, the obligation of the Lenders to make Offshore Rate Loans and the right
of the Borrowers to convert any Revolving Credit Loan to or continue any
Revolving Credit Loan as an Offshore Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such Offshore Rate Loan together with
accrued interest thereon, on the last day of the then current Interest Period
applicable to such Offshore Rate Loan or convert the then outstanding principal
amount of each such Offshore Rate Loan to a Base Rate Loan as of the last day of
such Interest Period (Offshore Currency Loans which are not repaid shall be
redenominated and converted into their Dollar Equivalent of Base Rate Loans in
Dollars).
(b) Laws Affecting Offshore Rate Availability. If, after the date
-----------------------------------------
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of their respective
Lending Offices) with any request or directive (whether or not having the force
of law) issued after the date hereof of any such Governmental Authority, central
bank or comparable agency, shall make it unlawful or impossible for any of the
Lenders (or any of their respective Lending Offices) to honor its obligations
hereunder to make or maintain any Offshore Rate Loan, such Lender shall promptly
give notice thereof to the Administrative Agent and the Administrative Agent
shall promptly give notice to the Company and the other Lenders. Thereafter,
until the Administrative Agent notifies the Borrowers that such circumstances no
longer exist, (i) the obligations of the affected Lenders to make Offshore Rate
Loans and the
54
<PAGE>
right of the Borrowers to convert any Revolving Credit Loan of the affected
Lenders or continue any Revolving Credit Loan of the affected Lenders as an
Offshore Rate Loan shall be suspended and thereafter the Borrowers may select
only Base Rate Loans hereunder, (ii) if any of the Lenders may not lawfully
continue to maintain an Offshore Rate Loan to the end of the then current
Interest Period applicable thereto as an Offshore Rate Loan, the applicable
Offshore Rate Loan of the affected Lenders shall immediately be converted to a
Base Rate Loan for the remainder of such Interest Period (Offshore Currency
Loans shall be redenominated and converted into their Dollar Equivalent of Base
Rate Loans in Dollars) and the Borrowers shall pay any amount required to be
paid pursuant to Section 4.9 in connection therewith and (iii) if any of the
Lenders may not lawfully continue to maintain a Competitive Bid Loan which bears
interest at a rate based on the Offshore Rate to the end of the then current
Interest Period applicable thereto at such rate of interest, such Competitive
Bid Loan of the affected Lender shall immediately be converted to a Base Rate
Loan for the remainder of such Interest Period. The Borrowers shall repay the
outstanding principal amount of any Competitive Bid Loans converted into Base
Rate Loans in accordance with clause (iii) of this Section 4.8(b), together with
all accrued but unpaid interest thereon and any amount required to be paid
pursuant to Section 4.9 hereof, on the last day of the Interest Period
applicable to such Competitive Bid Loans.
(c) Increased Costs. If, after the date hereof, the introduction of, or
---------------
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) issued after the date hereof
of such Governmental Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with
respect to any Note, Letter of Credit or L/C Application or shall
change the basis of taxation of payments to any of the Lenders (or any
of their respective Lending Offices) of the principal of or interest on
any Note, Letter of Credit or L/C Application or any other amounts due
under this Agreement in respect thereof (except for taxes of the type
excluded from the indemnity provided for in Section 4.11(a)); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System, other than any reserve included in the
Eurodollar Reserve Percentage), special deposit, insurance or capital
or similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Lenders (or any of their
respective Lending Offices) or shall impose on any of the Lenders (or
any of their respective Lending Offices) or the foreign exchange and
interbank markets any other condition affecting any Note;
and the result of any event of the kind described in the foregoing clause (i) or
this clause (ii), is to increase the costs to any of the Lenders of maintaining
any Offshore Rate Loan, Competitive Bid Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes or
55
<PAGE>
any Letter of Credit or L/C Application in respect of an Offshore Rate Loan or
Letter of Credit, then such Lender may promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify the Company, on behalf of the
respective Borrower, of such fact and demand compensation therefor and, within
fifteen (15) days after such notice by the Administrative Agent, such Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or Lenders for such increased cost or reduction, provided, that the
Borrowers shall not be required to compensate a Lender or the Issuing Bank under
this Section for any increased costs or reductions incurred more than 90 days
prior to the date that such Lender or the Issuing Bank notifies the Company of
such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor. The Administrative Agent and the
applicable Lender will promptly notify the Company, on behalf of the respective
Borrower, of any event of which it has knowledge which will entitle such Lender
to compensation pursuant to this Section 4.8(c); provided that the
--------
Administrative Agent shall incur no liability whatsoever to the Lenders or the
Borrowers in the event it fails to do so. The amount of such compensation shall
be determined, in the applicable Lender's reasonable discretion, based upon the
assumption that such Lender funded its Aggregate Revolving Credit Commitment
Percentage of the Offshore Rate Loans, or the amount of any Competitive Bid
Loans made by such Lender, in the London interbank market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth in reasonable detail
the basis for determining such amount or amounts necessary to compensate such
Lender shall be forwarded to the respective Borrower through the Administrative
Agent and shall be conclusively presumed to be correct save for manifest error.
SECTION 4.9 Indemnity.
---------
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrowers shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by such Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrowers shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing. For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 4.9, each Lender shall be deemed to have funded each
Offshore Rate Loan made by it by a matching deposit or other borrowing in the
London
56
<PAGE>
Dollar interbank market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan was in fact so funded.
SECTION 4.10 Capital Requirements.
--------------------
If either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law after the date hereof or (b) compliance
with any guideline or request issued after the date hereof from any central bank
or comparable agency or other Governmental Authority (whether or not having the
force of law), has or would have the effect of reducing the rate of return on
the capital of, or has affected or would affect the amount of capital required
to be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to any Lender's 364 Day Facility Commitment or
Multi-Year Facility Commitment or with reference to the Swingline Lender's
Swingline Maximum and other commitments of this type, below the rate which the
Lender or such other corporation could have achieved but for such introduction,
change or compliance, then within five (5) Business Days after written demand by
any such Lender, the Borrowers shall pay to such Lender from time to time as
specified by such Lender additional amounts sufficient to compensate such Lender
or other corporation for such reduction, provided, that the Borrower shall not
be required to pay to such Lender such additional amounts under this Section for
any amount incurred as a result of such reduction more than 90 days prior to the
date that such Lender or the Issuing Bank notifies the Borrower of such
reduction and of such Lender's or the Issuing Bank's intention to claim
compensation therefor. A certificate of such Lender setting forth in reasonable
detail the basis for determining such amounts necessary to compensate such
Lender shall be forwarded to the Borrowers through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest error.
SECTION 4.11 Taxes.
-----
(a) Payments Free and Clear. Any and all payments by any Borrower
-----------------------
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and 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
Lender or the Administrative Agent (as the case may be) is organized or its
principal office is located or is or should be qualified to do business or any
political subdivision thereof, or in the case of any Lender, in which its
applicable Lending Office is located (provided, however, that no Lender shall be
--------
deemed to be located in any jurisdiction solely as a result of taking any action
related to this Agreement, the Notes or Letters of Credit) and (ii) any branch
profits tax imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (i) above (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
-----
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or Letter of Credit to any Lender or the Administrative Agent, (A) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.11) such Lender or the Administrative Agent (as
57
<PAGE>
the case may be) receives an amount equal to the amount such party would have
received had no such deductions been made, (B) such Borrower shall make such
deductions, (C) such Borrower shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable law, and (D)
such Borrower shall deliver to the Administrative Agent evidence of such payment
to the relevant taxing authority or other authority in the manner provided in
Section 4.11(d). No Borrower shall, however, be required to pay any amounts
pursuant to clause (A) of the preceding sentence to any Foreign Lender or the
Administrative Agent not organized under the laws of the United States of
America or a state thereof (or the District of Columbia) if such Foreign Lender
or the Administrative Agent fails to comply with the requirements of paragraph
(e) of this Section 4.11.
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any
---------------------
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
-----------
(c) Indemnity. Each Borrower shall indemnify each Lender and the
---------
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability prepared by a Lender
or the Administrative Agent, absent manifest error, shall be conclusive,
provided that if the Borrowers reasonably believe that such Taxes or Other Taxes
- --------
were not correctly or legally asserted, such Lender or the Administrative Agent
(as the case may be) shall use reasonable efforts to cooperate with the
Borrowers, at the Borrowers' expense, to obtain a refund of such Taxes or Other
Taxes. Such indemnification shall be made within thirty (30) days from the date
such Lender or the Administrative Agent (as the case may be) makes written
demand therefor. If a Lender or the Administrative Agent shall become aware that
it is entitled to receive a refund in respect of Taxes or Other Taxes, it
promptly shall notify the Company, on behalf of the respective Borrower, of the
availability of such refund and shall, within sixty (60) days after receipt of a
request by the Company, on behalf of such Borrower, pursue or timely claim such
refund at such Borrower's expense. If any Lender or the Administrative Agent
receives a refund in respect of any Taxes or Other Taxes for which such Lender
or the Administrative Agent has received payment from any Borrower hereunder, it
promptly shall repay such refund (plus interest received, if any) to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section 4.11 with respect to Taxes or
Other Taxes giving rise to such refund), provided that such Borrower, upon the
--------
request of such Lender or the Administrative Agent, agrees to return such refund
(plus any penalties, interest or other charges required to be paid) to such
Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund to the relevant taxing
authority. Nothing contained in this Section 4.11(c) shall
58
<PAGE>
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential).
(d) Evidence of Payment. Within thirty (30) days after the date of any
-------------------
payment of Taxes or Other Taxes, the respective Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Foreign Lender shall deliver to the
---------------------
Company (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 Company as will
permit all payments under this Agreement to be made without withholding. Without
limiting the generality of the foregoing, each Foreign Lender agrees that it
will deliver to the Administrative Agent and the Company (or in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) (i) two (2) duly completed copies of Internal Revenue Service Form
W-8ECI or W-8BEN, or any successor form thereto, as the case may be, certifying
in each case that such Foreign Lender is entitled to receive payments made by
any Borrower hereunder and under the Notes payable to it, without deduction or
withholding of any United States federal income taxes and (ii) a duly completed
Internal Revenue Service Form W-8 or W-9, or any successor form thereto, as the
case may be, to establish an exemption from United State backup withholding tax.
Each such Foreign Lender shall deliver to the Company and the Administrative
Agent such forms on or before the date that it becomes a party to this Agreement
(or in the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each such Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Lender. Each such Lender shall promptly notify the
Company and the Administrative Agent at any time that it determines that it is
no longer in a position to provide any previously delivered certificate to the
Company (or any other form of certification adopted by the U.S. taxing
authorities for such purpose) which notice shall create in Borrower the right to
replace such Lender pursuant to Section 4.12 hereof.
(f) Each Lender agrees upon the request of the Company and at the
Company's expense to complete, accurately and in a manner reasonably
satisfactory to the Company and the Administrative Agent, and to execute,
arrange for any required certification of, and deliver to the Company (with a
copy to the Administrative Agent) (or to such government or taxing authority as
the Company or Administrative Agent reasonably directs), any other form or
document that may be required under the laws of any jurisdiction outside the
United States to allow the Company or any other Borrower to make a payment under
this Agreement or the other Loan Documents without any deduction or withholding
for or on account of any taxes of the type described in this Section 4.11 or
with any such deduction or withholding for or on account of such taxes at a
reduced rate, in each case so long as such Lender is (i) legally entitled to
provide such certification and deliver such form or document and (ii) such
action is consistent with its overall tax policies and is not otherwise, in the
judgment of such Lender, impractical or disadvantageous in any material respect
to such Lender.
59
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(g) Notwithstanding any provision of this Section 4.11 to the contrary,
no Borrower shall have any obligation to pay any taxes or to indemnify any
Lender for such taxes pursuant to this Section 4.11 to the extent that such
taxes result from (i) the failure of any Lender to comply with its obligations
pursuant to Section 4.11(g) or (ii) any representation made on Form 1001, 4224
or W-8 or successor applicable form or certification by any Lender incurring
such taxes proving to have been incorrect, false or misleading in any material
respect when so made or deemed to be made or (iii) such Lender changing its
applicable Lending Office to a jurisdiction in which such taxes arise, except to
the extent in the judgment of such Lender such change was required by the terms
of this Agreement.
(h) To the extent that the payment of any Lender's Taxes or Other Taxes
by the Borrowers hereunder gives rise from time to time to a Tax Benefit
(defined below) to such Lender in any jurisdiction other than the jurisdiction
which imposed such Taxes or Other Taxes, such Lender shall pay to the Borrowers
the amount of each such Tax Benefit so recognized or received. The amount of
each Tax Benefit and, therefore, payment to the Borrowers will be determined
from time to time by the relevant Lender in its sole discretion, which
determination shall be binding and conclusive on all parties hereto. Each such
payment will be due and payable by such Lender to the Borrowers within a
reasonable time after the filing of the tax return in which such Tax Benefit is
recognized or, in the case of any tax refund, after the refund is received;
provided, however, if at any time thereafter such Lender is required to rescind
such Tax Benefit or such Tax Benefit is otherwise disallowed or nullified, the
Borrowers shall promptly, after notice thereof from such Lender, repay to such
Lender the amount of such Tax Benefit previously paid to it by such Lender and
which has been rescinded, disallowed or nullified. For purposes hereof, the term
"Tax Benefit" shall mean the amount by which any Lender's income tax liability
for the taxable period in question is reduced below what would have been payable
had the Borrowers not been required to pay such Lender's taxes hereunder.
(i) Survival. Without prejudice to the survival of any other agreement
--------
of the Borrower hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the 364 Day Facility Commitment and the
Multi-Year Facility Commitment, but shall be limited in duration to the
applicable statute of limitations for Taxes or Other Taxes for which
indemnification is sought.
SECTION 4.12 Mitigation of Obligations; Replacement of Lenders.
-------------------------------------------------
(a) If any Lender requests compensation under Section 4.8, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Sections 4.10
or 4.11, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable under Sections 4.8,
4.10 or 4.11, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby agree to pay all costs and
expenses incurred by any Lender in connection with such designation or
assignment.
60
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(b) If any Lender requests compensation under Section 4.8, or if the
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Sections 4.10 or
4.11, or any Lender is unable to make Offshore Rate Loans for the reasons set
forth in Section 2.18 or because it is unwilling to accept a proposed Designated
Borrower because it is unwilling or unable to obtain additional licenses or
franchises to enable it to make such requested Loan or if any Lender defaults in
its obligation to fund Loans hereunder, then the Company may, at its sole
expense 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 set forth in Section 13.9 all its interests,
rights and obligations under this Agreement (other than any outstanding
Competitive Bid Loans held by such Lender) to an assignee that shall assume such
obligations (which assignee may be another Lender); provided, that (i) the
Company shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal amount of
all Loans (other than any outstanding Competitive Bid Loans) owed to it, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (in the case of such outstanding principal and accrued
interest) and from the Company (in the case of all other amounts) and (iii) in
the case of a claim for compensation under Section 4.8 or payments required to
be made pursuant to Sections 4.10 or 4.11, 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 Company to
require such assignment and delegation cease to apply.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
--------------------------------------------
SECTION 5.1 Conditions to Closing.
---------------------
The obligations of the Lenders to close this Agreement are subject to
the satisfaction or waiver of each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving Credit
-----------------------
Notes and all other applicable Loan Documents shall have been duly authorized,
executed and delivered to the Administrative Agent by the parties thereto, shall
be in full force and effect and no Default shall exist hereunder or thereunder.
(b) Closing Certificates; Etc.
-------------------------
(i) Officers' Certificates. The Administrative Agent shall have
----------------------
received a certificate from a Responsible Officer, in form and
substance reasonably satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers
contained in this Agreement and the other Loan Documents are true,
correct
61
<PAGE>
and complete in all material respects; that the Borrowers are not in
violation of any of the covenants contained in this Agreement and the
other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that each of the closing conditions has
been satisfied or waived (assuming satisfaction of the Administrative
Agent where not advised otherwise).
(ii) General Certificates. The Administrative Agent shall
--------------------
have received a certificate of the secretary, assistant secretary of
each Borrower certifying as to the incumbency and genuineness of the
signature of each officer of such Borrower executing Loan Documents to
which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles of incorporation,
certificate of limited partnership, or certificate or articles of
formation, of such Borrower and all amendments thereto, certified as
of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation or formation, (B) the bylaws,
partnership agreement or operating agreement of such Borrower as in
effect on the date of such certifications, and (C) resolutions duly
adopted by the Board of Directors of such Borrower authorizing, as
applicable, the borrowings contemplated hereunder and the execution,
delivery and performance of this Agreement and the other Loan
Documents to which it is a party.
(iii) Certificates of Good Standing. The Administrative Agent
-----------------------------
shall have received certificates as of a recent date of the good
standing of the Borrowers under the laws of their respective
jurisdictions of organization and certificates as of a recent date of
the good standing of each Borrower under the laws of each other
jurisdiction where such Borrower is qualified to do business and where
a failure to be so qualified could reasonably be expected to have a
Material Adverse Effect.
(iv) Opinions of Counsel. The Administrative Agent shall have
-------------------
received opinions in form and substance reasonably satisfactory to the
Administrative Agent of counsel to the Credit Partners, addressed to
the Administrative Agent and the Lenders with respect to the Borrowers,
the Loan Documents and such other matters as the Administrative Agent
shall reasonably request.
(c) Consents; Defaults.
------------------
(i) Governmental and Third Party Approvals. The Borrowers
--------------------------------------
shall have obtained all approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having
jurisdiction necessary in order to enter into this Agreement and the
other Loan Documents as of the Closing Date. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending
or notified prohibiting or imposing materially adverse conditions upon
the transactions contemplated by this Agreement and the other Loan
Documents or otherwise referred to herein or therein.
(ii) No Event of Default. No Default or Event of Default
-------------------
shall have occurred and be continuing.
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(d) No Material Adverse Effect. Since December 31, 2000 nothing
--------------------------
shall have occurred (and neither the Administrative Agent nor the Lenders shall
have become aware of any facts or conditions not previously known) which has
had, or could reasonably be expected to have, a Material Adverse Effect (it
being understood and agreed by the parties hereto that the spinoff of Certegy on
the terms and in the manner previously disclosed to the Administrative Agent and
the Lenders does not constitute a Material Adverse Effect).
(e) Financial Matters.
-----------------
(i) Financial Statements. The Administrative Agent and the
--------------------
Lenders shall have received and reviewed (A) the proforma Consolidated
financial statements of the Company and its Subsidiaries for Fiscal
Years 2000, 1999 and 1998, including balance sheets and income and cash
flow statements and prepared in conformity with GAAP, (B) proforma
Consolidated financial statements of the Company and its Subsidiaries
for the quarter ended June 30, 2001, adjusted, in the case of each of
clause (A) and (B), to exclude Certegy, and (C) such other financial
information as the Administrative Agent may request.
(ii) Payment at Closing. The Borrowers shall have paid any
------------------
accrued and unpaid fees or commissions due hereunder (including,
without limitation, legal fees and expenses payable under Section 13.2,
to the extent invoiced) to the Administrative Agent and Lenders, and to
any other Person such amount as may be due thereto in connection with
the transactions contemplated hereby, including all taxes, fees and
other charges in connection with the execution, delivery, recording,
filing and registration of any of the Loan Documents.
(f) Litigation. As of the Closing Date, there shall be no actions,
----------
suits or proceedings pending or, to the best knowledge of any Borrower,
threatened (i) with respect to this Agreement or any other Loan Document or (ii)
which could reasonably be expected to have a Material Adverse Effect.
(g) Termination of Prior Bank Commitment. The Prior Bank
------------------------------------
Commitment shall have been (or will be upon the initial borrowing hereunder on
the Closing Date and the application of the proceeds thereof) terminated and the
obligations of the Borrowers thereunder shall have been (or will upon such
borrowing and application of proceeds) paid in full and fully satisfied.
(h) Miscellaneous.
-------------
(i) Proceedings and Documents. All Loan Documents, opinions,
-------------------------
certificates and other instruments and all proceedings in connection
with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative
Agent.
(ii) Accuracy and Completeness of Information. All
----------------------------------------
information taken as an entirety made available to the Administrative
Agent and/or the Lenders by the Borrowers
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<PAGE>
or any of their representatives in connection with the transactions
contemplated hereby ("Information") is and will be complete and correct
-----------
in all material respects as of the date made available to the
Administrative Agent and/or the Lenders and does not and will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein not
misleading.
SECTION 5.2 Conditions to All Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the relevant borrowing
or issue date, as applicable:
(a) Continuation of Representations and Warranties. The representations
----------------------------------------------
and warranties contained in Article VI shall be true and correct in all material
respects on and as of such borrowing or issuance date with the same effect as if
made on and as of such date, except for any representation and warranty made as
of an earlier date, which representation and warranty shall remain true and
correct in all material respects as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
-------------------
occurred and be continuing hereunder on the date of such Extension of Credit,
both before and after giving effect to the Loans to be made on such date and/or
the Letters of Credit to be issued on such date.
(c) Notice of Revolving Credit Borrowing. To the extent applicable, the
------------------------------------
Administrative Agent shall have received a Notice of Revolving Credit Borrowing
and/or Notice of Swingline Borrowing from the Company on behalf of the relevant
Borrower in accordance with Section 2.2(a) or a Competitive Bid Request in
accordance with Section 2.5(a) and a Notice of Account Designation specifying
the account or accounts to which the proceeds of any Loans made after the
Closing Date are to be disbursed.
The occurrence of the Closing Date and the acceptance by any Borrower
of the benefits of each Extension of Credit hereunder shall constitute a
representation and warranty by such Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Sections 5.1 and 5.2
and applicable to such borrowing have been satisfied as of that time or waived
in writing by the Lenders. All of the Notes, certificates, legal opinions and
other documents and papers referred to in Sections 5.1 and 5.2, unless otherwise
specified, shall be delivered to the Administrative Agent for the benefit of
each of the Lenders and, except for the Notes, in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent.
64
<PAGE>
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
----------------------------------------------------
SECTION 6.1 Representations and Warranties.
------------------------------
To induce the Administrative Agent and Lenders to enter into this
Agreement and to induce the Lenders to make Extensions of Credit, each Borrower
hereby represents and warrants to the Administrative Agent and Lenders that:
(a) Organization; Power; Qualification. Each of the Borrowers and its
----------------------------------
Subsidiaries is duly organized, validly existing and in good standing or active
status, as applicable under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Ownership. Each Subsidiary of each of the Borrowers as of the
---------
Closing Date is listed on Schedule 6.l(b).
---------------
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
--------------------------------------------------------
the Borrowers and, if applicable, their Subsidiaries has the right, power and
authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of each of the Loan Documents to which
it is a party in accordance with its respective terms. Each of the Loan
Documents has been duly executed and delivered by the duly authorized officers
of the Borrowers and each of their Subsidiaries party thereto, as applicable,
and each such document constitutes the legal, valid and binding obligation of
the Borrowers and, if applicable, each of their Subsidiaries party thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
----------------------------------------------------------------
Etc. The execution, delivery and performance by the Borrowers and their
- ---
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any of the Borrowers or any of
their Subsidiaries to obtain any Governmental Approval or approval of any other
Person not otherwise already obtained or violate any Applicable Law relating to
the Borrowers or any of their Subsidiaries, (ii) conflict with, result in a
breach of or constitute a default under the articles of incorporation, bylaws or
other organizational documents of the Borrowers or any of their Subsidiaries or
any indenture or other material agreement or instrument to which such Person is
a party or by which any of its properties may be bound or any Governmental
Approval relating to such Person except as could not reasonably be expected to
have a Material Adverse Effect, or (iii) result in or require the creation or
imposition of any material Lien (other than a Lien
65
<PAGE>
permitted under Section 9.2) upon or with respect to any property now owned or
hereafter acquired by such Person.
(e) Compliance with Law; Governmental Approvals. Each of the Borrowers
-------------------------------------------
and their respective Subsidiaries (i) has all Governmental Approvals required by
any Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of the Borrowers' knowledge, threatened
attack by direct or collateral proceeding, except where the failure to have such
Governmental Approval could not reasonably be expected to have a Material
Adverse Effect, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties; in each case, except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrowers and their
------------------------
respective Subsidiaries has timely filed or caused to be filed all federal and
state, local and other tax returns required by Applicable Law to be filed, and
has paid, or made adequate provision for the payment of, all federal and state,
local and other taxes, assessments and governmental charges or levies upon it
and its property, income, profits and assets which are due and payable, except
taxes (i) that are being contested in good faith by appropriate proceedings and
for which such Borrower or Subsidiary, as applicable, has set aside on its books
adequate reserves or (ii) to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect. No Governmental
Authority has asserted any material Lien or other claim against the Borrowers or
any Subsidiary thereof with respect to unpaid taxes which has not been
discharged or resolved. The charges, accruals and reserves on the books of each
of the Borrowers and any of their respective Subsidiaries in respect of federal
and all material state, local and other taxes are, in the judgment of the
Borrowers, adequate, and the Borrowers do not anticipate any material additional
taxes or assessments for any of the periods reflected on such books.
(g) Intellectual Property Matters. Each of the Borrowers and its
-----------------------------
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which, to the
knowledge of the Borrowers, permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such rights, and, to the
knowledge of the Borrowers, neither the Borrowers nor any Subsidiary thereof is
liable to any Person for infringement under Applicable Law with respect to any
such rights as a result of its business operations, except as could not
reasonably be expected to have a Material Adverse Effect.
(h) Environmental Matters. Except as set forth on Schedule 6.1(h) (and
--------------------- ---------------
only to the extent described therein) or as could not reasonably be expected to
have a Material Adverse Effect:
66
<PAGE>
(i) The properties of the Borrowers and their Subsidiaries
(including soils, surface waters, groundwaters on, at or under such
properties) do not contain and are not otherwise affected by, and to
the Borrowers' knowledge have not previously contained or been affected
by, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws
or (B) could give rise to liability or obligation under applicable
Environmental Laws;
(ii) The properties of the Borrowers and their Subsidiaries
and all operations conducted in connection therewith are in compliance,
and have been in compliance, with all applicable Environmental Laws,
and there are no Hazardous Materials at, under or about such properties
or such operations which could reasonably be expected to interfere with
the continued operation of such properties;
(iii) The Borrowers and their Subsidiaries have obtained, are
in compliance with, and have made all appropriate filings for issuance
or renewal of, all permits, licenses, and other governmental consents
required by applicable Environmental Laws ("Environmental Permits"),
---------------------
and all such Environmental Permits are in full force and effect;
(iv) Neither any of the Borrowers nor any Subsidiary thereof
has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws, nor do the
Borrowers have knowledge or reason to believe that any such notice will
be received or is being threatened;
(v) To the knowledge of the Borrowers, Hazardous Materials
have not been transported or disposed of from the properties of the
Borrowers or any of their Subsidiaries in violation of, or in a manner
or to a location which could reasonably be expected to give rise to
liability under, Environmental Laws, nor, to the knowledge of the
Borrowers, have any Hazardous Materials been generated, treated, stored
or disposed of at, on or under any of such properties in violation of,
or in a manner which could reasonably be expected to give rise to
liability under, any Environmental Laws;
(vi) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the
Borrowers, threatened, under any Environmental Law to which any of the
Borrowers or any Subsidiary thereof has been or will be named as a
party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the properties or operations of the Borrowers and their
Subsidiaries; and
(vii) To the knowledge of the Borrowers, there has been no
release, or threat of release, of Hazardous Materials at or from the
properties of the Borrowers or any of their Subsidiaries, in violation
of or in amounts or in a manner that could reasonably be expected to
give rise to liability under Environmental Laws.
67
<PAGE>
(i) ERISA.
-----
(i) Each of the Borrowers and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee
Benefit Plans except where any such noncompliance could not reasonably
be expected to have a Material Adverse Effect. Except for any failure
that could not reasonably be expected to have a Material Adverse
Effect, each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. No
liability that could reasonably be expected to have a Material Adverse
Effect has been incurred by the Borrowers or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan;
(ii) No accumulated funding deficiency (as defined in Section
412 of the Code) has been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has any funding waiver from
the Internal Revenue Service been received or requested with respect to
any Pension Plan except for any accumulated funding deficiency or
funding waiver that could not reasonably be expected to have a Material
Adverse Effect;
(iii) Neither the Borrowers nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Code, (B) incurred any liability to the
PBGC which remains outstanding other than the payment of premiums and
there are no premium payments which are due and unpaid, (C) failed to
make a required contribution or payment to a Multiemployer Plan, or (D)
failed to make a required installment or other required payment under
Section 412 of the Code, except where any of the foregoing individually
or in the aggregate could not reasonably be expected to have a Material
Adverse Effect;
(iv) No Termination Event that could reasonably be expected
to result in a Material Adverse Effect has occurred or is reasonably
expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is
existing or, to the knowledge of the Borrowers, threatened concerning
or involving any Employee Benefit Plan that could reasonably be
expected to result in a Material Adverse Effect.
(j) Margin Stock. No Borrower or any Subsidiary thereof is engaged
-------------
principally or as one of its material activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in Regulation U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans or Letters
of Credit will be used for purchasing or carrying margin stock, unless the
Borrowers shall have given the Administrative Agent and Lenders prior notice of
such event and such other information as is reasonably necessary to permit the
Administrative Agent and Lenders to comply, in a timely fashion, with all
reporting obligations required by
68
<PAGE>
Applicable Law, or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of such Board of
Governors.
(k) Government Regulation. No Borrower or any Subsidiary thereof is an
---------------------
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrowers nor any Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended.
(l) Burdensome Provisions. No Borrower or any Subsidiary thereof is a
---------------------
party to any indenture, agreement (excluding the CSC Agreement and the CSC Put),
lease or other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or Applicable Law which is so unusual or
burdensome that in the foreseeable future it could be reasonably expected to
have a Material Adverse Affect. The Borrowers and their Subsidiaries do not
presently anticipate that their future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(m) Financial Statements; Financial Condition: Etc.
----------------------------------------------
The financial statements delivered to the Lenders pursuant to
Section 5.1(e)(i) and, if applicable, Section 7.1, copies of which have been
furnished to the Administrative Agent and each Lender, have been prepared in
accordance with GAAP (except, in the case of unaudited financial statements, for
the absence of footnotes and subject to normal year end adjustments), are
complete in all material respects and fairly present in all material respects
the assets, liabilities and financial position of the Borrowers and their
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended, subject, in the case of unaudited
financial statements, to the absence of footnotes and normal year end
adjustments.
(n) No Material Adverse Effect. Since December 31, 2000, there has
--------------------------
been no Material Adverse Effect (it being understood and agreed by the parties
hereto that the spinoff of Certegy on the terms and in the manner previously
disclosed to the Administrative Agent and the Lenders does not constitute a
Material Adverse Effect).
(o) Liens. None of the properties and assets of the Borrowers or any
-----
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 9.2.
(p) Debt and Support Obligations. Schedule 6.1(p) is a complete and
---------------------------- --------------
correct listing of all Debt and Support Obligations of the Borrowers and their
Subsidiaries as of the Closing Date.
(q) Litigation. There are no actions, suits or proceedings pending
----------
nor, to the knowledge of the Borrowers, threatened against or affecting the
Borrowers or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or
69
<PAGE>
before or by any Governmental Authority, which could reasonably be expected to
have a Material Adverse Effect.
(r) Absence of Defaults. No event has occurred and is continuing which
-------------------
constitutes a Default or an Event of Default.
(s) Absence of Bankruptcy Events. Since December 31, 2000, no event
----------------------------
has occurred and is continuing which constitutes a Bankruptcy Event.
(t) Accuracy and Completeness of Information. As of the Closing Date,
----------------------------------------
the Borrowers have disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which they or any of their Subsidiaries are
subject, and all other matters known to them, other than general market,
economic and industry conditions, that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The written
information, taken as a whole, furnished by or on behalf of the Borrowers to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) does not contain any material misstatement of fact or
omit 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 any projected financial information, the Borrowers
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
(u) Property. The Borrowers and their Subsidiaries have good and
--------
marketable title to all material Property owned by them and valid leasehold
interests in all material Property leased by them (except as permitted by the
terms of this Agreement), free and clear of all Liens, except for Liens
permitted pursuant to Section 9.2.
(v) Labor Practices. No Borrower or any Subsidiary thereof is engaged
---------------
in any unfair labor practices that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against any Borrower or any Subsidiary thereof, to the knowledge of the
Borrowers, threatened against a Borrower or any Subsidiary thereof, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against a Borrower or any Subsidiary thereof or, to the knowledge of the
Borrowers, threatened against a Borrower or any Subsidiary thereof, (ii) no
strike, labor dispute, slowdown or stoppage pending against a Borrower or any of
its Subsidiaries or, to the knowledge of the Borrowers, threatened against a
Borrower or any Subsidiary thereof and (iii) no union representation question
exists with respect to the employees of a Borrower or any Subsidiary thereof,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.2 Survival of Representations and Warranties, Etc.
-----------------------------------------------
All representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate related hereto, or
any of the Loan Documents (including
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but not limited to any such representation or warranty made in or in connection
with any amendment thereto) shall constitute representations and warranties made
under this Agreement. All representations and warranties made under this
Agreement shall be made or deemed to be made at and as of the Closing Date,
shall survive the Closing Date and shall not be waived by the execution and
delivery of this Agreement, any investigation made by or on behalf of the
Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
---------------------------------
Until all the Obligations (other than contingent liabilities not yet due
and payable) have been paid and satisfied in full and the later of the 364 Day
Facility Termination Date or the Multi-Year Facility Termination Date has
occurred, unless consent has been obtained in the manner set forth in Section
13.11 hereof, the Company will furnish or cause to be furnished to the
Administrative Agent and to the Lenders at their respective addresses as set
forth in Section 13.1 and on Schedule 13.1, or such other office as may be
-------------
designated by the Administrative Agent and Lenders from time to time:
SECTION 7.1 Financial Statements, Etc.
-------------------------
(a) Quarterly Financial Statements. As soon as practicable and in any
------------------------------
event within fifty (50) days after the end of each of the first three fiscal
quarters of each Fiscal Year, either (i) a copy of a report on Form 10-Q, or any
successor form, and any amendments thereto, filed by the Company with the
Securities and Exchange Commission with respect to the immediately preceding
fiscal quarter or (ii) an unaudited Consolidated balance sheet of the Company
and its Subsidiaries as of the close of such fiscal quarter and unaudited
Consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including any notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
preceding Fiscal Year and prepared by the Company in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by a Responsible Officer of the
Company to present fairly in all material respects the financial condition of
the Company and its Subsidiaries as of their respective dates and the results of
operations of the Company and its Subsidiaries for the respective periods then
ended, subject to normal year end adjustments and to the absence of footnotes
required by GAAP.
(b) Annual Financial Statements. As soon as practicable and in any
---------------------------
event within ninety-five (95) days after the end of each Fiscal Year, either (i)
a copy of a report on Form 10-K, or any successor form, and any amendments
thereto, filed by the Company with the Securities and Exchange Commission with
respect to the immediately preceding Fiscal Year or (ii) an audited Consolidated
balance sheet of the Company and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, stockholders' equity and
cash flows
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for the Fiscal Year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by the Company and certified by a nationally
recognized independent certified public accounting firm acceptable to the
Administrative Agent in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during the
year, and accompanied by a report thereon by such certified public accountants
that is not qualified with respect to scope limitations imposed by the Company
or any of its Subsidiaries or with respect to accounting principles followed by
the Company or any of its Subsidiaries not in accordance with GAAP.
SECTION 7.2 Officer's Compliance Certificate.
--------------------------------
At each time financial statements are delivered pursuant to Section
7.1(a) or (b), a certificate of a Responsible Officer of the Company in the form
of Exhibit H attached hereto (an "Officer's Compliance Certificate"), including
--------- --------------------------------
the calculations prepared by such Responsible Officer required to establish
whether or not the Borrowers and their Subsidiaries are in compliance with the
financial covenants set forth in Section 9.1 hereof as at the end of each
respective period.
SECTION 7.3 Accountants' Certificate.
------------------------
At each time financial statements are delivered pursuant to Section
7.1(b), a certificate of the independent public accountants certifying such
financial statements addressed to the Administrative Agent for the benefit of
the Lenders stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence.
SECTION 7.4 Other Reports.
-------------
(a) Promptly after the filing thereof, a copy of (i) each report or
other filing made by any of the Borrowers or any or their Subsidiaries with the
Securities and Exchange Commission and required by the Securities and Exchange
Commission to be delivered to the shareholders of the Borrowers or any
Subsidiary thereof, (ii) each report made by any of the Borrowers or any
Subsidiary thereof to the Securities and Exchange Commission on Form 8-K and
(iii) each final registration statement of any of the Borrowers or any
Subsidiary thereof filed with the Securities and Exchange Commission, except in
connection with pension plans and other employee benefit plans; and
(b) Such other information regarding the operations, business affairs
and financial condition of the Borrowers and/or any of their Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
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SECTION 7.5 Notice of Litigation and Other Matters.
--------------------------------------
Prompt (but in no event later than (x) with respect to clause (d) below,
two (2) Business Days after a Responsible Officer obtains knowledge thereof or
(y) with respect to any other clause below, five (5) Business Days after a
Responsible Officer obtains knowledge thereof) telephonic (confirmed in writing)
or written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving any of the Borrowers or any
Subsidiary thereof or any of their respective properties, assets or businesses
the potential liability of which in the reasonable judgment of the Borrowers
could reasonably be expected to exceed $25,000,000;
(b) any notice of any violation received by any of the Borrowers or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, the potential
liability of which in the reasonable judgment of the Borrowers in any such case
could reasonably be expected to exceed $25,000,000;
(c) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof) which could reasonably be
expected to have a Material Adverse Effect, (ii) all notices received by any of
the Borrowers or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
which could reasonably be expected to have a Material Adverse Effect, (iii) all
notices received by any of the Borrowers or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA which could reasonably be expected
to have a Material Adverse Effect, (iv) the Borrowers obtaining knowledge or
reason to know that the Borrowers or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA which could
reasonably be expected to have a Material Adverse Effect, and (v) the occurrence
of a Reportable Event which could reasonably be expected to have a Material
Adverse Effect;
(d) the occurrence of any Default or an Event of Default; and
(e) the receipt by the Company or any of its Subsidiaries of written
notice from CSC or any of its Subsidiaries regarding the exercise of the CSC
Put.
SECTION 7.6 Ratings Change.
--------------
The Company shall, no later than five (5) Business Days after a Responsible
Officer obtains knowledge of any such change, give notice to the Administrative
Agent (by telephone, followed promptly by written notice transmitted by
facsimile with a hand copy sent promptly thereafter) of any change (either
expressly or pursuant to a letter from S&P or Moody's stating an "implied"
rating, excluding in all cases any private indicative ratings that the Company
may request from time to time from Moody's or S&P) in rating by S&P or Moody's
in respect of the
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Company's non-credit enhanced senior unsecured long-term debt, together with
details thereof, and of any announcement by S&P or Moody's that its rating in
respect of such non-credit enhanced senior unsecured long-term debt is "under
review" or that any such debt rating has been placed on a "Credit Watch List"(R)
or "watch list" or that any similar action has been taken by S&P or Moody's.
SECTION 7.7 Accuracy of Information.
-----------------------
All written information, reports, statements and other papers and data
furnished by or on behalf of the Borrowers to the Administrative Agent or any
Lender (other than financial forecasts) whether pursuant to this Article VII or
any other provision of this Agreement, shall be, at the time the same is so
furnished, true and complete in all material respects.
ARTICLE VIII
AFFIRMATIVE COVENANTS
---------------------
Until all of the Obligations (other than contingent liabilities not yet due
and payable) have been paid and satisfied in full and the later of the 364 Day
Facility Termination Date and the Multi-Year Facility Termination Date has
occurred, unless consent has been obtained in the manner provided for in Section
13.11, each Borrower will, and will cause each of its respective Subsidiaries
to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters.
-------------------------------------------------------
(i) Except as permitted by Section 9.4 and Section 9.5, preserve and
maintain its separate corporate existence and all rights, franchises, licenses
and privileges necessary to the conduct of its business, provided, however,
-------- -------
that, subject to compliance with Section 8.9, nothing in the foregoing shall
prevent the Company or any Subsidiary from discontinuing any line of business if
(i) no Default or Event of Default exists or would result therefrom, and (ii)
with respect to the discontinuance of a material line of business, the Board of
Directors of the Company determines in good faith that such discontinuance is in
the best interest of the Company and its Consolidated Subsidiaries, taken as a
whole.
(ii) Qualify and remain qualified as a foreign corporation and authorized
to do business in each jurisdiction where the nature and scope of its activities
require it to so qualify under Applicable Law, except where the failure to so
preserve and maintain its existence and rights or to so qualify could not
reasonably be expected to have a Material Adverse Effect.
SECTION 8.2 Maintenance of Property.
-----------------------
Protect and preserve all properties useful in and material to its business,
including copyrights, patents, trade names and trademarks; maintain in good
working order and condition all buildings, equipment and other tangible real and
personal property material to the conduct of its business, ordinary wear and
tear excepted; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
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business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in each case, where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 8.3 Insurance.
---------
Maintain insurance with financially sound and reputable insurance companies
against such risks and in such amounts as are consistent with past practices and
prudent business practice (and in any event consistent with normal industry
practice), and as may be required by Applicable Law.
SECTION 8.4 Accounting Methods and Financial Records.
----------------------------------------
Maintain a system of accounting, and keep such books, records and accounts
(which shall be true and complete in all material respects) as may be required
or as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations.
--------------------------------------
(a) Pay and perform all of its Obligations under this Agreement and the
other Loan Documents.
(b) Pay and discharge (i) all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties attach thereto,
and (ii) all other material indebtedness, obligations and liabilities in
accordance with customary trade practices; provided that such Borrower or
--------
Subsidiary may contest any item described in clause (i) or (ii) of this Section
8.5(b) in good faith and by proper proceedings so long as adequate reserves are
maintained with respect thereto to the extent required by GAAP.
(c) Perform all of its obligations under the terms of each mortgage,
indenture, security agreement, loan agreement or credit agreement and each other
agreement, contract or instrument by which it is bound, except where such
non-performances could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 8.6 Compliance With Laws and Approvals.
----------------------------------
Observe and remain in compliance with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business, except where the failure to observe, comply or maintain
could not reasonably be expected to have a Material Adverse Effect.
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SECTION 8.7 Environmental Laws.
------------------
In addition to and without limiting the generality of Section 8.6, (a)
comply with, and use commercially reasonable efforts to ensure such compliance
by all tenants and subtenants with all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, except where
the failure to obtain, comply or maintain could not reasonably be expected to
have a Material Adverse Effect, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws,
except (i) where the failure to do so could not reasonably be expected to have a
Material Adverse Effect or (ii) to the extent the Borrowers or any of their
Subsidiaries are contesting, in good faith, any such requirement, order or
directive before the appropriate Governmental Authority so long as adequate
reserves are maintained with respect thereto to the extent required by GAAP, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations or properties of the Borrowers
or such Subsidiaries, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable and
actual attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA.
---------------------
In addition to and without limiting the generality of Section 8.6, (a)
comply with all applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder with respect to all Employee Benefit
Plans, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect, (b) not take any action or fail to take action
the result of which would result in a liability to the PBGC or to a
Multiemployer Plan in an amount that could reasonably be expected to have a
Material Adverse Effect, and (c) furnish to the Administrative Agent or any
Lender upon the Administrative Agent's or such Lender's request such additional
information about any Employee Benefit Plan concerning compliance with this
covenant as may be reasonably requested by the Administrative Agent or such
Lender.
SECTION 8.9 Conduct of Business.
-------------------
Carry on substantially all of its businesses in substantially the same
fields as the businesses conducted on the Closing Date and in lines of business
reasonably related thereto or as otherwise permitted pursuant to the terms of
this Agreement. Additionally, the Permitted Securitization Subsidiary may carry
on activities necessary or incidental to the acquisition of
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accounts receivable and related rights from the Company and the financing of
such accounts receivable and related rights.
SECTION 8.10 Visits and Inspections.
----------------------
Subject to compliance with applicable securities laws, permit
representatives of the Administrative Agent or any Lender, from time to time
upon reasonable prior written notice to the Company and during ordinary business
hours, to visit and inspect its properties; inspect and make extracts from its
books, records and files, including, but not limited to, management letters
prepared by independent accountants; and discuss with its principal officers,
and its independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects. Notwithstanding the
foregoing, neither the Administrative Agent nor the Issuing Lender or any other
Lender shall have the right to inspect or make or receive copies of any customer
data files or any other credit information or files concerning consumers owned
or maintained by the Company or any of its Subsidiaries.
SECTION 8.11 Use of Proceeds.
---------------
Use the proceeds of the Extensions of Credit for the purposes set forth
in Section 2.1(b).
ARTICLE IX
NEGATIVE COVENANTS
------------------
Until all of the Obligations (other than contingent liabilities not yet
due and payable) have been paid and satisfied in full and the later of the 364
Day Facility Termination Date and the Multi-Year Facility Termination Date has
occurred, unless consent has been obtained in the manner set forth in Section
13.11:
SECTION 9.1 Financial Covenants.
-------------------
(a) Maximum Leverage Ratio. As of the end of each fiscal quarter,
----------------------
commencing with the end of the first fiscal quarter ending after the Closing
Date, the Borrowers will not permit the Leverage Ratio to be greater than 3.00
to 1.00; provided, however, the maximum Leverage Ratio may be greater than 3.00
-----------------
to 1.00 but shall not be greater than 3.25 to 1.00 as of the end of each of the
first four (4) fiscal quarters ending after the payment by the Company of its
obligations in connection with the CSC Put.
(b) Minimum Interest Coverage Ratio. As of the end of each fiscal
-------------------------------
quarter, commencing with the end of the first fiscal quarter ending after the
Closing Date, the Borrowers will not permit the Interest Coverage Ratio to be
less than 4.00 to 1.00.
SECTION 9.2 Limitations on Liens.
--------------------
No Borrower will, nor will it permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien on, or with respect to, any of
its assets or properties (including without
77
<PAGE>
limitation shares of Capital Stock or other ownership interests owned by it),
real or personal, whether now owned or hereafter acquired, except:
(a) Liens existing on the Closing Date and set forth on Schedule
--------
9.2;
- ---
(b) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) The Liens of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals and other
Liens imposed by law so long as such Liens secure claims incurred in the
ordinary course of business, (i) which are not overdue for a period of more than
thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts or (ii) to secure the performance
of letters of credit, bids, tenders, sales, contracts, leases, statutory
obligations, surety, appeal and performance bonds and other similar obligations
incurred in the ordinary course of business, in each case not incurred in
connection with the borrowing of money or the payment of the deferred purchase
price of property;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of any material parcel of real
property or impair the use thereof in the ordinary conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Subsidiary existing at the
time such Subsidiary becomes a Subsidiary of a Borrower and not incurred in
contemplation thereof, as long as the outstanding principal amount of the Debt
secured thereby is not voluntarily increased by such Subsidiary after the date
such Subsidiary becomes a Subsidiary of such Borrower;
(h) Liens on the property or assets of the Borrowers or any Subsidiary
securing Debt which is incurred to finance or refinance the acquisition of such
property or assets, provided that (i) each such Lien shall be created
substantially simultaneously with the acquisition of the related property or
assets; (ii) each such Lien does not at any time encumber any property other
than the related property or assets financed by such Debt and the proceeds
thereof; (iii) the principal amount of Debt secured by each such Lien is not
increased; and (iv) the principal amount of Debt secured by each such Lien
(together with any accrued interest thereon and closing costs relating thereto)
shall at no time exceed 100% of the original purchase price of such related
property or assets at the time acquired;
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(i) Liens consisting of judgment or judicial attachment Liens,
provided that (i) the claims giving rise to such Liens are being diligently
- --------
contested in good faith by appropriate proceedings, (ii) adequate reserves for
the obligations secured by such Liens have been established and (iii)
enforcement of such Liens has been stayed;
(j) any Lien against the Company or any Consolidated Subsidiary
evidencing the transfer of any receivables and related property to any Permitted
Securitization Subsidiary pursuant to any Permitted Securitization Transaction;
(k) any Lien against a Permitted Securitization Subsidiary pursuant to
any Permitted Securitization Transaction;
(l) any Lien on any specific fixed asset of any corporation existing
at the time such corporation is merged or consolidated with or into any Borrower
or a Consolidated Subsidiary and not created in contemplation of such event;
(m) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
paragraphs of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt (together with any accrued
interest thereon and closing costs relating thereto) secured by any such Lien is
not increased;
(n) any Lien existing on any specific fixed asset prior to the
acquisition thereof by any Borrower or a Consolidated Subsidiary and not created
in contemplation of such acquisition;
(o) Liens securing Debt owing by any Subsidiary to the Company or
another Wholly Owned Subsidiary;
(p) inchoate Liens arising under ERISA to secure current service
pension liabilities as they are incurred under the provisions of Plans from time
to time in effect;
(q) rights reserved to or invested in any municipality or
governmental, statutory or public authority to control or regulate any property
of such Borrower or such Subsidiary, as the case may be, or to use such property
in a manner which does not materially impair the use of such property for the
purposes of which it is held by such Borrower or such Subsidiary, as the case
may be; and
(r) Liens not otherwise permitted by this Section 9.2 securing Debt or
other obligations in an aggregate principal amount at any time outstanding that
does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 9.3 Limitations on Subsidiary Debt.
------------------------------
No Borrower will permit any Subsidiary of the Company to contract,
create, incur, assume or permit to exist any Debt, except:
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(a) Debt arising under this Agreement and the other Loan Documents;
(b) Debt existing as of the Closing Date as referenced on Schedule
6.1(p) (and renewals, refinancings or extensions thereof on terms and conditions
no less favorable in any material respect to such Person than such existing Debt
and in a principal amount not in excess of that outstanding as of the date of
such renewal, refinancing or extension);
(c) Capital Lease obligations and Debt incurred, in each case, to
provide all or a portion of the purchase price or costs of construction of an
asset or, in the case of a Sale and Leaseback Transaction, to finance the value
of such asset owned by the Borrower or any of its Subsidiaries, provided that
--------
(i) such Debt when incurred shall not exceed the purchase price or cost of
construction of such asset or, in the case of a Sale and Leaseback Transaction,
the fair market value of such asset and any transaction costs directly related
thereto, (ii) no such Debt shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon (together with any accrued interest
thereon and closing costs relating thereto)at the time of such refinancing; and
(iii) the aggregate principal amount of all such Debt shall not exceed
$200,000,000 at any time outstanding;
(d) unsecured intercompany Debt owed by any Subsidiary of the Company
to the Company or any other Subsidiary of the Company;
(e) Debt and Obligations owing under Hedging Agreements relating to
the Loans hereunder and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price risks
and not for speculative purposes;
(f) Debt in connection with any Permitted Securitization Transaction;
(g) Debt of the types described in clause (j) of the definition of
Debt which is incurred in the ordinary course of business in connection with (1)
the sale or purchase of goods, or (2) to assure performance by the Company or
any of its Subsidiaries of their respective service contracts, operating leases,
obligations to a utility or a governmental entity, or worker's compensation
obligations;
(h) Support Obligations of Debt of the Company or Debt otherwise
permitted under this Section 9.3; and
(i) other Debt of the Subsidiaries which does not exceed 20% of
Consolidated Net Tangible Assets in the aggregate at anytime outstanding; and
SECTION 9.4 Limitations on Mergers and Liquidation.
--------------------------------------
No Borrower will, nor will it permit any of its Subsidiaries to,
merge, consolidate or enter into any similar combination with any other Person
or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), except:
(a) Any Borrower or a Subsidiary may merge with another Person that is
not a Borrower or a Subsidiary, provided that (i) such other Person is organized
--------
under the law of the United States or one of its states, (ii) in the case of any
merger involving a Borrower, such
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Borrower is the corporation surviving such merger, (iii) in the case of any
merger involving a Subsidiary, the survivor is or will become a Subsidiary of
the Company, (iv) immediately prior to and after giving effect to such merger,
no Default or Event of Default exists or would exist, (iv) the Board of
Directors of such Person has approved such merger and (v) such transaction is
permitted under Section 9.6;
(b) Any Subsidiary that is not a Borrower may merge into a Borrower or
any Wholly-Owned Subsidiary of a Borrower;
(c) Any Subsidiary that is not a Borrower may liquidate, wind-up or
dissolve itself into a Borrower or any Wholly-Owned Subsidiary of a Borrower;
(d) Any Borrower may merge with any other Borrower, provided that in
the case of any merger involving the Company, the Company is the corporation
surviving such merger; and
(e) Any Borrower (other than the Company) may liquidate, wind-up or
dissolve itself into any other Borrower.
SECTION 9.5 Limitation on Asset Dispositions.
--------------------------------
No Borrower will, nor will it permit any of its Subsidiaries to, make
any Asset Disposition (including, without limitation, in connection with any
Sale and Leaseback Transaction), in one transaction or a series of transactions,
unless (a) no Default or Event of Default shall exist on the date of, or shall
result from, any such transaction (including after giving effect to such
transaction on a pro forma basis), and (b) the assets so disposed of or
transferred in connection with all such Asset Dispositions in any Fiscal Year
did not contribute, in the aggregate, more than 17.5% of Consolidated Operating
Profit for the immediately preceding Fiscal Year.
SECTION 9.6 Limitations on Acquisitions.
---------------------------
Other than transactions permitted under Section 9.7, no Borrower will,
nor will it permit any of its Subsidiaries to, acquire all or any portion of the
Capital Stock or other ownership interest in any Person which is not a
Subsidiary or all or any substantial portion of the assets, property and/or
operations of a Person which is not a Subsidiary, unless (a) the Person, assets,
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property and/or operations being acquired engage in or are engaged in the same
line of business as that engaged in by the Borrower and its Subsidiaries on the
Closing Date or a business reasonably related thereto, (b) in the case of an
acquisition of Capital Stock or other ownership interest of a Person, the Board
of Directors of the Person which is the subject of such acquisition shall have
approved the acquisition (c) no Default or Event of Default shall exist on the
date of, or shall result from, any such acquisition (including after giving
effect to such transaction on a pro forma basis) and (d) in the case of the
acquisition of all or any portion of the Capital Stock or other ownership
interest in any Person, such Person so acquired will be Consolidated with the
Company in its financial statements upon the consummation of such acquisition.
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SECTION 9.7 Limitation on Restricted Investments.
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No Borrower will, nor will it permit any of its Subsidiaries to, make
any Restricted Investment unless, after giving effect thereto, the aggregate
amount of all such Restricted Investments outstanding at any time does not
exceed 20% of the Consolidated Total Assets; provided that (i) the foregoing
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shall be tested as at the end of each fiscal quarter, and (ii) no Default or
Event of Default shall have occurred and be continuing both before and after
giving effect to any such Restricted Investment.
SECTION 9.8 Limitation on Restricted Payments.
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No Borrower will, nor will it permit any of its Subsidiaries to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except that the Company and its Subsidiaries may make
dividends and repurchase or redeem its Capital Stock in an aggregate amount in
any Fiscal Year not to exceed 20% of Consolidated Total Assets (measured as of
December 31 of the most recently ended Fiscal Year).
SECTION 9.9 Limitation on Transactions with Affiliates.
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Neither any Borrower nor any of its Consolidated Subsidiaries shall
enter into, or be a party to, any transaction with any Affiliate of such
Borrower or such Subsidiary (which Affiliate is not a Borrower or a Subsidiary),
except pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are no less favorable to such Borrower or such Subsidiary
than would be obtained in a comparable arm's length transaction with a Person
which is not an Affiliate.
SECTION 9.10 Limitation on Certain Accounting Changes.
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No Borrower will (a) change its Fiscal Year end in order to avoid a
Default or an Event of Default or if a Material Adverse Effect would result
therefrom or (b) make any material change in its accounting treatment and
reporting practices except as required by GAAP.
SECTION 9.11 Limitation of Restricting Subsidiary Dividends and
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Distributions.
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No Borrower will permit any Subsidiary to agree to, incur, assume or
suffer to exist any restriction, limitation or other encumbrance (by covenant or
otherwise) on the ability of such Subsidiary to make any payment to a Borrower
or any of its Subsidiaries (in the form of dividends, intercompany advances or
otherwise) or to transfer any of its properties or assets to a Borrower or any
of its Subsidiaries, except:
(a) Restrictions and limitations existing on the Closing Date and
described on Schedule 9.11;
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(b) Restrictions and limitations applicable to a Subsidiary existing
at the time such Subsidiary becomes a Subsidiary of a Borrower and not incurred
in contemplation thereof, as
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long as no such restriction or limitation is made more restrictive after the
date such Subsidiary becomes a Subsidiary of such Borrower;
(c) Restrictions and limitations imposed on any Permitted
Securitization Subsidiary in connection with a Permitted Securitization
Transaction;
(d) Restrictions and limitations existing pursuant to this Agreement;
and
(e) Other restrictions and limitations that are not material either
individually or in the aggregate.
ARTICLE X
GUARANTY OF THE COMPANY
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SECTION 10.1 Guaranty of Payment.
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Subject to Section 10.7 below, the Company hereby unconditionally
guarantees to each Lender and the Administrative Agent the prompt payment of the
Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This guaranty is a guaranty
of payment and not solely of collection and is a continuing guaranty and shall
apply to all Guaranteed Obligations whenever arising.
SECTION 10.2 Obligations Unconditional.
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The obligations of the Company hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of this Agreement, or any other agreement or instrument referred
to herein, to the fullest extent permitted by Applicable Law, irrespective of
any other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. The Company agrees that
this guaranty may be enforced by the Lenders without the necessity at any time
of resorting to or exhausting any security or collateral and without the
necessity at any time of having recourse to the Notes, this Agreement or any
other Loan Document or any collateral, if any, hereafter securing the Guaranteed
Obligations or otherwise and the Company hereby waives the right to require the
Lenders to proceed against a Designated Borrower or any other Person (including
a co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. The Company further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against a Designated
Borrower or any other guarantor of the Guaranteed Obligations for amounts paid
under this guaranty until such time as the Lenders have been paid in full, all
commitments under this Agreement have been terminated and no Person or
Governmental Authority shall have any right to request any return or
reimbursement of funds from the Lenders in connection with monies received under
this Agreement. The Company further agrees that nothing contained herein shall
prevent the Lenders from suing on the Notes, this Agreement or any other Loan
Document or foreclosing its security interest in or Lien on any collateral, if
any, securing the Guaranteed Obligations or from exercising any other rights
available to it under this Agreement, the Notes, or any other instrument of
security, if any, and the exercise of any of the
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aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any of the Company's obligations hereunder; it being
the purpose and intent of the Company that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances. Neither
the Company's obligations under this guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of a Designated Borrower or by reason of the bankruptcy or insolvency
of such Borrower. The Company waives any and all notice of the creation,
renewal, extension or accrual of any of the Guaranteed Obligations and notice of
or proof of reliance of by the Ad