Exhibit 10.2 to 2010 10-Q
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Dated as of June 30, 2010
among
CONVERGYS CORPORATION, as the Lessee,
THE VARIOUS PARTIES HERETO FROM TIME TO TIME,
as the Guarantors,
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower and as the Lessor,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES
HERETO FROM TIME TO TIME, as the Credit Lenders,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES
HERETO FROM TIME TO TIME, as the Mortgage Lenders,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Agent for the Primary Financing Parties
and, respecting the Security Documents,
as the Agent for the Secured Parties
TABLE OF CONTENTS
SECTION 1A AMENDMENT AND RESTATEMENT
SECTION 1 THE FINANCING
SECTION 2 CONTINUATION OF LEASE FACILITY
2
SECTION 3 SUMMARY OF TRANSACTIONS
2
3.1
Operative Agreements.
2
3.2
Deemed Loans and Lessor Advances.
2 SECTION 4 THE CLOSING
3
4.1
Closing Date.
3
4.2
Advances.
3 SECTION 5 CLOSING CONDITIONS
3
5.1
General.
3
5.2
Procedures for Closing.
3
5.3
Conditions Precedent for the Agent, the Credit Lenders, the Mortgage
Lenders and the Lessor Relating to the Closing Date.
4
5.4
[Reserved].
8
5.5
[Reserved].
8
5.6
[Reserved].
8
5.7
Restrictions on Liens.
8
5.8
[Reserved].
9
5.9
[Reserved].
9
5.10
Payments.
9
5.11
Amounts Due Under Lease.
9 SECTION 5B LESSOR ADVANCE
9
5B.1
Procedure for Lessor Advance.
9
5B.2
Lessor Yield.
10
5B.3
Scheduled Return of Lessor Advance.
10
5B.4
Early Return of Lessor Advance.
10
5B.5
Conversion and Continuation Options.
11
5B.6
Computation of Lessor Yield.
11 SECTION 6 REPRESENTATIONS AND WARRANTIES
12
6.1
Representations and Warranties of the Borrower.
12
6.2
Representations and Warranties of the Credit Parties.
14 SECTION 6B
GUARANTY
19
6B.1
Guaranty of Payment and Performance.
19
6B.2
Obligations Unconditional.
19
6B.3
Modifications.
20
6B.4
Waiver of Rights.
21
6B.5
Reinstatement.
21
6B.6
Remedies.
21
6B.7
Limitation of Guaranty.
21
6B.8
Contribution.
22
6B.9
Payment of Amounts to the Agent.
22
6B.10
Release of Guarantors.
22 SECTION 7 PAYMENT OF CERTAIN EXPENSES
22
7.1
Transaction Expenses.
22
7.2
Brokers' Fees.
23
7.3
Certain Fees and Expenses.
23
7.4
[Reserved].
23
7.5
Administrative Fee.
23
i
7.6
Arrangement Fee.
23
7.7
Up-Front Fee.
23
SECTION 8 OTHER COVENANTS AND AGREEMENTS
24
8.1
Cooperation with the Lessee.
24
8.2
Covenants of the Lessor.
24
8.3
Lessee Covenants, Consent and Acknowledgment.
26
8.3A
Affirmative Covenants.
29
8.3A.1
Financial Statements and Other Information.
29
8.3A.2
Notices of Material Events.
30
8.3A.3
Existence; Conduct of Business.
30
8.3A.4
Payment of Obligations.
31
8.3A.5
Maintenance of Property; Insurance.
31
8.3A.6
Books and Records; Inspection Rights.
31
8.3A.7
Compliance with Laws.
31
8.3A.8
Use of Proceeds.
31
8.3A.9
Guarantee Requirement.
31
8.3B
Negative Covenants.
32
8.3B.1
Priority Indebtedness.
32
8.3B.2
Liens.
33
8.3B.3
Sale and Lease-Back Transactions.
34
8.3B.4
Fundamental Changes.
34
8.3B.5
Transactions with Affiliates.
36
8.3B.6
Restrictive Agreements.
37
8.3B.7
Hedging Agreements.
37
8.3B.8
Interest Coverage Ratio.
37
8.3B.9
Consolidated Total Debt to Consolidated EBITDA Ratio.
37