1
Exhibit 10.2C
[EXECUTION COPY]
$200,000,000
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
among
XXXXXX WORLDWIDE, INC.,
as the Company,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
ABN AMRO BANK N.V.,
as Administrative Agent
SUNTRUST BANK, ATLANTA,
as Syndication Agent,
and
WACHOVIA BANK N.A.,
as Documentation Agent,
Arranged By
ABN AMRO BANK N.V.,
as Lead Arranger and Book Runner,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Lead Arranger and Book Runner,
and
WACHOVIA SECURITIES, INC.,
as Co-Lead Arranger
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TABLE OF CONTENTS
-----------------
SECTION PAGE
------- ----
ARTICLE I: DEFINITIONS...........................................................................................2
1.1 CERTAIN DEFINED TERMS....................................................................................2
1.2 REFERENCES...............................................................................................2
ARTICLE II: REVOLVING LOAN FACILITIES............................................................................2
2.1 REVOLVING LOANS..........................................................................................2
2.2 (RESERVED)...............................................................................................2
2.3 (RESERVED)...............................................................................................2
2.4 RATE OPTIONS FOR ALL ADVANCES; MAXIMUM INTEREST PERIODS..................................................2
2.5 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.................................................................2
2.6 REDUCTIONS IN COMMITMENTS................................................................................2
2.7 METHOD OF BORROWING......................................................................................2
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES..............................................2
2.9 MINIMUM AMOUNT OF EACH ADVANCE...........................................................................2
2.10 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND........................................2
2.11 DEFAULT RATE.............................................................................................2
2.12 METHOD OF PAYMENT........................................................................................2
2.13 EVIDENCE OF DEBT.........................................................................................2
2.14 TELEPHONIC NOTICES.......................................................................................2
2.15 PROMISE TO PAY; INTEREST AND FEES; INTEREST PAYMENT DATES; INTEREST AND..................................2
2.16 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE......................................2
2.17 LENDING INSTALLATIONS....................................................................................2
2.18 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.........................................................2
2.19 TERMINATION DATE.........................................................................................2
2.20 REPLACEMENT OF CERTAIN LENDERS...........................................................................2
2.21 ALTERNATE CURRENCY LOANS.................................................................................2
2.22 JUDGMENT CURRENCY........................................................................................2
2.23 (RESERVE)................................................................................................2
2.24 SUBSIDIARY BORROWERS.....................................................................................2
ARTICLE III: THE LETTER OF CREDIT FACILITY........................................................................2
ARTICLE IV: CHANGE IN CIRCUMSTANCES..............................................................................2
4.1 YIELD PROTECTION.........................................................................................2
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS..................................................................2
4.3 AVAILABILITY OF TYPES OF ADVANCES........................................................................2
4.4 FUNDING INDEMNIFICATION..................................................................................2
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY.................................................................2
ARTICLE V: CONDITIONS PRECEDENT..................................................................................2
5.1 INITIAL ADVANCES.........................................................................................2
5.2 INITIAL ADVANCE TO EACH NEW SUBSIDIARY BORROWER..........................................................2
5.3 EACH ADVANCE AND EACH CONVERSION OR CONTINUATION OF AN ADVANCE...........................................2
ARTICLE VI: REPRESENTATIONS AND WARRANTIES.......................................................................2
6.1 ORGANIZATION; CORPORATE POWERS...........................................................................2
6.2 AUTHORIZATION AND VALIDITY...............................................................................2
6.3 NO CONFLICT; GOVERNMENT CONSENT..........................................................................2
6.4 FINANCIAL STATEMENTS.....................................................................................2
6.5 MATERIAL ADVERSE CHANGE..................................................................................2
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6.6 TAXES....................................................................................................2
6.7 LITIGATION AND CONTINGENT OBLIGATIONS....................................................................2
6.8 SUBSIDIARIES.............................................................................................2
6.9 ERISA....................................................................................................2
6.10 ACCURACY OF INFORMATION..................................................................................2
6.11 REGULATION U.............................................................................................2
6.12 MATERIAL AGREEMENTS......................................................................................2
6.13 COMPLIANCE WITH LAWS.....................................................................................2
6.14 OWNERSHIP OF PROPERTIES..................................................................................2
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS......................................................................2
6.16 ENVIRONMENTAL MATTERS....................................................................................2
6.17 INSURANCE................................................................................................2
6.18 LABOR MATTERS............................................................................................2
6.19 SOLVENCY.................................................................................................2
6.20 YEAR 2000 ISSUES.........................................................................................2
6.21 DEFAULT..................................................................................................2
6.22 REPRESENTATIONS AND WARRANTIES OF EACH SUBSIDIARY BORROWER...............................................2
6.23 FOREIGN EMPLOYEE BENEFIT MATTERS.........................................................................2
ARTICLE VII : COVENANTS..........................................................................................2
7.1 REPORTING................................................................................................2
7.2 AFFIRMATIVE COVENANTS....................................................................................2
7.3 NEGATIVE COVENANTS.......................................................................................2
7.4 FINANCIAL COVENANTS......................................................................................2
ARTICLE VIII: DEFAULTS...........................................................................................2
8.1 DEFAULTS.................................................................................................2
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES...................................2
9.1 TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION..................................................2
9.2 AMENDMENTS...............................................................................................2
9.3 PRESERVATION OF RIGHTS...................................................................................2
ARTICLE X: GUARANTY..............................................................................................2
10.1 GUARANTY.................................................................................................2
10.2 WAIVERS..................................................................................................2
10.3 GUARANTY ABSOLUTE........................................................................................2
10.4 ACCELERATION.............................................................................................2
10.5 MARSHALING; REINSTATEMENT................................................................................2
10.6 SUBROGATION..............................................................................................2
10.7 TERMINATION DATE.........................................................................................2
ARTICLE XI: GENERAL PROVISIONS...................................................................................2
11.1 SURVIVAL OF REPRESENTATIONS..............................................................................2
11.2 GOVERNMENTAL REGULATION..................................................................................2
11.3 HEADINGS.................................................................................................2
11.4 ENTIRE AGREEMENT.........................................................................................2
11.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT..........................................................2
11.6 EXPENSES; INDEMNIFICATION................................................................................2
11.7 NUMBERS OF DOCUMENTS.....................................................................................2
11.8 ACCOUNTING...............................................................................................2
11.9 SEVERABILITY OF PROVISIONS...............................................................................2
11.10 NONLIABILITY OF LENDERS..................................................................................2
11.11 GOVERNING LAW............................................................................................2
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL..................................................2
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11.13 OTHER TRANSACTIONS.......................................................................................2
ARTICLE XII: THE ADMINISTRATIVE AGENT............................................................................2
12.1 APPOINTMENT; NATURE OF RELATIONSHIP......................................................................2
12.2 POWERS...................................................................................................2
12.3 GENERAL IMMUNITY.........................................................................................2
12.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC.............................................2
12.5 ACTION ON INSTRUCTIONS OF LENDERS........................................................................2
12.6 EMPLOYMENT OF AGENTS AND COUNSEL.........................................................................2
12.7 RELIANCE ON DOCUMENTS; COUNSEL...........................................................................2
12.8 THE ADMINISTRATIVE AGENT'S, ISSUING BANKS', SWING LINE BANKS' AND ALTERNATE CURRENCY BANKS' REIMBURSEMENT
AND INDEMNIFICATION............................................................................................2
12.9 RIGHTS AS A LENDER.......................................................................................2
12.10 LENDER CREDIT DECISION...................................................................................2
12.11 SUCCESSOR ADMINISTRATIVE AGENT...........................................................................2
12.12 NO DUTIES IMPOSED UPON SYNDICATION AGENT, DOCUMENTATION AGENT OR LEAD ARRANGERS..........................2
12.13 COLLATERAL AGENT.........................................................................................2
ARTICLE XIII: SETOFF; RATABLE PAYMENTS...........................................................................2
13.1 SETOFF...................................................................................................2
13.2 RATABLE PAYMENTS.........................................................................................2
13.3 APPLICATION OF PAYMENTS..................................................................................2
13.4 RELATIONS AMONG LENDERS..................................................................................2
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................2
14.1 SUCCESSORS AND ASSIGNS...................................................................................2
14.2 PARTICIPATIONS...........................................................................................2
14.3 ASSIGNMENTS..............................................................................................2
14.4 CONFIDENTIALITY..........................................................................................2
14.5 DISSEMINATION OF INFORMATION.............................................................................2
ARTICLE XV: NOTICES..............................................................................................2
15.1 GIVING NOTICE............................................................................................2
15.2 CHANGE OF ADDRESS........................................................................................2
15.3 AUTHORITY OF COMPANY.....................................................................................2
ARTICLE XVI: COUNTERPARTS........................................................................................2
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EXHIBITS AND SCHEDULES
EXHIBITS
--------
EXHIBIT A -- Loan Commitments
(Definitions)
EXHIBIT B -- Form of Borrowing/Conversion/Continuation
Notice (Section 2.3 and Section 2.8 and
Section 2.10)
EXHIBIT C -- [Reserved]
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 14.3)
EXHIBIT E -- Form of Officer's Certificate
(Section 7.1(A)(iii))
EXHIBIT F -- Form of Compliance Certificate
(Section 7.1(A)(iii))
EXHIBIT G-1 -- Form of Guaranty
(Definitions)
EXHIBIT G-2 -- Form of Subordination Agreement
(Definitions)
EXHIBIT H -- Form of Revolving Loan Note (If Requested)
EXHIBIT I -- Form of Assumption Letter
SCHEDULES
---------
Schedule 1.1.1 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness
(Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 7.2 -- Subsidiaries Subject to Stock Pledge
(Section 7.2(N))
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364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT dated as of October 20, 1999 is entered
into by and among, XXXXXX WORLDWIDE, INC., a Delaware corporation (the
"COMPANY"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "SUBSIDIARY
BORROWERS"), the institutions from time to time parties hereto as Lenders,
whether by execution of this Agreement or an Assignment Agreement pursuant to
SECTION 14.3, ABN AMRO BANK N.V. in its capacity as administrative agent (the
"ADMINISTRATIVE Agent") for itself and the other Lenders, SUNTRUST BANK,
ATLANTA, as Syndication Agent (the "SYNDICATION AGENT") and WACHOVIA BANK N.A.,
as Documentation Agent (the "DOCUMENTATION AGENT"). The parties hereto agree as
follows:
ARTICLE I: DEFINITIONS
1.1 CERTAIN DEFINED TERMS. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ABN" means ABN AMRO Bank N.V., in its individual capacity, and its
successors.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADMINISTRATIVE AGENT" means ABN in its capacity as administrative
agent for itself and the Lenders pursuant to ARTICLE XII hereof and any
successor Administrative Agent appointed pursuant to ARTICLE XII hereof.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain fee letter between
the Company and the Administrative Agent, dated as of October 7, 1999.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type and, in the case of Eurocurrency Rate Advances, for
the same Interest Period.
"AFFECTED LENDER" is defined in SECTION 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control
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another Person if the controlling Person is the "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934) of greater than five
percent (5%) or more of any class of voting securities (or other voting
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of Capital Stock, by contract or
otherwise.
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Documentation Agent.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be adjusted from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Two Hundred Million and 00/100 Dollars ($200,000,000.00).
"AGREEMENT" means this 364-Day Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company included in the Form 10 and referred to in SECTION 6.4
hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b) one
half percent (.50%) per annum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under SECTION 2.15(C)(i) hereof determined in accordance with the
provisions of SECTION 2.15(D)(ii) hereof.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of SECTION 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of SECTION 2.15(D)(ii) hereof.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction) to any Person other than the
Company or any of its wholly-owned Subsidiaries other than (i) the sale,
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rental or lease of Inventory in the ordinary course of business (including sales
of leased Inventory and rental Inventory), (ii) the sale or other disposition of
any obsolete, excess, damaged or worn-out Equipment disposed of in the ordinary
course of business, (iii) the sale or liquidation of Cash Equivalents and (iv)
the sale-leaseback of Equipment used in the facilities management business of
the Company and its Subsidiaries, to the extent such Equipment has an aggregate
net depreciated book value of no more than $25,000,000 at any one time.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to SECTION 14.3 hereof in
substantially the form of EXHIBIT D.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of EXHIBIT I hereto pursuant
to which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be
bound by the terms and conditions hereof.
"AUTHORIZED OFFICER" means any of the Chairman of the Board, the
President, the Treasurer, any Vice President or the Chief Financial Officer of
the Company, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
covered by Title IV of ERISA and in respect of which the Company or any other
member of the Controlled Group is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"BORROWERS" shall mean, collectively, the Company and the Subsidiary Borrowers.
"BORROWING DATE" means a date on which a Loan is made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate, a day (other than
a Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York, and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
"CAPITAL EXPENDITURES" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (i) the cost of assets acquired with Capitalized Lease Obligations,
(ii) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss and (iii) leasehold improvement expenditures for which the
Borrower or a Subsidiary is reimbursed promptly by the lessor.
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"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) 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;
PROVIDED, HOWEVER, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by Xxxxx'x
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (iii) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at
least Baa by Xxxxx'x Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (y) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Xxxxx'x Investors Services, Inc. (all such institutions
being, "QUALIFIED INSTITUTIONS"); and (iv) commercial paper of Qualified
Institutions; PROVIDED that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof.
"CHANGE" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act of 1934), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act of 1934, provided that a person shall be
deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of twenty-five percent (25%) or more
of the combined
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voting power of the Company's outstanding Capital Stock
ordinarily having the right to vote at an election of
directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or
substantially all of its property to any Person, or any
corporation consolidates with or merges into the Company, in
either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or
changed into or exchanged for cash, securities or other
property.
"CLOSING DATE" means the date upon which the applicable conditions
precedent set forth in Article V have been satisfied and the initial Loans
hereunder made, which shall be on or after November 4, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL AGENT" means ABN in its capacity as collateral agent for
the Lenders and the "Lenders" under the 364-Day Agreement.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMPANY" means Xxxxxx Worldwide, Inc., a Delaware corporation,
together with its successors and assigns, including a debtor-in-possession on
behalf of the Company.
"CONSOLIDATED NET ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill and other
intangible assets under Agreement Accounting Principles.
"CONSOLIDATED NET SALES" means all product and supply sales and
rentals, facilities management revenues and service income (net of returns and
allowances and excluding financial income) shown on a consolidated income
statement of the Company and its Subsidiaries, prepared in accordance with
Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, in each case as determined in
accordance with Agreement Accounting Principles; excluding the effects, whether
positive or negative, of foreign exchange translation adjustments after the
Closing Date.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
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"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the portion of the obligation so
guaranteed or otherwise supported, in the case of known recurring obligations,
and the maximum reasonably anticipated liability in respect of the portion of
the obligation so guaranteed or otherwise supported assuming such Person is
required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date or, with respect to
the Company, was identified in the Form 10 as a Person who would become a member
of such board of directors in connection with the Spin-off, or (b) was nominated
for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, in each case ((i), (ii) or (iii))
giving effect to the consummation of the transactions contemplated by the Loan
Documents and the Spin-off Materials.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and
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diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(ii) Statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or which thereafter can be paid without penalty or which are being
contested in good faith by appropriate proceedings properly instituted
and diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits;
PROVIDED that all such Liens do not in the aggregate materially detract
from the value of the Company's or its Subsidiaries' assets or property
taken as a whole or materially impair the use thereof in the operation
of their businesses taken as a whole;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(v) Any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business; and
(vi) Liens securing the performance of bids, tenders,
contracts, surety and appeal bonds, incurred in the ordinary course of
business, not to exceed at any time $10,000,000 in the aggregate.
"DEFAULT" means an event described in ARTICLE VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is ninety-one (91) days after the Revolving Loan Termination Date.
"DIVIDEND" means the cash dividend of approximately $550,000,000 to be
paid by the Company to Xxxxxx in connection with the Spin-off.
"DOCUMENTATION AGENT" means Wachovia Bank N.A., in its capacity as
documentation agent for the loan transaction evidenced by this Agreement,
together with its successors and assigns.
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13
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOMESTIC SUBSIDIARY" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America (excluding
the Commonwealth of Puerto Rico).
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, PLUS (ii) Interest Expense to the extent
deducted in computing Net Income, PLUS (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
PLUS (iv) depreciation expense to the extent deducted in computing Net Income,
PLUS (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, PLUS (vi) other extraordinary non-cash charges to the extent deducted in
computing Net Income, MINUS (vii) other extraordinary non-cash credits to the
extent added in computing Net Income, PLUS (viii) nonrecurring after-tax losses
(or MINUS nonrecurring after-tax gains); PROVIDED that, with respect to fiscal
quarters ending on or before December 31, 1999, EBITDA shall be adjusted (x) to
add back all professional fees and expenses incurred by the Company in
connection with the Spin-off and this Agreement (not to exceed $15,000,000), to
the extent deducted in computing Net Income; (y) to add back the special charges
incurred by the Company for the fiscal quarter ended July 2, 1999, totaling
$18,700,000, and deducted in computing Net Income; and (z) to add back any
management fee charged by Xxxxxx to the Company, to the extent deducted in
computing Net Income, and to subtract the sum of $1,750,000 for each such fiscal
quarter (pro rated for the fiscal year ending December 31, 1999), representing
the PRO FORMA legal, audit and other similar expenses that the Company is
expected to incur after the Spin-off, all on the basis set forth in the PRO
FORMA adjustments described in Note (A) of the Unaudited Pro Forma Consolidated
Income Statement of the Company for the Fiscal Year ended July 2, 1999 set forth
in the Form 10.
"EBITDAR" means, for any period, on a consolidated basis for the
Company and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) EBITDA, PLUS Rentals to the extent deducted in computing Net
Income.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 ET SEQ., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 ET SEQ., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 ET SEQ., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from,
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or costs incurred by such Governmental Authority in response to, a Release or
threatened Release of a Contaminant into the environment.
"EQUIPMENT" means all of the Company's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan or for any specified Interest Period, either (i) the rate of interest per
annum equal to the rate for deposits in Dollars in the approximate amount of the
Pro Rata Share of the Administrative Agent of such Eurocurrency Rate Advance
with a maturity approximately equal to such Interest Period which appears on
Telerate Page 3750 or, if there is more than one such rate, the average of such
rates rounded to the nearest 1/100 of 1%, as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period or (ii) if no such
rate of interest appears on Telerate Page 3740 or Telerate Page 3750, as
applicable, for any specified Interest Period, the rate at which deposits in
Dollars are offered by the Administrative Agent to first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, in the approximate
amount of the Pro Rata Share of the Administrative Agent of such Eurocurrency
Rate Loan, and having a maturity approximately equal to such Interest Period.
The term "Telerate Page 3750" means the display designated as "Page 3750" on the
Associated Press-Dow Xxxxx Telerate Service (or such other page as may replace
Page 3750, as applicable, on the Associated Press-Dow Xxxxx Telerate Service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest rate settlement rates). Any Eurocurrency Base Rate
determined on the basis of the rate displayed on Telerate Page 3750 in
accordance with the foregoing provisions of this subparagraph shall be subject
to corrections, if any, made in such rate and displayed by the Associated
Press-Dow Xxxxx Telerate Service within one hour of the time when such rate is
first displayed by such service.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period PLUS the then Applicable Eurocurrency Margin, changing as and
when the Applicable Eurocurrency Margin changes.
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"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at
the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made by a Lender pursuant to
SECTION 2.1, which bears interest at the Eurocurrency Rate.
"FACILITY TERMINATION DATE" shall mean the date on which all of the
Termination Conditions have been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and that certain fee letter, dated as of October 7, 1999, by and among the
Company, the Lead Arrangers and the Agents and the related letter dated October
20, 1999 from the Administrative Agent to the Company.
"FIXED-RATE ADVANCE" means an Advance which bears interest at the
Eurocurrency Rate.
"5-YEAR CREDIT AGREEMENT" means that certain 5-Year Credit Agreement,
dated as of October 20, 1999 among the Company, the subsidiary borrowers from
time to time parties thereto, the Agents and the financial institutions from
time to time parties thereto as lenders, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"FIXED-RATE LOANS" means, collectively, the Eurocurrency Rate Loans.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes, PLUS the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
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"FOREIGN SUBSIDIARY" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to Section
4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"FORM 10" means the Form 10/A (Amendment No. 3) Registration Statement
filed by the Company with the Commission on October 20, 1999 regarding the
Spin-off.
"GOVERNMENTAL ACTS" is defined in SECTION 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GUARANTEED OBLIGATIONS" is defined in SECTION 10.1 hereof.
"GUARANTOR" means each Subsidiary of the Company that from time to time
is party to a Guaranty.
"GUARANTY" means each of (i) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Subsidiary and each other Domestic Subsidiary of the Company as
required pursuant to SECTION 7.2(K) in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, in substantially the form of
EXHIBIT G-1 attached hereto, and (ii) the guaranty by the Company of all of the
Obligations of the Subsidiary Borrowers pursuant to this Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
"XXXXXX" means Xxxxxx Corporation, a Delaware corporation, and its
successors and assigns.
"HEDGING AGREEMENTS" is defined in SECTION 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate
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options, puts and warrants, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any of the foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time
to time and shall include (i) each Lender in respect of its Loans, (ii) the
Agents and the Lenders in respect of all other present and future obligations
and liabilities of the Company or any of its Subsidiaries of every type and
description arising under or in connection with this Agreement or any other Loan
Document, (iii) each Indemnitee in respect of the obligations and liabilities of
the Company or any of its Subsidiaries to such Person hereunder or under the
other Loan Documents, and (iv) their respective successors, transferees and
assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights, "phantom"
stock plans, employment agreements, non-competition agreements, subscription and
stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or
employees of the Company and its Subsidiaries.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
similar instruments, (v) Capitalized Lease Obligations, (vi) Hedging
Obligations, (vii) Contingent Obligations, (viii) actual and contingent
reimbursement obligations in respect of letters of credit, (ix) outstanding
principal balances (representing securitized but unliquidated assets) under
asset securitization agreements (including, without limitation, the outstanding
principal balance of Receivables under Receivables transactions) and (x) the
implied debt component of synthetic leases of which such Person is lessee or any
other off-balance sheet financing arrangements (including, without limitation,
any such arrangements giving rise to any Off-Balance Sheet Liabilities).
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit), all as determined in conformity with
Agreement Accounting Principles.
"INTEREST PERIOD" means, with respect to a Eurocurrency Rate Loan, a
period of one (1), two (2), three (3) or six (6) months, commencing on a
Business Day selected by the applicable Borrower on which a Eurocurrency Rate
Advance is made to such Borrower pursuant to this Agreement. Such Interest
Period above shall end on (but exclude) the day which corresponds numerically to
such date one, two, three or six months thereafter; PROVIDED, HOWEVER, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, PROVIDED, HOWEVER, that if said
next succeeding Business Day
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falls in a new calendar month, such Interest Period shall end on the immediately
preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale, rental or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of the Company or any of its Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"LEAD ARRANGERS" means each of ABN, as Lead Arranger, SunTrust
Equitable Securities Corporation, as Lead Arranger, and Wachovia Securities,
Inc., as Co-Lead Arranger, in their respective capacities as arrangers for the
loan transaction evidenced by this Agreement.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
(a) Total Indebtedness on such date of determination to (b) EBITDA for the
period of four fiscal quarters ending on the fiscal quarter end occurring on
such date of determination.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, (i) in the case of any Lender, such Lender's portion
of any Advance made pursuant to SECTION 2.1 hereof, and (ii) collectively, all
Revolving Loans.
"LOAN ACCOUNT" is defined in SECTION 2.13(A) hereof.
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"LOAN DOCUMENTS" means this Agreement, each Assumption Letter executed
hereunder, the Pledge Agreement, the Guaranty, the Subordination Agreement, the
Fee Letters and all other documents, instruments, notes and agreements executed
in connection therewith or contemplated thereby (other than the 5-Year Credit
Agreement and the documents related thereto), as the same may be amended,
restated or otherwise modified and in effect from time to time.
"LOAN PARTIES" means each of the Company, each Subsidiary Borrower and
each of the Guarantors.
"MANAGING AGENTS" means those Lenders identified as "Managing Agents"
on the signature pages hereto.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or the Company and its Subsidiaries,
taken as a whole, (b) the ability of the Company or any of its Subsidiaries to
perform their respective obligations under the Loan Documents, or (c) the
ability of the Lenders or the Agents to enforce the Obligations.
"MATERIAL SUBSIDIARY" means each Subsidiary Borrower and each other
Subsidiary having assets in excess of $10,000,000 or annual sales (determined as
of the most recently ended fiscal quarter) in excess of $20,000,000.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NOTICE OF ASSIGNMENT" is defined in SECTION 14.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrowers or any of their
Subsidiaries to the Administrative Agent, any Lender, any Arranger, any
Affiliate of the Administrative Agent or any Lender, or any Indemnitee, of any
kind or nature, present or future, arising under this Agreement, or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements,
reasonable paralegals' fees (in each case whether or not allowed), and any other
sum chargeable to the Company or any of its Subsidiaries under this Agreement or
any other Loan Document.
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"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (b) any liability
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (d) any
obligations of such Person or any of its Subsidiaries arising with respect to
any other transaction which is the functional equivalent of or takes the place
of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in SECTION 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in SECTION 14.2(A) hereof.
"PAYMENT DATE" means the last day of each March, June, September and
December, the Termination Date (or such earlier date on which the Aggregate
Commitment shall terminate or be cancelled), and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on SCHEDULE
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on SCHEDULE 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on SCHEDULE 1.1.3 to this Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Company, its Subsidiaries
or the Lenders than those applicable to the Indebtedness being replaced,
renewed, refinanced or extended; PROVIDED, that Indebtedness being refinanced at
maturity may be subject to then current market rates of interest, provisions and
fees.
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"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" means one or more pledge agreements, each in form
and substance reasonably satisfactory to the Administrative Agent executed and
delivered by the Company and/or certain of its Subsidiaries pursuant to SECTION
7.2(N) hereof, as the same may be amended, supplemented or otherwise modified
from time to time.
"PRIME RATE" means the "prime rate" of interest announced by LaSalle
Bank National Association from time to time at its Chicago office, changing when
and as said prime rate changes.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Revolving Loan Commitment at such time
(as adjusted from time to time in accordance with the provisions of this
Agreement) by (y) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
PROVIDED, HOWEVER, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) such Lender's Revolving Loans, by (y) the
aggregate outstanding amount of all Revolving Loans.
"PURCHASERS" is defined in SECTION 14.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate or the Floating Rate, as
applicable.
"RECEIVABLE(S)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, notes receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing, including,
without limitation, any right of stoppage in transit.
"REGISTER" is defined in SECTION 14.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
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"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property.
"REPLACEMENT LENDER" is defined in SECTION 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, PROVIDED, HOWEVER, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are at least fifty-one percent (51%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act of 1990, and any environmental, labor, employment, occupational
safety or health law, rule or regulation, including Environmental, Health or
Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit
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or other assets which includes loans by a non-United States office of any Lender
to United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in the Company's Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock, (ii) any redemption,
retirement, purchase or other acquisition for value, direct or indirect, of any
Equity Interests of the Company or any of its Subsidiaries now or hereafter
outstanding, other than in exchange for other Equity Interests of the Company
(other than Disqualified Stock), (iii) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness subordinated to the Obligations, and (iv) any payment of a
claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of, any Indebtedness (other than the
Obligations) or any Equity Interests of the Company, or any of its Subsidiaries,
or of a claim for reimbursement, indemnification or contribution arising out of
or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Aggregate Revolving Loan Commitment at such time exceeds the
Revolving Credit Obligations outstanding at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the
outstanding principal amount of the Revolving Loans at such time.
"REVOLVING LOAN" is defined in SECTION 2.1 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans not exceeding the amount set forth on
EXHIBIT A to this Agreement opposite its name thereon under the heading
"Revolving Loan Commitment" or the signature page of the assignment and
acceptance by which it became a Lender as such amount may be modified from time
to time pursuant to the terms of this Agreement or to give effect to any
applicable assignment and acceptance.
"REVOLVING LOAN TERMINATION DATE" means October 18, 2000.
"SALE AND LEASEBACK TRANSACTION" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SINGLE EMPLOYER PLAN" means a Benefit Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
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"SOLVENT" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SPIN-OFF" means the distribution of approximately ninety percent (90%)
of the Capital Stock of the Company by Xxxxxx to Xxxxxx'x stockholders.
"SPIN-OFF MATERIALS" means the Form 10, the Distribution Agreement
referred to therein, the Tax Disaffiliation Agreement referred to therein and
the Transition Services Agreement referred to therein, the Registration Rights
Agreement referred to therein and the Employee Benefits and Compensation
Allocation Agreement referred to therein.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Subsidiary of the Company listed on SCHEDULE 6.8 and each other Subsidiary of
the Company as required pursuant to SECTION 7.2(K) in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
in substantially the form of EXHIBIT G-2 attached hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, limited liability company,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" mean a Subsidiary of the Company.
"SUBSIDIARY BORROWER" means each of the Company's Subsidiaries listed
on the signature pages hereto and any other Subsidiaries of the Company duly
designated by the Company pursuant to SECTION 2.24 to request Advances
hereunder, which Subsidiary shall have delivered to the Administrative Agent an
Assumption Letter in accordance with SECTION 2.24 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns, including a debtor-in-possession on behalf of
such Subsidiary Borrower.
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"SYNDICATION AGENT" means SunTrust Bank, Atlanta, in its capacity as
syndication agent for the loan transaction evidenced by this Agreement, together
with its successors and assigns.
"TAXES" is defined in SECTION 2.15(E)(i) hereof.
"TERMINATION CONDITIONS" is defined in SECTION 2.19.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to SECTION 2.6 hereof or the Revolving Loan
Commitments pursuant to SECTION 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA which are reasonably likely to lead to the termination of,
or the appointment of a trustee to administer, any Benefit Plan; (vi) that a
foreign governmental authority shall appoint or institute proceedings to appoint
a trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (vii) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"TOTAL INDEBTEDNESS" means, without duplication, (a) all Indebtedness
of the Company and its Subsidiaries, on a consolidated basis, required to be
reflected on a balance sheet prepared in accordance with Agreement Accounting
Principles, PLUS, without duplication, (b) (i) the face amount of all
outstanding letters of credit in respect of which the Company or any Subsidiary
has any actual or contingent reimbursement obligation, PLUS (ii) the principal
amount of all Indebtedness of any Person in respect of which the Company or any
Subsidiary has a Contingent Obligation, PLUS (iii) outstanding principal
balances (representing securitized but unliquidated assets) under asset
securitization agreements (including, without limitation, the outstanding
principal balance of Receivables under Receivables transactions), PLUS (iv) the
implied debt component of synthetic leases of which the Company or any
Subsidiary is lessee or any other off-balance sheet financing arrangements
(including, without limitation, any such arrangements giving rise to any
Off-Balance Sheet Liabilities).
"TRANSFEREE" is defined in SECTION 14.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
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"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date for which actuarial valuations have been
completed and certified to the Company, all as determined under FAS 87 using the
methods and assumptions used by the Company for financial accounting purposes,
and (ii) in the case of Multiemployer Plans, the withdrawal liability that would
be incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless the context otherwise requires, "Wholly-Owned
Subsidiary" means a wholly-owned subsidiary of the Company.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data, including
dates, prior to, on and after January 1, 2000, as it affects the business,
operations, and financial condition of such Person and such Person's material
customers, suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 REFERENCES. Any references to Subsidiaries of the Company set forth
herein shall not in any way be construed as consent by the Administrative Agent
or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
ARTICLE II: LOAN FACILITIES
2.1 REVOLVING LOANS.
(A) Upon the satisfaction of the conditions precedent set forth in
SECTIONS 5.1, 5.2 and 5.3, as applicable, from and including the Closing Date
and prior to the Revolving Loan Termination
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Date, each Lender severally and not jointly agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans to the Borrowers from time
to time, in Dollars, in an amount not to exceed such Lender's Pro Rata Share of
Revolving Credit Availability at such time (each individually, a "REVOLVING
LOAN" and, collectively, the "REVOLVING LOANS"); PROVIDED, HOWEVER, that at no
time shall the amount of the Revolving Credit Obligations exceed the Aggregate
Revolving Loan Commitment. Subject to the terms of this Agreement, the Borrowers
may borrow, repay and reborrow Revolving Loans at any time prior to the
Revolving Termination Date. Revolving Loans made after the third (3rd) Business
Day after the Closing Date shall be, at the option of the applicable Borrower,
selected in accordance with SECTION 2.10, and shall be either Floating Rate
Loans or Eurocurrency Rate Loans. On the Revolving Loan Termination Date, the
applicable Borrower shall repay in full the outstanding principal balance of the
Revolving Loans. Each Advance under this SECTION 2.1 shall consist of Revolving
Loans made by each Lender ratably in proportion to such Lender's respective Pro
Rata Share.
(B) MAKING OF REVOLVING LOANS. Promptly after receipt of the Borrowing/
Conversion/Continuation Notice under SECTION 2.8 in respect of Revolving Loans,
the Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission, of the requested Revolving Loan. Each Lender shall
make available its Revolving Loan in accordance with the terms of SECTION 2.7.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall disburse
such proceeds in accordance with the applicable Borrower's disbursement
instructions set forth in such Borrowing/Conversion/Continuation Notice. The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the applicable Borrowing Date shall not relieve any
other Lender of its obligations hereunder to make its Revolving Loan on such
Borrowing Date.
2.2 (RESERVED).
2.3 (RESERVED).
2.4 RATE OPTIONS FOR ALL ADVANCES; MAXIMUM INTEREST PERIODS. The
Revolving Loans may be Floating Rate Advances or Eurocurrency Rate Advances, or
a combination thereof, selected by the Company or the applicable Borrower in
accordance with SECTION 2.10; provided that until syndication of the Aggregate
Commitment and the commitments under the 5-Year Credit Facility has been
completed to the satisfaction of the Administrative Agent, the Revolving Loans
shall be Floating Rate Advances. The Company or the applicable Borrower may
select, in accordance with SECTION 2.10, Rate Options and Interest Periods
applicable to portions of the Revolving Loans; provided that there shall be no
more than ten (10) Interest Periods in effect with respect to all of the Loans
at any time.
2.5 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
(A) OPTIONAL PAYMENTS. The Company may from time to time and at any
time upon at least one (1) Business Day's prior written notice repay or prepay
without penalty or premium all or any part of outstanding Floating Rate Advances
in an aggregate minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurocurrency Rate Advances may be voluntarily
repaid or prepaid prior to the last day of the applicable Interest Period,
subject to the
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indemnification provisions contained in SECTION 4.4, PROVIDED that the
applicable Borrower may not so prepay Eurocurrency Rate Advances unless it shall
have provided at least four (4) Business Days' prior written notice to the
Administrative Agent of such prepayment.
(B) MANDATORY PREPAYMENTS OF REVOLVING LOANS. (i) If at any time and for any
reason the amount of the Revolving Credit Obligations is greater than the
Aggregate Revolving Loan Commitment, the Company shall immediately make or cause
to be made a mandatory prepayment of the Revolving Credit Obligations in an
amount equal to such excess.
(ii) [RESERVED]
(iii) The Company shall make all mandatory prepayments required under
SECTION 2.6.
(iv) All of the mandatory prepayments made under this SECTION 2.5(B)
shall be applied first to Floating Rate Loans and to any Eurocurrency Rate Loans
maturing on such date and then to subsequently maturing Eurocurrency Rate Loans
in order of maturity.
2.6 REDUCTIONS IN COMMITMENTS. The Company may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $10,000,000 and in integral multiples
of $5,000,000 in excess of that amount (unless the Aggregate Revolving Loan
Commitment is reduced in whole), provided, however, that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations. All accrued
commitment fees shall be payable on the effective date of any termination of all
or any part the obligations of the Lenders to make Loans hereunder.
2.7 METHOD OF BORROWING. Not later than 1:00 p.m. (New York time) on
each Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds to the Administrative Agent at its address specified
on its signature page hereto or as otherwise specified pursuant to ARTICLE XV.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the applicable Borrower at the Administrative Agent's
aforesaid address.
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period applicable to each Advance from
time to time. The applicable Borrower shall give the Administrative Agent
irrevocable notice in substantially the form of EXHIBIT B hereto (a
"BORROWING/CONVERSION/CONTINUATION NOTICE") not later than 10:00 a.m. (New York
time) (a) on the Borrowing Date of each Floating Rate Advance, and (b) three (3)
Business Days before the Borrowing Date for each Eurocurrency Rate Advance,
specifying: (i) the Borrowing Date (which shall be a Business Day) of such
Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurocurrency Rate Loan, the Interest
Period applicable thereto. Each Floating Rate Advance and all Obligations other
than Loans shall bear interest from and including the date of the making of such
Advance, in the case of Loans, and the date such Obligation is due and owing in
the case of such other Obligations, to (but not including) the date of repayment
thereof at the Floating Rate, changing when and as such Floating Rate changes.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Loan will take effect simultaneously with each change in the
Alternate Base Rate. Each
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Eurocurrency Rate Advance shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance and shall change as and when the Applicable
Eurocurrency Margin changes.
2.9 MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in the
minimum amount of $20,000,000 and in multiples of $1,000,000 if in excess
thereof, provided, however, that any Floating Rate Advance may be in the amount
of the unused Aggregate Revolving Loan Commitment.
2.10 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES.
(A) RIGHT TO CONVERT. The applicable Borrower may elect from time to
time, subject to the provisions of SECTION 2.4 and this SECTION 2.10, to convert
all or any part of a Loan of any Type into any other Type or Types of Loans;
PROVIDED that any conversion of any Eurocurrency Rate Advance shall be made on,
and only on, the last day of the Interest Period applicable thereto.
(B) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue
as Eurocurrency Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans shall be automatically
converted into Floating Rate Loans unless the Company shall have given the
Administrative Agent notice in accordance with SECTION 2.10(D) requesting that,
at the end of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan.
(C) NO CONVERSION POST-DEFAULT OR POST-UNMATURED DEFAULT.
Notwithstanding anything to the contrary contained in SECTION 2.10(A) or SECTION
2.10(B), no Loan may be converted into or continued as a Eurocurrency Rate Loan
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(D) BORROWING/CONVERSION/CONTINUATION NOTICE. The Company shall give
the Administrative Agent a Borrowing/Conversion/Continuation Notice with respect
to each conversion of a Floating Rate Loan into a Eurocurrency Rate Loan or
continuation of a Eurocurrency Rate Loan not later than 10:00 a.m. (New York
time) three (3) Business Days prior to the date of the requested conversion or
continuation, with respect to any Loan to be converted or continued as a
Eurocurrency Rate Loan, specifying: (1) the requested date (which shall be a
Business Day) of such conversion or continuation; (2) the amount and Type of the
Loan to be converted or continued; and (3) the amount of Eurocurrency Rate
Loan(s) into which such Loan is to be converted or continued and the duration of
the Interest Period applicable thereto.
2.11 DEFAULT RATE. After the occurrence and during the continuance of a
Default, each outstanding Loan shall bear interest at a rate equal to the rate
otherwise applicable thereto (giving effect to the provisions of SECTION
2.15(D)(ii)) plus 2% per annum.
2.12 METHOD OF PAYMENT. All payments of principal, interest, fees and
commissions hereunder shall be made, without setoff, deduction or counterclaim
(unless indicated otherwise in SECTION 2.15(E)), in immediately available funds
to the Administrative Agent at the Administrative
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Agent's address specified pursuant to ARTICLE XV with respect to Advances or
other Obligations denominated in Dollars, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Company, by 2:00 p.m. (New York time) on the date when due and shall be
applied ratably among the Lenders with respect to any principal and interest due
in connection with Loans. Each payment delivered to the Administrative Agent for
the account of any Lender shall be delivered promptly by the Administrative
Agent to such Lender in the same type of funds which the Administrative Agent
received at its address specified pursuant to ARTICLE XV or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. The Company authorizes the Administrative Agent to charge the
account of the Company maintained with ABN, after one (1) Business Day's prior
written notice to the Company, for each payment of principal, interest, fees and
commissions.
2.13 EVIDENCE OF DEBT.
(A) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
Borrowers to such Lender owing to such Lender hereunder from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(B) The Register maintained by the Administrative Agent pursuant to
SECTION 14.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrowers to each Lender
hereunder, (iii) the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto pursuant to SECTION
14.3, (iv) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(C) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to SUBSECTIONS (A) or (B) of this Section shall be
presumptively correct for all purposes, absent manifest error, unless the
applicable Borrower (or the Company on behalf of such Borrower) objects to
information contained in the Loan Accounts, the Register or the other accounts
within thirty (30) days of the applicable Borrower's receipt of such
information; PROVIDED that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrowers to repay the Obligations in accordance with the
terms of this Agreement.
(D) Any Lender may request that the Revolving Loans made by it each be
evidenced by a promissory note in substantially the form of EXHIBIT H, to
evidence such Lender's Revolving Loans, as applicable. In such event, the
applicable Borrower shall promptly prepare, execute and deliver to such Lender a
promissory note for such Loans payable to the order of such Lender and in a form
approved by the Administrative Agent and consistent with the terms of this
Agreement. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to SECTION 14.3)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein.
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2.14 TELEPHONIC NOTICES. The Borrowers authorize the Lenders and the
Administrative Agent to extend Loans and effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of the applicable Borrower. The Borrowers agree to deliver promptly to
the Administrative Agent a written confirmation, signed by an Authorized
Officer, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error. In case of disagreement concerning such notices, if the
Administrative Agent has recorded telephonic borrowing notices, such recordings
will be made available to the applicable Borrower upon the Company's request
therefor.
2.15 PROMISE TO PAY; INTEREST AND FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS.
(A) PROMISE TO PAY. All Loans shall be paid in full by the applicable
Borrowers on the earlier of (i) the Revolving Loan Termination Date and (ii) the
Facility Termination Date. Each Borrower unconditionally promises to pay when
due the principal amount of each Loan and all other Obligations incurred by it,
and to pay all unpaid interest accrued thereon, in accordance with the terms of
this Agreement and the other Loan Documents.
(B) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or otherwise). Interest
accrued on each Fixed-Rate Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Fixed-Rate Loan is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Fixed-Rate Loan having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest accrued on the principal balance of all other Obligations shall
be payable in arrears (i) on the last day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Fees.
(i) The Company shall pay to the Administrative Agent,
for the account of the Lenders in accordance with their Pro Rata
Shares, from and after the date of this Agreement until the Facility
Termination Date, a commitment fee accruing at the rate of the then
Applicable Commitment Fee Percentage on the unutilized portion of such
Lender's Revolving Loan Commitment. The commitment fee shall be payable
in arrears on each Payment Date hereafter, and, in addition, on any
date on which the Aggregate Revolving Loan Commitment shall be
terminated in whole or, with respect to such terminated amount, in
part.
(ii) The Company agrees to pay to the Administrative
Agent, for the sole account of the Administrative Agent, the Lead
Arrangers and the Agents (unless otherwise agreed
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between the Administrative Agent, the Lead Arrangers, the Agents and
any Lender) the fees set forth in the Fee Letters, payable at the times
and in the amounts set forth therein.
(D) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage.
(i) Interest on all Fixed-Rate Loans and fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
Interest on all Floating Rate Loans shall be calculated for actual days
elapsed on the basis of a 365-, or when appropriate 366-, day year.
Interest shall be payable for the day an Obligation is incurred but not
for the day of any payment on the amount paid if payment is received
prior to 3:00 p.m. (New York time) at the place of payment. If any
payment of principal of or interest on a Loan or any payment of any
other Obligations shall become due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall
be included in computing interest, fees and commissions in connection
with such payment.
(ii) The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall be
determined on the basis of the then applicable Leverage Ratio as
described in this SECTION 2.15(D)(ii), from time to time by reference
to the following table:
------------------------------------- ------------------- --------------------------------- --------------------------
APPLICABLE
FLOATING RATE APPLICABLE COMMITMENT
LEVERAGE RATIO MARGIN APPLICABLE EUROCURRENCY MARGIN FEE PERCENTAGE
------------------------------------- ------------------- --------------------------------- --------------------------
Less than 1.50 0.25% 1.25% 0.300%
------------------------------------- ------------------- --------------------------------- --------------------------
1.50 or greater, but less than 2.00 0.50% 1.50% 0.375%
------------------------------------- ------------------- --------------------------------- --------------------------
2.00 or greater, but less than 2.50 0.75% 1.75% 0.450%
------------------------------------- ------------------- --------------------------------- --------------------------
2.50 or greater, but less than 3.00 1.00% 2.00% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
3.00 or greater 1.25% 2.25% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
The Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be 1.00%, 2.00%
and 0.500%, respectively, until the Administrative Agent has received
the Company's financial statements for the fiscal quarter ending
September 30, 2000; PROVIDED that if the Leverage Ratio as reflected in
the most recently delivered financial statements, delivered pursuant to
SECTIONS 7.1(A)(i) and (ii), as applicable, is 3.00 or greater, the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Commitment Fee Percentage shall be 1.25%, 2.25% and 0.500%,
respectively. Thereafter, upon receipt of the financial statements to
be delivered by the Company in accordance with SECTION 7.1(A)(i) or
(ii), as applicable, for any fiscal quarter or, if earlier, upon
receipt of the Company's unaudited financial statements for any fiscal
year, the Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be adjusted, such
adjustment being effective
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five (5) Business Days following the Administrative Agent's receipt of
such financial statements and the compliance certificate required to be
delivered in connection therewith pursuant to SECTION 7.1(A)(iii);
PROVIDED, that if the Company shall not have timely delivered its
financial statements in accordance with SECTION 7.1(A)(i) or (ii), as
applicable, then commencing on the date upon which such financial
statements should have been delivered and continuing until such
financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage that the
Leverage Ratio was greater than 3.00 to 1.0. Notwithstanding the
foregoing, for so long as any Default shall have occurred and been
continuing, the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall be
the highest Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Margin set forth in the foregoing
table. At all times after the first anniversary of the Closing Date
until the "Term Loans" under the 5-Year Credit Agreement have been
repaid in full, each of the Applicable Floating Rate Margin and the
Applicable Eurocurrency Margin shall increase by 25 basis points.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether
in respect of principal, interest, fees or otherwise) shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any interest, penalties and liabilities with respect thereto including
those arising after the date hereof as a result of the adoption of or
any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but
excluding, in the case of each Lender and the Administrative Agent,
such taxes (including income taxes, franchise taxes and branch profit
taxes) as are imposed on or measured by such Lender's or the
Administrative Agent's, as the case may be, net income by the United
States of America or any Governmental Authority of the jurisdiction
under the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments or
the Loans being hereinafter referred to as "TAXES"). If any Borrower
shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under the other Loan Documents
to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions or withholdings (including deductions applicable to
additional sums payable under this SECTION 2.15(E)) such Lender or
Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii)
the applicable Borrower shall make such deductions or withholdings, and
(iii) the applicable Borrower shall pay the full amount deducted or
withheld to the relevant taxation authority or other authority in
accordance with applicable law. If a withholding tax of the United
States of America or any other Governmental Authority shall be or
become applicable (y) after the date of this Agreement, to such
payments by the applicable Borrower made to the Lending Installation or
any other office that a Lender may claim as its Lending Installation,
or (z) after such Lender's selection and
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designation of any other Lending Installation, to such payments made to
such other Lending Installation, such Lender shall use reasonable
efforts to make, fund and maintain the affected Loans through another
Lending Installation of such Lender in another jurisdiction so as to
reduce the applicable Borrower's liability hereunder, if the making,
funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender,
otherwise adversely affect such Loans, or obligations under the
Revolving Loan Commitments of such Lender.
(ii) In addition, the Borrowers agree to pay any present
or future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments or the Loans (hereinafter referred to as "OTHER TAXES").
(iii) The Company and each Subsidiary Borrower shall
indemnify each Lender and the Administrative Agent for the full amount
of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any Governmental Authority on amounts payable
under this SECTION 2.15(E)) 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. This indemnification shall be made within thirty (30) days
after the date such Lender or the Administrative Agent (as the case may
be) makes written demand therefor. If the Taxes or Other Taxes with
respect to which the Company or any Subsidiary Borrower has made either
a direct payment to the taxation or other authority or an
indemnification payment hereunder are subsequently refunded to any
Lender, such Lender will return to the applicable Borrower an amount
equal to the lesser of the indemnification payment or the refunded
amount. A certificate as to any additional amount payable to any Lender
or the Administrative Agent under this SECTION 2.15(E) submitted to the
applicable Borrower and the Administrative Agent (if a Lender is so
submitting) by such Lender or the Administrative Agent shall show in
reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to such
deduction or withholding for or on account of any Taxes and to confirm
that all such Taxes have been paid to the appropriate Governmental
Authorities, the applicable Borrower shall promptly (and in any event
not later than thirty (30) days after receipt) furnish to each Lender
and the Administrative Agent such certificates, receipts and other
documents as may be required (in the reasonable judgment of such Lender
or the Administrative Agent) to establish any tax credit to which such
Lender or the Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment
of Taxes or Other Taxes by the Company or any Subsidiary Borrower, the
Company shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof.
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(v) Without prejudice to the survival of any other
agreement of the Company and the Subsidiary Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this SECTION
2.15(E) shall survive the payment in full of all Obligations and the
termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"NON-U.S. LENDER") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to SECTION 12.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), either (1) (x) two (2) duly completed
copies of either (A) IRS Form W-8BEN (or, if delivered on or before
December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or, if
delivered on or before December 31, 1999, IRS Form 4224), or in either
case an applicable successor form, and (y) for periods prior to January
1, 2000, a duly completed copy of IRS Form W-8 or W-9 or applicable
successor form; or (2) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in CLAUSE (vi)(1)(x),
(x) a certificate of a duly authorized officer of such Non-U.S. Lender
to the effect that such Non-U.S. Lender is not (A) a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Company or any Subsidiary Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code (such certificate, an
"EXEMPTION CERTIFICATE") and (y) two (2) duly completed copies of IRS
Form W-8BEN or applicable successor form. Each such Lender further
agrees to deliver to the Company and the Administrative Agent from time
to time a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in a form satisfactory to the Company
and the Administrative Agent, before or promptly upon the occurrence of
any event requiring a change in the most recent certificate previously
delivered by it to the Company and the Administrative Agent pursuant to
this SECTION 2.15(E)(vi). Further, each Lender which delivers a form or
certificate pursuant to this CLAUSE (vi) covenants and agrees to
deliver to the Company and the Administrative Agent within fifteen (15)
days prior to the expiration of such form, for so long as this
Agreement is still in effect, another such certificate and/or two (2)
accurate and complete original newly-signed copies of the applicable
form (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this SECTION
2.15(E), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to SECTION 2.15(E)(i), or to indemnify any Lender
pursuant to SECTION 2.15(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
SECTION 2.15(E)(vi), (y) such form or forms and/or
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Exemption Certificate not establishing a complete exemption from U.S.
federal withholding tax or the information or certifications made
therein by the Lender being untrue or inaccurate on the date delivered
in any material respect, or (z) the Lender designating a successor
Lending Installation at which it maintains its Loans which has the
effect of causing such Lender to become obligated for tax payments in
excess of those in effect immediately prior to such designation;
PROVIDED, HOWEVER, that the applicable Borrower shall be obligated to
gross up any payments to any such Lender pursuant to SECTION
2.15(E)(i), and to indemnify any such Lender pursuant to SECTION
2.15(E)(iii) in respect of United States federal withholding taxes if
(x) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or the certifications made
in such form or forms or Exemption Certificate untrue or inaccurate in
any material respect, (y) the redesignation of the Lender's Lending
Installation was made at the request of the Company or (z) the
obligation to gross up payments to any such Lender pursuant to SECTION
2.15(E)(i), or to indemnify any such Lender pursuant to SECTION
2.15(E)(iii), is with respect to a Purchaser that becomes a Purchaser
as a result of an assignment made at the request of the Company.
2.16 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
AGGREGATE REVOLVING LOAN COMMITMENT REDUCTIONS. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice,
Borrowing/Conversion/Continuation Notice, and repayment notice received by it
hereunder. The Administrative Agent will notify the applicable Borrower and each
Lender of the interest rate applicable to each Fixed-Rate Loan promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17 LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation. Each Lender may, by written or facsimile notice to
the Administrative Agent and the Company, designate a Lending Installation
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.18 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of any Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount
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was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such day
or (ii) in the case of payment by a Borrower, the interest rate applicable to
the relevant Loan.
2.19 TERMINATION DATE. This Agreement shall be effective until the
Facility Termination Date. Notwithstanding the termination of this Agreement,
until (A) all of the Obligations (other than contingent indemnity obligations)
shall have been fully and indefeasibly paid and satisfied and (B) all
commitments of the Lenders to extend credit hereunder have expired or have been
terminated (collectively, the "TERMINATION CONDITIONS"), all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
2.20 REPLACEMENT OF CERTAIN LENDERS. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the applicable Borrower, which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured, (ii)
requested compensation from any Borrower under SECTIONS 2.15(E), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, or (iii) delivered
a notice pursuant to SECTION 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Company for reasons not generally applicable to
the other Lenders, then, in any such case, after the engagement of one or more
"Replacement Lenders" (as defined below) by the Company and/or the
Administrative Agent, the Company or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in the
case of a demand by the Company and a copy to the Company in the case of a
demand by the Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall use commercially reasonable efforts to assign pursuant to
one or more duly executed Assignment Agreements five (5) Business Days after the
date of such demand, to one or more financial institutions that comply with the
provisions of SECTION 14.3(A) which the Company or the Administrative Agent, as
the case may be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all
of such Affected Lender's rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, its Revolving Loan
Commitment and all Loans owing to it) in accordance with SECTION 14.3. The
Administrative Agent is authorized to execute one or more of such assignment
agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
With respect to such assignment the Affected Lender shall be entitled to
receive, in cash, all amounts due and owing to the Affected Lender hereunder or
under any other Loan Document, including, without limitation, the aggregate
outstanding principal amount of the Loans owed to such Lender, together with
accrued interest thereon through the date of such assignment, amounts payable
under SECTIONS 2.15(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under SECTION 2.15(C) in the event of any replacement of
any Affected Lender under CLAUSE (ii) or CLAUSE (iii) of this SECTION 2.20;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 11.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under SECTION 12.8.
2.21 (RESERVED).
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2.22 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from any Borrower hereunder in
the currency expressed to be payable herein (the "SPECIFIED CURRENCY") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's office in New York, New York on the Business Day preceding that on which
the final, non-appealable judgment is given. The obligations of each Borrower in
respect of any sum due to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under SECTION 13.2, such Lender or the Administrative Agent, as
the case may be, agrees to remit such excess to such Borrower.
2.23 (RESERVED).
2.24 SUBSIDIARY BORROWERS. The Company may at any time or from time to
time, with the consent of the Administrative Agent add as a party to this
Agreement any Wholly-Owned Subsidiary to be a "Subsidiary Borrower" hereunder by
the execution and delivery to the Administrative Agent and the Lenders of (a) a
duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company at the foot thereof and (b) such other guaranty and subordinated
intercompany indebtedness documents as may be reasonably required by the
Administrative Agent, such documents with respect to any additional Subsidiaries
to be substantially similar in form and substance to the Loan Documents executed
on or about the date hereof by the Subsidiaries parties hereto as of the Closing
Date. Upon such execution, delivery and consent such Subsidiary shall for all
purposes be a party hereto as a Subsidiary Borrower as fully as if it had
executed and delivered this Agreement. So long as the principal of and interest
on any Advances made to any Subsidiary Borrower under this Agreement shall have
been repaid or paid in full and all other obligations of such Subsidiary
Borrower under this Agreement shall have been fully performed, the Company may,
by not less than five (5) Business Days' prior notice to the Administrative
Agent (which shall promptly notify the Lenders thereof), terminate such
Subsidiary Borrower's status as a "Subsidiary Borrower".
ARTICLE III: (RESERVED)
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ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement or any
interpretation or application thereof by any Governmental Authority charged with
the interpretation or application thereof, or the compliance of any Lender
therewith,
(A) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any Borrower
(excluding taxation of the overall net income of any Lender or taxation of a
similar basis, which are governed by SECTION 2.15(E)), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan Commitment,
Loans or other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency Rate Loans)
with respect to its Revolving Loan Commitment, Loans, or
(C) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making, funding or
maintaining its Revolving Loan Commitment or Loans or reduces any amount
received by any Lender or any applicable Lending Installation in connection with
its Revolving Loan Commitment or Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the amount
of Revolving Loan Commitment or Loans or interest received by it, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment or Loans or to
reduce any amount received under this Agreement, then, within fifteen (15) days
after receipt by the Company or any other Borrower of written demand by such
Lender pursuant to SECTION 4.5, the applicable Borrowers shall pay such Lender
that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans and its Revolving Loan Commitment.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans, or its obligation to make
Loans hereunder, then, within fifteen (15) days after receipt by the Company or
any other Borrower of written demand by such Lender pursuant to SECTION 4.5, the
applicable Borrowers shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender reasonably determines is attributable to this Agreement, its
Revolving Loan Commitment, its Loans or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
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of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "RISK-BASED
CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3 AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type or maturity appropriate to match fund Fixed-Rate
Advances are not available or (y) the interest rate applicable to a Fixed-Rate
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(i), require any Advances of the affected Type to be repaid or converted into
another Type.
4.4 FUNDING INDEMNIFICATION. If any payment of a Fixed-Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Fixed-Rate
Advance is not made on the date specified by the applicable Borrower for any
reason other than default by the Lenders, the Borrowers shall indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed-Rate Advance.
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of any Borrower to such Lender
under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under SECTION 4.3, so long as such designation is not, in such Lender's
judgment, disadvantageous to such Lender. Any demand for compensation pursuant
to this ARTICLE IV shall be in writing and shall state the amount due, if any,
under SECTION 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Fixed-Rate Loan shall be
calculated as though each Lender funded its Fixed-Rate Loan through the purchase
of a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Fixed-Rate applicable to such Loan, whether in fact
that is the case or not. The obligations of the Company and the other Borrowers
under SECTIONS 4.1, 4.2 and 4.4 shall survive payment of the Obligations and
termination of this Agreement.
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ARTICLE V: CONDITIONS PRECEDENT
5.1 INITIAL ADVANCES. The Lenders shall not be required to make the
initial Loans unless (i) such initial Loans are made not later than November 15,
1999; and (ii) the Company has furnished to the Administrative Agent each of the
following, with sufficient copies for the Lenders, and the other conditions set
forth below have been satisfied:
(A) Copies of the Spin-off Materials and such other information with
respect to the Spin-off as the Lead Arrangers may reasonably request, which
shall be in form and substance satisfactory to the Administrative Agent, and
evidence satisfactory to the Administrative Agent that all conditions precedent
thereunder or otherwise to the consummation of the Spin-off (other than payment
of the Dividend) shall have been satisfied (and not waived).
(B) Arrangements satisfactory to the Administrative Agent shall have
been made for the consummation of the Spin-off promptly following the initial
Loans.
(C) Copies of the Certificate of Incorporation of each of the Loan
Parties, together with all amendments thereto and a certificate of good
standing, all certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(D) Copies, certified by the Secretary or Assistant Secretary of each
of the Loan Parties of their respective By-Laws and of their respective Board of
Directors' resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the Loan
Documents.
(E) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name and title
and bear the signature of the officers of the applicable Loan Party authorized
to sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any change
in writing by the applicable Loan Party.
(F) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of the Company,
stating that on the date of this Agreement (which shall be the initial Borrowing
Date) all the representations and warranties of the Loan Parties in the Loan
Documents are true and correct (unless such representation and warranty is made
as of a specific date, in which case, such representation and warranty shall be
true in all material respects as of such date) and no Default or Unmatured
Default has occurred and is continuing.
(G) The written opinions of the Loan Parties' US counsel, and, if
applicable, foreign counsel, addressed to the Agents and the Lenders, in form
and substance satisfactory to the Administrative Agent.
(H) Evidence reasonably satisfactory to the Administrative Agent that
the Company and each of its Subsidiaries (a) has made a reasonable assessment of
the Year 2000 Issues; (b) has a program for remediating the Year 2000 Issues,
including a timetable and budget of anticipated costs; and (c) has a source of
funds as required in such budget.
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(I) The capital structure and corporate structure of the Company and
its Subsidiaries is consistent in all material respects with the Spin-off
Materials, and there exists no injunction or temporary restraining order which,
in the reasonable judgment of the Administrative Agent, could prohibit or impose
material restrictions on the Spin-off or prohibit the making of the Loans and
the other transactions contemplated by the Loan Documents or any litigation
seeking such an injunction or restraining order.
(J) A written solvency certificate from the chief financial officer of
the Borrower in form and substance satisfactory to the Administrative Agent,
dated the initial Borrowing Date, with respect to the value, Solvency and other
factual information of or relating to, as the case may be, the Borrower and its
Subsidiaries on a consolidated basis, after giving effect to the Dividend, the
Spin-off, and the incurrence of Indebtedness related thereto (including the
initial extensions of credit hereunder).
(K) The Administrative Agent shall have received (i) pro forma opening
financial statements giving effect to the Spin-off which must not be materially
less favorable, in the Administrative Agent's reasonable judgment, than the
projections previously provided to the Lead Arrangers and which must
demonstrate, in the reasonable judgment of the Administrative Agent, together
with all other information then available to the Administrative Agent, that the
Company and its Subsidiaries can repay their debts and satisfy their respective
other obligations as and when due, and can comply with the financial covenants
set forth herein, (ii) a certificate from an Authorized Officer demonstrating to
the satisfaction of the Administrative Agent that as of October 1, 1999, but
giving pro forma effect to the Spin-off, the Company would have been in
compliance with the financial covenants in SECTION 7.4 at the level prescribed
for the fiscal quarter ending December 31, 1999 and (iii) such information as
the Administrative Agent may reasonably request to confirm the tax, legal and
business assumptions made in such pro forma financial statements.
(L) The Administrative Agent shall have received a satisfactory
business plan for the Company for the five fiscal years following the Closing
Date, including a projected consolidated balance sheet, consolidated statements
of income, retained earnings and cash flow with assumptions used in preparing
the statements.
(M) All governmental, shareholder and third party consents and
approvals necessary in connection with this Agreement, the Spin-off and the
other transactions contemplated hereby shall have been obtained; all such
consents and approvals shall be in full force and effect; and all applicable
waiting periods shall have expired without any action being taken by any
Governmental Authority that could restrain, prevent or impose any material
adverse conditions on the Spin-off or such other transactions or that could seek
or threaten any of the foregoing, and no law or regulation shall be applicable
which in the judgment of any of the Agents could have such effect.
(N) There shall not have occurred a material adverse change since June
30, 1999 in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole.
(O) The Agents, Lenders and/or their Affiliates shall have received all
fees and expenses, including fees and expenses of Winston & Xxxxxx, required to
be paid on or before the Closing Date.
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(P) The Administrative Agent shall have received evidence satisfactory
to it that all outstanding Indebtedness of the Company and its Subsidiaries
except for Permitted Existing Indebtedness has been paid in full and all Liens
securing such Indebtedness shall have been terminated.
(Q) Such other documents as the Administrative Agent or any Lender or
its counsel may have reasonably requested.
5.2 INITIAL ADVANCE TO EACH NEW SUBSIDIARY BORROWER. No Lender shall be
required to make an Advance hereunder to a new Subsidiary Borrower added after
the Closing Date unless the Company has furnished or caused to be furnished to
the Administrative Agent with sufficient copies for the Lenders:
(A) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the
Company thereon, as contemplated by SECTION 2.24.
(B) Copies, certified by the Secretary, Assistant Secretary,
Director or Officer of the Subsidiary Borrower, of its Board
of Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by the Administrative Agent)
approving the Assumption Letter.
(C) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the Subsidiary
Borrower, which shall identify by name and title and bear the
signature of the officers of such Subsidiary Borrower
authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Subsidiary
Borrower hereunder, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Company.
(D) An opinion of counsel to such Subsidiary Borrower, in form and
substance satisfactory to the Administrative Agent.
(E) Guaranty documentation and contribution agreement
documentation from such Subsidiary Borrower in form and
substance satisfactory to the Administrative Agent.
(F) With respect to the initial Advance made to any Subsidiary
Borrower organized under the laws of England and Wales, the
Administrative Agent shall have received originals and/or
copies, as applicable, of all filings required to be made and
such other evidence as the Administrative Agent may require
establishing to the Administrative Agent's satisfaction that
each Lender, is entitled to receive payments under the Loan
Documents without deduction or withholding of any English
taxes or with such deductions and withholding of English taxes
as may be acceptable to the Administrative Agent.
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5.3 EACH ADVANCE AND EACH CONVERSION OR CONTINUATION OF AN ADVANCE. The
Lenders shall not be required to make any Loan, or convert or continue any
Advance, unless on the applicable Borrowing Date:
(A) There exists no Default or Unmatured Default;
(B) All of the representations and warranties contained in
ARTICLE VI are true and correct in all material respects as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material respects as of such date);
(C) The Revolving Credit Obligations do not, and after making
such proposed Advance would not, exceed the Aggregate Revolving Loan
Commitment; and
(D) the Administrative Agent has received a timely Borrowing
Notice with respect to the applicable Loan.
Each Borrowing/Conversion/Continuation Notice with respect to each such
Advance shall constitute a representation and warranty by the Company that the
conditions contained in SECTIONS 5.3(A), (B) and (C) have been satisfied
(except, in the case of any conversion or continuation of a Loan, SECTION 6.5).
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrowers, the Company represents and warrants as follows to each Lender and the
Administrative Agent as of the date of this Agreement and on the Closing Date,
giving effect to the consummation of the transactions contemplated by the Loan
Documents and the Spin-off Materials as if each had occurred on the date hereof,
and thereafter on each date as required by SECTION 5.2 and 5.3:
6.1 ORGANIZATION; CORPORATE POWERS. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2 AUTHORIZATION AND VALIDITY. The Company has the requisite power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Company of
the Loan Documents and the performance of its obligations thereunder have been
duly authorized by proper proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
6.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by the Company of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ,
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judgment, injunction, decree or award binding on the Company or any Subsidiary
or the Company's or any Subsidiary's articles of incorporation or by-laws or
other constitutive documents and agreements or the provisions of any indenture,
instrument or agreement to which the Company or any Subsidiary is a party or is
subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien in, of or on the property of the Company or any of its Subsidiaries
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize the Company,
or is required to be obtained by the Company in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
6.4 FINANCIAL STATEMENTS. Each of the consolidated financial statements
of the Company and its Subsidiaries for the fiscal years ended June 30, 1996,
June 27, 1997 and July 3, 1998 were prepared in accordance with Agreement
Accounting Principles except that restatements reflected in the Form 10 have not
been included for the Australian write-off and the 1998 restructuring reserves;
and the consolidated financial statements of the Company and its Subsidiaries
included in the Form 10 were prepared in accordance with Agreement Accounting
Principles and fairly present the consolidated financial condition and
operations of the Company and its Subsidiaries at such dates and the
consolidated results of their operations for the periods then ended.
6.5 MATERIAL ADVERSE CHANGE. Since July 2, 1999, there has occurred no
change in the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects, of the Company, or the Company
and its Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
6.6 TAXES. The Company and the Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided. No tax liens have been filed (other than to secure payment of
contested taxes in an amount not to exceed $5,000,000 in any one case and
$10,000,000 in the aggregate) and no claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of the Company
and the Subsidiaries in respect of any taxes or other governmental charges are
adequate.
6.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its Subsidiaries (i) challenging the Spin-off or validity or enforceability
of any material provision of the Loan Documents or (ii) which could reasonably
be expected to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has not
been reflected in the consolidated financial statements of the Company set forth
in the Form 10 or prepared and delivered pursuant to SECTION 7.1(A) for the
fiscal period during which such material loss contingency was incurred. Neither
the Company nor any of its Subsidiaries is subject to or in default with respect
to any final judgment, writ, injunction, restraining order or order of any
nature, decree, rule or
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regulation of any court or Governmental Authority which could reasonably be
expected to have a Material Adverse Effect.
6.8 SUBSIDIARIES. SCHEDULE 6.8 hereto contains an accurate list of all
of the Subsidiaries of the Company in existence on the date of this Agreement,
setting forth their respective jurisdictions of formation and the percentage of
their respective capital stock owned directly or indirectly by the Company or
other Subsidiaries. All of the issued and outstanding Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
6.9 ERISA. As at March 31, 1999 the Unfunded Liabilities of all Single
Employer Plans did not in the aggregate exceed $0. Each Plan complies in all
material respects with all applicable requirements of law and regulations. No
Reportable Event has occurred with respect to any Single Employer Plan having
any Unfunded Liability which has or may reasonably be expected to result in a
liability to the Company in excess of $10,000,000. Neither the Company nor any
other members of the Controlled Group has terminated any Single Employer Plan
without in each instance funding all vested benefit obligations thereunder. Each
member of the Controlled Group has fulfilled its minimum funding obligations
with respect to each Multiemployer Plan.
6.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
including, without limitation, the Form 10, contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
6.11 REGULATION U. Margin Stock constitutes less than 25% of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
6.12 MATERIAL AGREEMENTS. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation the performance of which
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is subject to any charter or other
restriction in any constitutive agreement or document affecting its business,
properties, financial condition, prospects or results of operations which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any Contractual
Obligation to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
6.13 COMPLIANCE WITH LAWS. The Company and its Subsidiaries have
complied with all Requirements of Law except to the extent that such
non-compliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received any notice to the
effect that its operations are not in material compliance with any Requirements
of Law or the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
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6.14 OWNERSHIP OF PROPERTIES. On the date of this Agreement, the
Company and its Subsidiaries have good title, free of all Liens, to all of the
properties and assets reflected in the financial statements included in the Form
10 as owned by it, except Liens permitted under SECTION 7.3(C).
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Company nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 ENVIRONMENTAL MATTERS. Each of the Company and its Subsidiaries is
in compliance with all Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business and as to which
the failure to so comply, in the aggregate for all such failures, would not
reasonably be likely to subject the Company to liability that would have a
Material Adverse Effect. Neither the Company nor any Subsidiary is subject to
any liability under the Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business that could
reasonably be expected to have a Material Adverse Effect. As of the date hereof,
neither the Company nor any Subsidiary has received any:
(A) notice from any Governmental Authority by which any of the
Company's or such Subsidiary's present or previously-owned or leased property
has been identified in any manner by any such Governmental Authority as a
hazardous substance disposal or removal site, "Super Fund" clean-up site or
candidate for removal or closure pursuant to any Environmental, Health or Safety
Requirements of Law; or
(B) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has attached to any of
the Company's or such Subsidiary's owned or leased property or any revenues of
the Company's or such Subsidiary's owned or leased property; or
(C) communication, written or oral, from any Governmental Authority
concerning action or omission by the Company or such Subsidiary in connection
with its ownership or leasing of any property resulting in the release of any
hazardous substance resulting in any violation of any Environmental, Health or
Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse Effect.
6.17 INSURANCE. The properties and assets and business of the Company
and its Subsidiaries are insured with financially sound and reputable insurance
companies not Subsidiaries of the Company (unless consented to by the
Administrative Agent), in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
are similarly situated.
6.18 LABOR MATTERS. As of the Closing Date, no labor disputes, strikes
or walkouts affecting the operations of the Company or any of its Subsidiaries,
are pending, or, to the Company's
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knowledge, threatened, planned or contemplated which could reasonably be
expected to have a Material Adverse Effect.
6.19 SOLVENCY. After giving effect to (i) the extensions of credit to
be made hereunder and under the 364-Day Agreement on the Closing Date and the
Dividend to be paid on the Closing Date or such other date as Loans requested
hereunder are made, (ii) the other transactions contemplated by this Agreement
and the other Loan Documents, including the Spin-off and (iii) the payment and
accrual of all transaction costs with respect to the foregoing, the Company and
its Subsidiaries taken as a whole are Solvent.
6.20 YEAR 2000 ISSUES. Each of the Company and its Subsidiaries has
made a reasonable assessment of the Year 2000 Issues and has a program for
remediating the Year 2000 Issues on a timely basis. Based on this assessment and
program, the Company does not reasonably anticipate any Material Adverse Effect
as a result of Year 2000 Issues.
6.21 DEFAULT. No Default or Unmatured Default has occurred and is
continuing.
6.22 REPRESENTATIONS AND WARRANTIES OF EACH SUBSIDIARY BORROWER. Each
Subsidiary Borrower represents and warrants to the Lenders that:
(A) ORGANIZATION AND CORPORATE POWERS. Such Subsidiary Borrower (i) is
a company duly formed and validly existing and in good standing under the laws
of the state or country of its organization (such jurisdiction being hereinafter
referred to as the "HOME COUNTRY"); (ii) has the requisite power and authority
to own its property and assets and to carry on its business substantially as now
conducted except where the failure to have such requisite authority would not
have a material adverse effect on such Subsidiary Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver each Loan
Document to which it is a party and the performance by it of its obligations
thereunder have been duly authorized by proper corporate proceedings.
(B) BINDING EFFECT. Each Loan Document executed by such Subsidiary
Borrower is the legal, valid and binding obligations of such Subsidiary Borrower
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
(C) NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by such Subsidiary Borrower of the Loan Documents to which it is a party, nor
the consummation by it of the transactions therein contemplated to be
consummated by it, nor compliance by such Subsidiary Borrower with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on such Subsidiary Borrower or any
of its Subsidiaries or such Subsidiary Borrower's or any of its Subsidiaries'
memoranda or articles of association or the provisions of any indenture,
instrument or agreement to which such Subsidiary Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any lien in, of or on the property of such Subsidiary
Borrower or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement in any such case which violation, conflict, default,
creation or imposition could reasonably be expected to have a material adverse
effect on such Subsidiary Borrower. No order, consent, approval, license,
authorization, or validation of, or filing, recording
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or registration with, or exemption by, any governmental agency is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability of,
any of the Loan Documents.
(D) FILING. To ensure the enforceability or admissibility in evidence
of this Agreement and each Loan Document to which such Subsidiary Borrower is a
party in its Home Country, it is not necessary that this Agreement or any other
Loan Document to which such Subsidiary Borrower is a party or any other document
be filed or recorded with any court or other authority in its Home Country or
that any stamp or similar tax be paid to or in respect of this Agreement or any
other Loan Document of such Subsidiary Borrower. The qualification by any Lender
or the Administrative Agent for admission to do business under the laws of such
Subsidiary Borrower's Home Country does not constitute a condition to, and the
failure to so qualify does not affect, the exercise by any Lender or the
Administrative Agent of any right, privilege, or remedy afforded to any Lender
or the Administrative Agent in connection with the Loan Documents to which such
Subsidiary Borrower is a party or the enforcement of any such right, privilege,
or remedy against such Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii) result in any
tax or other monetary liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or taxing authority
thereof (PROVIDED that, should any such action result in any such tax or other
monetary liability to the Lender or the Administrative Agent, the Borrowers
hereby agree to indemnify such Lender or the Administrative Agent, as the case
may be, against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from such action
by such Lender or the Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the Administrative
Agent or any Lender will not constitute a Default) or (iii) violate any rule or
regulation of any federation or organization or similar entity of which the such
Subsidiary Borrower's Home Country is a member.
(E) NO IMMUNITY. Neither such Subsidiary Borrower nor any of its assets
is entitled to immunity from suit, execution, attachment or other legal process.
Such Subsidiary Borrower's execution and delivery of the Loan Documents to which
it is a party constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(F) APPLICATION OF REPRESENTATIONS AND WARRANTIES. It is understood and
agreed by the parties hereto that the representations and warranties of each
Subsidiary Borrower in this SECTION 6.22 shall only be applicable to such
Subsidiary Borrower on and after the date of its execution of an Assumption
Letter.
6.23 FOREIGN EMPLOYEE BENEFIT MATTERS. (a) Each Foreign Employee
Benefit Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Company or any Subsidiary or
any member of its Controlled Group (other than a Foreign
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Pension Plan), reasonable reserves have been established in accordance with
prudent business practice or where required by ordinary accounting practices in
the jurisdiction in which such Plan is maintained; and (d) there are no material
actions, suits or claims (other than routine claims for benefits) pending or, to
the knowledge of the Company and its Subsidiaries, threatened against the
Company or any Subsidiary of it or any member of its Controlled Group with
respect to any Foreign Employee Benefit Plan.
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations), unless the Required
Lenders shall otherwise give prior written consent:
7.1 REPORTING. The Company shall:
(A) FINANCIAL REPORTING. Send to the Agents and the Lenders:
(i) QUARTERLY REPORTS. As soon as practicable and in any event
within forty-five (45) days after the end of the first three quarterly
periods of each of its fiscal years, for itself and the Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the end
of each such period and consolidated and consolidating statement of
income and consolidated and consolidating statement of changes in
owners' equity, and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, presented on
the same basis as described in SECTION 7.1(A)(ii) and on a comparative
basis with the statements for such period in the prior fiscal year of
the Company.
(ii) ANNUAL REPORTS. As soon as practicable, and in any event
within ninety (90) days after the end of each of its fiscal years, (a)
an audit report, certified (as to consolidated, but not consolidating
statements) by internationally recognized independent certified public
accountants, prepared in accordance with generally accepted accounting
principles, on a consolidated and consolidating basis for itself and
the Subsidiaries, including balance sheets as of the end of such
period, related statement of income and consolidated and consolidating
statement of changes in owners' equity, and a statement of cash flows,
which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position
of the Company and its Subsidiaries as at the dates indicated and the
results of operations and cash flows for the periods indicated in
conformity with generally accepted accounting principles and that the
examination by such accountants in connection with such consolidated
and consolidating financial statements has been made in accordance with
generally accepted auditing standards and (b) projected balance sheets,
statements of income and cash flows for the three succeeding fiscal
years, prepared in accordance with generally accepted accounting
principles, on a consolidated basis, together with the appropriate
supporting details and a statement of underlying assumptions, all in
form similar to those delivered to the Lead Arrangers prior to the
Closing Date.
(iii) OFFICER'S CERTIFICATE. Together with each delivery of
any financial statement (a) pursuant to CLAUSES (i) and (ii) of this
SECTION 7.1(A), an Officer's Certificate of the
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Company, substantially in the form of EXHIBIT E attached hereto and
made a part hereof, stating that as of the date of such Officer's
Certificate no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof and
(b) pursuant to CLAUSES (i) and (ii) of this SECTION 7.1(A), a
compliance certificate, substantially in the form of EXHIBIT F attached
hereto and made a part hereof, signed by the Company's chief financial
officer, chief accounting officer or treasurer, setting forth
calculations for the period then ended for SECTION 2.5(B), if
applicable, which demonstrate compliance, when applicable, with the
provisions of SECTIONS 7.3(A) through (G) and SECTION 7.4, and which
calculate the Leverage Ratio for purposes of determining the then
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Commitment Fee Percentage.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer, controller
or general counsel of the Company obtaining actual knowledge (i) of any
condition or event which constitutes a Default or Unmatured Default, or becoming
aware that any Lender or Administrative Agent has given any written notice to
any Authorized Officer with respect to a claimed Default or Unmatured Default
under this Agreement, or (ii) that any Person has given any written notice to
any Authorized Officer or any Subsidiary of the Company or taken any other
action with respect to a claimed default or event or condition of the type
referred to in SECTION 8.1(D), the Company shall deliver to the Administrative
Agent and the Lenders an Officer's Certificate specifying (a) the nature and
period of existence of any such claimed default, Default, Unmatured Default,
condition or event, (b) the notice given or action taken by such Person in
connection therewith, and (c) what action the Company has taken, is taking and
proposes to take with respect thereto.
(C) LAWSUITS. (i) Promptly upon the Company obtaining actual knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any Governmental
Authority, against or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries not previously disclosed
pursuant to SECTION 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of its Subsidiaries to liability in an amount
aggregating $10,000,000 or more (exclusive of claims covered by insurance
policies of the Company or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim coverage on
such claims and exclusive of claims covered by the indemnity of a financially
responsible indemnitor in favor of the Company or any of its Subsidiaries unless
the indemnitor has disclaimed or reserved the right to disclaim coverage
thereof), give written notice thereof to the Administrative Agent and the
Lenders and provide such other information as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to evaluate such
matters; and (ii) in addition to the requirements set forth in CLAUSE (i) of
this SECTION 7.1(C), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to CLAUSE (i) above and provide such other information as may
be reasonably available to it that would not jeopardize any attorney-client
privilege by disclosure to the Lenders to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
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(D) ERISA NOTICES. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the following
information and notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after the Company, or within
twenty-five (25) Business Days after any member of the Controlled
Group, obtains knowledge that a Termination Event has occurred which
could reasonably be expected to subject the Company to liability in
excess of $25,000,000, a written statement of the chief financial
officer, treasurer or designee of the Company describing such
Termination Event and the action, if any, which the member of the
Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company, or
within twenty-five (25) days after any of its Subsidiaries, obtains
knowledge that a material non-exempt prohibited transaction (defined in
Sections 406 of ERISA and Section 4975 of the Code) has occurred, a
statement of the chief financial officer, treasurer or designee of the
Company describing such transaction and the action which the Company or
such Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after the Company, or
within twenty-five (25) days after any of its Subsidiaries, receives
notice of any unfavorable determination letter from the IRS regarding
the qualification of a Plan under Section 401(a) of the Code, copies of
each such letter;
(iv) within ten (10) Business Days with respect to the
Company, and within twenty-five (25) days with respect to a member of
the Controlled Group, after the filing thereof with the IRS, a copy of
each funding waiver request filed with respect to any Benefit Plan and
all communications received by the Company or a member of the
Controlled Group with respect to such request;
(v) within ten (10) Business Days after receipt by the
Company, or within twenty-five (25) Business Days of the receipt by any
member of the Controlled Group of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice;
(vi) within ten (10) Business Days after the Company, or
within twenty-five (25) days after any member of the Controlled Group,
fails to make a required installment or any other required payment
under Section 412 of the Code on or before the due date for such
installment or payment, a notification of such failure;
(vii) within ten (10) Business Days after the establishment of
any Foreign Employee Benefit Plan or the commencement of, or obligation
to commence, contributions to any Foreign Employee Benefit Plan to
which the Company or any Subsidiary was not previously contributing,
where the aggregate annual contributions to such Plan(s) resulting
therefrom are or could reasonably be expected to be in excess of
$10,000,000, notification
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of such establishment, commencement or obligation to commence and the
amount of such contributions; and
For purposes of this SECTION 7.1(D), the Company, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan which is a Single Employer Plan and which is
sponsored by such Company, Subsidiary or member of the Controlled Group,
respectively, and shall be deemed to know all facts known by the administrator
of any other Plan which is a Single Employer Plan fifteen (15) days after
knowledge by such administrator.
(E) LABOR MATTERS. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any material labor
dispute to which the Company or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any material Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of the Company or any of its
Subsidiaries.
(F) OTHER INDEBTEDNESS. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Company to the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $10,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Company from the holders of funded Indebtedness with an aggregate outstanding
principal amount in excess of $10,000,000 regarding potential or actual defaults
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Company.
(G) OTHER REPORTS. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial statements,
reports and non-routine notices, if any, sent or made available generally by the
Company to its securities holders or filed with the Commission by the Company,
and (ii) all notifications received from the Commission by the Company or its
Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules
promulgated thereunder other than routine reminders or notices that do not
relate to specific violations of rules promulgated by the Commission. The
Company shall include the Administrative Agent and the Lenders on its standard
distribution lists for all press releases made available generally by the
Company or any of the Company's Subsidiaries to the public concerning material
developments in the business of the Company or any such Subsidiary.
(H) ENVIRONMENTAL NOTICES. As soon as possible and in any event within
fifteen (15) days after receipt by the Company, deliver to the Administrative
Agent and the Lenders a copy of (i) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any violation
of any Environmental, Health or Safety Requirements of Law by the Company or any
of its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Company and each of its
Subsidiaries to liability individually or in the aggregate in excess of
$10,000,000.
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(I) OTHER INFORMATION. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative Agent and
the Lenders such other information with respect to the Company or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
7.2 AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. The Company shall, and shall cause each
of its Subsidiaries to, at all times maintain its corporate existence and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its businesses except where, in the case
of Subsidiaries, failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(B) CORPORATE POWERS. The Company shall, and shall cause each of its
Subsidiaries to, qualify and remain qualified to do business in each
jurisdiction in which the nature of its business requires it to be so qualified
and where the failure to be so qualified will have or could reasonably be
expected to have a Material Adverse Effect.
(C) COMPLIANCE WITH LAWS, ETC. The Company shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, prospects, properties, assets
or operations of such Person, and (b) obtain as needed all permits necessary for
its operations and maintain such permits in good standing unless failure to
comply or obtain such permits could not reasonably be expected to have a
Material Adverse Effect.
(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Company shall
pay, and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, and (ii) all claims
(including, without limitation, claims for labor, services, materials and
supplies) for material sums which have become due and payable and which by law
have or may become a Lien (other than a Lien permitted by SECTION 7.3(C)) upon
any of the Company's or such Subsidiary's property or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto; PROVIDED,
HOWEVER, that no such taxes, assessments and governmental charges referred to in
CLAUSE (i) above or claims referred to in CLAUSE (ii) above (and interest,
penalties or fines relating thereto) need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made therefor.
(E) INSURANCE. The Company will maintain, and will cause to be
maintained on behalf of each of its Subsidiaries, insurance coverage by
financially sound and reputable insurance companies or associations, against
such casualties and contingencies, of such types and in such amounts as are
customary for companies engaged in similar businesses and owning and operating
similar properties, it being understood that the Company and its Subsidiaries
may self-insure against hazards and risks with respect to which, and in such
amounts, as the Company in good faith determines prudent and consistent with
sound financial practice, and as are customary for companies engaged in similar
businesses and owning and operating similar properties. The Company shall
furnish to any Lender upon request full information as to the insurance carried.
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(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The
Company shall permit and cause each of the Company's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender (unless a Default has occurred and is continuing, only in conjunction
with an inspection conducted by the Administrative Agent) to visit and inspect,
for a reasonable purpose, any of the properties of the Company or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and their independent
certified public accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably requested. The
Company shall keep and maintain, and cause each of the Company's Subsidiaries to
keep and maintain proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses and activities.
(G) ERISA COMPLIANCE. The Company shall, and shall cause each of the
Company's Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans, except for
failures to comply which, in the aggregate, would not be reasonably likely to
subject the Company or any of its Subsidiaries to liability, individually or
in the aggregate, in excess of $10,000,000.
(H) MAINTENANCE OF PROPERTY. The Company shall cause all property
used or useful in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted at all
times and except to the extent that the failure to so maintain such property
could not be reasonably expected to have a Material Adverse Effect.
(I) ENVIRONMENTAL COMPLIANCE. The Company shall, and shall cause each
of the Company's Subsidiaries to comply with, all Environmental, Health or
Safety Requirements of Law, except where noncompliance could not reasonably be
expected to have a Material Adverse Effect.
(J) USE OF PROCEEDS. The Borrowers shall use the proceeds of the
Advances to fund the Dividend in whole or in part and to provide funds for the
additional working capital needs and other general corporate purposes of the
Company and its Subsidiaries, including, without limitation, the financing of
Permitted Acquisitions. The Company will not, nor will it permit any Subsidiary
to, use any of the proceeds of the Advances to make any Acquisition other than a
Permitted Acquisition made pursuant to SECTION 7.3(G).
(K) Subsidiary Guarantees; Subsidiary Subordination Agreement. The
Company will:
(a) cause each Subsidiary Borrower that is a Domestic Subsidiary
and each Domestic Subsidiary which is a Wholly-Owned
Subsidiary and has assets with a book value
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in excess of $10,000,000 to execute the Guaranty (and from and
after the Closing Date cause each other Subsidiary Borrower
that is a Domestic Subsidiary and each other Domestic
Subsidiary which is a Wholly-Owned Subsidiary and has such
assets to execute and deliver to the Administrative Agent,
within ten (10) days after becoming a Subsidiary Borrower or
another Domestic Subsidiary which is a Wholly-Owned Subsidiary
and has such assets, as applicable, an assumption or joinder
agreement pursuant to which it agrees to be bound by the terms
and provisions of the Guaranty (whereupon such Subsidiary
shall become a "Guarantor" under this Agreement));
(b) in the event that at any time the book value of the assets of
all Domestic Subsidiaries which are not Wholly-Owned
Subsidiaries and are not Guarantors exceed $100,000,000,
within ten (10) days thereafter cause one or more of such
Subsidiaries to execute and deliver to the Administrative
Agent an assumption or joinder agreement pursuant to which it
or they agree to be bound by the terms and provisions of the
Guaranty (whereupon each such Subsidiary shall become a
"Guarantor" under this Agreement) such that, after giving
effect thereto, the book value of the assets of all Domestic
Subsidiaries which are not Wholly-Owned Subsidiaries and are
not Guarantors do not exceed $100,000,000;
(c) cause each Subsidiary, before it makes a loan to any of the
Borrowers, to execute the Subordination Agreement (and from
and after the Closing Date cause each other Subsidiary to
execute and deliver to the Administrative Agent, within ten
(10) days after becoming a Subsidiary, as applicable, an
assumption or joinder agreement pursuant to which it agrees to
be bound by the terms and provisions of the Subordination
Agreement);
(d) deliver and cause such Subsidiaries to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to
the Administrative Agent; and
(e) cause each Subsidiary which is a Subsidiary Borrower to be a
Wholly-Owned Subsidiary for so long as it remains a Subsidiary
Borrower.
(L) YEAR 2000 ISSUES. The Company shall, and shall cause each of its
Subsidiaries to, take all actions reasonably necessary to address the Year 2000
Issues so that any such Year 2000 Issues will not have a Material Adverse
Effect. The Company shall provide the Administrative Agent and each of the
Lenders information regarding the Company's and its Subsidiaries' program to
address Year 2000 Issues. The Company shall advise the Administrative Agent, if
after the date hereof, it determines that Year 2000 Issues could reasonably be
expected to have a Material Adverse Effect.
(M) FOREIGN EMPLOYEE BENEFIT COMPLIANCE. The Company shall, and shall
cause each of its Subsidiaries and each member of its Controlled Group to,
establish, maintain and operate all Foreign Employee Benefit Plans to comply in
all material respects with all laws, regulations and
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rules applicable thereto and the respective requirements of the governing
documents for such Plans, except for failures to comply which, in the aggregate,
would not be reasonably likely to subject the Company or any of its Subsidiaries
to liability, individually or in the aggregate, in excess of $10,000,000.
(N) PLEDGE AGREEMENTS. Within 30 days after the date of this Agreement,
the Company and/or its Subsidiaries shall (a) grant, or cause to be granted, to
the Collateral Agent, to equally and ratably secure the Obligations, the
"Obligations" under the 364-Day Credit Agreement and all obligations of the
Company or its Subsidiaries under Hedging Agreements entered into in connection
with this Agreement or the 364-Day Credit Agreement, a pledge of 65% (or such
lesser percentage as is owned by the Company or applicable Subsidiary which is
not a Foreign Subsidiary) of the shares of the capital stock of each Subsidiary
listed on SCHEDULE 7.2, in each case pursuant to a Pledge Agreement and (b)
deliver to the Collateral Agent such Pledge Agreements, stock certificates and
stock powers relating to such shares and such opinions of counsel and other
documentation as the Collateral Agent may reasonably request. Notwithstanding
the foregoing, the Collateral Agent may, in its discretion, extend the time
period for delivery of the Pledge Agreements, stock certificates and stock
powers referenced in the preceding sentence. In addition, within 30 days (or, as
long as the Company uses its best efforts, such reasonably longer time as the
Company may need) after the date that any other Subsidiary is or becomes a
Foreign Subsidiary which is a Wholly-Owned Subsidiary, has assets with a book
value in excess of $10,000,000 and is owned by the Company and/or one or more
Domestic Subsidiaries, the Company shall, or as applicable shall cause its
Domestic Subsidiaries to, grant or cause to be granted to the Collateral Agent a
pledge of such Foreign Subsidiary's capital stock to the extent, in the manner
and accompanied by the documentation described in the preceding sentence.
7.3 NEGATIVE COVENANTS.
(A) SALE OF RECEIVABLES. The Company shall not, nor shall it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or without
recourse, except that the Company and the Subsidiaries may sell, transfer or
pledge any of their respective Receivables; provided, in the case of United
States domestic Receivables that the proceeds from the sale of such Receivables
are used to prepay the Term Loans (as defined in the 5-Year Credit Agreement) in
accordance with Section 2.5(C) of the 5-Year Credit Agreement.
(B) SALES OF ASSETS. The Company shall not, nor shall it permit any
Subsidiary to, consummate any Asset Sale, except:
(i) Asset Sales in connection with the sale of Receivables
permitted under SECTION 7.3(A);
(ii) transfers of assets to the Company, between the Company
and any Guarantor which is a Domestic Subsidiary or between any such
Guarantors; and
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets if such transaction (a) is for not
less than fair market value (as determined in good faith by the
Company's chief financial officer), and (b) when combined with all such
other transactions (each such transaction being valued at book value)
and all Sale and
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Leaseback Transactions (each such Sale and Leaseback Transaction being
valued at book value) during the period from the Closing Date to the
date of such proposed transaction, represents the disposition of not
greater than ten percent (10%) of the Company's Consolidated Net Assets
at the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into.
(C) LIENS. The Company shall not, nor shall it permit any Subsidiary
to, directly or indirectly create, incur, assume or permit to exist a Lien on or
with respect to the Capital Stock of any Subsidiary of the Company. In addition,
the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any of their respective other property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to property acquired by the Company
or any of its Subsidiaries after the date hereof (and not created in
contemplation of such acquisition) pursuant to a Permitted Acquisition;
PROVIDED, that such Liens shall extend only to the property so
acquired;
(iv) Liens on Receivables created in connection with a
transaction permitted under SECTION 7.3(A); PROVIDED, that each such
Lien represents an interest no greater than the related purchaser's
pro-rata interest in the pool of eligible Receivables so sold;
(v) Liens securing Indebtedness of a Subsidiary to the
Company;
(vi) Additional Liens, provided the Indebtedness secured
thereby does not exceed in the aggregate $10,000,000;
(vii) Liens, if any, created by the Loan Documents or
otherwise securing the Obligations and Liens securing Indebtedness
under the 5-Year Credit Agreement only to the extent such Liens are
equal and ratable with, or subordinate to, any Liens granted to the
Administrative Agent for the benefit of the Lenders; and
(viii) The replacement, extension or renewal of any Lien
permitted above upon or in the same property theretofore subject
thereto in connection with the replacement, extension or renewal
(pursuant to Permitted Refinancing Indebtedness) of the obligations
secured thereby.
(D) INDEBTEDNESS. The Company shall not, nor shall it permit
any Subsidiary to, cause or permit, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:
(i) the Obligations;
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(ii) Permitted Existing Indebtedness and related Permitted
Refinancing Indebtedness of the type described in CLAUSE (i) of the
definition thereof;
(iii) Indebtedness in an aggregate principal amount not to
exceed $700,000,000 at any time incurred in connection with the 5-Year
Credit Agreement and related Permitted Refinancing Indebtedness of the
type described in CLAUSE (i) of the definition thereof;
(iv) Indebtedness arising from intercompany loans and advances
from the Company or any Subsidiary to any Domestic Subsidiary which is
a Guarantor; provided, that such Indebtedness shall be expressly
subordinate to the payment in full in cash of the Obligations;
(v) Contingent Obligations to the extent permitted under
SECTION 7.3(E);
(vi) Hedging Obligations;
(vii) Indebtedness incurred in connection with a
securitization of Receivables; and
(viii) additional unsecured Indebtedness in an aggregate
amount at any time outstanding not exceeding (a) $150,000,000, LESS (b)
the aggregate amount of securitized (i) United States domestic
Receivables in excess of $250,000,000, and (ii) European Receivables in
excess of $100,000,000, less (c) the amount of Permitted Existing
Indebtedness, of which not more than $50,000,000 may be incurred by
Subsidiaries which are not Subsidiary Borrowers or Guarantors; and
(ix) additional unsecured Indebtedness, the proceeds of which
are used to repay the Term Loans under the 5-Year Agreement.
(E) CONTINGENT OBLIGATIONS. The Company shall not, nor shall it permit
any Subsidiary to, directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, guaranties and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of the Company
or such Subsidiary; (iv) Contingent Obligations of the Subsidiaries of the
Company (a) under the Guaranty to which they are a party and (b) as guarantors
of the 5-Year Credit Agreement, (v) obligations arising under or related to the
Loan Documents; (vi) Contingent Obligations in respect of other Indebtedness
permitted by Section 7.3(D) above, and (vii) additional Contingent Obligations
in an aggregate amount not to exceed in the aggregate five percent (5%) of
Consolidated Net Worth at any one time outstanding.
(F) RESTRICTED PAYMENTS. The Company shall not, nor shall it permit any
Subsidiary to, make or declare any Restricted Payments (other than (i) the
Dividend, and (ii) Restricted Payments to the Company or to a Wholly-Owned
Subsidiary of the Company); provided, however, that so long as no Default or an
Unmatured Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom, the Company may make
Restricted
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Payments (in addition to the Dividend) in an aggregate amount of up to 25% of
Net Income for the prior fiscal year.
(G) CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS. The Company shall
not, nor shall it permit any Subsidiary to, engage in any business other than
the businesses engaged in by the Company on the date hereof and any business or
activities which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize any
Subsidiary after the date hereof unless (i) no Default or Unmatured Default
which is not being cured shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct in all
material respects (unless such representation and warranty is made as of a
specific date, in which case, such representation or warranty shall be true in
all material respects as of such date); and (iii) after such creation,
acquisition or capitalization the Company shall be in compliance with the terms
of SECTION 7.2(K). The Company shall not make any Acquisitions, other than
Acquisitions meeting the following requirements (each such Acquisition
constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the target
company's board of directors (and shareholders, if necessary) prior to
the consummation of the Acquisition;
(iii) if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock consideration
paid and Indebtedness or other liabilities assumed) exceeds
$25,000,000, prior to each such Acquisition, the Company shall have
delivered to the Administrative Agent and the Lenders a certificate
from one of the Authorized Officers, demonstrating that after giving
effect to such Acquisition, on a PRO FORMA basis in respect of each
such Acquisition as if the Acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of the Company's most recently completed fiscal
quarter, the Company would have been in compliance with the financial
covenants in SECTION 7.4 and not otherwise in Default;
(iv) if the purchase price for the Acquisition exceeds,
together with all other Permitted Acquisitions permitted under this
SECTION 7.3(G) during the same fiscal year, $150,000,000 (the
"PERMITTED ACQUISITION BASKET") (including the incurrence or assumption
of any Indebtedness in connection therewith), the Required Lenders
shall have consented to such Acquisition; PROVIDED that (a) if the
"Term Loans" under the 5-Year Credit Agreement have been repaid and all
of the "Term Loan Commitments" under the 5-Year Credit Agreement have
been irrevocably terminated, the Permitted Acquisition Basket shall be
$250,000,000 and (b) if the Term Loans have been repaid and all of the
Term Loan Commitments have been irrevocably terminated and the
Company's senior unsecured debt is rated "BBB" or better by Standard &
Poor's Ratings Group or "Baa" or better by Xxxxx'x Investors Services,
Inc., the Permitted Acquisition Basket shall be $350,000,000;
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(v) the businesses being acquired shall be similar to that of
the Company and its Subsidiaries as of the Closing Date, related or
incidental thereto or logical extensions thereof; and
(vi) such Acquisition shall be structured as an asset
acquisition, as an acquisition of one hundred percent (100%) of the
outstanding voting securities of the target company or as a merger
permitted hereby.
(H) INVESTMENTS. Neither the Company nor any of its Subsidiaries shall
purchase or acquire, or make any commitment therefor, any capital stock, equity
interest, or any obligations or other securities of, or any interest in, any
Person, or make or commit to make any advance, loan, extension of credit or
capital contribution to or any other investment in, any Person including any
Affiliate of the Company, except for:
(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor;
(ii) Investments incurred in order to consummate Permitted
Acquisitions otherwise permitted herein;
(iii) Investments in Cash Equivalents; and
(iv) other Investments in an aggregate amount not to exceed
$20,000,000 (based on the initial amount invested).
(I) TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Neither the Company
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with, or make loans
or advances to, any Affiliate of the Company which is not its Wholly-Owned
Subsidiary, on terms that are less favorable to the Company or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate, except for (i) Restricted Payments permitted by SECTION 7.3(F) and
(ii) as otherwise contemplated by the Spin-off Materials.
(J) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Company nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Company's consolidated business or
property (each such transaction a "FUNDAMENTAL Change"), whether now or
hereafter acquired, except (i) Fundamental Changes permitted under SECTIONS
7.3(B), 7.3(D) or 7.3(G), (ii) a Subsidiary of the Company may be merged into or
consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in
which case the Company or such Wholly-Owned Subsidiary shall be the surviving
corporation); provided that if the predecessor Subsidiary was a Guarantor, the
surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any
liquidation of any Subsidiary of the Company into the Company or another
Subsidiary of the Company, as applicable, and (iv) the Company may merge with
any other Person, or any Subsidiary of the Company may consolidate or merge with
any other Person, PROVIDED, that (A) no Default or Unmatured Default
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shall exist immediately after giving effect to such Fundamental Change, (B) in
the case of any merger of the Company, the Company is the surviving corporation
in such merger and such merger is with a Person in a line of business
substantially similar to that of the Company and its Subsidiaries as of the
Closing Date or any business or activities which are similar, related or
incidental thereto or logical extensions thereof, and (C) in the case of any
merger or consolidation of any Subsidiary of the Company, the surviving
corporation in such Fundamental Change is or becomes as a result thereof a
Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a
Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such
transaction is with a Person in a line of business substantially similar to that
of the Company and its Subsidiaries as of the Closing Date.
(K) MARGIN REGULATIONS. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. (a) The Company shall not:
(i) engage, or permit any of its Subsidiaries to engage, in
any material prohibited transaction described in Sections 406 of ERISA
or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from
the DOL;
(ii) permit to exist any material accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required material contributions or material annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Company or any Controlled Group member under Title IV
of ERISA;
(v) fail to make any material contribution or payment to any
Multiemployer Plan which the Company or any Controlled Group member may
be required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(vi) permit any material unfunded liabilities with respect to
any Foreign Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by the
Borrower or any member of its Controlled Group and such annual
contributions are not less than the minimum amounts, if any, required
under applicable local law;
(vii) fail, or permit any of its Subsidiaries or Controlled
Group members to fail, to pay any required contributions or payments to
a Foreign Pension Plan on or before the due date for such required
installment or payment;
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(viii) fail, or permit any Controlled Group member to fail, to
pay any required material installment or any other payment required
under Section 412 of the Code on or before the due date for such
installment or other payment; or
(ix) amend, or permit any Controlled Group member to amend, a
Plan resulting in a material increase in current liability for the plan
year such that the Company or any Controlled Group member is required
to provide security to such Plan under Section 401(a)(29) of the Code.
(b) For purposes of this SECTION 7.3(L), "material" means any
noncompliance or basis for liability which could reasonably be likely to
subject the Company or any of its Subsidiaries to liability, individually or
in the aggregate, in excess of $25,000,000.
(M) CERTAIN DOCUMENTS. Neither the Company nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions of the
Distribution Agreement, the Tax Disaffiliation Agreement (as such terms are
referenced in the definition of "Spin-off Materials") or of any of their
respective constituent documents as in effect on the date hereof in any manner
materially adverse to the interests of the Lenders.
(N) FISCAL YEAR. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the twelve-month period ending on the Friday nearest to the
last day of June of each year, except as required by Agreement Accounting
Principles or by law and disclosed to the Lenders and the Administrative Agent.
(O) SUBSIDIARY COVENANTS. The Company will not, and will not permit any
Subsidiary to, create or otherwise permit to exist or cause to become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock, or make
any other Restricted Payment, pay any Indebtedness or other Obligation owed to
the Company or any other Subsidiary, make loans or advances or other Investments
in the Company or any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary.
(P) HEDGING OBLIGATIONS. The Company shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its Subsidiaries has hedged its
actual or anticipated interest rate, foreign currency or commodity exposure.
Such permitted hedging agreements entered into by the Company or its
Subsidiaries and any Lender or any Affiliate of any Lender are sometimes
referred to herein as "HEDGING AGREEMENTS."
(Q) CAPITAL EXPENDITURES. The Company shall not, and shall not permit
any of its Subsidiaries to, make Capital Expenditures in any fiscal year to the
extent that during any fiscal year the aggregate amount of Capital Expenditures
for the Company and its Subsidiaries would exceed (i) for the fiscal years
ending prior to the third anniversary of the Closing Date, $150,000,000, and
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(ii) thereafter, $175,000,000, in each case excluding any amount attributable to
a Permitted Acquisition.
(R) RESTRICTIVE AGREEMENTS. The Company shall not, nor shall it permit
any of its Subsidiaries to, enter into any indenture, agreement, instrument or
other arrangement which directly or indirectly prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of the Company or any Subsidiary to create Liens
upon their assets securing the Obligations or of any Subsidiary to (a) pay
dividends or make other distributions (i) on its Capital Stock or (ii) with
respect to any other interest or participation in, or measured by, its profits,
(b) make loans or advances to the Company or any Subsidiary, (c) repay loans or
advances from the Company or any Subsidiary or (d) transfer any of its
properties to the Company or any Subsidiary.
7.4 FINANCIAL COVENANTS.
(A) MINIMUM COVERAGE RATIO. The Company shall maintain as of the end of
each fiscal quarter set forth below a ratio of (i) EBITDAR for the four fiscal
quarter period then ending to (ii) Interest Expense plus Rentals for such period
of not less than the ratio set forth below opposite such period:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 2.75
July 1, 2000 and thereafter 2.75
(B) MAXIMUM LEVERAGE RATIO. The Company shall maintain as of the end of
each fiscal quarter set forth below a Leverage Ratio for the four fiscal quarter
period then ending of not greater than the ratio set forth below opposite such
period:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 3.25
July 1, 2000 and thereafter 3.00
(C) MINIMUM CONSOLIDATED NET WORTH. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a) 85% of
Consolidated Net Worth on the date immediately following the Closing Date plus
(b) fifty percent (50%) of Net Income (if positive) calculated separately for
(i) the remainder of the quarterly accounting period in which the Closing Date
occurs and (ii) each subsequent quarterly accounting period, in each case,
excluding changes in cumulative translation adjustment.
ARTICLE VIII: DEFAULTS
8.1 DEFAULTS. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) FAILURE TO MAKE PAYMENTS WHEN DUE. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations consisting of
principal with respect to any Loan or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
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(B) BREACH OF CERTAIN COVENANTS. The Company or any Subsidiary Borrower
shall fail duly and punctually to perform or observe any agreement, covenant or
obligation binding on it under:
(i) SECTIONS 7.1(B), 7.2(J), 7.2(K), 7.3 or 7.4 or
(ii) any section of this Agreement or any other Loan Document
not covered by SECTION 8.1(A) or 8.1(B)(i) and such failure shall
continue unremedied for thirty (30) DAYS AFTER the occurrence thereof.
(C) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents or in
any statement or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false as to a material fact or
matter on the date as of which made or deemed made.
(D) Default as to Other Indebtedness.
(i) The Company or any of its Subsidiaries shall fail to pay
when due any Indebtedness arising under the 5-Year Agreement
aggregating in excess of $10,000,000 (any such Indebtedness being
"MATERIAL INDEBTEDNESS"); or the Company or any of its Subsidiaries
shall fail to perform (beyond the applicable grace period with respect
thereto, if any) any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created or is
governed, or any other event shall occur or condition exist, the effect
of which default or event is to cause, or to permit the holder or
holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall
be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof.
(E) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company
or any of the Company's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company or any of the Company's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company or any of the Company's Subsidiaries or over all or a
substantial part of the property of the Company or any of the Company's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of the Company or any of the Company's Subsidiaries or of all
or a substantial part of the property of the Company or any
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of the Company's Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part
of the property of the Company or any of the Company's Subsidiaries
shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within forty-five (45) days after entry,
appointment or issuance.
(F) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Company or
any of the Company's Subsidiaries shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such
law, (iii) consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(G) JUDGMENTS AND ATTACHMENTS. Any money judgment(s) (other than a
money judgment covered by insurance as to which the applicable insurance company
has not disclaimed or reserved the right to disclaim coverage), writ or warrant
of attachment, or similar process against the Company or any Material Subsidiary
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $10,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed
sale thereunder.
(H) DISSOLUTION. Any order, judgment or decree shall be entered against
the Company or any Material Subsidiary decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of forty-five (45) days; or the Company or any Material Subsidiary shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(I) TERMINATION EVENT. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to liability in
excess of $25,000,000. The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $50,000,000.
(J) WAIVER OF MINIMUM FUNDING STANDARD. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or any Controlled
Group member to liability in excess of $25,000,000.
(K) CHANGE OF CONTROL. A Change of Control shall occur.
(L) GUARANTOR REVOCATION. Any Guaranty shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect; in each
case other than a Guarantor's ceasing to be a Subsidiary Borrower pursuant to
SECTION 2.24 hereof or the disposition of such Guarantor in any transaction
permitted by SECTION 7.3(B) hereof.
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(M) SPIN-OFF. The Spin-off shall not be consummated within three (3)
Business Days after the making of the initial Loans.
(N) PLEDGE AGREEMENTS. Any Pledge Agreement shall fail to remain in
full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Pledge Agreement, or any pledgor under
any Pledge Agreement shall fail to comply with any of the terms or provisions of
such Pledge Agreement or shall deny, or give notice to such effect, that it has
any further liability under such Pledge Agreement.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.2.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION. If any
Default described in SECTION 8.1(E) or 8.1(F) occurs with respect to the Company
or any Subsidiary Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, the Required
Lenders may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers expressly
waive.
9.2 AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Revolving Loan Termination Date or
any other date fixed for any payment of principal of, or interest on,
the Loans or any fees or other amounts payable to such Lender (except
with respect to a waiver of the application of the default rate of
interest pursuant to SECTION 2.11 hereof).
(ii) Reduce the principal amount of any Loans, or reduce the
rate or extend the time of payment of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders hereunder specified
to be the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders" or "Pro Rata
Share."
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(iv) Increase the amount of the Revolving Loan Commitment of
any Lender hereunder or increase any Lender's Pro Rata Share.
(v) Permit the Company or any Subsidiary Borrower to assign
its rights under this Agreement.
(vi) Release the Company from its obligations under the
Guaranty set forth in ARTICLE X hereof.
(vii) Amend this SECTION 9.2.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent. The Administrative Agent may waive payment of the fee
required under SECTION 14.3(B) without obtaining the consent of any of the
Lenders.
9.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Company or any other Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to SECTION 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GUARANTY
10.1 GUARANTY. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Subsidiary Borrower, the Company hereby absolutely and unconditionally
guarantees prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all existing
and future obligations including without limitation the Obligations, of each
Subsidiary Borrower to the Agents, the Lenders, or any of them, under or with
respect to the Loan Documents or under or with respect to any Hedging Agreement
entered into in connection with this Agreement, whether for principal, interest,
fees, expenses or otherwise (collectively, the "GUARANTEED OBLIGATIONS", and
each such Subsidiary Borrower being an "OBLIGOR" and collectively, the
"OBLIGORS").
10.2 WAIVERS. The Company waives notice of the acceptance of this
guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Company further waives presentment, protest, notice of
notices delivered or demand made on any Obligor or action or delinquency in
respect of the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to xxx any Obligor, any
other guarantor or any
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other Person obligated with respect to the Guaranteed Obligations or any part
thereof, or otherwise to enforce payment thereof against any collateral securing
the Guaranteed Obligations or any part thereof, and PROVIDED FURTHER that if at
any time any payment of any portion of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of any of the Obligors or otherwise, the Company's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had not been made and whether or not the Administrative
Agent or the Lenders are in possession of this guaranty. The Administrative
Agent and the Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the Obligors.
10.3 GUARANTY ABSOLUTE. This guaranty is a guaranty of payment and not
of collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent's
or any Lender's election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion any Lender's claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor other than the defense of payment; all whether or not the Company
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (a) through (n) of this paragraph. It is agreed that the
Company's
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liability hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that the Company's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Obligor of the
Guaranteed Obligations in the manner agreed upon between the Obligor and the
Administrative Agent and the Lenders.
10.4 ACCELERATION. The Company agrees that, as between the Company on
the one hand, and the Lenders and the Administrative Agent, on the other hand,
the obligations of each Obligor guaranteed under this ARTICLE X may be declared
to be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in SECTION 9.1 hereof for purposes of this ARTICLE X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this ARTICLE X.
10.5 MARSHALING; REINSTATEMENT. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to xxxxxxxx any assets in
favor of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any Borrower or any other guarantor of all or any
part of the Guaranteed Obligations makes a payment or payments to any Lender or
the Administrative Agent, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, the Company, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6 SUBROGATION. Until the irrevocable payment in full of the
Obligations and termination of all commitments which could give rise to any
Guaranteed Obligation, the Company hereby (i) waives and postpones any right of
subrogation with respect to the Guaranteed Obligations, (ii) waives and
postpones any right to enforce any remedy which the Administrative Agent and/or
the Lenders now has or may hereafter have against the Company, any endorser or
any other guarantor of all or any part of the Guaranteed Obligations, and (iii)
waives and postpones any benefit of, and any right to participate in, any
security or collateral given to the Administrative Agent and/or the Lenders to
secure payment of the Guaranteed Obligations or any part thereof or any other
liability of any Obligor to the Administrative Agent and/or the Lenders.
10.7 TERMINATION DATE. This guaranty shall continue in effect until the
earlier of (a) the Facility Termination Date, and (b) the date on which this
Agreement has otherwise expired or been terminated in accordance with its terms
and all of the Guaranteed Obligations have been paid in full in cash.
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ARTICLE XI: GENERAL PROVISIONS
11.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Company contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
11.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agents and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agents and the
Lenders relating to the subject matter thereof other than the Fee Letters.
11.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.6 EXPENSES; INDEMNIFICATION.
(A) EXPENSES. The Borrowers shall reimburse the Administrative Agent
for any reasonable costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Administrative Agent, paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, delivery, syndication,
review, proposed or completed amendment, waiver or modification, and
administration of the Loan Documents. The Borrowers also agree to reimburse the
Agents, each Lead Arranger and each of the Lenders for any reasonable costs and
out-of-pocket expenses (including reasonable attorneys' and paralegals' fees and
time charges of attorneys and paralegals for the Agents, each Lead Arranger and
each Lender, which attorneys and paralegals may be employees of such Agent, such
Lead Arranger, or the Lenders) paid or incurred by the Agents, the Lead
Arrangers or any Lender in connection with the collection of the Obligations and
enforcement of the Loan Documents. The Administrative Agent shall provide the
Borrowers with a detailed statement of all reimbursements requested under this
SECTION 11.6(A).
(B) INDEMNITY. The Borrowers hereby further agree to indemnify the
Agents, the Lead Arrangers, and each and all of the Lenders and each of their
respective Affiliates, and each of such
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Agent's, Lead Arranger's, Lender's and Affiliate's directors, officers,
employees, attorneys and agents (all such persons, "INDEMNITEES") against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not such Indemnitee is a party thereto) which any of them
may pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder except
to the extent that they are determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification.
(C) WAIVER OF CERTAIN CLAIMS. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(D) SURVIVAL OF AGREEMENTS. The obligations and agreements of the
Borrowers under this SECTION 11.6 shall survive the termination of this
Agreement.
11.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.8 ACCOUNTING. Except with respect to the pricing grid calculations
in SECTION 2.15 and the financial covenant calculations in SECTION 7.4 both of
which shall be made in accordance with Agreement Accounting Principles as in
effect on the date hereof, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with
generally accepted accounting principles as in effect from time to time,
consistently applied.
11.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.10 NONLIABILITY OF LENDERS. The relationship between the Borrowers
and the Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrowers or the Guarantors. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any
Borrower or Guarantor to review or inform any Borrower or Guarantor of any
matter in connection with any phase of the Borrowers' business or operations.
11.11 GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN
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ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF NEW YORK.
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, BUT THE PARTIES
HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
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DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF SECTION 11.6 AND THIS SECTION 11.12, WITH ITS COUNSEL.
11.13 OTHER TRANSACTIONS. Each of the Agents, the Lead Arrangers, the
Lenders, and the Borrowers acknowledge that the Agents and the Lenders (or
Affiliates of the Agents and the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents may from time to time
provide other financial services and products to the Company and its
Subsidiaries.
ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1 APPOINTMENT; NATURE OF RELATIONSHIP. ABN is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this ARTICLE XII. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its Affiliates as Holders of
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Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
12.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Person.
12.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in ARTICLE V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents, or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of any
guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.
12.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans and on all Holders of
Obligations. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
12.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such
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agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 THE ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (ii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of the Administrative Agent.
12.9 RIGHTS AS A LENDER. With respect to its Revolving Loan Commitment
and Loans made by it, the Administrative Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders", shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
12.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on the financial statements prepared by
the Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
12.11 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Company prior to the occurrence of
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a Default (which consent shall not be unreasonably withheld), to appoint, on
behalf of the Borrowers and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this ARTICLE XII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
12.12 NO DUTIES IMPOSED UPON SYNDICATION AGENT, DOCUMENTATION AGENT OR
LEAD ARRANGERS. None of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a "Syndication Agent" or "Documentation Agent" or "Lead Arranger" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than, if such Person is a Lender, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Persons identified
on the cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreements as a "Syndication Agent" or "Documentation Agent"
or "Lead Arranger" shall have or be deemed to have any fiduciary duty to or
fiduciary relationship with any Lender. In addition to the agreements set forth
in SECTION 12.10, each of the Lenders acknowledges that it has not relied, and
will not rely, on any of the Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
12.13 COLLATERAL AGENT. ABN is appointed by the Lenders as the
Collateral Agent hereunder and under each of the Pledge Agreements. Each
reference to the Administrative Agent in this ARTICLE XII shall be deemed to
refer also to the Collateral Agent.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to the Company or any other Borrower (including all
account balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
13.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or
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amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligation or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action necessary
such that all Lenders share in the benefits of such collateral ratably in
proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 APPLICATION OF PAYMENTS. The Administrative Agent shall apply all
payments and prepayments in respect of any Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any Lender
for which the Administrative Agent has not then been reimbursed by such Lender
or the applicable Borrower;
(B) second, to the ratable payment of the Obligations then due and
payable; and
(C) third, to the ratable payment of all other Obligations.
13.4 RELATIONS AMONG LENDERS. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (A) no
Borrower shall have any right to assign its rights or obligations under the Loan
Documents without the consent of all of the Lenders, and any such assignment in
violation of this SECTION 14.1(A) shall be null and void, and (B) any assignment
by any Lender must be made in compliance with SECTION 14.3 hereof.
Notwithstanding CLAUSE (B) of this SECTION 14.1 or SECTION 14.3, (i) any Lender
may at any time, without the consent of any Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement to a Federal
Reserve Bank and (ii) any Lender which is a fund or commingled investment
vehicle that invests in commercial loans in the ordinary course of its business
may at any time, without the consent of any Borrower or the Administrative
Agent, pledge or assign all or any part of its rights under this Agreement to a
trustee or other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or securities;
provided, however, that no such assignment or pledge shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat each Lender as the owner of the Loans made by such Lender hereunder for
all purposes hereof unless and until such Lender complies with SECTION 14.3
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Loan, Revolving Loan Commitment, or any
other interest of a lender under the Loan Documents agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of any Loan, shall be conclusive
and binding on any subsequent owner, transferee or assignee of such Loan.
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14.2 PARTICIPATIONS.
(A) PERMITTED PARTICIPANTS; EFFECT. Subject to the terms set forth in
this SECTION 14.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, or any other interest of
such Lender under the Loan Documents on a pro rata or non-pro rata basis. Notice
of such participation to the Company and the Administrative Agent shall be
required prior to any participation becoming effective with respect to a
Participant which is not a Lender or an Affiliate thereof. Upon receiving said
notice, the Administrative Agent shall record the participation in the Register
it maintains. Moreover, notwithstanding such recordation, such participation
shall not be considered an assignment under SECTION 14.3 of this Agreement and
such Participant shall not be considered a Lender. In the event of any such sale
by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the owner of all Loans made by it for
all purposes under the Loan Documents, all amounts payable by the applicable
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the applicable Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except that,
for purposes of ARTICLE IV hereof, the Participants shall be entitled to the
same rights as if they were Lenders.
(B) VOTING RIGHTS. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment.
14.3 ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. (i) Any Lender (each such assigning Lender
under this SECTION 14.3 being a "SELLER") may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities (other than the Company or any of its Affiliates)
("PURCHASERS") all or a portion of its rights and obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment and any
Loans owing to it in accordance with the provisions of this SECTION 14.3. Such
assignment shall be substantially in the form of EXHIBIT D hereto and shall not
be permitted hereunder unless such assignment is either for all of such Seller's
rights and obligations under the Loan Documents or, without the prior written
consent of the Administrative Agent and the Company, involves loans and
commitments as a consequence of which neither the Seller nor the Purchaser will
have a Commitment of less than $5,000,000 (for Sellers which are Managing Agents
or Agents) or $10,000,000 (for all other Sellers) provided that the foregoing
restrictions with respect to Commitments having a minimum aggregate amount (i)
shall not apply to any assignment between Lenders, or to an Affiliate or
Approved Fund of any Lender, and (ii) in any event may be waived by the
Administrative Agent and the Company).
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The written consent of the Administrative Agent, and, prior to the occurrence of
a Default, the Company (which consent, in each such case, shall not be
unreasonably withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate or
Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein, any
Lender (each such Lender, a "GRANTING BANK") may grant to a special purpose
funding vehicle (each such special purpose funding vehicle, a "SPC"), identified
as such in writing from time to time by the applicable Granting Bank to the
Administrative Agent and the Company, the option to provide to the Company and
the other Borrowers all or any part of any Advance that such Granting Bank would
otherwise be obligated to make to the applicable Borrower pursuant to this
Agreement; provided, that (i) nothing herein shall constitute a commitment by
any SPC to make any Advance, (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Advance, the applicable
Granting Bank shall be obligated to make such Advance pursuant to the terms
hereof. The making of an Advance by any SPC hereunder shall utilize the
Revolving Loan Commitment of the applicable Granting Bank to the same extent,
and as if, such Advance were made by such Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or other similar
payment obligation under this Agreement (all liability for which shall remain
with the applicable Granting Bank). All notices hereunder to any Granting Bank
or the related SPC, and all payments in respect of the Obligations due to such
Granting Bank or the related SPC, shall be made to such Granting Bank. In
addition, each Granting Bank shall vote as a Lender hereunder without giving
effect to any assignment under this SECTION 14.3(A)(ii), and not SPC shall have
any vote as a Lender under this Agreement for any purpose. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereto. In addition, notwithstanding anything to the
contrary contained in this SECTION 14.3, any SPC may (i) with notice to, but
without the prior written consent of, the Company and the Administrative Agent
and without paying any processing or administrative fee therefor, assign all or
a portion of its interest in any Advances to the Granting Bank or to any
financial institutions (consented to by the Company and the Administrative Agent
in accordance with the terms of SECTION 14.3(A)(i)) providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Advances and (ii) disclose on a confidential basis any non-public
information relating to its Advances to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC. This SECTION 14.3(A)(ii) may not be amended without the written
consent of each SPC affected thereby.
(B) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as APPENDIX
I to EXHIBIT D hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by SECTION 14.3(A) hereof, (ii) payment of a $3,500 fee by the assignee
or the assignor (as agreed) to the Administrative Agent for processing such
assignment (other than an assignment by a Lender to an Affiliate of such Lender
or an Approved Fund of such Lender), and (iii) the completion of the recording
requirements in SECTION 14.3(C), such assignment shall become effective on the
later of such date when the requirements in CLAUSES (i), (ii), and (iii) are met
or the effective date specified in such Notice of Assignment. The
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Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the Revolving
Loan Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser, if not
already a Lender, shall for all purposes be a Lender party to this Agreement and
any other Loan Documents executed by the Lenders and shall have all the rights
and obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party hereto, and no further consent or action by any
Borrower, the Lenders, or the Administrative Agent shall be required to release
the Seller with respect to the percentage of the Aggregate Revolving Loan
Commitment, Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this SECTION 14.3(B), the Seller, the
Administrative Agent and the Borrowers shall make appropriate arrangements so
that, to the extent notes have been issued to evidence any of the transferred
Loans, replacement notes are issued to such Seller and new notes or, as
appropriate, replacement notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Revolving Loan Commitment, as adjusted
pursuant to such assignment. Notwithstanding anything to the contrary herein, no
Borrower shall, at any time, be obligated to pay under SECTION 2.15(E) to any
Lender that is a Purchaser, assignee or transferee any sum in excess of the sum
which such Borrower would have been obligated to pay to the Lender that was the
Seller, assignor or transferor had such assignment or transfer not been
effected.
(C) THE REGISTER. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and the
Administrative Agent hereby accepts such designation, to serve as such
Borrower's contractual representative solely for purposes of this SECTION
14.3(C). In this connection, the Administrative Agent shall maintain at its
address referred to in SECTION 15.1 a copy of each assignment delivered to and
accepted by it pursuant to this SECTION 14.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of, principal amount of and interest on the Loans owing to, each
Lender from time to time and whether such Lender is an original Lender or the
assignee of another Lender pursuant to an assignment under this SECTION 14.3.
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company and each of its Subsidiaries, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
14.4 CONFIDENTIALITY. Subject to SECTION 14.5, the Administrative Agent
and the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Company; provided, however, each prospective
Transferee shall be required to
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agree that if it does not become a participant or assignee it shall return all
materials furnished to it by or on behalf of the Company in connection with this
Agreement.
14.5 DISSEMINATION OF INFORMATION. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with SECTION 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV: NOTICES
15.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.14 with
respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 CHANGE OF ADDRESS. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
15.3 AUTHORITY OF COMPANY. Each of the Subsidiary Borrowers, by its
execution hereof or of an Assumption Letter (i) irrevocably authorizes the
Company, on behalf of such Subsidiary Borrower, to give and receive all notices
under the Loan Documents and to make all elections under the Loan Documents and
to give all Borrowing/Conversion/Continuation Notices on its behalf, (ii) agrees
to be bound by any such notices or elections and (iii) agrees that the
Administrative Agent and Lenders may rely upon any such policies or elections as
if they had been given or made by such Subsidiary Borrower.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
Remainder of This Page Intentionally Blank
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IN WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent have executed this Agreement as of the date first
above written.
XXXXXX WORLDWIDE, INC., as the Company
/s/ X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
V.P. Finance ---------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
84
XXXXXX EUROPE AG, as a Subsidiary Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name:
Title:
Address: /x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
85
XXXXXX EUROPE, B.V., as a Subsidiary
Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
86
XXXXXX HOLDINGS, INC., as a Subsidiary
Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
87
XXXXXX PUERTO RICO, INC., as a Subsidiary
Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
88
ABN AMRO BANK N.V., as Administrative
Agent and Lender
By: /s/ Xxxx Xxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxx
Title: GROUP VICE PRESIDENT
By: /s/ Xxxx X. Honda
--------------------------------------------------
Name: XXXX X. HONDA
Title: VICE PRESIDENT
Address: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Honda
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
89
SUNTRUST BANK, ATLANTA, as Syndication
Agent and Lender
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
----------------------------------------
Name: J. XXXXXXXXXXX XXXXXXX
Title: Director
Address: 000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
90
WACHOVIA BANK N.A., as Documentation
Agent and Lender
By: /s/ Xxxxxxx X XxXxxxx
---------------------------------------
Name: Xxxxxxx X XxXxxxx
Title: Vice President
Address: 000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
91
EXHIBIT A
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
COMMITMENTS
-----------
LOAN COMMITMENTS
Lender Amount of Revolving Loan % of Aggregate Revolving Loan
------ ------------------------ -----------------------------
Commitment Commitment
---------- ----------
ABN AMRO Bank N.V. $66,666,666.66 33 1/3%
Suntrust Bank, Atlanta $66,666,666.67 33 1/3%
Wachovia Bank N.A. $66,666,666.67 33 1/3%
Total $200,000,000.00 100%
92
EXHIBIT B
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF BORROWING/CONVERSION/CONTINUATION NOTICE
------------------------------------------------
TO: ABN AMRO Bank N.V., as administrative agent for itself and the other
Lenders (the "ADMINISTRATIVE AGENT") under that certain 364-Day Credit
Agreement dated as of October 20, 1999 among Xxxxxx Worldwide, Inc.
(the "Company"), the Subsidiary Borrowers from time to time party
thereto, the financial institutions parties thereto (the "Lenders"),
the Administrative Agent, Suntrust Bank, Atlanta, individually and as
Syndication Agent, and Wachovia Bank N.A., individually and as
Documentation Agent (such 364-Day Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement").
The [Company] [undersigned Subsidiary Borrower] hereby gives to the
Administrative Agent a [Borrowing/Conversion/Continuation Notice pursuant to
SECTION 2.8] [a Borrowing/ Conversion/Continuation Notice pursuant to SECTION
2.10] of the Credit Agreement, and the [Company] [undersigned Subsidiary
Borrower] hereby requests to [borrow] [convert] [continue] on ______ ___, ____
(the "BORROWING DATE") from the Lenders on a pro rata basis an aggregate
principal amount of:
US $____________ in Revolving Loans as a
/ / Floating Rate Advance
/ / Eurocurrency Rate Advance
Applicable Interest Period of ________ month(s).
93
The undersigned hereby certifies to the Agents and the Lenders that (i)
the representations and warranties of the undersigned contained in
Article VI of the Credit Agreement are and shall be true and correct in
all material respects on and as of the date hereof and on and as of the
Borrowing Date (unless such representation and warranty is made as of a
specified date, in which case, such representation and warranty shall
be true and correct in all material respects as of such date) except
for changes in the Schedules to the Credit Agreement affecting
transactions permitted by or not in violation of the Credit Agreement;
(ii) no Default or Unmatured Default has occurred and is continuing on
the date hereof or on the Borrowing Date or will result from the making
of the proposed Advance; and (iii) the conditions set forth in SECTION
5.3 of the Credit Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Borrowing/Conversion/Continuation Notice.
Dated _________ ___, 1999
[XXXXXX WORLDWIDE, INC.]
[SUBSIDIARY BORROWER]
By:
--------------------------------
Name:
Title:
2
94
EXHIBIT D
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
-------------------------------------------
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between
______________ (the ASSIGNOR) and ____________ (the "ASSIGNEE") is dated as of
____ ___, _____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a 364-Day Credit
Agreement (which, as it may be amended, restated, supplemented, modified,
renewed or extended from time to time is herein called the "CREDIT AGREEMENT")
described in Item I of Schedule 1 attached hereto ("SCHEDULE 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item [3] of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item [3] of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item [4] of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"EFFECTIVE DATE") shall be the later of the date specified in SECTION 14.3(B) of
the Credit Agreement and the date specified in Item [5] of Schedule 1 or [two]
Business Days (or such shorter period agreed to by the Administrative Agent)
after a Notice of Assignment substantially in the form of APPENDIX I (attached
hereto) has been delivered to the Administrative Agent. Such Notice of
Assignment must include the consents, if any, required to be delivered to the
Administrative Agent and the Company by SECTION 14.3(A) of the Credit Agreement.
In no event will the Effective Date occur if the payments required to be made by
the Assignee to the Assignor on the Effective Date under SECTIONS 4 AND 5 hereof
are not made on the proposed Effective Date. The Assignor will notify the
Assignee of the proposed Effective Date no later than the Business Day prior to
the proposed Effective Date. As of the Effective Date, (i) the Assignee shall
have the rights and obligations of a Lender under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder and
(ii) the Assignor shall relinquish its rights and be released from its
corresponding obligations under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder.
95
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each Eurocurrency Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Rate Loan
either becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter referred to
as the "PAYMENT DATE"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Eurocurrency Rate Loan assigned to
the Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Rate Loan shall be
the Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the existing Interest Period applicable to such Eurocurrency Rate
Loan (the "AGREED INTEREST RATE") and any interest received by the Assignee in
excess of the Agreed Interest Rate shall be remitted to the Assignor. In the
event interest for the period from the Effective Date to but not including the
Payment Date is not paid by the applicable Borrower with respect to any
Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder, the
Assignee shall pay to the Assignor interest for such period on the portion of
such Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder at
the applicable rate provided by the Credit Agreement. In the event a prepayment
of any Eurocurrency Rate Loan which is existing on the Payment Date and assigned
by the Assignor to the Assignee hereunder occurs after the Payment Date but
before the end of the Interest Period applicable to such Eurocurrency Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Eurocurrency Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Administrative Agent with respect to Eurocurrency Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Loans assigned to
the Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans or fees, or the Payment Date, in the case of Eurocurrency
Rate Loans, and not previously paid by the Assignee to the Assignor.](1) In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The [Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or commitment fees is
made under the Credit
----------
(1) EACH ASSIGNOR MAY INSERT ITS STANDARD PAYMENT PROVISIONS IN LIEU OF
THE PAYMENT TERMS INCLUDED IN THIS EXHIBIT.
2
96
Agreement with respect to the amounts assigned to the Assignee hereunder (other
than a payment of interest or commitment fees for the period prior to the
Effective Date or, in the case of Eurocurrency Rate Loans, the Payment Date,
which the Assignee is obligated to deliver to the Assignor pursuant to Section 4
hereof). The amount of such fee shall be the difference between (i) the interest
or fee, as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was ___of 1% less than the interest rate paid by the applicable
Borrower or if the commitment fee was ___ of 1% less than the commitment fee
paid by the applicable Borrower, as applicable. In addition, the] [Assignee]
[Assignor] agrees to pay a $3,500 processing fee required to be paid to the
Administrative Agent in connection with this Assignment Agreement.(2)
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. The
Assignor represents and warrants that it has the power and authority and legal
right to execute and deliver this Assignment Agreement and to perform its
obligations hereunder. The execution and delivery by the Assignor of this
Assignment Agreement and the performance by it of its obligations hereunder have
been duly authorized by proper proceedings. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor, the Administrative Agent, nor any other
Lender, nor any of its officers, directors, employees, Agents or attorneys shall
be responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrowers or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and
warrants that it has the power and authority and legal right to execute and
deliver this Assignment Agreement and to perform its obligations hereunder. The
execution and delivery by the Assignee of this Assignment Agreement and the
performance by it of its obligations hereunder have been duly authorized by
proper proceedings. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements requested by
the Assignee and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
----------
(2) ASSIGNOR AND ASSIGNEE TO INSERT APPLICABLE PAYMENT TERMS.
3
97
taking action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to take such action as contractual representative on its
behalf and to exercise such powers under the Loan Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents
are required to be performed by it as a Lender, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes].(3)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to SECTION 14.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [SECTIONS 4, 5 AND 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Revolving Loan Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 3 of
Schedule 1 shall remain the same, but the dollar amount purchased shall be
recalculated based on such reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
New York.
----------
(3) TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF
THE UNITED STATES, OR A STATE THEREOF.
4
98
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-----------------------
Name:
Title
[NAME OF ASSIGNEE]
By:
-----------------------
Name:
Title:
5
99
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement: 364-Day Credit Agreement
dated as of October 20, 1999 among Xxxxxx Worldwide, Inc. (the
"Company"), the Subsidiary Borrowers from time to time party thereto,
the financial institutions parties thereto (the "Lenders"), ABN AMRO
Bank N.V., individually and as Administrative Agent, Suntrust Bank,
Atlanta, individually and as Syndication Agent, and Wachovia Bank N.A.,
individually and as Documentation Agent.
2. Date of Assignment Agreement: ______, ___
3. Amounts to be Assigned(4) (As of Date of item 2 above):
REVOLVING
LOAN FACILITY
TOTAL OF COMMITMENTS (LOANS)
UNDER THE CREDIT AGREEMENT $____________
ASSIGNEE'S PERCENTAGE OF REVOLVING FACILITY
PURCHASED UNDER THE ASSIGNMENT AGREEMENT ________%
AMOUNT OF ASSIGNED SHARE OF
REVOLVING FACILITY UNDER THE ASSIGNMENT AGREEMENT $___________
4. ASSIGNEE'S AGGREGATE (LOAN AMOUNT)
COMMITMENT AMOUNT PURCHASED HEREUNDER. $___________
5. Proposed Effective Date: _______ __, ____
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _________________________ By: ____________________________
Name: Name:
Title: Title:
----------
(4) Amounts to be described in Dollars.
100
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
7
101
APPENDIX I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-------------
---------, ---
To: ABN AMRO Bank, N.V., as Administrative Agent
ABN AMRO Bank, N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Honda
Telephone No.: 312/000-0000
Facsimile No.: 312/606-8425
ABN AMRO BANK, N.V.
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: 212/000-0000
Facsimile No.: 212/314-1712
XXXXXX WORLDWIDE, INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice-President -- Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that 364-Day Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to SECTION 14.3(B) of the Credit Agreement.
8
102
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____, __ (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in SECTION 14.3(B) of the Credit Agreement and
the date specified in Item 5 of Schedule 1 or two Business Days (or such shorter
period as agreed to by the Administrative Agent) after this Notice of Assignment
and any consents and fees required by SECTIONS 14.3(A) AND 14.3(B) of the Credit
Agreement have been delivered to the Administrative Agent and the Alternate
Currency Banks, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee has not been
satisfied.
4. The Assignor and the Assignee hereby give to the Company and the
Alternate Currency Banks and the Administrative Agent notice of the assignment
and delegation referred to herein. The Assignor will confer with the
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent and the Alternate
Currency Banks if the Assignment Agreement does not become effective on any
proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor of the Assignee shall pay to the Administrative Agent
on or before the Effective Date the processing fee of $3,500 required by SECTION
14.3(B) of the Credit Agreement.
6. If notes are outstanding on the Effective Date, the Assignor and the
Assignee may request and direct that the Administrative Agent prepared and cause
the Borrowers to execute and deliver new notes or, as appropriate, replacement
notes, to the Assignor and the Assignee. The Assignor and the Assignee, as
applicable, each agree to deliver to the Administrative Agent the original note
received by it from the Applicable Borrower upon its receipt of a new note in
the appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the Attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets' under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
contractual representative under the Loan Documents in accordance with the terms
thereof. The Assignee acknowledges that the Administrative Agent has no duty to
supply information with respect to
9
103
the Borrowers or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE}
By: By:
----------------------------- ----------------------------
Name: Name:
Title: Title:
10
104
ACKNOWLEDGED AND CONSENT TO:
______________, as Administrative Agent ______________, as the Company
By: By:
----------------------------- ----------------------------
Name: Name:
Title: Title:
[add additional Alternate Currency Banks]
[Attach photocopy of Schedule 1 to Assignment]
11
105
EXHIBIT E
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF OFFICER'S CERTIFICATE
-----------------------------
OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am the ____________________
of Xxxxxx Worldwide, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"). Capitalized terms used herein and
not otherwise defined herein are as defined in that certain 364-Day Credit
Agreement dated as of October 20, 1999 among the Company, the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent (as amended,
restated, supplemented or modified from time to time, the "Credit Agreement").
I further certify on behalf of the Company, that as of the date hereof,
to the best of my knowledge, after diligent inquiry of all relevant persons at
the Company and its Subsidiaries, as of the date of this Officer's Certificate
no Default or Unmatured Default exists [other than the following (describe the
nature of the Default or Unmatured Default and the status thereof)].
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the Company
on this _____ day of __________, ___.
-------------------------
[insert Name of Officer]
106
EXHIBIT F
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF COMPLIANCE CERTIFICATE
------------------------------
Pursuant to SECTION 7.1(A)(iii) of the 364-Day Credit Agreement (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), dated as of October 20, 1999 among Xxxxxx Worldwide, Inc. (the
"Company"), the Subsidiary Borrowers from time to time party thereto, the
financial institutions parties thereto (the "Lenders"), ABN AMRO Bank N.V.,
individually and as Administrative Agent, Suntrust Bank, Atlanta, individually
and as Syndication Agent, and Wachovia Bank N.A., individually and as
Documentation Agent (as amended, restated, supplemented or modified from time to
time, the "Credit Agreement") on behalf of the Lenders, the Company, through its
____________, hereby delivers to the Administrative Agent [, together with the
financial statements being delivered to the Administrative Agent pursuant to
SECTION 7.1(A) of the Credit Agreement,] this Compliance Certificate (the
"Certificate") [for the accounting period from _____________, ____ to
____________, ____]. Capitalized terms used herein shall have the meanings set
forth in the Credit Agreement. Subsection references herein relate to
subsections of the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of the Company;
2. I have reviewed the terms of the Credit Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Company and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate [except as set forth below]; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Company's compliance with certain covenants of the
Credit Agreement, all of which data and computations are true, complete and
correct.
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of _________, 19/20__.
107
SCHEDULE I
to COMPLIANCE CERTIFICATE
I. SECTION 2.15: PRICING CALCULATIONS
LEVERAGE RATIO (SECTION 2.15(d))
1. Total Indebtedness $_____________
2. EBITDA for the period for
_________ to __________ $_____________
3. "Leverage Ratio" (Ratio of (1) to (2))
____TO 1.0
II. SECTION 7.3: NEGATIVE COVENANTS
A. INDEBTEDNESS (Section 7.3(D)(viii))
1. Permitted aggregate additional unsecured
Indebtedness $_____________
2. Actual aggregate additional unsecured
Indebtedness $_____________
3. State whether (2) is less than (1) Yes/No
B. RESTRICTED PAYMENTS (Section 7.3(F))
1. Permitted aggregate Restricted Payments
for the period from __________________
to __________________ (25% of Net
Income for prior fiscal years) $_____________
2. Actual aggregate Restricted Payments
for the period from __________________
to __________________ $_____________
3. State whether (2) is less than (1) Yes/No
C. ACQUISITIONS (Section 7.3(G))
1. Permitted aggregate permitted Acquisitions
for the period from _________________ to
___________________ $_____________
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108
2. Actual aggregate Permitted Acquisitions
for the period from _________________ to
___________________ $_____________
3. State whether (2) is less than (1) Yes/No
D. CAPITAL EXPENDITURES (Section 7.3(Q))
1. Permitted aggregate Capital Expenditures for the
period from _________________ to _________________
($150,000,000 for fiscal years ending prior to the
third anniversary of the Closing Date, $175,000,000
for fiscal years ending thereafter) $_____________
2. Actual aggregate Capital Expenditures
for the period from _______________ to
_________________ $_____________
3. State whether (2) is less than (1) Yes/No
III. SECTION 7.4: FINANCIAL COVENANTS
A. MINIMUM COVERAGE RATIO (SECTION 7.4(A))
1. EBITDAR for the period from
_______ to _________ $_____________
2. Interest Expense plus Rentals
for the period from __________
to____________ $_____________
3. "Coverage Ratio" (Ratio of (1) to (2)) _____TO 1.0
Minimum Leverage Ratio is as follows:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 2.75
July 1, 2000 and thereafter 2.75
B. MAXIMUM LEVERAGE RATIO (SECTION 7.4(B))
1. Total Indebtedness $_____________
2. EBITDA for the period from
to ___________ $_____________
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109
3. "Leverage Ratio" (Ratio of (1) to (2)) _______TO 1.0
Maximum Leverage Ratio is as follows:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 3.25
July 1, 2000 and thereafter 3.00
C. MINIMUM CONSOLIDATED NET WORTH (SECTION 7.4(C))
1. Consolidated Net Worth as of the last day of
the fiscal quarter ending on __________,_____ $_____________
2. Eighty-five percent (85%) of Consolidated
Net Worth as of the date immediately following
the Closing Date $_____________
3. Fifty percent (50%) of Net Income (if positive)
calculated separately for (i) the remainder of the
quarterly accounting period in which the Closing Date
occurs and (ii) each subsequent quarterly accounting
period, in each case excluding changes in cumulative
foreign exchange translation adjustment $_____________
4. Sum of 2) plus 3) $_____________
5. State whether (1) is less than (4) YES/NO
------
The Company hereby certifies, through its ____________, that the
information set forth above is accurate as of ____________, __________, to
the best of such officer's knowledge, after diligent inquiry, and that the
financial statements delivered herewith present fairly the financial position
of the Company and its Subsidiaries at the dates indicated and the results of
their operations and changes in their financial position for the periods
indicated in conformity with Agreement Accounting Principles, consistently
applied.
Dated:
-----------------, ---------------
XXXXXX WORLDWIDE, INC.
By:
------------------------------
Name:
Title:
4
110
EXHIBIT G-1
FORM OF
SUBSIDIARIES GUARANTY (364-DAY AGREEMENT)
-----------------------------------------
This Subsidiaries Guaranty (this "GUARANTY") is made as of the 20th day
of October, 1999 by each of the corporations that is a signatory hereto
(individually, a "GUARANTOR"; collectively, the "GUARANTORS"), in favor of the
Agents and the Lenders (each as defined below), under the Credit Agreement
referred to below.
RECITALS:
X. Xxxxxx Worldwide, Inc. (the "Company"), the Subsidiary Borrowers
from time to time party thereto, the institutions from time to time party
thereto as Lenders, ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent have entered into
that certain 364-Day Credit Agreement dated as of the date hereof (as from time
to time amended, restated, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accomodations to be made by the Lenders
to the Company and the Subsidiaries;
B. Each of the Guarantors is a Wholly-Owned Subsidiary of the Company
and will receive substantial and direct benefits from the extensions of credit
contemplated by the Credit Agreement and is entering into this Guaranty to
induce the Agents and the Lenders to enter into the Credit Agreement and extend
credit to the Borrowers thereunder; and
C. The execution and delivery of this Guaranty is a condition precedent
to the obligation of the Lenders to extend credit to the Company and to the
Subsidiary Borrowers pursuant to the Credit Agreement;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration and as an inducement to the Lenders to enter into the
Credit Agreement and extend credit to the Company and to the Subsidiary
Borrowers, each Guarantor hereby agrees as follows:
1. Terms defined in the Credit Agreement and not otherwise defined
herein have, as used herein, the respective meanings provided for therein.
2. Each Guarantor, jointly and severally, hereby absolutely,
irrevocably and unconditionally guarantees prompt, full and complete payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of the Obligations, including, without limitation, (a) the
principal of and interest on each Advance made to the
111
Company or any Subsidiary Borrower pursuant to the Credit Agreement, (b) any
Reimbursement Obligations of the Company or a Subsidiary Borrower, (c) any
obligations under or with respect to any Hedging Agreement entered into in
connection with the Credit Agreement and (d) all other amounts payable by the
Company and the Subsidiary Borrowers or any of their respective Subsidiaries
under the Credit Agreement and the other Loan Documents (collectively, the
"GUARANTEED DEBT"). This is a guaranty of payment and not a guaranty of
collection.
3. Each Guarantor waives notice of the acceptance of this Guaranty and
of the extension or incurrence of the Guaranteed Debt or any part thereof. Each
Guarantor further waives all setoffs and counterclaims and presentment, protest,
notice, filing of claims with a court in the event of receivership, bankruptcy
or reorganization of any Borrower, demand or action on delinquency in respect of
the Guaranteed Debt or any part thereof, including any right to require the
Agents or the Lenders to xxx the Company, any Subsidiary Borrower, any other
Guarantor or any other Person obligated with respect to the Guaranteed Debt or
any part thereof, or otherwise to enforce payment thereof against any collateral
securing the Guaranteed Debt or any part thereof.
4. Each Guarantor hereby agrees that, to the fullest extent permitted
by law, its obligations hereunder shall be continuing, absolute and
unconditional under any and all circumstances and not subject to any reduction,
limitation, impairment, termination, defense (other than indefeasible payment in
full or a defense arising under the Agreement based upon the gross negligence or
willful misconduct of any Agent or Lender), setoff, counterclaim or recoupment
whatsoever (all of which are hereby expressly waived by it to the fullest extent
permitted by law), whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise. The validity and enforceability of this Guaranty shall
not be impaired or affected by any of the following: (a) any extension,
modification or renewal of, or indulgence with respect to, or substitution for,
the Guaranteed Debt or any part thereof or any agreement relating thereto at any
time; (b) any failure or omission to perfect or maintain any lien on, or
preserve rights to, any security or collateral or to enforce any right, power or
remedy with respect to the Guaranteed Debt or any part thereof or any agreement
relating thereto, or any collateral securing the Guaranteed Debt or any part
thereof; (c) any waiver of any right, power or remedy or of any default with
respect to the Guaranteed Debt or any part thereof or any agreement relating
thereto or with respect to any collateral securing the Guaranteed Debt or any
part thereof; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Debt or any part thereof, any other guaranties with
respect to the Guaranteed Debt or any part thereof, or any other obligations of
any person or entity with respect to the Guaranteed Debt or any part thereof;
(e) the enforceability or validity of the Guaranteed Debt or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Guaranteed Debt or any part thereof;
(f) the application of payments received from any source to the payment of
indebtedness other than the Guaranteed Debt, any part thereof or amounts which
are not covered by this Guaranty even though the Lenders might lawfully have
elected to apply such payments to any part or all of the Guaranteed Debt or to
amounts which are not covered by this Guaranty; (g) any change of ownership of
any Borrower or the insolvency, bankruptcy or any other change in the legal
status of any Borrower; (h) any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair,
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delay or in any way affect the validity, enforceability or the payment when due
of the Guaranteed Debt; (i) the failure of any Borrower to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Guaranteed Debt or this Guaranty, or to take any other action required in
connection with the performance of all obligations pursuant to the Guaranteed
Debt or this Guaranty; (j) the existence of any claim, setoff or other rights
which any Guarantor may have at any time against any Borrower or any other
Guarantor or any other Person in connection herewith or with any unrelated
transaction; (k) the Lenders' election, in any case or proceeding instituted
under chapter 11 of the United States Bankruptcy Code, of the application of
section 1111(b)(2) of the United States Bankruptcy Code; (l) any borrowing, use
of cash collateral, or grant of a security interest by any Borrower, as debtor
in possession, under section 363 or 364 of the United States Bankruptcy Code;
(m) the disallowance of all or any portion of any of the Lenders' claims for
repayment of the Guaranteed Debt under section 502 or 506 of the United States
Bankruptcy Code; or (n) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of any
Guarantor from its obligations hereunder, all whether or not such Guarantor
shall have had notice or knowledge of any act or omission referred to in the
foregoing CLAUSES (a) THROUGH (n) of this paragraph. It is agreed that each
Guarantor's liability hereunder is independent of each other Guarantor's
liability hereunder with respect to the Guaranteed Debt and any other guaranties
or other obligations at any time in effect with respect to the Guaranteed Debt
or any part thereof, and that each Guarantor's liability hereunder may be
enforced regardless of the existence, validity, enforcement or non-enforcement
of any such other guaranties or other obligations or any provision of any
applicable law or regulation purporting to prohibit payment by any Borrower of
the Guaranteed Debt in the manner agreed upon among the Agents, the Lenders and
the Borrowers.
5. Credit may be granted or continued from time to time by the Lenders
to the Borrowers without notice to or authorization from any Guarantor
regardless of any Borrower's financial or other condition at the time of any
such grant or continuation. No Agent or Lender shall have an obligation to
disclose or discuss with any Guarantor its assessment of the financial condition
of any Borrower.
6. Each Guarantor authorizes the Lenders to take any action or exercise
any remedy with respect to any collateral from time to time securing the
Guaranteed Debt, which the Lenders in their sole discretion shall determine,
without notice to any Guarantor.
7. In the event the Lenders in their sole discretion elect to give
notice of any action with respect to any collateral securing the Guaranteed Debt
or any part thereof, ten (10) days' written notice mailed to the Guarantors by
ordinary mail at the address shown hereon shall be deemed reasonable notice of
any matters contained in such notice. Each Guarantor consents and agrees that
neither the Agents nor the Lenders shall be under any obligation to xxxxxxxx any
assets in favor of any Guarantor or against or in payment of any or all of the
Guaranteed Debt.
8. In the event that acceleration of the time for payment of any of the
Guaranteed Debt is stayed upon the insolvency, bankruptcy or reorganization of
any Borrower, or otherwise, all such amounts shall nonetheless be payable by
each Guarantor forthwith upon demand by the Agents or the Lenders. Each
Guarantor further agrees that, to the extent that any Borrower makes a payment
or payments to any of the Lenders on the Guaranteed Debt, or the
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113
Agents or the Lenders receive any proceeds of collateral securing the Guaranteed
Debt, which payment or receipt of proceeds or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be returned or repaid to such Borrower, its estate, trustee, receiver, debtor in
possession or any other party, including, without limitation, each Guarantor,
under any insolvency or bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment, return or repayment, the
obligation or part thereof which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred.
9. No delay on the part of the Agents or the Lenders in the exercise of
any right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise by the Agents or the Lenders of any right, power or remedy
shall preclude any further exercise thereof; nor shall any amendment,
supplement, modification or waiver of any of the terms or provisions of this
Guaranty be binding upon the Agents or the Lenders, except as expressly set
forth in a writing duly signed and delivered by the Agents. The failure by the
Agents or the Lenders at any time or times hereafter to require strict
performance by any Borrower or any Guarantor of any of the provisions,
warranties, terms and conditions contained in any promissory note, security
agreement, agreement, guaranty, instrument or document now or at any time or
times hereafter executed pursuant to the terms of, or in connection with, the
Agreement by any Borrower or any Guarantor and delivered to the Agents or the
Lenders shall not waive, affect or diminish any right of the Agents or the
Lenders at any time or times hereafter to demand strict performance thereof, and
such right shall not be deemed to have been waived by any act or knowledge of
the Agents or the Lenders, their agents, officers or employees, unless such
waiver is contained in an instrument in writing duly signed and delivered by the
Agents. No waiver by the Agents or the Lenders of any default shall operate as a
waiver of any other default or the same default on a future occasion, and no
action by the Agents or the Lenders permitted hereunder shall in any way affect
or impair the Agents' or the Lenders' rights or powers, or the obligations of
any Guarantor under this Guaranty. Any determination by a court of competent
jurisdiction of the amount of any Guaranteed Debt owing by any Borrower to the
Lenders shall be conclusive and binding on each Guarantor irrespective of
whether such Guarantor was a party to the suit or action in which such
determination was made.
10. Subject to the provisions of SECTION 8, this Guaranty shall
continue in effect until the Credit Agreement have terminated, the Guaranteed
Debt has been paid in full and the other conditions of this Guaranty have been
satisfied.
11. In addition to and without limitation of any rights, powers or
remedies of the Agents or the Lenders under applicable law, any time after
maturity of the Guaranteed Debt, whether by acceleration or otherwise, the
Agents or the Lenders may, in their sole discretion, with notice after the fact
to the Guarantors and regardless of the acceptance of any security or collateral
for the payment hereof, appropriate and apply toward the payment of the
Guaranteed Debt (a) any indebtedness due or to become due from any of the
Lenders to any Guarantor, and (b) any moneys, credits or other property
belonging to any Guarantor (including all account balances, whether provisional
or final and whether or not collected or available) at any time held by or
coming into the possession of any Agents or any Lender whether for deposit or
otherwise.
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12. Each Guarantor agrees to pay all costs, fees and expenses
(including reasonable attorneys' fees and time charges, which attorneys may be
employees of an Agent or Lender) incurred by an Agent or Lender in collecting or
enforcing the obligations of each Guarantor under this Guaranty.
13. This Guaranty shall bind each Guarantor and its successors and
assigns and shall inure to the benefit of the Agents, the Lenders and their
successors and assigns. All references herein to the Lenders shall for all
purposes also include all Purchasers and Participants (as such terms are defined
in the Agreement). All references herein to a Borrower shall be deemed to
include its successors and assigns including, without limitation, a receiver,
trustee or debtor in possession of or for such Borrower.
14. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AT NEW YORK, NEW
YORK, AND SHALL BE CONSTRUED AND THE RIGHTS AND LIABILITIES OF THE AGENTS, THE
LENDERS AND THE GUARANTORS DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS,
WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS GUARANTY, EACH GUARANTOR, THE AGENTS AND THE LENDERS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH GUARANTOR, THE AGENTS AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR, THE AGENTS AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
15. EACH GUARANTOR, THE LENDERS AND THE AGENTS EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH GUARANTOR, THE LENDERS AND THE
AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR
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115
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.
16. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
17. Except as otherwise expressly provided herein, any notice required
or desired to be served, given or delivered to any party hereto under this
Guaranty shall be in writing by facsimile, U.S. mail or overnight courier and
addressed or delivered to such party (a) if to the Agents or the Lenders, at
their respective addresses set forth in the Agreement, or (b) if to any
Guarantor, at its address indicated on EXHIBIT A hereto, or to such other
address as the Agents or the Lenders or any Guarantor designates to the Agents
in writing. All notices by United States mail shall be sent certified mail,
return receipt requested. All notices hereunder shall be effective upon delivery
or refusal of receipt; PROVIDED, HOWEVER, that any notice transmitted by
facsimile shall be deemed given when transmitted.
18. Each Guarantor hereby represents and warrants to the Agents and the
Lenders that:
(a) each Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified and in good standing as a foreign
corporation and is duly authorized to conduct its business in each
jurisdiction in which its business is conducted or proposed to be
conducted;
(b) each Guarantor has all requisite power and authority
(corporate and otherwise) and legal right to execute and deliver this
Guaranty and to perform its obligations hereunder;
(c) the execution and delivery by each Guarantor of this
Guaranty and the performance of its obligations hereunder have been
duly authorized by proper corporate proceedings and this Guaranty
constitutes the legal, valid and binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally; and
(d) neither the execution and delivery by each Guarantor of
this Guaranty nor compliance with the provisions of this Guaranty will,
or at the relevant time did, (i) violate any law, rule, regulation
(including Regulation T, U or X), order, writ, judgment,
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116
injunction, decree or award binding on any Guarantor or any Guarantor's
charter, articles or certificate of incorporation or by-laws, (ii)
violate the provisions of or require the approval or consent of any
party to any indenture, instrument or agreement to which any Guarantor
is a party or is subject, or by which it, or its property, is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien (other than Liens permitted by, and
created under, the Loan Documents) in, of or on the property of any
Guarantor pursuant to the terms of any such indenture, instrument or
agreement, or (iii) require any consent of the stockholders of any
Person or any Governmental Authority.
Each Guarantor agrees that the foregoing representations and warranties shall be
deemed to have been made by such Guarantor on the date of this Guaranty, and on
each Borrowing Date, Conversion/Continuation Date or Issuance Date.
19. It is understood that while the amount of the Guaranteed Debt
guaranteed hereby is not limited, if in any action or proceeding involving any
state, federal or foreign bankruptcy, insolvency or other law affecting the
rights of creditors generally, this Guaranty would be held or determined to be
void, invalid or unenforceable on account of the amount of the aggregate
liability under this Guaranty with respect to one or more of the Guarantors,
then, notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of such liability shall, with respect to any such Guarantor,
without any further action of the Agents, the Lenders or any other Person, be
automatically limited and reduced with respect to any such Guarantor to the
highest amount which is valid and enforceable as determined in such action or
proceeding.
20. Pursuant to SECTION 7.2(N) of the Credit Agreement, certain
Subsidiaries are from time to time required to enter into this Guaranty as a
Guarantor. Upon execution and delivery after the date hereof by a Subsidiary of
a supplement in the form of EXHIBIT A hereto, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any Guarantor hereunder, of any Borrower or of any Agent or Lender. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party hereto.
[signature page to follow]
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first above written.
[SUBSIDIARY]
By:
--------------------------------
Its:
-------------------------------
[SUBSIDIARY]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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118
EXHIBIT A TO GUARANTY
---------------------
JOINDER AGREEMENT
This Joinder Agreement dated as of ________________, __________ is
delivered pursuant to that certain Subsidiary Guaranty as of October 20, 1999 by
the direct and indirect subsidiaries of Xxxxxx Worldwide, Inc. party thereto (as
amended, supplemented, or modified from time to time, the "Guaranty"). The
undersigned hereby agrees that on and after the date hereof it shall be a
"Guarantor" under the Guaranty and be obligated to perform all of the
obligations of a Guarantor thereunder and hereby makes the representations and
warranties therein as of the date first set forth above.
[GUARANTOR]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[address for notices]
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119
EXHIBIT G-2
FORM OF SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "SUBORDINATION AGREEMENT") is made
as of the 20th day of October, 1999, by and among Xxxxxx Worldwide, Inc., a
Delaware corporation (the "COMPANY"), each of the corporations that is a
signatory hereto (collectively, the "INITIAL GRANTORS" and along with each other
Subsidiary of the Company which become parties to this Subordination Agreement
by executing an Addendum hereto in the form attached as ANNEX I, the "GRANTORS")
in favor of the Agents and the Lenders under (and as defined in) the Credit
Agreement referred to below;
WITNESSETH:
WHEREAS, the Company, one or more Subsidiaries of the Company (whether
now existing or hereafter formed, collectively referred to herein as the
"SUBSIDIARY BORROWERS"), the institutions from time to time parties hereto as
Lenders, and ABN AMRO Bank N.V., in its capacity as Administrative Agent (the
"ADMINISTRATIVE AGENT"), SUNTRUST BANK, ATLANTA, as Syndication Agent (the
"SYNDICATION AGENT") and WACHOVIA BANK N.A., as Documentation Agent (the
"DOCUMENTATION AGENT"). have entered into a certain 364-Day Credit Agreement
dated as of October 20, 1999 (as the same may be amended, modified, supplemented
and/or restated, and as in effect from time to time, the "CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for extensions of credit
and other financial accommodations to be made by the Lenders to the Company and
the Subsidiary Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Grantors
execute and deliver this Subordination Agreement; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each of the
Grantors represents and warrants (which representations and warranties shall be
deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, limited liability company, partnership
or other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a Material Adverse Effect.
120
(b) It has the power and authority and legal right to execute
and deliver this Subordination Agreement and to perform its obligations
hereunder. The execution and delivery by it of this Subordination Agreement and
the performance by it of its obligations hereunder have been duly authorized by
proper proceedings, and this Subordination Agreement constitutes a legal, valid
and binding obligation of such Grantor, enforceable against such Grantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution and delivery by it of this Subordination
Agreement, nor the consummation by it of the transactions herein contemplated,
nor compliance by it with the terms and provisions hereof, will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
it or its certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) or the provisions of any
indenture, instrument or material agreement to which it is a party or is
subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien in, of or on its property pursuant to the terms of any such indenture,
instrument or material agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority that has not been made, obtained or
given, or which, if not made, obtained or given, individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect, is
required to authorize, or is required in connection with the execution, delivery
and performance by it of this Subordination Agreement.
In addition to the foregoing, each of the Grantors covenants
that, so long as any Lender has any Commitment outstanding under the Credit
Agreement or any amount payable under the Credit Agreement or any other
Obligations shall remain unpaid, it will, and, if necessary, will enable the
Company to (to the extent practicable), fully comply with those covenants and
agreements of the Company applicable to each of the Grantors set forth in the
Credit Agreement.
SECTION 3. SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. Each of the
Grantors agrees that any and all claims of such Grantor against either the
Company, any Subsidiary Borrower or any other Grantor hereunder (each an
"OBLIGOR"), any endorser or obligor of all or any part of the Obligations, or
against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Obligations; PROVIDED,
that, and not in contravention of the foregoing, so long as no Default or
Unmatured Default has occurred and is continuing such Grantor may make loans to
and receive payments in the ordinary course with respect to any "Intercompany
Indebtedness" (as defined below) to the extent permitted by the terms of the
Credit Agreement and the other Loan Documents. Notwithstanding any right of any
Grantor to ask, demand, xxx for, take or receive any payment from any Obligor
all rights, liens and security interests of such Grantor, whether now or
hereafter arising and howsoever existing, in any assets of any other Obligor
shall be and are subordinated to the rights of the Lenders and the Agents in
those assets. No Grantor shall have any right to possession of any such asset or
to foreclose upon any such asset, whether by judicial action or otherwise,
unless and until all of the
121
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document among the Company or any Subsidiary Borrower and the Lenders have been
terminated. If all or any part of the assets of any Obligor, or the proceeds
thereof, are subject to any distribution, division or application to the
creditors of such Obligor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of any such Obligor is dissolved or if
substantially all of the assets of any such Obligor are sold, then, and in any
such event, any payment or distribution of any kind or character, either in
cash, securities or other property, which shall be payable or deliverable upon
or with respect to any indebtedness of any Obligor to any Grantor ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative Agent
for application on any of the Obligations, due or to become due, until such
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Each Grantor irrevocably authorizes and
empowers the Administrative Agent to demand, xxx for, collect and receive every
such payment or distribution and give acquittance therefor and to make and
present for and on behalf of such Grantor such proofs of claim and take such
other action, in the Administrative Agent's own name or in the name of such
Grantor or otherwise, as the Administrative Agent may deem necessary or
advisable for the enforcement of this SECTION 3. The Administrative Agent may
vote such proofs of claim in any such proceeding, receive and collect any and
all dividends or other payments or disbursements made thereon in whatever form
the same may be paid or issued and apply the same on account of any of the
Obligations. Should any payment, distribution, security or instrument or
proceeds thereof be received by any Grantor upon or with respect to the
Intercompany Indebtedness prior to the satisfaction of all of the Obligations
(other than contingent indemnity obligations) and the termination of all
financing arrangements among the Company or any Subsidiary Borrower and the
Agents and the Lenders, such Grantor shall receive and hold the same in trust,
as trustee, for the benefit of the Agents and the Lenders and shall forthwith
deliver the same to the Administrative Agent, for the benefit of the Agents and
the Lenders, in precisely the form received (except for the endorsement or
assignment of such Grantor where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by such Grantor as the property of the Lenders. If any such Grantor fails
to make any such endorsement or assignment to the Administrative Agent, the
Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. Each of the Grantors agrees that until the
Obligations (other than contingent indemnity obligations) have been paid in full
(in cash) and satisfied and all financing arrangements among the Company and the
Subsidiary Borrowers and the Agents and the Lenders have been terminated, no
Grantor will assign or transfer to any Person (other than the Administrative
Agent) any claim any such Grantor has or may have against any Obligor.
SECTION 4. SUCCESSORS AND ASSIGNS. This Subordination Agreement is for
the benefit of the Agents and the Lenders and their respective successors and
permitted assigns and in the event of an assignment of any amounts payable under
the Credit Agreement, any Hedging Agreement between the Company or any of its
Subsidiaries and any Lender or any Affiliate of any Lender, or the other Loan
Documents in accordance with the respective terms thereof, the rights
thereunder, to the extent applicable to the indebtedness so assigned, may be
transferred
122
with such indebtedness. This Subordination Agreement shall be binding upon each
of the Grantors and their respective successors and assigns.
SECTION 5. CHANGES IN WRITING. Other than in connection with the
addition of additional Material Subsidiaries which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Subordination Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the
Grantors and the Administrative Agent with the consent of the Required Lenders
under the Credit Agreement (or all of the Lenders if required pursuant to the
terms of SECTION 10.3 of the Credit Agreement).
SECTION 6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GRANTOR AND ANY AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS
OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
SECTION 7. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION
(B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE
PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A)
ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GRANTORS AGREES THAT ANY AGENT,
ANY LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST
THE GRANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GRANTOR OR (2) ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GRANTORS AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR
123
THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH OF THE GRANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH A PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN
THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GRANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GRANTORS IN CARE OF THE COMPANY AT THE ADDRESS
PROVIDED FOR NOTICES TO THE COMPANY UNDER THE CREDIT AGREEMENT. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GRANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO REH RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SUBORDINATION AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GRANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS SUBORDINATION AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
124
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES PRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS SUBORDINATION AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 7, WITH ITS COUNSEL.
SECTION 8. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Subordination Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Subordination Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Subordination
Agreement.
SECTION 9. SEVERABILITY. Wherever possible, each provision of this
Subordination Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Subordination
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Subordination Agreement.
SECTION 10. MERGER. This Subordination Agreement represents the final
agreement of the Grantors with respect to the matters contained herein and may
not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Grantors and any Lender or any Agent.
SECTION 11. HEADINGS. Section headings in this Subordination Agreement
are for convenience of reference only and shall not govern the interpretation of
any provision of this Subordination Agreement.
125
IN WITNESS WHEREOF, each of the undersigned Grantors has caused this
Subordination Agreement to be duly executed by its authorized officer as of the
day and year first above written.
XXXXXX WORLDWIDE, INC.
By:
---------------------------------
Its:
--------------------------------
[-----------------------------]
By:
---------------------------------
Its:
--------------------------------
[-----------------------------]
By:
---------------------------------
Its:
--------------------------------
[-----------------------------]
By:
---------------------------------
Its:
--------------------------------
126
ANNEX I TO SUBORDINATION AGREEMENT
Reference is hereby made to the Subordination Agreement (the
"Subordination Agreement") made as of the 20th day of October, 1999 by Xxxxxx
Worldwide, Inc., a Delaware corporation and certain of its Subsidiaries
(collectively, the "Initial Grantors" and along with any other Subsidiaries of
the Company which have become parties thereto and together with the undersigned,
the "Grantors") in favor of the Agents and the Lenders under the Credit
Agreements. Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Subordination Agreement. By its execution below,
the undersigned [name of new grantor], a [corporation] [partnership] [limited
liability company], agrees to become, and does hereby become a Grantor under the
Subordination Agreement and agrees to be bound by such Subordination Agreement
as if originally a party thereto. By its execution below, the undersigned
represents and warrants as to itself that all of the representations and
warranties contained in SECTION 2 of the Subordination Agreement are true and
correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GRANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Subordination Agreement as of this _______ day of
____________________, ____.
[NAME OF NEW GRANTOR]
By:
---------------------------------
Title:
------------------------------
127
EXHIBIT H
TO
364-DAY CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF REVOLVING LOAN NOTE (IF REQUESTED)
------------------------------------------
Attached
128
REVOLVING LOAN NOTE
U.S. $[__________________] Chicago, Illinois
[DATE]
FOR VALUE RECEIVED, the undersigned, [XXXXXX WORLDWIDE, INC., a
Delaware corporation (the "Company")][____________, a ___________ corporation
(the "Subsidiary Borrower")], HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of [_______________] (the "Lender") the principal sum of [______________]
AND NO/100 DOLLARS ($[_________________]), or, if less, the aggregate unpaid
amount of all "Revolving Loans" (as defined in the Credit Agreement referred to
below) made by the Lender to such [Company] [Subsidiary Borrower] pursuant to
the "Credit Agreement" (as defined below), on the "Termination Date" (as defined
in the Credit Agreement) or on such earlier date as may be required by the terms
of the Credit Agreement. Capitalized terms used herein and not otherwise defined
herein are as defined in the Credit Agreement.
The [Company] [Subsidiary Borrower] promises to pay interest on the
unpaid principal amount of each Revolving Loan made to it from the date of such
Revolving Loan until such principal amount is paid in full at a rate or rates
per annum determined in accordance with the terms of the Credit Agreement.
Interest hereunder is due and payable at such times and on such dates as set
forth in the Credit Agreement.
Both principal and interest are payable in Dollars to the
Administrative Agent (as defined below), to such account as the Administrative
Agent may designate, in same day funds. At the time of each Revolving Loan, and
upon each payment or prepayment of principal of each Revolving Loan, the Lender
shall make a notation either on the schedule attached hereto and made a part
hereof, or in such Lender's own books and records, in each case specifying the
amount of such Revolving Loan, the respective Interest Period thereof (in the
case of Eurocurrency Rate Loans) or the amount of principal paid or prepaid with
respect to such Revolving Loan, as applicable; PROVIDED that the failure of the
Lender to make any such recordation or notation shall not affect the Obligations
of the [Company] [Subsidiary Borrower] hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the promissory notes referred to in,
and is entitled to the benefits of, that certain 364-Day Credit Agreement dated
as of October 20, 1999 among Xxxxxx Worldwide, Inc. (the "Company"), the
Subsidiary Borrowers from time to time party thereto, the financial institutions
parties thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as
Administrative Agent, Suntrust Bank, Atlanta, individually and as Syndication
Agent, and Wachovia Bank N.A., individually and as Documentation Agent (as
amended, restated, supplemented or modified from time to time, the "Credit
Agreement"). The Credit Agreement, among other things, (i) provides for the
making of Revolving Loans by the Lender to the [Company] [Subsidiary Borrower]
under the Credit Agreement from time to time in an aggregate amount not to
exceed at any time outstanding the Dollar Amount first above mentioned, the
indebtedness of the [Company] [Subsidiary Borrower] resulting from each such
Revolving Loan to it being evidenced by this Revolving Loan Note, and (ii)
contains provisions
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for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments of the principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the [Company] [Subsidiary Borrower].
Whenever in this Revolving Loan Note reference is made to the
Administrative Agent, the Lender or the [Company] [Subsidiary Borrower], such
reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Revolving Loan Note
shall be binding upon and shall inure to the benefit of said successors and
assigns. The [Company's] [Subsidiary Borrower's] successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the [Company] [Subsidiary Borrower].
This Revolving Loan Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws of the
State of New York.
[XXXXXX WORLDWIDE, INC.]
[SUBSIDIARY BORROWER]
By:_______________________________________
Name:
Title:
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SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
-------------------------------------------------------
Date Amount of Type of Interest Period/ Amount of Unpaid Notation
Loan Loan Rate Principal Paid Principal Made By
or Prepaid Balance
----------------------------------------------------------------------------------------
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EXHIBIT I
TO
364-DAY CREDIT AGREEMENT
Dated as October 20, 1999
FORM OF ASSUMPTION LETTER
-------------------------
----------, -----
To the Lenders party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of October
20, 1999 initially among Xxxxxx Worldwide, Inc., the Subsidiary Borrowers from
time to time parties thereto, the Lenders parties thereto, ABN AMRO Bank N.V.,
individually and as Administrative Agent, Suntrust Bank, Atlanta, individually
and as Syndication Agent, and Wachovia Bank N.A., individually and Documentation
Agent (as amended and in effect from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein are used herein as defined
therein.
The undersigned, _______ (the "Subsidiary"), a ______ [corporation],
wishes to become a "Subsidiary Borrower" under the Credit Agreement, and
accordingly hereby agrees that from the date hereof it shall become a
"Subsidiary Borrower" under the Credit Agreement and agrees that from the date
hereof and until the payment in full of the principal of and interest on all
Advances made to it under the Credit Agreement and performance of all of its
other obligations thereunder, and termination hereunder of its status as a
"Subsidiary Borrower" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are stated to
apply to a "Borrower" or a "Subsidiary Borrower." Without limiting the
generality of the foregoing, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Sections 6.1, 6.2,
6.3, and 6.22 of the Credit Agreement is hereby made by such Subsidiary on and
as of the date hereof as if made on and as of the date hereof and as if such
Subsidiary is the "Company" and this Assumption Letter is the "Agreement"
referenced therein, and (ii) it has heretofore received a true and correct copy
of the Credit Agreement (including any modifications thereof or supplements or
waivers thereto) as in effect on the date hereof. In addition, the Subsidiary
hereby authorizes the Company to act on its behalf as and to the extent provided
for in Article II of the Credit Agreement in connection with the selection of
Types and Interest Periods for Advances and with the issuance of Letters of
Credit, and the conversion and continuation of Advances.
So long as the principal of and interest on all Advances and Letters of
Credit made to the Subsidiary under the Credit Agreement shall have been paid in
full and all other obligations of the Subsidiary under the Credit Agreement
shall have been fully performed, the Company may
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by not less than five Business Days' prior notice to the Lenders terminate its
status as a "Subsidiary Borrower."
CHOICE OF LAW. THIS ASSUMPTION LETTER SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS) OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[Name of Subsidiary Borrower]
By__________________________________________
Title:______________________________________
Address for Notices under the Credit Agreement:
Consented to:
XXXXXX WORLDWIDE, INC.
By:
------------------------------
Title:
---------------------------
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