Exhibit 10(h)
CONFORMED COPY
MULTICURRENCY CREDIT AGREEMENT
Dated as of September 11, 1997
Among
XXXXXXX-XXXXXX COMPANY,
THE BORROWING SUBSIDIARIES FROM
TIME TO TIME PARTIES HERETO,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as U.S. Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTIES HERETO
Arranged by
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BANKAMERICA SECURITIES, INC.
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ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.............................................. 2
1.02 Other Interpretive Provisions...................................... 37
(a) Defined Terms................................................. 37
(b) The Agreement................................................. 37
(c) Certain Common Terms.......................................... 38
(d) Performance; Time............................................. 38
1.03 Accounting Principles.............................................. 39
1.04 Currency Equivalents General....................................... 40
ARTICLE II
THE CREDITS
2.01 The Revolving Credit............................................... 40
2.02 Loan Accounts; Bid Loan Notes...................................... 41
2.03 Procedure for Committed Borrowings................................. 42
2.04 Conversion and Continuation Electi................................. 45
2.05 Utilization of Commitments in Available Currencies................. 48
2.06 Bid Borrowings..................................................... 49
2.07 Procedure for Bid Borrowings....................................... 49
2.08 Voluntary Termination or Reduction of Commitments.................. 58
2.09 Optional Prepayments............................................... 59
2.10 Optional Increase in Commitments................................... 60
2.11 Repayment.......................................................... 61
2.12 Interest........................................................... 62
2.13 Fees............................................................... 64
(a) Arrangement, Agency Fees...................................... 64
(b) Facility Fees................................................. 64
2.14 Computation of Fees and Interest................................... 65
2.15 Currency Exchange Fluctuations..................................... 67
2.16 Payments by Borrowers.............................................. 68
2.17 Payments by the Lenders to the Agent............................... 70
2.18 Sharing of Payments, Etc........................................... 72
2.19 Local Borrowing Amendments......................................... 73
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
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3.01 Taxes.............................................................. 74
3.02 Withholding Tax.................................................... 78
3.03 Illegality......................................................... 82
3.04 Increased Costs and Reduction of Return............................ 83
3.05 Funding Losses..................................................... 85
3.06 Inability to Determine Rates....................................... 87
3.07 Reserves........................................................... 88
3.08 Certificates of Lenders............................................ 88
3.09 Substitution of Lenders............................................ 89
3.10 Survival........................................................... 89
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans........................................ 90
(a) Credit Agreement; Notes....................................... 90
(b) Resolutions; Incumbency....................................... 90
(c) Organization Documents; Good Standing......................... 91
(d) Legal Opinions................................................ 91
(e) Payment of Fees............................................... 92
(f) Certificate................................................... 92
(g) Borrowing Subsidiaries........................................ 92
(h) Other Documents............................................... 93
4.02 Conditions to All Borrowings....................................... 93
(a) Notice of Borrowing or Conversion / Continuation.............. 93
(b) Continuation of Representations and Warranties................ 93
(c) No Existing Default........................................... 94
4.03 Conditions of Initial Loans to Borrowing Subsidiaries.............. 94
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence and Power...................................... 96
5.02 Corporate Authorization; No Contravention.......................... 97
5.03 Governmental Authorization......................................... 98
5.04 Binding Effect..................................................... 98
5.05 Litigation......................................................... 99
5.06 No Default..........................................................100
5.07 ERISA Compliance....................................................100
5.08 Use of Proceeds; Margin Regulations.................................102
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5.09 Title to Properties.................................................102
5.10 Taxes...............................................................102
5.11 Financial Condition.................................................103
5.12 Environmental Matters...............................................104
5.13 Regulated Entities..................................................104
5.14 Copyrights, Patents, Trademarks and Licenses, etc...................104
5.15 Subsidiaries........................................................105
5.16 Insurance...........................................................106
5.17 Full Disclosure.....................................................106
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements................................................106
6.02 Certificates; Other Information.....................................107
6.03 Notices.............................................................108
6.04 Preservation of Corporate Existence, Etc............................111
6.05 Maintenance of Property.............................................112
6.06 Insurance...........................................................113
6.07 Payment of Obligations..............................................113
6.08 Compliance with Laws................................................114
6.09 Compliance with ERISA...............................................114
6.10 Inspection of Property and Books and Records........................115
6.11 Environmental Laws..................................................116
6.12 Use of Proceeds.....................................................116
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitation on Liens.................................................116
7.02 Disposition of Assets...............................................120
7.03 Consolidations and Mergers..........................................122
7.04 Margin Stock........................................................123
7.05 Restricted Payments.................................................123
7.06 ERISA...............................................................124
7.07 Accounting Changes..................................................124
7.08 Interest Coverage...................................................125
7.09 Leverage............................................................126
7.10 Subsidiary Indebtedness.............................................126
ARTICLE VIII
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GUARANTEE
8.01 Guarantee...........................................................127
8.02 No Subrogation, Contribution, Reimbursement or Indemnity............129
8.03 Amendments, etc. with Respect to the Obligations; Waiver of Rights..130
8.04 Guarantee Absolute and Unconditional................................131
8.05 Reinstatement........................................................133
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default....................................................134
(a) Non-Payment....................................................134
(b) Representation or Warranty.....................................134
(c) Specific Defaults..............................................135
(d) Other Defaults.............................................135
(e) Cross-Default..................................................135
(f) Insolvency; Voluntary Proceedings..............................136
(g) Involuntary Proceedings........................................136
(h) ERISA..........................................................137
(i) Monetary Judgments.............................................138
(j) Non-Monetary Judgments.........................................138
(k) Change of Control..............................................139
9.02 Remedies............................................................139
9.03 Rights Not Exclusive................................................141
ARTICLE X
THE AGENT
10.01 Appointment and Authorization......................................141
10.02 Delegation of Duties...............................................142
10.03 Liability of Agent.................................................142
10.04 Reliance by Agent..................................................143
10.05 Notice of Default..................................................144
10.06 Credit Decision....................................................145
10.07 Indemnification....................................................146
10.08 Agent in Individual Capacity.......................................147
10.09 Successor Agent....................................................148
10.10 Tax Withholding....................................................150
10.11 Co-Agents..........................................................151
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ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers.............................................152
11.02 Notices............................................................154
11.03 No Waiver; Cumulative Remedies.....................................156
11.04 Costs and Expenses.................................................157
11.05 Indemnity..........................................................158
11.06 Payments Set Aside.................................................160
11.07 Successors and Assigns.............................................161
11.08 Assignments, Participations, etc...................................161
11.09 Set-off............................................................168
11.10 Notification of Addresses, Lending Offices, Etc....................168
11.11 Counterparts.......................................................169
11.12 Severability.......................................................169
11.13 No Third Parties Benefited.........................................169
11.14 Governing Law and Jurisdiction.....................................169
11.15 Waiver of Jury Trial...............................................170
11.16 Currency Indemnity.................................................171
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SCHEDULES
Schedule 2.01 List of Commitments and Pro Rata
Shares
Schedule 5.05 Litigation Schedule
Schedule 5.07 ERISA Schedule
Schedule 5.12 Environmental Schedule
Schedule 5.15 List of Material Subsidiaries and
Material Equity Investments
Schedule 7.01 Existing Liens
Schedule 11.02 Offshore and Domestic Lending
Offices, Addresses for Notices
EXHIBITS
Exhibit A Form of Borrowing Subsidiary Agreement
Exhibit B Form of Borrowing Subsidiary Termination
Exhibit C Form of Compliance Certificate
Exhibit D Form of Invitation for Competitive Bids
Exhibit E Form of Notice of Committed Borrowing
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Form of Bid Loan Note
Exhibit H Form of Competitive Bid Request
Exhibit I Form of Competitive Bid
Exhibit J Form of Lender's Response to Pro Rata Commitment
Increase Request
Exhibit K Form of Supplement for Non-Pro Rata Commitment
Increase (Existing Lender)
Exhibit L Form of Supplement for Commitment Increase (New
Lender)
Exhibit M Form of Opinion of Counsel to the Company
Exhibit N Form of Assignment and Acceptance
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MULTICURRENCY CREDIT AGREEMENT
This MULTICURRENCY CREDIT AGREEMENT is entered into as of September 11, 1997,
among XXXXXXX-XXXXXX COMPANY, a Delaware corporation (the "Company"), the
Borrowing Subsidiaries (as hereinafter defined) from time to time parties to
this Agreement, XXXXXXX- XXXXXX USA, INC., a Delaware corporation
("Xxxxxxx-Xxxxxx USA"), as a Borrowing Subsidiary and a Bid Borrower, XXXXX
BEAUTY COMPANY, INC., a Delaware corporation ("Xxxxx Beauty"), as a Borrowing
Subsidiary and a Bid Borrower, the several banks and other financial
institutions from time to time parties to this Agreement (collectively, the
"Lenders"; individually, a "Lender"), The First National Bank of Chicago and
NationsBank, N.A., as co-agents (the "Co- Agents"), and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as agent for the Lenders hereunder (the "U.S.
Agent").
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders have agreed to make available to the Company and the Borrowing
Subsidiaries during the period from the Closing Date to the Termination Date, a
revolving multicurrency credit facility;
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NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the voting
capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person (other than a
Person that is a Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent-Related Persons" means the U.S. Agent and any successor thereto
in such capacity
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hereunder, together with their respective Affiliates (including the European
Payment Agent and, in the case of BofA, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means (a) in respect of payments in U.S.
Dollars, the address for payments set forth in Section 11.02 for the U.S. Agent
or such other address as the U.S. Agent may from time to time specify in
accordance with Section 11.02, and (b) in respect of payments in any Available
Currency, such address as the U.S. Agent (or the European Payment Agent) may
from time to time specify in accordance with Section 11.02.
"Agreement" means this Multicurrency Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Xxxxxxx-Xxxxxx USA" has the meaning specified in the Preamble.
"Applicable Currency" means, as to any particular payment or Loan,
U.S. Dollars or the Available Currency in which it is denominated or
is payable.
"Applicable Margin" means -
(a) with respect to Base Rate Loans, 0%; and (b) with respect to
Eurodollar Loans and Eurocurrency Loans, (i) 0.140% if Level I
Status exists on any day, (ii) 0.1550% if Level II Status exists
on any day, (iii) 0.170% if Level III Status exists on any day,
(iv) 0.2125% if Level IV Status exists on any day, and (v) 0.300%
if Level V Status exists on any day.
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"Xxxxxxxx" xxxxx XxxxXxxxxxx Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in Section 11.08(a).
"Assignment and Acceptance" has the meaning specified in Section 11.08(a).
"Attorney Costs" means and includes all reasonable fees and disbursements of any
law firm or other external counsel, the reasonable allocated costs of internal
legal services and all reasonable disbursements of internal counsel.
"Available Currency" means each of the lawful currency of (i) Australia
(Australian dollars), (ii) Canada (Canadian dollars), (iii) Germany (Deutsche
marks), (iv) Great Britain (pounds sterling), (v) Italy (Italian lira), and (vi)
Sweden (krona).
"Banking Day" means a day other than Saturday, Sunday or other day on which
commercial banks in Chicago, New York City or San Francisco are authorized or
required by law to close.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.101,
et seq.).
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"Base Rate" means, for any day, the higher of: (a) 0.50% per annum above the
latest U.S. Federal Funds Rate; and (b) the per annum rate of interest in effect
for such day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the reference rate announced by BofA shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Committed Loan that bears interest at a rate based upon
the Base Rate.
"Bid Borrower" means the Company, Xxxxxxx-Xxxxxx USA or Xxxxx Beauty, as
applicable.
"Bid Borrowing" means a Borrowing hereunder consisting of one or more Bid Loans
made to the Company or another Bid Borrower on the same day by one or more
Lenders .
"Bid Loan" means a Loan made in U.S. Dollars by a Lender to the Company or
another Bid Borrower under Section 2.07, which may be a LIBOR Bid Loan or a
Specific Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Lender making such Bid
Loan to the Company or another Bid Borrower.
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"Bid Loan Note" has the meaning specified in Section 2.02(b).
"BofA" means Bank of America National Trust and Savings Association, a national
banking association.
"Borrowers" means the Company, the other Bid Borrowers and the Borrowing
Subsidiaries; and "Borrower" means any of such Persons, as applicable.
"Borrowing" means a borrowing hereunder consisting of Loans of the same Type
made to the respective Borrower, and may be a Committed Borrowing or a Bid
Borrowing.
"Borrowing Date" means any Business Day on which a Borrowing occurs hereunder.
"Borrowing Subsidiary" means, on the Closing Date, each of Xxxxxxx-Xxxxxx USA
and Xxxxx Beauty, and thereafter any other Subsidiary designated as a Borrowing
Subsidiary by the Company from time to time pursuant to Section 4.03 that has
not ceased to be a Borrowing Subsidiary pursuant to such Section 4.03.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement,
substantially in the form of Exhibit A.
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"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination, substantially in the form of Exhibit B.
"Business Day" means (a) with respect to disbursements and payments in
respect of and calculations pertaining to Base Rate Loans, any Banking Day, (b)
with respect to disbursements and payments in respect of and calculations and
Interest Periods pertaining to Eurodollar Loans, any Banking Day which is also a
day on which dealings are carried on in the London interbank market, and (c)
with respect to disbursements and payments in respect of and calculations and
Interest Periods pertaining to Eurocurrency Loans, any Banking Day which is also
(i) a day on which dealings are carried on in the applicable offshore interbank
market for the relevant eurocurrency, as determined by the U.S. Agent (or the
European Payment Agent), and (ii) a day on which commercial banks are open for
foreign exchange business in London, England, and on which dealings in the
relevant eurocurrency are carried on in the applicable offshore foreign exchange
interbank market in which disbursement of or payment in such eurocurrency will
be made or be received hereunder.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"Change of Control" has the meaning specified in Section 9.01(k).
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"Closing Date" means the date on which all conditions precedent set forth in
Section 4.01 are satisfied or waived by all Lenders (or, in the case of
subsection 4.01(e), waived by the Person entitled to receive such payment).
"Co-Agents" has the meaning specified in the Preamble.
"Code" means the Internal Revenue Code of 1986, as amended from time to time or
any successor thereto, and regulations promulgated thereunder.
"Commitment", as to each Lender, has the meaning specified in Section 2.01;
collectively, as to all the Lenders, the "Commitments".
"Committed Borrowing" means a Borrowing hereunder consisting of one or more
Committed Loans made to the Company or a Subsidiary Borrower on the same day by
the Lenders.
"Committed Loan" means a Loan by a Lender to the Company or a Subsidiary
Borrower under Section 2.01, and may be a Base Rate Loan, a Eurodollar Loan or a
Eurocurrency Loan.
"Company" has the meaning specified in the Preamble.
"Competitive Bid" means an offer by a Lender to make a Bid Loan in accordance
with subsection 2.07(c)(ii).
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"Competitive Bid Request" has the meaning specified in subsection 2.07(a).
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Computation Date" means the date on which the U.S. Agent determines the Dollar
Equivalent amount of any Eurocurrency Loans pursuant to Section 2.05(a).
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of such Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of such Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such
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materials, supplies or other property, or for such services, shall be made
regardless of whether delivery of such materials, supplies or other property is
ever made or tendered, or such services are ever performed or tendered, or (d)
in respect of any Swap Contract. The amount of any Contingent Obligation shall
(x) in the case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (y) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision either of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound and
which in either case is material to such Person.
"Conversion/Continuation Date" means any Business Day on which the Company or
any Borrowing Subsidiary (i) converts Committed Loans from one Type to another
Type or (ii) continues as Committed Loans of the same Type, but with a new
Interest Period, Committed Loans having Interest Periods expiring on such date.
"Cost of Funds Rate" means, with respect to any Available Currency, the rate of
interest determined by the U.S. Agent or the European Payment Agent in respect
thereof (which determination shall be conclusive absent demonstrable error) to
be the cost to the U.S. Agent or the
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European Payment Agent, as appropriate, of obtaining funds denominated in such
Available Currency for the period or, if applicable, the relevant Interest
Period or Periods during which any relevant amount in such Available Currency is
outstanding.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Dollar Equivalent" means, at any time, as to any amount denominated
in an Available Currency, the equivalent amount in U.S. Dollars as determined by
the U.S. Agent in good faith at such time on the basis of the Spot Rate for the
purchase of U.S. Dollars with such currency, on the most recent Computation Date
provided for in Section 2.05(a), or such other date as specified herein.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; or (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
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"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state, local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a
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notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA of, or the commencement of
proceedings by the PBGC to terminate, a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
"Eurocurrency Rate" means, for any Interest Period, with respect to
Eurodollar Loans, LIBOR Bid Loans or Eurocurrency Loans, as the case may be,
comprising part of the same Borrowing, the rate of interest per annum that
appears on page 3750 or 3740 of the Dow Xxxxx Telerate Screen (or any successor
pages) for deposits of the Applicable Currency with a maturity comparable to the
Interest Period of the applicable Loan, determined as of 11:00 a.m. (London
time) on the date which is two Business Days prior to the commencement of such
Interest Period (or, in the case of Loans denominated in pounds sterling, on the
date of the commencement of such Interest Period). If such rate does not appear
on page 3750 or 3740, as the case may be, of the Dow Xxxxx Telerate Screen (or
any successor pages), the rate of interest per annum determined by the U.S.
Agent in good faith as the rate at which deposits in the currency of such Loan
in the approximate amount of such Loan, and having a maturity comparable to such
Interest Period, would be offered by BofA to major banks in the London
eurocurrency market at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the commencement of such Interest Period (or, in
the case of Loans denominated in pounds sterling, on the date of the
commencement of such
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Interest Period).
"Eurocurrency Loan" means a Committed Loan denominated in an Available Currency
that bears interest at a rate based upon the Eurocurrency Rate.
"Eurodollar Loan" means a Committed Loan denominated in U.S. Dollars that bears
interest at a rate based upon the Eurocurrency Rate.
"European Payment Agent" means Bank of America International Limited, a bank
organized under the laws of England, or such successor as may be appointed by
the U.S. Agent.
"Event of Default" means any of the events or circumstances specified in Section
9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
regulations promulgated thereunder.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System and any successor thereto.
"Fee Letter" has the meaning specified in Section 2.13(a).
"Funded Debt" has the meaning specified in Section 7.09.
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"FX Trading Office" means the Foreign Exchange Trading Center San
Francisco, California, of BofA, or such other of BofA's offices as BofA may
designate from time to time.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any governmental regulatory authority or agency such as the Federal Reserve
Board, IRS or SEC.
"Guaranteed Obligations" has the meaning specified in Section 8.01(a).
"Guaranty Obligation" has the meaning specified in the definition of
Contingent Obligation.
Indebtedness of any Person means, without duplication, (a) all
indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of property
or services (other than trade payables and accrued expenses
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entered into in the ordinary course of business on ordinary terms); (c) all
non-contingent reimbursement or payment obligations of such Person with respect
to Surety Instruments (such as, for example, unpaid reimbursement obligations in
respect of a drawing under a letter of credit); (d) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property); (f) all obligations of such Person with respect to capital leases as
defined by GAAP; (g) all net obligations of such Person with respect to Swap
Contracts (such obligations to be equal at any time to the aggregate net amount
that would have been payable by such Person at the most recent fiscal quarter
end in connection with the termination of such Swap Contracts at such fiscal
quarter end); (h) all indebtedness of other Persons referred to in clauses (a)
through (g) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations of such Person in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (h) above.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
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"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in Section 6.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means (a) as to any Base Rate Loan, the last
Business Day of each calendar quarter, (b) as to any Eurodollar Loan or
Eurocurrency Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurodollar Loan or Eurocurrency Loan
having an Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (d) as to any Bid Loan, the last
day of the Interest Period applicable to such Bid Loan and such intervening
dates prior to the maturity thereof as may be specified by the applicable Bid
Borrower and agreed to by the applicable Bid Loan Lender in the applicable
Competitive Bid.
"Interest Period" means (a) as to any Eurodollar Loan or Eurocurrency
Loan, the period
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commencing on the Business Day such Loan is disbursed, or on the
Conversion/Continuation Date on which the Loan is converted into or continued as
a Eurodollar Loan or Eurocurrency Loan, as applicable, and ending on the date
one, two, three, six, nine or twelve months thereafter, as selected by the
Company for itself or on behalf of a Borrowing Subsidiary, as the case may be,
in a Notice of Committed Borrowing or Notice of Conversion/Continuation; (b) as
to any LIBOR Bid Loan, the period commencing on the Business Day such Loan is
disbursed and ending on the date one, two, three, six, nine or twelve months
thereafter as selected by the applicable Bid Borrower in the applicable
Competitive Bid Request and agreed to by the applicable Bid Loan Lender(s); and
(c) as to any Specific Rate Bid Loan, a period of not less than 7 days and not
more than 183 days as selected by the applicable Bid Borrower in the applicable
Competitive Bid Request and agreed to by the applicable Bid Loan Lender(s);
provided that:
(i)if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following
Business Day unless, in the case of a Eurodollar Loan or Eurocurrency
Loan, the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii)any Interest Period pertaining to a Eurodollar Loan or
Eurocurrency Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
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corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and (iii)no Interest Period for any
Loan shall extend beyond the Termination Date.
"Investment Amount" means, at any time, the aggregate amount of
Permitted Receivables sold in connection with Permitted Receivables Purchase
Facilities as reported in the Company's most recent Compliance Certificate,
which amount is reflected in the Company's most recent internal, unaudited
consolidated balance sheet as "receivables sold."
"Invitation for Competitive Bids" means a solicitation for Competitive
Bids, substantially in the form of Exhibit D.
"IRS" means the Internal Revenue Service, and any U.S. Governmental
Authority succeeding of any of its principal functions under the Code.
"Lender" has the meaning specified in the Preamble, including each
Person that shall become a party hereto pursuant to Section 2.10 or Section
11.08(a).
"Lending Office means, as to any Lender, the office or offices of such
Lender (or, in the case of any Eurocurrency Loan, of an Affiliate of such
Lender) specified as its "Lending Office" or "Domestic Lending Office" or
"Eurocurrency Lending Office", as the case may be, on Schedule 11.02, or such
other office or offices of such Lender (or, in the case of any Eurocurrency
Loan, of
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an Affiliate of such Lender) as such Lender may from time to time specify to the
Company and the U.S. Agent.
"Level I Status" exists at any date if, at such date, either the
Company's corporate credit ratings or its senior unsecured long-term debt
ratings, whichever is higher, is rated either A (or the then equivalent grade)
or higher by S&P or A2 (or the then equivalent grade) or higher by Moody's,
provided that if neither corporate debt ratings nor senior unsecured long-term
debt ratings for the Company are being publicly announced by both S&P and
Moody's on any such date, then Level I Status exists if the ratio of Funded Debt
to Total Capitalization as reflected on the most recent Compliance Certificate
furnished by the Company pursuant to Section 6.02(a) is less than 0.10 to 1.0.
"Level II Status" exists at any date if, at such date, (i) either the
Company's corporate credit ratings or its senior unsecured long-term debt
ratings, whichever is higher, is rated either A- (or the then equivalent grade)
by S&P or A3 (or the then equivalent grade) by Moody's, provided that if neither
corporate debt ratings nor senior unsecured long-term debt ratings for the
Company are being publicly announced by both S&P and Moody's on any such date,
then Level II Status exists if the ratio of Funded Debt to Total Capitalization
as reflected on the most recent Compliance Certificate furnished by the Company
pursuant to Section 6.02(a) is less than 0.20 to 1.0; and (ii) Level I Status
does not exist.
"Level III Status" exists at any date if, at such date, (i) either the
Company's corporate credit ratings or its senior unsecured long-term debt
ratings, whichever is higher, is rated either BBB+ (or
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the then equivalent grade) by S&P or Baa1 (or the then equivalent grade) by
Moody's, provided that if neither corporate debt ratings nor senior unsecured
long-term debt ratings for the Company are being publicly announced by both S&P
and Moody's on any such date, then Level III Status exists if the ratio of
Funded Debt to Total Capitalization as reflected on the most recent Compliance
Certificate furnished by the Company pursuant to Section 6.02(a) is less than
0.385 to 1.0; and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) either the
Company's corporate credit ratings or its senior unsecured long-term debt
ratings, whichever is higher, is rated either BBB (or the then equivalent grade)
by S&P or Baa2 (or the then equivalent grade) by Moody's, provided that if
neither corporate debt ratings nor senior unsecured long-term debt ratings for
the Company are being publicly announced by both S&P and Moody's on any such
date, then Level IV Status exists if the ratio of Funded Debt to Total
Capitalization as reflected on the most recent Compliance Certificate furnished
by the Company pursuant to Section 6.02(a) is less than 0.50 to 1.0; and (ii)
none of Level I Status, Level II Status or Level III Status exists.
"Level V Status" exists at any date if, at such date, either (i) the
Company's corporate credit ratings and its senior unsecured long-term debt
ratings are both rated lower than BBB (or the then equivalent grade) by S&P and
lower than Baa2 (or the then equivalent grade) by Moody's, or (ii) neither
corporate debt ratings nor senior unsecured long-term debt ratings for the
Company are being publicly announced by both S&P and Moody's and none of Level I
Status, Level II Status, Level III
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Status or Level IV Status exists.
"LIBOR Auction" means a solicitation of Competitive Bids setting forth
a LIBOR Bid Margin pursuant to Section 2.07(a).
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate
based upon the Eurocurrency Rate.
"LIBOR Bid Margin" has the meaning specified in subsection 2.07(c)(ii)
(C).
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preferential arrangement of any kind or nature whatsoever in respect
of any property (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a lessor
under a capital lease, or the filing of any financing statement signed by and
naming the owner of the asset to which such lien relates as debtor, under the
Uniform Commercial Code or any comparable law), but not including the interest
of a lessor under an operating lease.
"Loan" means an extension of credit by a Lender under Article II to
the Company, another Bid Borrower or a Subsidiary Borrower, as the case may be,
and may be a Committed Loan or a Bid Loan.
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"Loan Documents" means this Agreement, any Notes, the Fee Letter and
all other documents delivered to the U.S. Agent, the European Payment Agent or
any Lender in connection herewith.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its consolidated
Subsidiaries taken as a whole, which change or effect shall exceed 15% of the
Company's total consolidated assets as shown on its consolidated balance sheet
for its most recent prior fiscal quarter; or (b) a material adverse effect upon
the legality, validity, binding effect or enforceability against the Company or
any Borrowing Subsidiary of any Loan Document which material adverse effect was
not caused by any Lender.
"Material Subsidiary" means, at any time, any Subsidiary having at
such time either (i) total (net) revenues for the last fiscal year in excess of
15% of total (net) revenues of the Company and its consolidated Subsidiaries for
such period or (ii) total assets, as of the last day of the preceding fiscal
year, having a net book value in excess of 15% of the total assets of the
Company and its consolidated Subsidiaries as of such day, in each case, based
upon the Company's most recent annual or quarterly financial statements
delivered to the U.S. Agent under Section 6.01.
"Moody's" means Xxxxx'x Investors Service, a division of Dun
Bradstreet Corporation.
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"Multiemployer Plan" means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"Notes" means the Bid Loan Notes.
"Notice of Committed Borrowing" means a notice in substantially the
form of Exhibit E.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit F.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under this Agreement and the other Loan Documents,
owing by any Borrower to any Lender, the U.S. Agent, or any Indemnified Person,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"Organization Documents" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of designations or
other instrument relating to the rights of preferred shareholders of such
corporation, and any shareholder rights agreement of such corporation.
"Other Taxes" means any present or future stamp or documentary taxes
or any other excise
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taxes, charges or similar levies which arise directly from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in Section 11.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company or any ERISA Affiliate
sponsors, maintains, or to which the Company or any ERISA Affiliate makes, is
making, or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five (5) plan years; but excluding
in all cases any Multiemployer Plan.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables" shall mean all obligations of any obligor
(whether now existing or hereafter arising) under a contract for sale of goods
or services by the Company or any of its Subsidiaries, which shall include any
obligation of such obligor (whether now existing or hereafter
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arising) to pay interest, finance charges or amounts with respect thereto, and,
with respect to any of the foregoing receivables or obligations, (a) all of the
interest of the Company or any of its Subsidiaries in the goods (including
returned goods) the sale of which gave rise to such receivable or obligation
after the passage of title thereto to any obligor, (b) all other Liens and
property subject thereto from time to time purporting to secure payment of such
receivables or obligations, and (c) all guarantees, insurance, letters of credit
and other agreements or arrangements of whatever character from time to time
supporting or securing payment of any such receivables or obligations.
"Permitted Receivables Purchase Facility" shall mean any agreement of
the Company or any of its Subsidiaries (including, without limitation, the
Receivables Purchase Agreement, dated January 31, 1996, among the Company,
Xxxxxxx-Xxxxxx USA, Inc., Delaware Funding Corporation and X.X. Xxxxxx Delaware)
providing for sales, transfers or conveyances of Permitted Receivables
purporting to be sales (and considered sales under GAAP) that do not provide,
directly or indirectly, for recourse against the seller of such Permitted
Receivables (or against any of such seller's Affiliates) by way of a guaranty or
any other support arrangement, with respect to the amount of such Permitted
Receivables (based on the financial condition or circumstances of the obligor
thereunder), other than such limited recourse as is reasonable given market
standards for transactions of a similar type, taking into account such factors
as historical bad debt loss experience and obligor concentration levels.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
limited liability company or Governmental Authority.
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"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company or any ERISA Affiliate sponsors or maintains or to
which the Company or any ERISA Affiliate makes, is making, or is obligated to
make contributions and includes any Pension Plan or Multiemployer Plan.
"Pro Rata Share" means, as to any Lender at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of -
(a) prior to the Termination Date, such Lender's Commitment divided by
the combined Commitments of all Lenders, and
(b) otherwise, the aggregate Dollar Equivalent principal amount of
such Lender's outstanding Loans divided by the aggregate Dollar
Equivalent principal amount of all outstanding Loans.
"Regulation U" means Regulation U of the Federal Reserve Board, as in
effect from time to time.
"Replacement Lender" has the meaning specified in Section 3.09.
"Reportable Event" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
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"Required Lenders" means (a) at any time prior to the Termination
Date, Lenders then holding at least 51% of the aggregate amount of the
Commitments, and (b) otherwise, Lenders then holding at least 51% of the then
aggregate Dollar Equivalent principal amount of the outstanding Loans. For
purposes of determining whether the Required Lenders have approved any
amendment, waiver or consent or taken any other action hereunder, the Dollar
Equivalent amount of all Eurocurrency Loans shall be calculated on the date such
amendment, waiver or consent is to become effective or such action is to be
taken.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to and binding upon the Person
or any of its property or to which the Person or any of its property is subject
and, in the case of the Company or any Borrowing Subsidiary, which failure to
comply with is reasonably likely to have a Material Adverse Effect.
"Responsible Officer" means any of the following officers of the
Company: the chairman of the board, any executive vice president, the chief
executive officer, the president, the chief financial officer, any senior vice
president, and the treasurer.
"Xxxxx Beauty" has the meaning specified in the Preamble.
"S&P" means Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx Companies, Inc.
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"Same Day Funds" means (i) with respect to disbursements and payments
in U.S. Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in an Available Currency, same day or other funds as
may be determined by the U.S. Agent (or the European Payment Agent) to be
customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant currency.
"SEC" means the Securities and Exchange Commission, or any U.S.
Governmental Authority succeeding to any of its principal functions.
"Specific Rate" has the meaning specified in Section 2.07(c)(ii)(D).
"Specific Rate Auction" means a solicitation of Competitive Bids
setting forth Specific Rates pursuant to Section 2.07(a).
"Specific Rate Bid Loan" means a Bid Loan that bears interest at a
rate determined with reference to the Specific Rate.
"Spot Rate" for a currency means the rate quoted by BofA in good faith
as the spot rate for the purchase by BofA of such currency with another currency
through its FX Trading Office at approximately 8:00 a.m. (San Francisco time) on
the date two Business Days prior to the date as of which the foreign exchange
computation is made.
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"Subsidiary" of a Person means any corporation, association,
partnership, joint venture, limited liability company or other business entity
of which more than 50% of the voting stock or other equity interests (in the
case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Swap Contract" means any agreement (including any master agreement
and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other, similar agreement (including
any option to enter into any of the foregoing).
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges,
and all liabilities with respect thereto, excluding, in the case of each Lender
and the U.S. Agent, respectively, taxes imposed on or measured by its net income
by the jurisdiction (or any political subdivision thereof) under the laws of
which such Lender or U.S. Agent, as the case may be, is organized or maintains a
lending office.
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"Termination Date" means the earlier to occur of:
(a) September 10, 2002; and
(b) the date on which the Commitments terminate in accordance with
Section 2.08 or Section 9.02 of this Agreement.
"Total Capitalization" has the meaning specified in Section 7.09.
"Type" means (a) in the case of Committed Loans, a Base Rate Loan, a
Eurodollar Loan or a Eurocurrency Loan and (b) in the case of Bid Loans, a LIBOR
Bid Loan or a Specific Rate Loan, and
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each means the United States of America.
"U.S. Agent" means BofA in its capacity as agent for the Lenders here-
under, and any successor U.S. Agent arising under Section 10.09.
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"U.S. Dollars" and "U.S.$" each mean the lawful currency of the United
States.
"U.S. Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the U.S. Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 11:00 a.m. (Chicago
time) on that day by each of three leading brokers of Federal funds transactions
in New York City selected by the U.S. Agent.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares or similar nominal shares required or permitted by
law) 80% or more of the capital stock of each class having ordinary voting
power, and 80% or more of the capital stock of every other class, in each case,
at the time as of which any determination is being made, is owned, beneficially
and of record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all
terms defined in this
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Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto. The meaning of defined terms shall
be equally applicable to the singular and plural forms of the defined terms.
Terms (including uncapitalized terms) not otherwise defined herein and that are
defined in the Uniform Commercial Code shall have the meanings therein
described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection,
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(ii) The term "including" is not limiting and means "including without
limitation."
(d) Performance; Time. Whenever any performance obligation hereunder
shall be stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
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and "until" each mean "to but excluding", and the word "through" means "to and
including."
(e) Captions. The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) Construction. This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the U.S.
Agent, the Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the U.S. Agent
merely because of the U.S. Agent's or Lenders' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
(c) With respect to financial matters, determinations of "materiality"
shall be made with reference to the Company and its consolidated Subsidiaries
taken as a whole and be equal to or
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greater than 15% of the Company's total consolidated assets as shown on its
consolidated balance sheet for its most recent prior fiscal quarter; provided,
however, that this Section 1.03(c) shall not be applicable to Section 9.01(d).
1.04 Currency Equivalents Generally. For all purposes of this
Agreement (but not for purposes of the preparation of any financial statements
delivered pursuant hereto), the equivalent in any Available Currency of an
amount in U.S. Dollars, and the equivalent in U.S. Dollars of an amount in any
Available Currency, shall be determined at the Spot Rate.
ARTICLE II
THE CREDITS
2.01 The Revolving Credit. Each Lender severally agrees, on the terms
and conditions set forth herein, to make Committed Loans to the Company (or a
Borrowing Subsidiary, if applicable) from time to time on any Business Day
during the period from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth on Schedule
2.01 (such amount as the same may be increased under Section 2.10 or reduced
under Section 2.08 or changed as a result of one or more assignments under
Section 11.08, the Lender's "Commitment"); provided, however, that, the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Bid Loans then
outstanding and such deemed usage of the aggregate amount of the Commitments
shall be applied to the Lenders ratably according to their Pro Rata Share.
Subject to Section 2.15, the aggregate Dollar Equivalent
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principal amount of all outstanding Committed Loans, together with the aggregate
principal amount of all outstanding Bid Loans, shall not at any time exceed the
combined Commitments. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions hereof, the Company (or any Borrowing
Subsidiary, if applicable) may borrow under this Section 2.01, prepay under
Section 2.09 and reborrow under this Section 2.01. Subject to Section 2.03(d),
the Committed Loans may from time to time be (i) Base Rate Loans, (ii)
Eurodollar Loans, (iii) (subject to the limitations set forth herein)
Eurocurrency Loans or (iv) a combination thereof, as determined by the Company
(or a Borrowing Subsidiary, if applicable) and notified to the U.S. Agent in
accordance with Section 2.03, provided that no Committed Loan shall be made as a
Eurodollar Loan or a Eurocurrency Loan after the day that is one month prior to
the Termination Date.
2.02 Loan Accounts; Bid Loan Notes.
(a) The Committed Loans made by each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender in the
ordinary course of business. The loan accounts or records maintained
by the U.S. Agent (or the European Payment Agent) and each Lender
shall be prima facie evidence of the amount of the Loans made by the
Lenders to the Company (or any Borrowing Subsidiary) and the interest
and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the
Company (or any Borrowing Subsidiary) hereunder to pay any actual
amount owing with respect to the Loans.
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(b) The Bid Loans made by any Lender shall be evidenced by a
promissory note executed by the respective Bid Borrower (a "Bid Loan
Note") (each such Note to be substantially in the form of Exhibit G).
Each Lender shall endorse on the schedule annexed to its Note for the
respective Bid Borrower the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the
respective Bid Borrower with respect thereto. Each such Lender is
irrevocably authorized by the respective Bid Borrower to endorse its
Note and each Lender's record shall be prima facie evidence of the
amount of each such Loan; provided, however, that the failure of a
Lender to make, or an error in making, a notation thereon with respect
to any Loan shall not limit or otherwise affect the obligations of the
respective Bid Borrower hereunder or under any such Note to such
Lender but any such failure or error shall not increase the
obligations of the respective Bid Borrower hereunder to such Lender.
2.03 Procedure for Committed Borrowings. (a) Each Committed Borrowing
shall be made upon irrevocable written notice delivered by the Company (on
behalf of itself or any Borrowing Subsidiary, if applicable) to the U.S. Agent
in the form of a Notice of Committed Borrowing (which notice must be received by
the U.S. Agent prior to 10:30 a.m. (Chicago time) (i) four Business Days prior
to the requested Borrowing Date, in the case of Eurocurrency Loans; (ii) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans; and (iii) on the requested Borrowing Date, in the case of Base Rate
Loans, specifying:
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(A) the identity of the Borrower;
(B) the amount of the Borrowing, which shall be in the aggregate
minimum amount of the Dollar Equivalent of U.S.$5,000,000 or any
multiple of (x) U.S.$1,000,000 in excess thereof, in the case of Base
Rate Loans or Eurodollar Loans, or (y) 100,000 units of the Applicable
Currency in excess thereof, in the case of Eurocurrency Loans;
(C) the requested Borrowing date, which shall be a Business Day;
(D) the Type of Committed Loans comprising the Committed Borrowing;
(E) the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Committed Borrowing fails to
specify the duration of the Interest Period for any Borrowing
comprised of Eurodollar Loans or Eurocurrency Loans, such Interest
Period shall be one month; and
(F) in the case of a Borrowing comprised of Eurocurrency Loans, the
Available Currency or Currencies.
(b) The Dollar Equivalent amount of any Borrowing in an Available
Currency will be determined by the U.S. Agent for such Borrowing on the
Computation Date therefor in accordance with Section 2.05(a). Upon receipt of
any Notice of Committed Borrowing, the U.S. Agent shall
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promptly notify each Lender thereof, and if such notice relates to a Borrowing
of Eurocurrency Loans, the European Payment Agent thereof, and of the amount of
such Lender's Pro Rata Share of such Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the U.S. Agent or, in the case of Eurocurrency Loans, the
European Payment Agent, for the account of the relevant Borrower at the Agent's
Payment Office on the Borrowing Date requested by the Company in Same Day Funds
and in the requested currency (i) in the case of a Borrowing comprised of Loans
in U.S. Dollars, by 1:00 p.m (Chicago time), and (ii) in the case of a Borrowing
comprised of Eurocurrency Loans, by such time as the U.S. Agent may specify. The
proceeds of all such Loans will then be made promptly available but in any event
before the close of business on the requested Borrowing Date to the relevant
Borrower by the U.S. Agent or the European Payment Agent, as appropriate, to an
account of the relevant Borrower at the Agent's Payment Office and in like funds
as received by such Person.
(d) After giving effect to any Borrowing (or to any conversion or
continuation of Loans pursuant to Section 2.04), unless the U.S. Agent shall
otherwise consent, there may be not more than ten different Interest Periods in
effect for Committed Loans and not more than eight Interest Periods in effect
for Bid Loans.
2.04 Conversion and Continuation Elections. (a) The Company may,
for itself or on behalf
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of any Borrowing Subsidiary, if applicable, upon irrevocable written notice to
the U.S. Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest Period, in
the case of Eurodollar Loans, to convert any such Loans (or any part
thereof in an amount not less than U.S.$5,000,000, or that is in an
integral multiple of U.S.$1,000,000 in excess thereof) into Loans in U.S.
Dollars of another Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not less than
the Dollar Equivalent of U.S.$5,000,000, or that is in an integral
multiple of (x) U.S.$1,000,000 in excess thereof, in the case of
Eurodollar Loans, or (y) 100,000 units of the Applicable Currency in
excess thereof, in the case of Eurocurrency Loans); provided, that if
at any time the aggregate amount of Eurodollar Loans or Eurocurrency
Loans in respect of any Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to be less than the Dollar Equivalent of
U.S.$5,000,000, such Loans shall automatically convert into Base Rate
Loans, and on and after such date the right of the Company to convert
or continue such Loans under this Section 2.04 shall terminate.
(b) The Company (for itself or on behalf of any Borrowing Subsidiary,
if applicable) shall deliver a Notice of Conversion/Continuation to be received
by the U.S. Agent prior to 10:30 a.m. (Chicago time) at least (i) four Business
Days prior to the requested Conversion/Continuation Date,
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if Loans are to be continued as Eurocurrency Loans; (ii) three Business Days
prior to the requested Conversion/Continuation Date, if Loans are to be
converted into or continued as Eurodollar Loans; and (iii) on the requested
Conversion/Continuation Date, if Loans are to be converted into Base Rate Loans,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to select timely a new Interest Period
to be applicable to such Loans, or if any Default or Event of Default then
exists, the Company shall be deemed to have elected to continue such Eurodollar
Loans on the basis of a one month Interest Period. If the Company has failed to
select a new Interest Period to be applicable to Eurocurrency Loans prior to the
fourth Business Day in advance of the expiration date of the current Interest
Period applicable thereto as provided in
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subsection 2.04(b), or if any Default or Event of Default shall then exist,
subject to the provisions of subsection 2.05(b), the Company shall be deemed to
have elected to continue such Eurocurrency Loans on the basis of a one month
Interest Period.
(d) The U.S. Agent will promptly notify each Lender (and the European
Payment Agent in the case of Eurocurrency Loans) of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Company, the
U.S. Agent will promptly notify each such Person of the details of any automatic
conversion. All conversions and continuations shall be made ratably according to
the respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless the Required Lenders otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Base Rate Loan converted into a Eurodollar Loan, or a Eurocurrency Loan
continued on the basis of an Interest Period exceeding one month.
2.05 Utilization of Commitments in Available Currencies. (a) The U.S.
Agent will determine in good faith the Dollar Equivalent amount with respect to
any (i) Borrowing comprised of Eurocurrency Loans as of the requested Borrowing
Date, (ii) outstanding Eurocurrency Loans as of the last Banking Day of each
month, and (iii) outstanding Eurocurrency Loans as of any redenomination date
pursuant to this Section 2.05 or Section 3.06 (each such date under clauses (i)
through (iii) a "Computation Date").
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(b) Notwithstanding anything herein to the contrary, during the
existence of a Default or an Event of Default, upon the request of the Required
Lenders, all or any part of any outstanding Eurocurrency Loans shall be
redenominated and converted into Base Rate Loans with effect from the last day
of the Interest Period with respect to any such Eurocurrency Loans. The U.S.
Agent will promptly notify the Company, the Lenders and the European Payment
Agent of any such redenomination and conversion request.
2.06 Bid Borrowings. In addition to Committed Borrowings, each Lender
severally agrees that the Company may, as set forth in Section 2.07, from time
to time request the Lenders prior to the Termination Date to submit offers to
make Bid Loans to the Company or another Bid Borrower; provided, however, that
the Lenders may, but shall have no obligation to, submit such offers and the
Company on its own behalf or on the behalf of such other Bid Borrower may, but
shall have no obligation to, accept any such offers; and provided, further, that
at no time shall the outstanding aggregate principal amount of all Bid Loans
made by all Lenders, plus the outstanding aggregate Dollar Equivalent principal
amount of all Committed Loans made by all Lenders exceed the combined
Commitments.
2.07 Procedure for Bid Borrowings. The Company may, as set forth in
this Section, on behalf of itself or another Bid Borrower request the U.S. Agent
to solicit offers from all the Lenders to make Bid Loans.
(a) When the Company wishes to request the Lenders to submit offers to
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make Bid Loans hereunder, it shall transmit to the U.S. Agent by
telephone call followed promptly by facsimile transmission a notice in
substantially the form of Exhibit H (a "Competitive Bid Request") so
as to be received no later than 10:30 a.m. (Chicago time) (x) four
Business Days prior to the date of a proposed Bid Borrowing in the
case of a LIBOR Auction, or (y) one Business Day prior to the date of
a proposed Bid Borrowing in the case of Specific Rate Auction,
specifying:
(i) the identity of the Bid Borrower;
(ii) the date of such Bid Borrowing, which shall be a Business Day;
(iii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of U.S.$5,000,000 or in multiples of U.S.
$1,000,000 in excess thereof;
(iv) whether the Competitive Bids requested are to be for LIBOR
Bid Loans or Specific Rate Bid Loans or both; and
(v) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest
Period" herein.
Subject to subsection 2.07(c), the Company may not request the U.S.
Agent to solicit offers
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for Competitive Bids for more than three Interest Periods in a single
Competitive Bid Request and may not request Competitive Bids more than
once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the
U.S. Agent will promptly send to the Lenders by facsimile transmission
an Invitation for Competitive Bids, which shall constitute an
invitation by the Company (on behalf of itself or another Bid
Borrower) to each Lender to submit Competitive Bids offering to make
the Bid Loans to which such Competitive Bid Request relates in
accordance with this Section 2.07.
(c) (i) Each Lender may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive Bid
must comply with the requirements of this subsection 2.07(c) and must
be submitted to the U.S. Agent by facsimile transmission at its
offices specified in or pursuant to Section 11.02 not later than (1)
8:30 a.m. (Chicago time) three Business Days prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (2) 8:30 a.m.
(Chicago time) on the proposed date of Borrowing, in the case of a
Specific Rate Auction; provided that Competitive Bids submitted by
BofA may only be submitted if BofA notifies the Company of the terms
of the offer or offers contained therein not later than (A) 8:15 a.m.
(Chicago time) three Business Days prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (B) 8:15 a.m. (Chicago
time) on the proposed date of Borrowing, in the case of a Specific
Rate Auction.
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(ii) Each Competitive Bid shall be in substantially the form
of Exhibit I, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid
Loan for which such Competitive Bid is
being made, which principal amount (x) may
be equal to, greater than or less than the
Commitment of the quoting Lender, (y) must
be $5,000,000 or in multiples of $1,000,000
in excess thereof, and (z) may not exceed
the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects a LIBOR
Auction, the margin above or below the
Eurocurrency Rate (the "LIBOR Bid Margin")
offered for each such Bid Loan, expressed
in multiples of 1/1000th of one basis point
to be added to or subtracted from the
applicable Eurocurrency Rate and the
Interest Period applicable thereto;
(D) in case the Company elects a
Specific Rate Auction, the rate of interest
per annum expressed in multiples of
1/1000th of one basis point (the "Specific
Rate") offered for each such Bid Loan and
the Interest Period applicable thereto; and
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(E) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Competitive Bids.
(iii)Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity
with Exhibit I or does not specify all of
the information required by subsection
(c)(ii) of this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in
addition to those set forth in the
applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i).
(d) Promptly on receipt and not later than 9:00 a.m.
(Chicago time) three Business Days prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or 9:00 a.m. (Chicago time)
on the proposed date of Borrowing, in the case of a Specific Rate
Auction, the U.S. Agent will notify the Company of the terms (i) of
any Competitive
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Bid submitted by a Lender that is in accordance with subsection
2.07(c), and (ii) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by
such Lender with respect to the same Competitive Bid Request. Any such
subsequent Competitive Bid shall be disregarded by the U.S. Agent
unless such subsequent Competitive Bid is submitted solely to correct
a manifest error in such former Competitive Bid and only if received
within the times set forth in subsection 2.07(c). The U.S. Agent's
notice to the Company shall specify (1) the aggregate principal amount
of Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Request; (2) the
respective principal amounts and LIBOR Bid Margins or Specific Rates,
as the case may be, so offered; and (3) any other information
regarding such Competitive Bid reasonably requested by the Company.
Subject only to the provisions of Sections 3.03, 3.06 and 4.02 hereof
and the provisions of this subsection (d), any Competitive Bid shall
be irrevocable except with the written consent of the U.S. Agent given
on the written instructions of the Company.
(e) Not later than 9:45 a.m. (Chicago time) three
Business Days prior to the proposed date of Borrowing, in the case of
a LIBOR Auction, or 9:45 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of a Specific Rate Auction, the Company shall
notify the U.S. Agent, in writing and in a form reasonably acceptable
to the U.S. Agent, of its acceptance or non-acceptance of the offers
notified to it pursuant to subsection 2.07(d). The Company (on behalf
of itself or another Bid Borrower) shall be under no obligation to
accept any offer and may choose to accept or reject some or all
offers.
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In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that is accepted.
The Company (on behalf of itself or another Bid Borrower) may accept
any Competitive Bid in whole or in part; provided that:
(i)the aggregate principal amount of each
Bid Borrowing may not exceed the applicable amount
set forth in the related Competitive Bid Request;
(ii)the principal amount of each Bid Borrowing must be
U.S.$5,000,000 or in any multiple of U.S.$1,000,000
in excess thereof;
(iii)acceptance of offers may only be made on the
basis of ascending LIBOR Bid Margins or Specific
Rates within each Interest Period, as the case may
be; and
(iv)the Company may not accept any offer
that is described in subsection 2.07(c)(iii) or that
otherwise fails to comply with the requirements of
this Agreement.
(f) If offers are made by two or more Lenders with
the same LIBOR Bid Margins or Specific Rates, as the case may be, for
a greater aggregate principal amount than
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the amount in respect of which such offers are accepted for the
related Interest Period, the principal amount of Bid Loans in respect
of which such offers are accepted shall be allocated by the U.S. Agent
among such Lenders (in such multiples, not less than U.S.$1,000,000,
as the U.S. Agent may deem appropriate) as nearly as practicable in
proportion to the aggregate principal amounts of such offers.
Determination by the U.S. Agent of the amounts of Bid Loans shall be
conclusive in the absence of demonstrable error.
(g) (i) The U.S. Agent will promptly notify each
Lender having submitted a Competitive Bid if its
offer has been accepted and, if its offer has been
accepted, of the amount of the Bid Loan or Bid Loans
to be made by it on the date of the Bid Borrowing.
(ii) Each Lender, which has received notice
pursuant to subsection 2.07(g)(i) that its
Competitive Bid has been accepted, shall make the
amounts of such Bid Loans available to the U.S. Agent
in Same Day Funds for the account of the Company or
other Bid Borrower, as applicable, at the Agent's
Payment Office, by 1:00 p.m. (Chicago time) on such
date of Bid Borrowing.
(iii)Promptly following each Bid Borrowing, the
U.S. Agent shall notify each Lender of the ranges of
bids submitted and the highest and lowest bids
accepted for each Interest Period requested by the
Company and the aggregate amount borrowed pursuant to
such Bid Borrowing.
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(iv)From time to time, the Bid Borrowers
and the Lenders shall furnish such information to the
U.S. Agent as the U.S. Agent may request relating to
the making of Bid Loans, including the amounts,
interest rates, dates of borrowings and maturities
thereof, for purposes of the allocation of amounts
received from the Bid Borrowers for payment of all
amounts owing hereunder.
(h) If, on or prior to the proposed date of Bid
Borrowing, the Commitments have not been terminated and if, on such
proposed date of Bid Borrowing all applicable conditions to funding
referenced in this Agreement are satisfied, the Lender or Lenders
whose offers have been accepted by the Company (on behalf of itself or
another Bid Borrower) will fund each Bid Loan so accepted.
2.08 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five Business Days' prior notice to the U.S. Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum Dollar Equivalent amount of U.S.$5,000,000 or any Dollar Equivalent
multiple of U.S.$1,000,000 in excess thereof; unless, after giving effect
thereto and to any prepayments of Loans made on the effective date thereof, the
then-outstanding principal Dollar Equivalent amount of the Loans would exceed
the amount of the combined Commitments then in effect. Once reduced in
accordance with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Lender according to its
Pro Rata Share. All accrued facility fees (under Section 2.13(b)) to, but not
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including the effective date of any reduction or termination of Commitments,
shall be paid on the effective date of such reduction or termination.
2.09 Optional Prepayments. (a) Subject to Section 3.05, the Company
may, at any time or from time to time, upon irrevocable written notice to the
U.S. Agent, ratably prepay Committed Loans in whole or in part, in the aggregate
minimum amount of the Dollar Equivalent of U.S.$5,000,000 or any multiple of (x)
U.S.$1,000,000 in excess thereof, in the case of Base Rate Loans or Eurodollars
Loans or (y) 100,000 units of the Applicable Currency in excess thereof, in the
case of Eurocurrency Loans. The Company shall deliver a notice of prepayment to
be received by the U.S. Agent not later than 10:30 a.m. (Chicago time) (i) at
least three Business Days in advance of the prepayment date if the Loans to be
prepaid are Eurocurrency Loans, (ii) at least one Business Day in advance of the
prepayment date if the Loans to be prepaid are Eurodollar Loans, and (iii) on
the prepayment date if the Loans to be prepaid are Base Rate Loans. Such notice
of prepayment shall specify the date and amount of such prepayment and whether
such prepayment is of Base Rate Loans, Eurodollar Loans, Eurocurrency Loans, or
any combination thereof, and the Applicable Currency. Such notice shall not
thereafter be revocable by the Company and the U.S. Agent will promptly notify
each Lender thereof (and the European Payment Agent, if appropriate) and of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Company, the Company (or a Subsidiary Borrower, if applicable) shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section
3.05 (but no other amounts shall be due and payable on such date under this
Section 2.09(a)).
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(b) Bid Loans may not be voluntarily prepaid by any Bid Borrower.
2.10 Optional Increase in Commitments. The Company may, no more than
twice a year, request the Lenders by written notice to the U.S. Agent, to
increase the aggregate Commitments, which notice shall be accompanied by the
resolutions of the board of directors of the Company approving such increase and
certified by the Secretary or an Assistant Secretary of the Company, provided
that in no event shall the aggregate Commitments exceed U.S.$300,000,000 without
the written consent of all the Lenders. The U.S. Agent shall transmit such
request to each Lender within one Banking Day after its receipt thereof. Each
Lender will have the option, in its sole discretion, to subscribe for its
proportionate share of such requested increase, according to its then existing
Pro Rata Share. The Lenders shall respond in writing to the Company's request
through the U.S. Agent within fifteen Banking Days by submitting a supplement in
the form of Exhibit J. Any Lender not responding within fifteen Banking Days
shall be deemed to have declined the request. At the option of the Company, any
part of the increase not so subscribed may be assumed, within ten Banking Days
of the Lenders' response, by one or more existing Lenders or assumed by other
banks meeting the qualifications of an Eligible Assignee acceptable to the U.S.
Agent and the Company, which consent of the U.S. Agent shall not be unreasonably
withheld, upon submission of a supplement in the form of Exhibit K, in the case
of an existing Lender, or Exhibit L, in the case of a new party to this
Agreement, and Schedule 2.01 shall be amended accordingly. In order to maintain
outstanding Committed Loans in accordance with each Lender's Pro Rata Share at
all times, a reallocation of Commitments as a result of a non-pro rata
subscription to the increase in the Commitments pursuant to this Section 2.10
may require a prepayment of certain Loans by the Company (subject, without
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limitation, to Section 3.05 hereof).
2.11 Repayment. The Company (and each other Borrower, if applicable)
shall repay to the Lenders on the Termination Date the aggregate principal
amount of all Loans outstanding on such date; provided, however, that the
aggregate principal amount of all Loans to any Borrowing Subsidiary shall become
immediately due and payable on the date on which the U.S. Agent receives a
Borrowing Subsidiary Termination in respect of such Borrowing Subsidiary. The
Company (and each Borrowing Subsidiary, if applicable) shall repay each
Eurodollar Loan and each Eurocurrency Loan on the last day of the relevant
Interest Period, and the Company (and each other Bid Borrower, if applicable)
shall repay each Bid Loan on the last day of the relevant Interest Period.
12 Interest.
(a)Each Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Eurocurrency Rate or the Base Rate, as the case may be (and subject to the
Company's right to convert to other Types of Loans under Section 2.04), plus the
Applicable Margin. Each Bid Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Eurocurrency Rate plus (or minus) the LIBOR Bid Margin, or at the
Specific Rate, as the case may be.
(b)Interest on each Loan shall be paid in arrears on each Interest Payment Date.
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Interest shall also be paid on the date of any prepayment of Committed Loan
under Section 2.09 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof.
(c)Notwithstanding subsection (a) of this Section, after acceleration or the
occurrence and continuation of an Event of Default under Section 9.01(a) or (c),
or commencing five days after the occurrence and continuation of any other Event
of Default, the Company (or any other Borrower, if applicable) shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Obligations, at a
rate per annum which is determined by adding 2% per annum to the Applicable
Margin then in effect for such Loans and, in the case of Obligations not subject
to an Applicable Margin, at a rate per annum equal to the Base Rate plus 2%;
provided, however, that, on and after the expiration of any Interest Period
applicable to any Eurodollar Loan or Eurocurrency Loan outstanding on the date
of occurrence of such Event of Default or acceleration, the principal amount of
such Loan shall, after the expiration of such Interest Period and during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus 2%. Interest payable under this
subsection 2.12(c) shall be payable on demand by the Required Lenders.
(d)Anything herein to the contrary notwithstanding, the obligations of the
Company (or any other Borrower, if applicable) to any Lender hereunder shall be
subject to the limitation that payments of interest shall not be required for
any period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by such Lender would
be contrary to the provisions of any law applicable to such Lender limiting the
highest rate of interest
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that may be lawfully contracted for, charged or received by such Lender, and in
such event the Company (or any such other Borrower) shall pay such Lender
interest at the highest rate permitted by applicable law.
2.13 Fees.
(a)Arrangement, Agency Fees. The Company shall pay an arrangement fee to the
Arranger for the Arranger's own account, and shall pay agency (including bid
agency) fees and other sums to the U.S. Agent for the U.S. Agent's own account,
as required by the letter agreement ("Fee Letter") between the Company, the
Arranger and BofA dated June 20, 1997.
(b)Facility Fees. The Company shall pay to the U.S. Agent for the account of
each Lender a facility fee on the entire portion of such Lender's Commitment
(whether utilized or unutilized), computed on a quarterly basis in arrears on
the last Banking Day of each calendar quarter, equal to (i) 0.060% per annum if
Level I Status exists, (ii) 0.070% per annum if Level II Status exists, (iii)
0.080% per annum if Level III Status exists, (iv) 0.1125% per annum if Level IV
Status exists, and (v) 0.150% per annum if Level V Status exists. Such facility
fee shall accrue from the Closing Date to the Termination Date and shall be due
and payable quarterly in arrears on the last Banking Day of each calendar
quarter commencing on September 30, 1997 through the Termination Date, with the
final payment to be made on the Termination Date; provided that, in connection
with any reduction or termination of Commitments under Section 2.08, the accrued
facility fee calculated for the period ending on such date shall also be paid on
the date of such reduction or termination, with the following
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quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The facility fees
provided in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Article IV are not met.
2.14 Computation of Fees and Interest.
(a)All computations of interest for Base Rate Loans and Eurocurrency Loans
denominated in pounds sterling shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations of
interest and fees shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if computed on the basis
of a 365-day year), or such other basis customarily used in the appropriate
market for a specified currency as reasonably determined by the U.S. Agent or
the European Payment Agent. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
but excluding the last day thereof.
(b)Each determination of an interest rate or a Dollar Equivalent amount by the
U.S. Agent shall be conclusive and binding on the Company and the Lenders in the
absence of demonstrable error. The U.S. Agent will, at the request of the
Company or any Lender, deliver to the Company or the Lender, as the case may be,
a statement showing the quotations used by the U.S. Agent in determining any
interest rate or a Dollar Equivalent amount.
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(c)The U.S. Agent will, with reasonable promptness, notify the Company and the
Lenders of each determination of the Eurocurrency Rate; provided that any
failure to do so shall not relieve the Company of any liability hereunder or
provide the basis for any Event of Default or any claim against the U.S. Agent.
Any change in the interest rate payable on the Committed Loans or in the
facility fees payable under Section 2.13(b) resulting from (i) a change in
either the Company's corporate credit ratings or its senior unsecured long-term
debt ratings, or (ii) the fact that such ratings are no longer being publicly
announced by S&P and Xxxxx'x and a change in the ratio of Funded Debt to Total
Capitalization as reflected on the most recent Compliance Certificate furnished
by the Company pursuant to Section 6.02(a), shall become effective and shall
apply to any such Loans then outstanding or to such fees as of the opening of
business on the day on which such change in the Company's ratings (or such
unavailability of ratings and change of ratio) becomes effective
(notwithstanding that the U.S. Agent becomes aware of such circumstances after
they come into effect). The U.S. Agent will with reasonable promptness notify
the Company and the Lenders of the effective date and the amount of each such
change, provided that any failure to do so shall not relieve the Company (or any
Borrowing Subsidiary, if applicable) of any liability hereunder or provide the
basis for any claim against the U.S. Agent.
2.15 Currency Exchange Fluctuations. Subject to Section 3.05, if on any
Computation Date the U.S. Agent shall have determined in good faith that the
aggregate Dollar Equivalent principal amount of all Loans then outstanding
exceeds the combined Commitments of the Lenders by more than U.S. $1,000,000,
due to a change in applicable rates of exchange between U.S. Dollars and
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Available Currencies, then the U.S. Agent shall give notice to the Company that
a prepayment is required under this Section, and the Company (and the Borrowing
Subsidiaries, if applicable) thereupon agree to make prompt prepayment of Loans
such that, after giving effect to such prepayment the aggregate Dollar
Equivalent amount of all Loans does not exceed the combined Commitments;
provided, however, that the Company (or the Borrowing Subsidiary, if applicable)
may defer such prepayment for a period not exceeding three months from the date
of such notice but interest shall continue to accrue on such Loans as provided
herein.
2.16 Payments by Borrowers. (a) All payments to be made by the Borrowers
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by any Borrower shall be made to the
U.S. Agent (or the European Payment Agent, if applicable) for the account of the
Lenders at the Agent's Payment Office, and, with respect to principal of,
interest on, and any other amounts relating to, any Eurocurrency Loan, shall be
made in the Available Currency in which such Loan is denominated or payable,
and, with respect to all other amounts payable hereunder, shall be made in U.S.
Dollars. Such payments shall be made in Same Day Funds, and (i) in the case of
Available Currency payments, no later than such time on the dates specified
herein as may be determined by the U.S. Agent (or the European Payment Agent, if
applicable) to be necessary for such payment to be credited on such date in
accordance with normal banking procedures in the place of payment, and (ii) in
the case of any U.S. Dollar payments, no later than 10:00 a.m. (Chicago time) on
the date specified herein. The U.S. Agent (or the European Payment Agent, if
applicable) will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such principal, interest, fees
or other
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amounts, in like funds as received. Any payment which is received by the U.S.
Agent later than 10:00 a.m. (Chicago time), or later than the time specified by
the U.S. Agent (or the European Payment Agent, if applicable) as provided in
clause (i) above (in the case of Available Currency payments), shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the U.S. Agent (or the European Payment Agent, if
applicable) receives notice from any Borrower prior to the date on which any
payment is due to the Lenders that such Borrower will not make such payment in
full as and when required, the U.S. Agent (or the European Payment Agent, if
applicable) may assume that such Borrower has made such payment in full on such
date in Same Day Funds and the U.S. Agent (or the European Payment Agent, if
applicable) may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent such Borrower has not made
such payment in full, each Lender shall repay to the U.S. Agent (or the European
Payment Agent, if applicable) on demand such amount distributed to such Lender,
together with interest thereon at the U.S. Federal Funds Rate or, in the case of
a payment in an Available Currency, the Cost of Funds Rate, for each day from
the date such amount is distributed to such Lender until the date repaid.
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2.17 Payments by the Lenders to the Agent. (a) Unless the U.S. Agent (or
the European Payment Agent, if applicable) receives notice from a Lender on or
prior to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Borrowing, that such
Lender will not make available as and when required hereunder to the U.S. Agent
(or the European Payment Agent, if applicable) for the account of the relevant
Borrower the amount of that Lender's Pro Rata Share of the Borrowing, the U.S.
Agent (or the European Payment Agent, if applicable) may assume that each Lender
has made such amount available in Same Day Funds on the Borrowing Date and the
U.S. Agent (or the European Payment Agent, if applicable) may (but shall not be
so required), in reliance upon such assumption, make available to such Borrower
on such date a corresponding amount. If and to the extent any Lender shall not
have made its full amount available in Same Day Funds and the U.S. Agent (or the
European Payment Agent, if applicable) in such circumstances has made available
to such Borrower such amount, that Lender shall on the Business Day following
such Borrowing Date make such amount available to the U.S. Agent (or the
European Payment Agent, if applicable), (i) together with interest at the U.S.
Federal Funds Rate or, in the case of any Borrowing consisting of Eurocurrency
Loans, the Cost of Funds Rate, for each day during such period, and (ii) the
customary administrative surcharge. A notice of the U.S. Agent (or the European
Payment Agent, if applicable) submitted to any Lender with respect to amounts
owing under this subsection 2.17(a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment shall constitute such Lender's
Loan on the date of Borrowing for all purposes of this Agreement. If such amount
is not made available to
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the U.S. Agent (or the European Payment Agent, if applicable) on the Business
Day following the Borrowing Date, the U.S. Agent will notify the respective
Borrower of such failure to fund and, upon demand by the U.S. Agent, such
Borrower shall pay such amount to the U.S. Agent (or the European Payment Agent,
if applicable) for such Person's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Committed Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Lender shall be responsible
for the failure of any other Lender to make the Committed Loan to be made by
such other Lender on any Borrowing Date.
2.18 Sharing of Payments, Etc. If, other than as expressly provided in
Section 3.09 or 11.08 hereof, any Lender shall obtain on account of the
Committed Loans made by it any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its Pro Rata
Share, such Lender shall immediately (a) notify the U.S. Agent of such fact, and
(b) purchase from the other Lenders such participations in the Committed Loans
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment pro rata with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Lender, such purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying
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Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.09) with respect to
such participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. The U.S. Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Any Lender having
outstanding both Committed Loans and Bid Loans at any time a right of set-off is
exercised by such Lender shall apply the proceeds of such set-off first to such
Lender's Committed Loans, until its Committed Loans are reduced to zero, and
thereafter to its Bid Loans.
2.19 Local Borrowing Amendments. From time to time prior to the
Termination Date, upon the Company's written request, the Lenders agree to
promptly enter into one or more amendments to this Agreement with the Company in
order to permit Borrowing Subsidiaries domiciled in Australia, Canada or Italy
to obtain Committed Loans denominated in Australian dollars, Canadian dollars or
Italian lira, respectively, on a local borrowing basis (the "Fronted Loans"),
from the Lenders which have a domestic branch (or lending Affiliate) located in
such country at the time of such request. Such Lender or Lenders (the "Fronting
Lenders") having a domestic presence in any such country will advance Fronted
Loans (on a pro rata basis) in the respective currency on behalf of the Lenders,
and the other Lenders shall be deemed to have purchased irrevocable risk
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participations from the Fronting Lenders in the Fronted Loans so that after
giving effect thereto, each Lender's interest in the Fronted Loans equals its
Pro Rata Share. No fronting fees shall be payable in respect of any Fronted
Loans and all accrued interest on the Fronted Loans shall be for the account of
the Fronting Lenders. Fronted Loans will be subject to a sublimit of the Dollar
Equivalent of U.S.$75,000,000 in each such currency. Such amendment(s) shall
not, however, increase the prior Commitment of any Lender. Any such amendment(s)
shall be subject to Required Lender approval only as to form, such consent not
to be unreasonably withheld. Notwithstanding the foregoing, the obligation of
the Lenders to enter into any such amendment is conditioned upon the following,
at the time of any such request: (i) no Default or Event of Default has occurred
and is continuing, (ii) at least one Lender shall have a domestic branch (or
lending Affiliate) located in the requested country capable of making Fronted
Loans in the domestic currency of that country, and (iii) subsequent to the
Closing Date, no significant change in applicable law or governmental regulation
has occurred which, in the reasonable opinion of any Lender, would render such
amendment materially disadvantageous for such Lender.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company (or any Borrowing
Subsidiary) to each Lender or the U.S. Agent (or the European Payment Agent)
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the
Company shall pay all Other Taxes.
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(b) If any Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the U.S. Agent (or the European Payment Agent), then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or the U.S. Agent (or the European Payment
Agent), as the case may be, receives and retains an amount equal to the
sum it would have received and retained had no such deductions or
withholdings been made;
(ii) such Borrower shall make such deductions and withholdings;
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) such Borrower shall also pay to each Lender or the U.S.
Agent (or the European Payment Agent) for the account of such Lender, at
the time interest is paid, an additional amount as necessary to preserve
the after-tax yield the Lender would have received if such Taxes or
Other Taxes had not been imposed, calculated pursuant to the following
formula:
y = (w)(t)(i)
1 - w - t
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where the terms are defined as follows:
y = additional amount to be paid to Lender or the U.S. Agent (or the
European Payment Agent);
w = withholding tax rate levied by non-U.S. taxing authority;
t = 40%;
i = stated interest to be paid on Loan (i.e., Eurocurrency Rate
plus Applicable Margin).
(c) The Company agrees to indemnify and hold harmless each Lender and
the U.S. Agent (and the European Payment Agent) for the full amount of (i)
Taxes, (ii) Other Taxes, and (iii) the additional amount payable under Section
3.01(b)(iv) as necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or additional amount had not been imposed,
and any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto. Payment under this indemnification
shall be made within 30 days after the date the Lender or the U.S. Agent (or the
European Payment Agent through the U.S. Agent), makes written demand therefor.
(d)(i) After the date of any payment by the Company of Taxes or Other
Taxes, the Company shall use its best efforts to furnish to each
Lender or the U.S. Agent (or the
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European Payment Agent) the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment reasonably
satisfactory to such Person.
(ii) If a Lender is entitled to and actually claims a U.S.
foreign tax credit for Taxes paid by the Company and received an
additional amount from the Company with respect to those Taxes pursuant
to Section 3.01(b)(iv), then (x) such Lender shall use its best efforts
to reimburse the Company for such additional amount to the extent that
such Lender determines, in its sole discretion, that it received a
benefit for such foreign tax credits; and (y) any amounts payable under
subparagraph (x) hereof shall be due no earlier than the time when the
IRS is time-barred by statute from taking any action to reduce or
eliminate these foreign tax credits.
(e) If the Company (or any other Borrower) is required to pay any amount
to any Lender or the U.S. Agent (or the European Payment Agent) pursuant to
subsection (b) or (c) of this Section, then such Lender shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment which may thereafter accrue, if such change in the reasonable judgment
of such Lender is not otherwise disadvantageous to such Lender.
3.02 Withholding Tax
(a) Each Lender which is a foreign person (i.e., a person other
than a United States person for United States Federal income tax
purposes) agrees that:
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(i) it shall, no later than the Closing Date (or, in
the case of a Lender which becomes a party hereto pursuant to
Section 11.08 after the Closing Date, the date upon which the
Lender becomes a party hereto) deliver to the Company through
the U.S. Agent two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto
("Form 4224"), or two accurate and complete signed originals of
Internal Revenue Service Form 1001 or any successor thereto
("Form 1001"), as appropriate, in each case indicating that the
Lender is on the date of delivery thereof entitled to receive
payments of principal, interest and fees under this Agreement
free from withholding of United States Federal income tax;
(ii) if at any time the Lender makes any changes
necessitating a new Form 4224 or Form 1001, it shall with
reasonable promptness deliver to the Company through the U.S.
Agent in replacement for, or in addition to, the forms
previously delivered by it hereunder, two accurate and complete
signed originals of Form 4224; or two accurate and complete
signed originals of Form 1001, as appropriate, in each case
indicating that the Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees
under this Agreement free from withholding of United States
Federal income tax;
(iii)it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in or renewal of the
most recent Form 4224 or Form 1001 previously delivered by
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such Lender, deliver to the Company through the U.S. Agent two
accurate and complete original signed copies of Form 4224 or
Form 1001 in replacement for the forms previously delivered by
the Lender; and
(iv) it shall, promptly upon the Company's or the U.S.
Agent's reasonable request to that effect, deliver to the
Company or the U.S. Agent (as the case may be) such other forms
or similar documentation as may be required from time to time by
any applicable law, treaty, rule or regulation in order to
establish such Lender's tax status for withholding purposes.
(b) The Company (or any other Borrower) will not be required to
indemnify, hold harmless or pay any additional amounts in respect of
United States Federal income tax pursuant to Section 3.01 to any Lender
for the account of any Lending Office of such Lender:
(i) if the obligation to indemnify, hold harmless or
pay such additional amounts would not have arisen but for a
failure by such Lender to comply with its obligations (if any)
under subsection 3.02(a) in respect of such Lending Office;
(ii) if such Lender shall have delivered to the Company
a Form 4224 in respect of such Lending Office pursuant to
subsection 3.02(a), and such Lender shall not at any time be
entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by any Borrower
hereunder for the
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account of such Lending Office for any reason other than a
change in United States law or regulations or in the official
interpretation of such law or regulations by any Governmental
Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date
of delivery of such Form 4224; or
(iii)if the Lender shall have delivered to the Company a
Form 1001 in respect of such Lending Office pursuant to
subsection 3.02(a), and such Lender shall not at any time be
entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by any Borrower
hereunder for the account of such Lending Office for any reason
other than a change in United States law or regulations or any
applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law)
after the date of delivery of such Form 1001.
(c) Each Lender agrees to promptly notify the Company of the
first written assessment of any Taxes, Other Taxes or additional amount
specified under Section 3.01(b)(iv) payable by the Company (or any other
Borrower) hereunder which is received by such Lender, provided that failure to
give such notice shall not prejudice the Lender's rights under Section 3.01
hereof unless and to the extent the Company (or any such other Borrower) shall
be prejudiced by failure to give such notice. The Company shall not be obligated
to pay any Taxes, Other Taxes or
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such additional amount under Section 3.01 which are assessed against any Lender
if the statute of limitations applicable thereto (as same may be extended from
time to time by agreement between such Lender and the relevant Governmental
Authority) has lapsed.
3.03 Illegality. (a) If any Lender determines in good faith that the
introduction of any Requirement of Law, or any change in any Requirement of Law,
or in the interpretation or administration of any Requirement of Law, has made
it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office to
make Eurodollar Loans or Eurocurrency Loans, then, on notice thereof by the
Lender to the Company through the U.S. Agent, any obligation of that Lender to
make such Loans (including in respect of any LIBOR Bid Loan as to which the
Company (on behalf of itself or another Bid Borrower) has accepted such Lender's
Competitive Bid, but as to which the Borrowing Date has not arrived) shall be
suspended until the Lender notifies the U.S. Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines in good faith that it is unlawful to
maintain any Eurodollar Loan or Eurocurrency Loan, the relevant Borrower shall,
upon its receipt of notice of such fact and demand from such Lender (with a copy
to the U.S. Agent), prepay in full such Loans of that Lender then outstanding,
together with interest accrued thereon and amounts required under Section 3.05,
either on the last day of the Interest Period thereof, if the Lender may
lawfully continue to maintain such Loans to such day, or immediately, if the
Lender may not lawfully continue to maintain such Loans.
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(c) If the obligation of any Lender to make or maintain
Eurodollar Loans or Eurocurrency Loans has been so terminated or suspended, the
Company may elect, by giving notice to the Lender through the U.S. Agent that
all Loans which would otherwise be made by the Lender as Eurodollar Loans or
Eurocurrency Loans, respectively, shall be instead Base Rate Loans.
(d) Before giving any notice to the U.S. Agent under this
Section 3.03, the affected Lender shall designate a different Lending Office
with respect to its affected Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Lender, be illegal or otherwise disadvantageous to the Lender.
3.04 Increased Costs and Reduction of Return. (a) If any Lender
determines that, due to either (i) the introduction of or any change in or in
the interpretation by any central bank or other Governmental Authority of any
law or regulation or (ii) the compliance by that Lender with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining any Eurodollar Loans or
Eurocurrency Loans, then the Company shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be sent to the U.S. Agent), pay
to the U.S. Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have reasonably determined that (i) the
introduction after the Closing Date of any Capital Adequacy Regulation, (ii) any
change after the Closing Date in any
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Capital Adequacy Regulation, (iii) any change after the Closing Date in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Lender (or its Lending Office)
or any corporation controlling the Lender with any change in any Capital
Adequacy Regulation after the Closing Date, affects or would affect the amount
of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) determines that
the amount of such capital is increased as a consequence of its Commitment,
loans, credits or obligations under this Agreement, then, upon demand of such
Lender to the Company through the U.S. Agent, the Company shall pay to the
Lender from time to time as specified by the Lender, additional amounts
sufficient to compensate the Lender for such increase.
3.05 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any reasonable, direct loss or expense which the
Lender sustains or incurs as a consequence of:
(a) the failure of the Company (or any other Borrower) to make
on a timely basis any payment required hereunder of principal of any
Eurodollar Loan or any Eurocurrency Loan;
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(b) the failure of any Bid Borrower to borrow a Bid Loan after
the U.S. Agent has notified a Lender pursuant to subsection 2.07(g)(i)
that its Competitive Bid has been accepted by the Company, or the
failure of any Borrower to borrow, continue or convert a Committed Loan
after such Borrower has given (or is deemed to have given) a Notice of
Committed Borrowing or a Notice of Conversion/Continuation;
(c) the failure of any Borrower to make any prepayment of any
Committed Loan in accordance with any notice delivered under Section
2.09;
(d) the prepayment (including pursuant to Section 2.09) or
payment after acceleration thereof following an Event of Default of any
Eurodollar Loan, Eurocurrency Loan, LIBOR Bid Loan or Specific Rate Bid
Loan on a day that is not the last day of the relevant Interest Period;
or
(e) the automatic conversion under the proviso contained in
Section 2.04(a)(ii) of any Eurodollar Loan or Eurocurrency Loan to a
Base Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Eurodollar Loans or
Eurocurrency Loans or from fees payable to terminate the deposits from
which such funds were obtained. For purposes of calculating amounts
payable by the Company to the Lenders under this Section and under
subsection
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3.04(a), each Eurodollar Loan or Eurocurrency Loan made by a Lender (and
each related reserve, special deposit or similar requirement) shall be
deemed to have been funded at the Eurocurrency Rate by a matching
deposit or other borrowing in the offshore interbank market for a
comparable amount and for a comparable period, whether or not such Loan
is in fact so funded.
3.06 Inability to Determine Rates. If the U.S. Agent reasonably
determines that for any reason adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurodollar Loan or Eurocurrency Loan, the U.S. Agent will promptly
so notify the Company and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Loans or Eurocurrency Loans, as the case may be,
hereunder shall be suspended until the U.S. Agent revokes such notice in
writing, which revocation shall be promptly given upon a change in
circumstances. Upon receipt of such notice, the Company may revoke any Notice of
Committed Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Eurodollar Loans or
Eurocurrency Loans, as the case may be. In the case of any Eurocurrency Loans,
the Borrowing or continuation shall be in an aggregate amount equal to the
Dollar Equivalent amount of the originally requested Borrowing or continuation
in the Available Currency, and to that end any outstanding Eurocurrency Loans
which are the subject of any continuation shall be redenominated and converted
into Base Rate Loans with effect from the last
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day of the Interest Period with respect to any such Eurocurrency Loans.
3.07 Reserves. The Company (or a Borrowing Subsidiary, if applicable)
shall pay to each Lender, as long as such Lender shall be required under
regulations of the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), and, in respect of any
Eurocurrency Loans, under any applicable regulations of the central bank or
other relevant Governmental Authority in the country in which the Available
Currency of such Eurocurrency Loan circulates, additional costs on the unpaid
principal amount of each Eurodollar Loan or Eurocurrency Loan equal to the
actual costs of such reserves allocated to such Loan by the Lender (as
determined by the Lender in good faith), payable on each date on which interest
is payable on such Loan, provided the Company (or any such Borrowing Subsidiary)
shall have received at least 15 days' prior written notice (with a copy to the
U.S. Agent) of such additional interest from the Lender. If a Lender fails to
give notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be payable 15 days from receipt of such notice.
3.08 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a copy to
the U.S. Agent) a certificate setting forth in reasonable detail the amount
payable to the Lender hereunder.
3.09 Substitution of Lenders. Upon the receipt by the Company from any
Lender (an "Affected Lender") of a claim for compensation under Section 3.01,
3.04 or 3.07, the Company
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may: (i) request the Affected Lender to use its reasonable efforts to obtain a
replacement bank or financial institution satisfactory to the Company and
meeting the qualifications of an Eligible Assignee to acquire and assume all or
a ratable part of all of such Affected Lender's Loans and Commitment (a
"Replacement Lender"); (ii) request one more of the other Lenders to acquire and
assume all or part of such Affected Lender's Loans and Commitment (but no other
Lender shall be required to do so); or (iii) designate a Replacement Lender. Any
such designation of a Replacement Lender under clause (i) or (iii) shall be
subject to the prior written consent of the U.S. Agent (which consent shall not
be unreasonably withheld or delayed). Any transfer arising under this Section
3.09 shall comply with the requirements of Section 11.08 and on the date of
transfer the Affected Lender shall be entitled to all sums payable to it
hereunder on such date including, without limitation, outstanding principal,
accrued interest and fees, and other sums arising under the provisions of this
Agreement or any Loan Document.
3.10 Survival. The agreements and obligations of the Company (and any
Borrowing Subsidiary) in this Article III shall survive the payment of all other
Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Lender to make
its initial Committed Loan hereunder, and to receive through the U.S. Agent the
initial Competitive Bid Request, is subject to and shall become effective when
the U.S. Agent shall have received on or before the
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Closing Date all of the following, in form and substance reasonably satisfactory
to the U.S. Agent and each Lender, and in sufficient copies for each Lender:
(a) Credit Agreement; Notes. This Agreement (and a Bid
Loan Note from each Bid Borrower for each Lender)
properly executed;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors
of the Company, Xxxxxxx-Xxxxxx USA and Xxxxx Beauty authorizing
the transactions contemplated hereby, certified as of the
Closing Date by the Secretary or an Assistant Secretary of the
respective Borrower; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company, Xxxxxxx-Xxxxxx USA and Xxxxx Beauty
certifying the names and true signatures of the officers of the
respective Borrower authorized to execute, deliver and perform,
this Agreement, and all other Loan Documents to be delivered by
it hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i)the articles or certificate of incorporation and the
bylaws of the Company, Xxxxxxx-Xxxxxx USA and Xxxxx
Beauty as in effect on the Closing Date,
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certified by the Secretary or Assistant Secretary of the
respective Borrower as of the Closing Date; and
(ii) a good standing certificate dated within ten
Banking Days of the Closing Date for the Company, Xxxxxxx-Xxxxxx
USA and Xxxxx Beauty from the Secretary of State (or similar,
applicable Governmental Authority) of its respective state of
incorporation;
(d) Legal Opinions. An opinion of the internal counsel of
the Company, Xxxxxxx-Xxxxxx USA and Xxxxx Beauty
addressed to the U.S. Agent and the Lenders, substan-
tially in the form of Exhibit M;
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, including any such costs, fees and expenses
arising under or referenced in Section 2.13;
(f) Certificate. A certificate signed on behalf of the Company
by the Company's chief executive officer, chief financial officer,
senior vice president-finance or treasurer, dated as of the Closing
Date, stating that:
(i) the representations and warranties contained in
Article V are true and correct on and as of such
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date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would
result from the initial Borrowing; and
(iii)there has occurred since September 30, 1996, no event
or circumstance that has resulted or would
reasonably be expected to result in a Material Adverse
Effect;
(g) Borrowing Subsidiaries. In addition to the other conditions
contained in this Section 4.01, the obligation of each Lender to make
its initial Committed Loan to any Borrowing Subsidiary (other than
Xxxxxxx-Xxxxxx USA or Xxxxx Beauty) is subject to satisfaction of the
conditions contained in Section 4.03.
(h) Other Documents. Such other approvals, opinions, documents
or materials as the U.S. Agent may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Lender to make
any Committed Loan to be made by it, or any Bid Loan as to which the Company (on
behalf of itself or another Bid Borrower) has accepted the relevant Competitive
Bid (including its initial Loan), or to continue or convert any Committed Loan
under Section 2.04 is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date or Conversion/Continuation Date:
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(a) Notice of Borrowing or Conversion / Continuation. As to any
Committed Loan, the U.S. Agent shall have received (with, in the case of
the initial Loan only, a copy for each Lender) a Notice of Committed
Borrowing or a Notice of Conversion/Continuation, as applicable;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on
and as of such Borrowing Date or Conversion/Continuation Date with the
same effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they
shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or continuation or conversion.
Each Notice of Committed Borrowing and Notice of Conversion/Continuation and
Competitive Bid Request submitted by the Company hereunder shall constitute a
representation and warranty by the Company (and by the relevant Borrower, as
applicable) hereunder, as of the date of each such notice or request and as of
each Borrowing Date or Conversion/Continuation Date, as applicable, that the
conditions in Section 4.02 are satisfied.
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4.03 Conditions of Initial Loans to Borrowing Subsidiaries. The
obligation of each Lender to make its initial Committed Loan requested to be
made by it to any Borrowing Subsidiary (other than Xxxxxxx-Xxxxxx USA or Xxxxx
Beauty) on any date is subject to satisfaction of the following conditions:
(a) Borrowing Subsidiary Agreement. The U.S. Agent shall have
received the Borrowing Subsidiary Agreement to such Borrowing Subsidiary
executed and delivered by the Company and such Subsidiary Borrower.
(b) Other Documents. The U.S. Agent shall have received such
documents and certificates as the U.S. Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of such Borrowing Subsidiary, the authorization of the
transactions contemplated hereby relating to such Borrowing Subsidiary
and any other legal matters relating to such Borrowing Subsidiary, its
Borrowing Subsidiary Agreement or such transactions, all in form and
substance reasonably satisfactory to the U.S. Counsel and its counsel.
(c) Opinions. The U.S. Agent shall have received a favorable
written opinion of the Company's internal counsel for such Borrowing
Subsidiary, covering such matters (including matters of the type
described in Sections 5.01, 5.02, 5.03, 5.04, 5.06, 5.08, 5.13 and 5.17)
relating to such Borrowing Subsidiary or its Borrowing Subsidiary
Agreement as the U.S. Agent shall reasonably request.
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Notwithstanding the foregoing or any contrary provision contained in this
Agreement, no Lender shall be obligated to make, continue or convert any
Committed Loan to or for any Borrowing Subsidiary (including, without
limitation, Xxxxxxx-Xxxxxx USA or Xxxxx Beauty) if the Company shall have
executed and delivered to the U.S. Agent a Borrowing Subsidiary Termination with
respect to such Borrowing Subsidiary (whether or not such Borrowing Subsidiary
has agreed to such Borrowing Subsidiary Termination).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants (and each other Borrower severally
represents and warrants for itself with respect to the following sections,
except for Sections 5.07, 5.11, 5.16 and 5.17) to the U.S. Agent and each Lender
that:
5.01 Corporate Existence and Power. The Company and each of its
Material Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of
its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations,
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consents and approvals to own its assets, carry on its business (except
where the failure to have any such governmental license, authorization,
consent or approval would not reasonably be expected to have a Material
Adverse Effect) and to execute, deliver, and as to the Company only, to
perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification or license except when the failure to so
qualify or be so licensed or in good standing would not preclude it from
enforcing its rights with respect to any of its assets or expose it to
any liability, which in either case would reasonably be expected to have
a Material Adverse Effect; and
(d) is in all material respects in compliance with the
Requirements of Law except to the extent that the failure to do so would
not reasonably be expected to have a Material Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company of this Agreement and each other Loan Document to
which the Company is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
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(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any
Contractual Obligation to which the Company is a party or any order,
injunction, writ or decree of any Governmental Authority to which the
Company or its property is subject except where such conflict, breach,
contravention or Lien would not reasonably be expected to have a
Material Adverse Effect; or
(c) violate any Requirement of Law.
5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
the Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 Litigation. Except as specifically disclosed in Schedule 5.05,
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the
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Company, or its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other
Loan Document,or any of the transactions contemplated hereby
or thereby; or
(b) would reasonably be expected to have a Material Adverse
Effect.
No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
5.06 No Default. At the Closing Date and at the time of any Borrowing,
no Default or Event of Default exists or would result from the incurring of any
Obligations by the Company. As of the Closing Date, neither the Company nor any
Material Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, would reasonably be expected to have a Material Adverse Effect, or
that would, if such default had occurred after the Closing Date, create an Event
of Default under subsection 9.01(e).
5.07 ERISA Compliance. Except as specifically disclosed in Schedule 5.07
and solely with respect to plans covered by ERISA:
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(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law
except where non-compliance would not reasonably be expected to result
in a Material Adverse Effect. Each Plan which is intended to qualify
under Section 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of the Company, nothing
has occurred which would cause the loss of such qualification and which
would reasonably be expected to result in a Material Adverse Effect. The
Company and each ERISA Affiliate has made all required contributions to
any Plan subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan when the
failure to make such contribution or when such application or extension
would reasonably be expected to result in a Material Adverse Effect.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or would
reasonably be expected to result in a Material Adverse Effect. There has
been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA
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Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with
the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA; that, in the case of any of clauses (i) through (v),
would reasonably be expected to result in a Material Adverse Effect.
5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 6.12
and Section 7.04.
5.09 Title to Properties. The Company and each Material Subsidiary have
good record and marketable title in fee simple to, or to their knowledge valid
leasehold interests in, all real property necessary for the ordinary conduct of
their respective businesses, except for such defects in title or invalidity of
leasehold interests as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. As of the Closing Date and to the
best knowledge of the Company, the property of the Company and its Material
Subsidiaries is subject to no Liens, other than Permitted Liens.
5.10 Taxes. The Company and its Material Subsidiaries have filed all
Federal and other
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material tax returns and reports required to be filed, and have paid all Federal
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP or where failure to file such return or to pay any such tax would not
reasonably be expected to have a Material Adverse Effect. To the best knowledge
of the Company, there is no proposed tax assessment against the Company or any
Subsidiary that would, if made, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The audited consolidated financial statements of the Company
and its consolidated Subsidiaries dated September 30, 1996, and the
unaudited consolidated financial statements dated June 30, 1997:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject to normal year end
audit adjustments in the case of such unaudited statements; and
(ii)fairly present the financial condition of the
Company and its consolidated Subsidiaries as of the
date thereof and results of operations for the
period covered thereby.
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(b) Since September 30, 1996, there has been no Material Adverse
Effect otherwise than disclosed on the periodic or special reports of
the Company, copies of which have been delivered to the U.S. Agent
hereunder.
5.12 Environmental Matters. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that to the best of its knowledge,
except as specifically disclosed in Schedule 5.12, such Environmental Laws and
Environmental Claims would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.14 Copyrights, Patents, Trademarks and Licenses, etc. To the best
knowledge of the Company, the Company or its Material Subsidiaries
own or are licensed or otherwise have the right
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to use all of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person except where the failure to own, be licensed
to or otherwise have the right to use the same would not have a Material Adverse
Effect. To the best knowledge of the Company, no material slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any Material
Subsidiary infringes upon any rights held by any other Person where any such
infringement would reasonably be expected to have a Material Adverse Effect.
Except as specifically disclosed in Schedule 5.05, no claim or litigation
regarding any of the foregoing is pending or to the knowledge of the Company
threatened, which would reasonably be expected to have a Material Adverse
Effect.
5.15 Subsidiaries. As of the Closing Date, the Company has no Material
Subsidiaries other than those specifically disclosed in part (a) of Schedule
5.15 hereto and has no material equity investments in excess of U.S.$100,000,000
in any other corporation (excluding Subsidiaries) or entity other than those
specifically disclosed in part (b) of Schedule 5.15.
5.16 Insurance. To the best knowledge of the Company, the properties of
the Company and its Material Subsidiaries are insured with financially sound and
reputable insurance or reinsurance companies, in such amounts, with such
deductibles and covering such risks as are believed by the Company to be
adequate in the exercise of its reasonable business judgment.
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5.17 Full Disclosure. None of the representations or warranties made by
the Company in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, financial report or statements or certificate furnished by or on behalf
of the Company in connection with the Loan Documents, contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
6.01 Financial Statements. The Company shall deliver to the U.S. Agent,
with sufficient copies for each requesting Lender:
(a) as soon as available, but not later than the date which is
120 days after the end of each fiscal year, a copy of the Company's
Annual Report on Form 10K as filed with the SEC, and accompanied by the
opinion of a nationally-recognized independent public accounting firm
("Independent Auditor"), which opinion shall not be a qualified opinion
or limited because of a restricted or limited examination by the
Independent Auditor of any
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material portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 60 days after the
end of each of the first three fiscal quarters of each fiscal year, a
copy of the Company's Form 10Q as filed with the SEC; and
(c) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all Form 8K's
that the Company or any Subsidiary may make to, or file with, the SEC.
6.02 Certificates; Other Information. The Company shall furnish to the
U.S. Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.01(a) and (b), a Compliance Certificate
executed by a Responsible Officer on behalf of the Company which
certifies that no Default or Event of Default has occurred and is
continuing (except as described therein); and
(b) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Material
Subsidiary as the U.S. Agent may from time to time reasonably request
and which relates to the ability of the Company (or any other Borrower)
to perform under this Agreement or any Loan Document.
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6.03 Notices. Upon obtaining knowledge of any event described below, the
Company shall promptly notify the U.S. Agent (but in no event later than five
days after obtaining such knowledge):
(a) of the occurrence of any Default or Event of Default;
(b) of any of the following matters of which a Responsible
Officer obtains knowledge that would result in a Material Adverse
Effect: (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Material Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between
the Company or any Material Subsidiary and any Governmental Authority;
or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Material
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any of the following events affecting
the Company or any ERISA Affiliate which would reasonably be expected to
result in a Material Adverse Effect, and deliver to the U.S. Agent a
copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental
Authority to the Company or any ERISA Affiliate with respect to such
event:
(i) an ERISA Event;
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(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section
412 of the Code by the Company or any ERISA
Affiliate; or
(iv) the adoption of any amendment to a Plan sub
ject to Section 412 of the Code, if such
amendment results in a material increase in
contributions or Unfunded Pension Liability ;
(d) of any material change in accounting policies or financial
reporting practices other than those required by GAAP by the Company or
any of its consolidated Subsidiaries which would reasonably be expected
to materially affect the Company's consolidated financial reports;
(e) of any change in either the Company's corporate credit
ratings or its senior unsecured long-term debt ratings as publicly
announced by either S&P or Xxxxx'x, or the fact that such ratings are no
longer being publicly announced by S&P or Xxxxx'x, provided that any
failure by the Company to give notice of such change or such
unavailability of ratings shall not affect the payment obligations
hereunder of any Borrower;
(f) of any change after the Closing Date in the manner in which
the Company
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reflects the aggregate amount of Permitted Receivables sold in
connection with Permitted Receivables Purchase Facilities in its
internal, unaudited consolidated balance sheet. Upon any such change,
the Company shall enter into good faith negotiations with the U.S. Agent
and the Lenders so as to promptly arrive at a mutually acceptable
alternate method of measuring the Company's compliance with Section
7.02(d).
Each notice under this Section shall be accompanied by a written statement by a
Responsible Officer setting forth details of the occurrence referred to therein,
and stating what action the Company or any affected Subsidiary proposes to take
with respect thereto and at what time. Each notice under subsection 6.03(a)
shall describe with particularity any and all provisions of this Agreement or
other Loan Document (if any) that have been breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Material Subsidiary (including each other Borrower) to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction
of incorporation;
(b) to the extent practicable, using reasonable efforts,
preserve and maintain in full force and effect all governmental rights,
privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business except (x) when the
non-preservation and non-maintenance of such rights, privileges,
qualifications, permits,
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licenses or franchises would reasonably be expected not to have a
Material Adverse Effect or (y) in connection with transactions permitted
by Section 7.03 and sales of assets permitted by Section 7.02;
(c) use reasonable efforts, in the ordinary course of business,
to preserve its business organization and goodwill except when in the
reasonable judgment of the Company it is not economical to do so or
where the failure to do so would not reasonably be expected to have a
Material Adverse Effect; and
(d) to the extent practicable, using reasonable efforts,
preserve or renew all of its registered patents, trademarks, trade names
and service marks, except when non-preservation or non-renewal of such
patents, trademarks, trade names or service marks would reasonably be
expected not to have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall
cause each Material Subsidiary to maintain, and preserve all its property which
is used or useful in its business in good working order and condition, ordinary
wear and tear and casualty loss excepted and make all necessary repairs thereto
and renewals and replacements thereof except when in the reasonable judgment of
the Company it is not economical to do so or where the failure to do so would
not reasonably be expected to have a Material Adverse Effect. The Company and
each Material Subsidiary shall use the standard of care typical in the industry
in the operation and maintenance of its material facilities.
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6.06 Insurance. The Company shall maintain, and shall cause each
Material Subsidiary to maintain, with financially sound and reputable insurers
or independent reinsurers, insurance with respect to its properties and business
against loss or damage of the kinds and in the amounts determined by the Company
to be necessary or desirable in the exercise of its reasonable business
judgment.
6.07 Payment of Obligations. The Company shall, and shall cause each
Material Subsidiary to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Company or such
Material Subsidiary or unless the failure to pay or discharge would not
have a Material Adverse Effect;
(b) all lawful claims (except for such claims which are
contested by the Company or Material Subsidiary in good faith) which, if
unpaid, would by law become a Lien upon its property except when the
failure to pay or discharge would not have a Material Adverse Effect;
and
(c) all Indebtedness, as and when due and payable (except
for such Indebtedness
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which is contested by the Company or any Material Subsidiary in good
faith or where the failure to pay or discharge would not reasonably be
expected to result in a Material Adverse Effect), but subject to any
subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.08 Compliance with Laws. The Company shall comply, and shall cause
each Material Subsidiary to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business, except such as may be contested in good faith or as to which a
bona fide dispute may exist or where the failure to comply would not have a
Material Adverse Effect.
6.09 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law except where non-compliance would not reasonably be expected to result
in a Material Adverse Effect; and (b) make all required contributions to any
Plan subject to Section 412 of the Code except where failure to make any
contribution would not reasonably be expected to result in a Material Adverse
Effect.
6.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Material Subsidiary to maintain proper books of
record and account, in which full, true and correct entries shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Material Subsidiary. Subject to reasonable safeguards to
protect
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confidential information, the Company shall permit representatives of the U.S.
Agent to discuss the affairs and finances of the Company with its Responsible
Officers, all at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Company;
provided, however, when an Event of Default exists the Company shall permit, and
shall cause each Material Subsidiary to permit, representatives of the U.S.
Agent to visit and inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, all at the expense of the Company at any time during
normal business hours and with reasonable advance notice. The U.S. Agent shall
promptly advise the Lenders of its findings after any such visit, inspection,
examination or discussion.
6.11 Environmental Laws. The Company shall, and shall cause each
Material Subsidiary to, conduct its operations and keep and maintain its
property in compliance with all Environmental Laws except where the failure to
comply would not have a Material Adverse Effect.
6.12 Use of Proceeds. The Company shall use the proceeds of the Loans
for general corporate purposes including, without limitation, working capital
and Acquisitions, not in contravention of any Requirement of Law or of this
Agreement.
ARTICLE VII
NEGATIVE COVENANTS
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So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Material Subsidiary to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 7.01 or
included in the Company's consolidated financial statements as of June
30, 1997 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 6.07;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings are reasonably anticipated to
have the effect of preventing
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the forfeiture or sale of the property subject thereto;
(e) Liens consisting of pledges or deposits required in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens on the property of the Company or any of its
Subsidiaries securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and
(iii) other non-delinquent obligations of a like nature; in each case,
incurred in the ordinary course of business, provided all such Liens in
the aggregate would not (even if enforced) cause a Material Adverse
Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and
its Subsidiaries taken as a whole;
(h) Liens on assets of Subsidiaries acquired by the Company
after the date of this Agreement, provided, however, that such Liens
existed at the time of the respective acquisition and were not incurred
in anticipation thereof;
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(i) purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
provided that (i) such Lien attaches solely to the property so acquired
in such transaction, and (ii) the principal amount of the Indebtedness
secured thereby does not exceed 100% of the cost of such property;
(j) Liens securing obligations in respect of capital leases on
assets subject to such leases;
(k) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth
by regulations promulgated by the Federal Reserve Board, and (ii) such
deposit account is not intended by the Company or any Material
Subsidiary to provide collateral to the depository institution except in
either case when such deposit accounts are established or required in
the ordinary course of business and would not have a Material Adverse
Effect; and
(l) Liens on Permitted Receivables subject to a Permitted
Receivables Purchase Facility;
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(m) Liens on real property (i) acquired after the Closing Date
by the Company or any Subsidiary, provided that such Liens existed at
the time such property was acquired and were not created in anticipation
thereof or (ii) acquired or held by the Company or its Subsidiaries in
the ordinary course of business, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such property, provided that (x) such Liens attach solely to
the property so acquired in such transaction, and (y) the principal
amount of the Indebtedness secured thereby does not exceed 100% of the
cost of such property; and
(n) Notwithstanding the provisions of subsections 7.01(a)
through (m), there shall be permitted Liens on property (including Liens
which would otherwise be in violation of such subsections), provided
that the sum of the aggregate Indebtedness of the Company and its
Subsidiaries secured by all Liens permitted under this subsection (n),
excluding the Liens permitted under subsections (a) through (m), shall
not exceed an amount equal to 3% of the Company's total consolidated
assets as shown on its consolidated balance sheet for its most recent
prior fiscal quarter.
7.02 Disposition of Assets. Except as otherwise permitted by any other
provision of this Agreement, the Company shall not, and shall not suffer or
permit any Material Subsidiary to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any property (including accounts and notes receivable, with or
without
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recourse) or enter into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) dispositions or spinoffs on reasonable commercial terms and
for fair value or which would not have a Material Adverse Effect,
provided that dispositions or spinoffs of the capital stock of any
Material Subsidiary or any Borrowing Subsidiary to a non-Affiliated
Person shall not be permitted under this subsection (b) unless after
giving effect thereto the affected Material Subsidiary or Borrowing
Subsidiary would be a Wholly-Owned Subsidiary;
(c) dispositions of property (including capital stock) between
the Company and any consolidated Subsidiary or among consolidated
Subsidiaries;
(d) dispositions of Permitted Receivables pursuant to Permitted
Receivables Purchase Facilities, provided that the aggregate Investment
Amount with respect thereto shall not exceed U.S.$75,000,000 at any
time; and
(e) other dispositions of property during any fiscal year
(excluding dispositions permitted under subsections 7.02(a) through (d))
whose net book value in the aggregate shall not exceed 3% of the
Company's total consolidated assets as shown on its consolidated
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balance sheet for its most recent prior fiscal year.
7.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Material Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Person may merge with the Company, provided that
the Company shall be the continuing or surviving
corporation;
(b) any Subsidiary may merge (i) with the Company, provided that
the Company shall be the continuing or surviving corporation, or (ii)
with any one or more Subsidiaries, provided that if any transaction
shall be between a Subsidiary which is not a Wholly-Owned Subsidiary and
a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving corporation;
(c) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary; and
(d) any Subsidiary may merge with any Person and any Person may
merge with any Subsidiary, provided that after giving effect thereto the
resulting Person shall be a Wholly-Owned Subsidiary.
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7.04 Margin Stock. The Company shall not, and shall not suffer or permit
any Subsidiary to, use any portion of the Loan proceeds, directly or indirectly,
in a manner which violates any applicable Requirement of Law and which would
have a Material Adverse Effect (provided that this Section 7.04 shall not be
deemed to permit the use of Loan proceeds in violation of any Requirement of Law
applicable to any Lender). Notwithstanding the foregoing, at no time shall more
than 25% of the value (as determined by any reasonable method) of the Company's
assets consist of Margin Stock.
7.05 Restricted Payments. During the existence of a Default or Event of
Default, the Company shall not, and shall not suffer or permit any Material
Subsidiary (other than a Wholly- Owned Subsidiary) to, declare or make any cash
dividend payment or other distribution of assets, properties, rights,
obligations or securities on account of any shares of any class of its capital
stock, or purchase, redeem or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding; provided that this Section 7.05 shall not restrict any
such cash payments or other distributions or any purchases, redemptions or
acquisitions of its capital stock or any warrants, rights or options to acquire
such shares, now or hereafter outstanding, permitted under any written benefit
plans of the Company or any Material Subsidiary now or hereafter existing so
long as such payments or distributions or purchases, redemptions or acquisitions
do not exceed U.S.$5,000,000 in the aggregate during the existence of any such
Default or Event of Default.
7.06 ERISA. The Company shall not, and shall not suffer or permit any
of its ERISA
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Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect; or (b)
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA and which would reasonably be expected to result in a Material Adverse
Effect.
7.07 Accounting Changes. The Company shall not, and shall not suffer or
permit any Material Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP, or
change the fiscal year of the Company or of any such Material Subsidiary, if
such change would reasonably be expected to result in a Material Adverse Effect.
7.08 Interest Coverage. The Company shall not permit as of the last day
of any fiscal quarter, on a consolidated basis, the ratio of (i) Earnings Before
Interest and Taxes to (ii) Interest Expense, to be less than 2.0 to 1.0. For
purposes of this section, "Earnings Before Interest and Taxes" means as at the
end of any fiscal quarter of the Company for the period of four consecutive
fiscal quarters ended as at such date, the sum of (a) the consolidated net
income (or net loss) of the Company and its Subsidiaries for such period as
determined in accordance with GAAP, plus (b) all amounts treated as interest
expense for such period to the extent included in the determination of such
consolidated net income (or loss); plus (c) all taxes accrued for such period on
or measured by income to the extent included in the determination of such
consolidated net income (or loss); provided, however, that consolidated net
income (or loss) shall be computed for the purposes of
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this definition without giving effect to extraordinary or non-recurring losses
or extraordinary or non-recurring gains for such period; and "Interest Expense"
means as at the end of any fiscal quarter of the Company for the period of four
consecutive fiscal quarters ended as at such date, all amounts treated as
interest expense for such period to the extent included in the determination of
the Company's consolidated net income (or net loss) for such period as
determined in accordance with GAAP.
7.09 Leverage. The Company shall not permit as of the last day of any
fiscal quarter, on a consolidated basis, the ratio of (i) Funded Debt to (ii)
Total Capitalization, to be greater than 0.60 to 1.0. For purposes of this
section, "Funded Debt" means as of the date of any determination all outstanding
Indebtedness of the Company and its consolidated Subsidiaries which matures more
than one year after the incurrence thereof or is extendable, renewable or
refundable, at the option of the obligor, to a date more than one year after the
incurrence thereof; and "Total Capitalization" means, as of any date of
determination, the sum of (i) Funded Debt, and (ii) the sum of the amounts set
forth on the consolidated balance sheet of the Company and its consolidated
Subsidiaries as shareholders' equity as determined in accordance with GAAP.
7.10 Subsidiary Indebtedness. The Company shall not permit as of the
last day of any fiscal quarter, the aggregate Indebtedness (excluding
Indebtedness among the Company and its Subsidiaries or between Subsidiaries) of
its consolidated Subsidiaries to exceed (i) during the first and second year
after the Closing Date, 20% and (ii) thereafter, 25%, of shareholders' equity as
set forth on the consolidated balance sheet of the Company and its consolidated
Subsidiaries as
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determined in accordance with GAAP and as reflected in its most recent annual or
quarterly financial statements delivered to the U.S. Agent under Section 6.01.
For purposes of this Section 7.10, the term "Indebtedness" shall be deemed to
exclude (i) Indebtedness of a Person which becomes a Subsidiary after the date
hereof, provided that such excluded Indebtedness existed at the time such Person
became a Subsidiary and was not created in anticipation thereof, and (ii)
outstanding Loans of Borrowing Subsidiaries under this Agreement.
ARTICLE VIII
GUARANTEE
8.01 Guarantee. (a) To induce the U.S. Agent and the Lenders to execute
and deliver this Agreement and to make the extensions of credit provided for
herein to the Borrowing Subsidiaries (including, without limitation,
Xxxxxx-Xxxxxx USA and Xxxxx Beauty in their respective capacity as Borrowing
Subsidiary or Bid Borrower), the Company hereby unconditionally and irrevocably
guarantees to the U.S. Agent and the Lenders and their respective successors,
permitted transferees and permitted assigns, as a primary obligor and not merely
as a surety, the prompt and complete payment and performance by the Borrowing
Subsidiaries when due (whether at the stated maturity, by acceleration or
otherwise) of all of the Obligations of the Borrowing Subsidiaries from time to
time (the "Guaranteed Obligations"). The Company further agrees to pay any and
all reasonable expenses (including, without limitation, all Attorney Costs)
which may be paid or incurred by the U.S. Agent, the European Payment Agent, or
any Lender in enforcing any rights with respect to, or collecting, any or all of
the Guaranteed Obligations or enforcing any rights with respect to, or
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collecting against, the Company under this Article VIII. This Guarantee shall
remain in full force and effect until all such Obligations are paid in full and
the Commitments are terminated, notwithstanding that from time to time prior
thereto the Borrowing Subsidiaries may be free from any Obligations.
(b) No payment or payments made by any Borrowing Subsidiary or
any other Person or received or collected by the U.S. Agent, the European
Payment Agent or any Lender from any Borrowing Subsidiary or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Guaranteed Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company under this Article VIII which
shall, notwithstanding any such payment or payments, remain in full force and
effect until the Guaranteed Obligations are paid in full and the Commitments are
terminated. The Company agrees that whenever, at any time, or from time to time,
it shall make any payment to the U.S. Agent or any Lender on account of its
liability under this Article VIII, it will notify the U.S. Agent and such Lender
in writing that such payment is made under this Article VIII for such purpose.
8.02 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Article VIII, the Company shall
not be entitled to be subrogated to any of the rights of the U.S. Agent or any
Lender against any Borrowing Subsidiary or any other guarantor or any collateral
security or guarantee or right of offset held by any Lender for the payment of
the Guaranteed Obligations, nor shall the Company seek or be entitled to seek
any contribution or
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reimbursement from any Borrowing Subsidiary or any other guarantor in respect of
payments made by the Company hereunder, until all amounts owing to the U.S.
Agent and the Lenders by the Borrowing Subsidiaries on account of the Guaranteed
Obligations are paid in full. If any amount shall be paid to the Company on
account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by the
Company in trust for the U.S. Agent and the Lenders, segregated from other funds
of the Company, and shall, forthwith upon receipt by the Company, be turned over
to the U.S. Agent in the exact form received by the Company (duly endorsed by
the Company to U.S. Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as the U.S. Agent and
the Required Lenders may determine. The provisions of this subsection shall
survive the termination of the guarantee contained in this Article VIII.
8.03 Amendments, etc. with Respect to the Obligations; Waiver of Rights.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Guaranteed
Obligations made by the U.S. Agent or any Lender may be rescinded by the U.S.
Agent or such Lender, and any of the Guaranteed Obligations continued, and the
Guaranteed Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the U.S. Agent, the European Payment Agent or any Lender, and this
Agreement, the other Loan Documents, and any other documents executed and
delivered in connection herewith
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or therewith may be amended, modified, supplemented or terminated, in whole or
in part, as the U.S. Agent (or the Required Lenders, as the case may be) or such
Lender may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the U.S. Agent, the European
Payment Agent or any Lender for the payment of the Guaranteed Obligations may be
sold, exchanged, waived, surrendered or released. Neither the U.S. Agent, the
European Payment Agent nor any Lender (or its Affiliates) shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Guaranteed Obligations or for the guarantee contained in
this Article VIII or any property subject thereto. When making any demand
hereunder against the Company, the U.S. Agent or any Lender may, but shall be
under no obligation to, make a similar demand on the relevant Borrowing
Subsidiary or any other guarantor, and any failure by the U.S. Agent or any
Lender to make any such demand or to collect any payments from such Borrowing
Subsidiary or any such other guarantor or any release of such Borrowing
Subsidiary or such other grantor shall not relieve the Company of its
obligations or liabilities under this Article VIII, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
the U.S. Agent or any Lender against the Company. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
8.04 Guarantee Absolute and Unconditional. The Company waives, to the
fullest extent permitted by applicable law, any and all notice of the creation,
renewal, extension or accrual of any of the Guaranteed Obligations and notice of
or proof of reliance by the U.S. Agent or any Lender upon the guarantee
contained in this Article VIII or acceptance of the guarantee contained in this
Article VIII, the Guaranteed Obligations, and any of them, shall conclusively be
deemed to have
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been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the guarantee contained in this Article VIII; and all dealings
between the Company or any Borrowing Subsidiary, on the one hand, and the U.S.
Agent, the European Payment Agent and the Lenders, on the other hand, shall
likewise be conclusively presumed to have been had or consummated in full
reliance upon the guarantee contained in this Article VIII. The Company waives,
to the fullest extent permitted by applicable law, diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrowing Subsidiaries with respect to the Guaranteed Obligations. This
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any note, any other Loan Document, any of the
Guaranteed Obligations or any guarantee or right of offset with respect thereto
at any time or from time to time held by the U.S. Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrowing Subsidiaries against the U.S. Agent or any Lender or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Company)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrowing Subsidiaries for the Guaranteed Obligations, or of
the Company under the guarantee contained in this Article VIII, in bankruptcy or
in any other instance. When pursuing its rights and remedies hereunder against
the Company, the U.S. Agent and any Lender may, but shall be under no obligation
to, pursue such rights and remedies as it may have against the Borrowing
Subsidiaries or any other Person or against any guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
U.S. Agent or any
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Lender to pursue such other rights or remedies or to collect any payments from
the Borrowing Subsidiaries or any such other Person or to realize upon any such
guarantee or to exercise any such right of offset, or any release of the
Borrowing Subsidiaries or any such other Person or of any such guarantee or
right of offset, shall not relieve the Company of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the U.S. Agent or any Lender against the
Company. The guarantee contained in this Article VIII shall remain in full force
and effect and be binding in accordance with and to the extent of its terms upon
the Company and its successors, permitted transferees and permitted assigns,
until all the Guaranteed Obligations and the obligations of the Company under
this Article VIII shall have been satisfied and by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of this Agreement the Borrowing Subsidiaries may be free from any
Obligations.
8.05 Reinstatement. The guarantee contained in this Article VIII shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the U.S. Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrowing Subsidiary or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, such Borrowing
Subsidiary or any substantial part of its property, or otherwise, all as though
such payments had not been made.
ARTICLE IX
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EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company or any other Borrower fails to pay,
(i) within one Banking Day after the same becomes due, any amount of
principal of any Loan, or (ii) within five Banking Days after the same
becomes due, any fee payable under Section 2.13 or interest (including
any Guaranteed Obligations) or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty
by the Company, any other Borrower or any other Material Subsidiary made
or deemed made herein, in any other Loan Document, or which is contained
in any certificate, document or financial or other statement by the
Company, any other Borrower or any other Material Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in
or under any other Loan Document, is incorrect in any material respect
on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of Sections 7.03, 7.05,
7.06, 7.08, 7.09 or 7.10; or
(d) Other Defaults. The Company or any other Borrower fails to
perform or observe any other material term or covenant contained in this
Agreement or any other Loan
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Document, and such default shall continue unremedied for a period of 30
days after the earlier of (i) the date upon which a Responsible Officer
knew of such failure or (ii) the date upon which written notice thereof
is received by the Company from the U.S. Agent; or
(e) Cross-Default. (i) The Company or any Subsidiary (i) fails
to perform or observe any condition or covenant, or any other event
shall occur or condition shall exist, under any agreement or instrument
relating to any Indebtedness having an aggregate principal amount
(including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than U.S.$25,000,000 (or the
Dollar Equivalent thereof), and such failure continues after the
applicable grace or notice period, if any, specified in the relevant
document on the date of such failure if the effect of such failure,
event or condition is to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity; or (ii) if there shall
occur any default or event of default, however denominated, under any
cross default provision under any agreement or instrument relating to
any such Indebtedness of more than U.S.$25,000,000 (or the Dollar
Equivalent thereof); or
(f) Insolvency; Voluntary Proceedings. The Company, any other
Borrower or any Material Subsidiary (i) ceases to be solvent, or
generally fails to pay its debts, or admits in writing its inability to
pay its debts as they become due, subject to applicable grace periods,
if any, whether at stated maturity or otherwise; (ii) voluntarily ceases
to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action
to effectuate or authorize any of the foregoing; or
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(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company, any other Borrower
or any Material Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against a
substantial part of the Company's or any such subsidiary's properties,
and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process
shall not be released, stayed, vacated or fully bonded within 60 days
after commencement, filing, issuance or levy; (ii) the Company, any
other Borrower or any Material Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law involving a
material portion of the Company's or such subsidiary's total assets) is
ordered in any Insolvency Proceeding involving the Company or any such
subsidiary; or (iii) the Company, any other Borrower or any Material
Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion
of its property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company under Title
IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of U.S.$50,000,000; (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans at any time
exceeds U.S.$50,000,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability
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under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of U.S.$50,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non- interlocutory orders, non-interlocutory decrees or arbitration
awards is entered against the Company, any other Borrower or any
Material Subsidiary involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of U.S.$30,000,000 or more (or
the Dollar Equivalent thereof), and the same shall not have been
vacated, discharged, stayed or appealed within the applicable period for
appeal from the date of entry thereof or paid within ten Banking Days
after the same becomes non-appealable; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company, any other Borrower or any
Subsidiary which does or would reasonably be expected to have a Material
Adverse Effect; or
(k) Change of Control. There occurs any Change of Control. For
purposes of this Section 9.01(k), a "Change of Control" shall occur if
any Person (including any syndicate or group deemed to be a "person"
under Section 13(d)(3) of the Exchange Act, other than the Company, any
Subsidiary of the Company or any employee benefit plan of the Company
and other than (x) Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx,
Xxxxxx X.
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Xxxxxxx, their estates, trusts for their benefit or Persons controlled
by any of the foregoing or (y) any such syndicate or group which
includes any person or entity referred to in the previous clause (x)),
is or becomes the beneficial owner, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of capital stock of the Company entitling such
Person to exercise 25% or more of the total voting power of all shares
of capital stock of the Company entitled to vote generally in the
election of directors; or
(l) The Guarantee contained in Article VIII shall cease, for any
reason, to be in full force and effect in accordance with its terms or
the Company shall so assert.
9.02 Remedies. If any Event of Default occurs, the U.S. Agent shall, at
the request of, or may, with the consent of, the Required Lenders,
(a) declare the Commitment of each Lender to make Committed
Loans to be terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Company (and any other Borrower); and
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(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the U.S. Agent
or any Lender without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Company (and any other
Borrower).
9.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents (whether now existing or hereafter arising) are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes the U.S. Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document,
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together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the U.S. Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the U.S.
Agent have or be deemed to have any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the U.S. Agent.
10.02 Delegation of Duties. The U.S. Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The U.S. Agent shall not be responsible for
the negligence or misconduct of any agent or attorney-in-fact that it selects
and oversees with reasonable care.
10.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by the Company, any other Borrower or
any other Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the U.S. Agent (or the European Payment Agent) under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness,
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genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of the Company's Subsidiaries
or Affiliates.
10.04 Reliance by Agent.
(a) The U.S. Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, electronic mail,
telex, statement or other document or conversation reasonably believed
by it to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent accountants and
other experts selected by the U.S. Agent. The U.S. Agent shall be fully
justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or all the Lenders if specifically
required hereunder) as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The U.S. Agent shall in
all cases be fully protected in acting, or in refraining
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from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or all the
Lenders if specifically required hereunder) and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent on or prior to
the Closing Date by the U.S. Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender.
10.05 Notice of Default. The U.S. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the U.S. Agent (or the European Payment Agent) for the account of
the Lenders, unless the U.S. Agent shall have received written notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". The U.S.
Agent will notify the Company, the Lenders and the European Payment Agent of its
receipt of any such notice. The U.S. Agent shall take such action with respect
to such Default or Event of Default as may be requested by the Required Lenders
in accordance with Article IX; provided, however, that unless and until the U.S.
Agent has received any such request, the U.S. Agent may (but shall not be
obligated to) take such
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action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Lenders.
10.06 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the U.S. Agent hereafter taken, including any review of the affairs of
the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the U.S. Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries
(including the other Borrowers), and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Borrowers hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the U.S. Agent, the U.S. Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or
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creditworthiness of the Company or any other Borrower which may come into the
possession of any of the Agent-Related Persons.
10.07 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of the Borrowers to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the U.S. Agent upon demand for its ratable share of any
reasonable costs or out-of-pocket expenses (including Attorney Costs) incurred
by the U.S. Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the U.S.
Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the U.S. Agent.
10.08 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company
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and its Subsidiaries and Affiliates as though BofA were not the U.S. Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the U.S. Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
BofA shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the U.S. Agent, and the
terms "Lender" and "Lenders" include BofA in its individual capacity.
10.09 Successor Agent.
(a) The U.S. Agent may, and at the request of the Company (so
long as no Default or Event of Default exists at the time of such
request) or the Required Lenders shall, resign as U.S. Agent upon 30
days' notice to the Lenders. If the U.S. Agent resigns under this
Agreement, the Company shall appoint from among the Lenders a successor
agent for the Lenders (unless an Event of Default then exists in which
case the Required Lenders shall appoint the successor agent). If no
successor agent is appointed prior to the effective date of the
resignation of the U.S. Agent, the U.S. Agent may appoint, after
consulting with the Lenders and the Company, a successor agent from
among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring U.S. Agent and the term "U.S. Agent"
shall mean such successor agent and the retiring U.S. Agent's
appointment, powers and duties as U.S. Agent shall be terminated. After
any retiring U.S. Agent's resignation hereunder as U.S.
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Agent, the provisions of this Article X and Sections 11.04 and 11.05
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was U.S. Agent under this Agreement. If no
successor agent has accepted appointment as U.S. Agent by the date which
is 30 days following a retiring U.S. Agent's notice of resignation, the
retiring U.S. Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the U.S.
Agent hereunder until such time, if any, as the Company or the Required
Lenders appoint a successor agent as provided for above.
(b) The European Payment Agent may resign upon 30 days' notice
to the U.S. Agent, who will then notify the Company and the Lenders, or
the U.S. Agent may replace the European Payment Agent, whereupon the
U.S. Agent shall appoint a successor European Payment Agent (or may
itself assume the duties of the European Payment Agent hereunder). After
any retiring European Payment Agent's resignation hereunder, the
provisions of this Article X and Sections 11.04 and 11.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while
it was European Payment Agent under this Agreement.
10.10 Tax Withholding.
(a) If any Lender claims exemption from withholding tax under a
United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Borrowers to such Lender, such Lender
agrees to notify the U.S. Agent of the percentage amount in which it is
no longer the
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beneficial owner of Obligations of the Borrowers to such Lender. To the
extent of such percentage amount, the U.S. Agent will treat such
Lender's IRS Form 1001 as no longer valid.
(b) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the U.S. Agent sells,
assigns, grants a participation in, or otherwise transfers all or part
of the Obligations of the Borrowers to such Lender, such Lender agrees
to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(c) If the IRS or any other Governmental Authority of the United
States or any other jurisdiction asserts a claim that the U.S. Agent (or
any other Agent-Related Person) did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify the U.S. Agent (or any other
Agent-Related Person) of a change in circumstances which rendered the
exemption from withholding tax ineffective, or for any other reason)
such Lender shall indemnify the U.S. Agent (or such other Agent-Related
Person) fully for all amounts paid, directly or indirectly, by the U.S.
Agent (or such other Agent-Related Person) as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the U.S. Agent (or such other
Agent-Related Person) under this subsection, together with all costs and
expenses (including Attorney Costs). The obligation of the Lenders under
this subsection shall survive the payment of all Obligations
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and the resignation or replacement of the U.S. Agent (or such other
Agent-Related Person).
10.11 Co-Agents. None of the Lenders identified in this Agreement as a
"co-agent" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as a
"co-agent" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any other Borrower therefrom, shall be effective
unless the same shall be in writing and signed by the Required Lenders (or by
the U.S. Agent at the written request of the Required Lenders) and the Company
and acknowledged by the U.S. Agent, and then any such waiver and consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Lenders and the Company and
acknowledged by the U.S. Agent, do any of the following:
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(a) increase or extend the Commitment of any Lenders (or
reinstate any Commitment terminated pursuant to subsection 9.02(a),
unless such Lender has consented thereto in writing pursuant to Section
2.10 or otherwise;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, facility
fees or other material amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan (provided that this subsection 11.01(c) shall not
apply to a reduction of interest payable under Section 2.12(c) upon
waiver of an Event of Default by the Required Lenders or if such Event
of Default is otherwise cured), or (subject to clause (ii) below) any
facility fees or other material amounts payable hereunder or under any
other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder; or
(e) amend this Section, or Section 2.16, or reduce the Company's
Obligations under Article VIII, or any provision herein providing for
consent or other action by all Lenders;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the U.S. Agent in addition to the Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of the U.S. Agent
or the European Payment Agent under this Agreement or any other Loan Document,
and (ii) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed by the parties thereto.
11.02 Notices.
(a) All notices, requests and other communications shall be in
writing, including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by
facsimile or by electronic mail shall be immediately confirmed by a
telephone call to the recipient at the number specified below or on
Schedule 11.02, as appropriate or in the relevant Borrowing Subsidiary
Agreement, as the case may be, or, as directed to the Company or the
U.S. Agent, to such other address as shall be designated by such party
in a written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party in a
written notice to the Company and the U.S. Agent:
The Company: Xxxxxxx-Xxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: President and Chief
Executive Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
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with a copy of each notice to:
Xxxxxxx-Xxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Tel: (000) 000-0000
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The U.S. Agent: For notices of borrowing, payments and other admin-
istrative matters:
Bank of America National Trust and Savings Association
ABA No.: 000-000-000
Bancontrol No.: 12334-15710
Ref: Xxxxxxx-Xxxxxx
Agency Administrative Services #5596
Attention: Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
for all other notices (including with respect to
amendments and waivers):
Bank of America National Trust and Savings Association
Agency Management #10831
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000)000-0000
E-Mail Address: Xxxx.Xxxxxxx@XxxxXxxxxxx.xxx
The European Payment Agent:
Bank of America International Limited
00 Xxxxxxxx Xxxx
Xxxxxxx, XX0 0XX
Xxxxxx Xxxxxxx
Attention: Agency Services
Fax: 000-00-000-000-0000
Tel: 000-00-000-000-0000
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the fifth Banking
Day after the date deposited into the U.S. mail, or if delivered, upon
delivery; except
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that notices pursuant to Article II or IX shall not be effective until
actually received by the U.S. Agent and notices pursuant to Article IX
shall not be effective until actually received by the Company.
(c) Any agreement of the U.S. Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The U.S. Agent and the
Lenders shall be entitled to rely on the authority of any Person
purporting to be a Responsible Officer to give such notice and, absent
gross negligence or willful misconduct, the U.S. Agent and the Lenders
shall not have any liability to the Company or other Person on account
of any action taken or not taken by the U.S. Agent (or any other
Agent-Related Person) or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Company (or any other Borrower)
to repay the Loans shall not be affected in any way or to any extent by
any failure by the U.S. Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
U.S. Agent and the Lenders of a confirmation which is at variance with
the terms understood by the U.S. Agent and the Lenders to be contained
in the telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the U.S. Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
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privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.04 Costs and Expenses. The Company shall:
(a) following the Closing Date pay or reimburse the U.S. Agent
within ten Banking Days after demand for all reasonable costs and
expenses incurred by the U.S. Agent in connection with the
administration of, and any amendment, supplement, waiver or modification
to (in each case, whether or not consummated but only to the extent such
amendment, supplement, waiver or modification is at the request of the
Company), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, including reasonable
Attorney Costs incurred by the U.S. Agent with respect thereto; and
(b) pay or reimburse the U.S. Agent, any other Agent-Related
Person and each Lender within ten Business Days after demand for all
reasonable costs and expenses (including Attorney Costs) incurred by
them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other
Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
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11.05 Indemnity. (a) Whether or not the transactions contemplated hereby
are consummated, the Company and the other Borrowers shall jointly and severally
indemnify and hold the Agent- Related Persons, and each Lender and each of its
respective officers, directors, employees, counsel, agents and attorneys-in-
fact (each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including reasonable Attorney Costs)
of any kind or nature whatsoever which may at any time (including at any time
following repayment of the Loans and the termination, resignation or replacement
of the U.S. Agent or the European Payment Agent or replacement of any Lender)
result from an action, suit, proceeding or claim asserted against any such
Indemnified Person by any Person not entitled to indemnification under this
section directly relating to or directly arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) directly related to or directly arising out of this Agreement or the
Loans or the use of the proceeds thereof, whether or not any Indemnified Person
is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, however, that the Company or any other Borrower shall
not be liable to any Indemnified Person for any portion of such Indemnified
Liabilities resulting from such Indemnified Person's gross negligence or willful
misconduct. In the event this indemnity is unenforceable as a matter of law as
to a particular matter or consequence referred to herein, it shall be
enforceable to the full extent permitted by law. The agreements in this Section
shall survive payment of all other Obligations.
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(b) An Indemnified Person shall give prompt notice to the
Company of any claim asserted in writing, or the commencement of any action or
proceeding, in respect of which indemnity may be sought hereunder, provided that
the omission so to notify the Company will not relieve the Company from any
liability which it may have to the Indemnified Person under Section 11.05(a)
unless and to the extent that the Company shall have been materially damaged by
the delay in notification or the failure to be notified.
(c) The Indemnified Person shall assist the Company in the
defense of any such action or proceeding by arranging discussions with (and the
calling as witnesses of) relevant officers, directors, employees and agents of
the Indemnified Person and providing reasonable access to relevant books and
records. The Company shall have the right to, and shall at the request of the
Indemnified Person, participate in, and assume the defense of, any such action
or proceeding at its own expense using counsel mutually acceptable to the
Company and the Indemnified Person. In any such action or proceeding which the
Company has participated in or assumed the defense of, the Indemnified Person
shall have the right to retain separate counsel, but the fees and expenses of
such counsel shall be at its own expense unless the named parties to any such
suit, action or proceeding (including any impleaded parties) include both the
Company and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them.
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(d) The Company shall not be liable under Section 11.05 for any
settlement effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder.
11.06 Payments Set Aside. To the extent that the Company makes a payment
to the U.S. Agent, the European Payment Agent or the Lenders, or the U.S. Agent
or the Lenders exercise their right of set-off, and such payment or the proceeds
of such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the U.S. Agent or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the U.S. Agent upon demand its pro rata share or other applicable share of any
amount so recovered from or repaid by the Agent (or the European Payment Agent).
11.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company or any other Borrower may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of the U.S. Agent and each Lender and no Lender shall
assign any of its rights or obligations hereunder except in accordance with
Section 11.08.
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11.08 Assignments, Participations, etc.
(a) Any Lender may, with the prior written consent of the
Company at all times (other than during the existence of an Event of
Default) and the U.S. Agent, which consent of the U.S. Agent shall not
be unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Company or
the U.S. Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of
such Lender) (each an "Assignee") all, or any ratable part of all, of
the Loans, the Commitment and the other rights and obligations of such
Lender hereunder, in a minimum amount of U.S.$5,000,000 (or the Dollar
Equivalent thereof) for each such assignment; provided, however, that
the Company and the U.S. Agent may continue to deal solely and directly
with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company and the U.S. Agent by
such Lender and the Assignee; (ii) such Lender and its Assignee shall
have delivered to the Company and the U.S. Agent an Assignment and
Acceptance in the form of Exhibit N ("Assignment and Acceptance") and
(iii) the assignor Lender or Assignee has paid to the U.S. Agent a
processing fee in the amount of U.S. $2,500, provided that in the case
of a transfer under Section 3.09, the assignor Lender shall not be
obligated to pay such processing fee.
- 193 -
(b) From and after the date that the U.S. Agent notifies the
Company and the assignor Lender that it has received an executed
Assignment and Acceptance which has been consented to by the U.S. Agent
and by the Company (if required), and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the
assignor Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Banking Days after its receipt of notice by the
U.S. Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee, (and provided that the U.S. Agent and
the Company consents to such assignment in accordance with subsection
11.08(a)), each Bid Borrower shall execute and deliver to the U.S. Agent
a Bid Loan Note for the Assignee (if the Assignee was not previously a
Lender under this Agreement) and, if the assignor Lender is not
retaining any interest in this Agreement such assignor Lender shall
promptly cancel and return its Bid Loan Note to the U.S. Agent for
return to the Company. Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the
- 194 -
resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of
the assigning Lender pro tanto.
(d) Any Lender may, with the prior written consent of the
Company at all times (other than during the existence of an Event of
Default), sell to one or more Eligible Assignees (a "Participant")
participating interests in any Loans, the Commitment of that Lender and
the other interests of that Lender (the "originating Lender") hereunder
and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain
unchanged, (ii) the originating Lender shall remain solely responsible
for the performance of such obligations, (iii) the Company and the U.S.
Agent shall continue to deal solely and directly with the originating
Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, (iv) no
Lender shall transfer or grant any participating interest under which
the Participant has rights to approve any amendment to, or any consent
or waiver with respect to, this Agreement or any other Loan Document,
except to the extent such amendment, consent or waiver would require
unanimous consent of the Lenders as described in the first proviso to
Section 11.01 and (v) with respect to the sale of participating
interests in any Bid Loan to any Participant, (x) the Company's consent
shall not be required and (y) the term "Eligible Assignee" shall be
deemed to include any financial institution or other Person organized
under the laws of the United States having a combined capital and
surplus of at least U.S.$50,000,000. In the case of any such
participation, the Participant shall not have any rights under this
Agreement, or any of the other Loan Documents, and all amounts
- 195 -
payable by the Company (or any other Borrower) hereunder shall be
determined as if such Lenders had not sold such participation.
(e) Each Lender agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Company and provided to
it by the Company or any Subsidiary, or by the U.S. Agent on such
Company's or Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall disseminate
such information except on a "need to know" basis to employees of such
Lender or Affiliate, as the case may be, and their respective
representatives or use any such information other than in connection
with or in enforcement of this Agreement and the other Loan Documents;
except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the
Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not
bound by a confidentiality agreement with the Company known (or which
would have been known upon reasonable inquiry with such source) to the
Lender; provided, however, that any Lender may disclose such information
(A) at the request or pursuant to any requirement of any Governmental
Authority to which the Lender is subject or in connection with an
examination of such Lender by any such authority; (B) pursuant to
subpoena or other court process (provided that such Lender shall
promptly notify the Company of any such subpoena or process, unless it
is legally prohibited from doing so, and cooperate with the Company at
the Company's expense in obtaining a suitable order protecting the
confidentiality of such information); (C) when
- 196 -
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection
with any litigation or proceeding to which the U.S. Agent, any Lender or
their respective Affiliates may be party provided that such Lender will
promptly notify the Company of any such disclosure and use reasonable
efforts at the Company's expense to obtain a suitable order protecting
the confidentiality of such information; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors
and other professional advisors; and (G) to any Affiliate of such
Lender, or to any Participant or Assignee, actual or (with the written
consent of the Company) potential, provided that such Affiliate,
Participant or Assignee agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder.
(f) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement and any
Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14,
and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law. If requested by
any such Lender for purposes of this subsection 11.08(f), the Company
(or any other Borrower) shall execute and deliver to such Lender a
promissory note evidencing such Lender's Committed Loans, which
promissory note shall be in a form reasonably satisfactory to the U.S.
Agent and the Company.
- 197 -
11.09 Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists, each Lender is authorized at any
time and from time to time, without prior notice to the Company or any other
Borrower, any such notice being waived by the Company or any such other Borrower
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the Company or any such other Borrower against any and
all Obligations owing to such Lender from time to time, irrespective of whether
or not the U.S. Agent or such Lender shall have made demand under this Agreement
or any Loan Document and although such Obligations may be contingent. In the
event of any inconsistency between this section and any agreement governing
deposits maintained by the Company or any such other Borrower with any Lender,
this Section shall control with respect to set-offs affecting this Agreement.
Each Lender agrees promptly to notify the Company or any such other Borrower and
the U.S. Agent after any such set-off and application made by such Lender.
11.10 Notification of Addresses, Lending Offices, Etc. Each party hereto
shall notify the U.S. Agent in writing of any changes in the address to which
notices to such party should be directed, of addresses of any Lending Office, in
the case of any Lender.
11.11 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
- 198 -
11.12 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the other
Borrowers, the Lenders, the U.S. Agent and the Agent-Related Persons, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
11.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT (AND THE NOTES) SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE U.S. AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
COMPANY, EACH OTHER BORROWER, THE
- 199 -
U.S. AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
COMPANY, EACH OTHER BORROWER, THE U.S. AGENT 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 AGREEMENT OR ANY DOCUMENT RELATED
HERETO.
11.15 Waiver of Jury Trial. THE COMPANY, EACH OTHER BORROWER, THE
LENDERS AND THE U.S. AGENT 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
AGREEMENT, 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. THE COMPANY, EACH OTHER BORROWER, THE LENDERS AND THE U.S. AGENT
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 RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
- 200 -
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT 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
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.16 Currency Indemnity. The obligations of each Borrower in respect of
any sum due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency (
the "Judgment Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 11.16 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
11.17 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the U.S.
- 201 -
Agent, and supersedes all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XXXXXXX-XXXXXX COMPANY
By Xxxxxxx X. Xxxxxxxx
Title Senior Vice President-
Finance
XXXXXXX-XXXXXX USA, INC., as
a Borrowing Subsidiary and
a Bid Borrower
By Xxxxxx X. Xxxxxxx
Title Group Vice President
- 202 -
XXXXX BEAUTY COMPANY, INC., as
a Borrowing Subsidiary and
a Bid Borrower
By Xxxx Xxxxxxxx
Title Senior Vice President,
Chief Financial Officer
and Assistant Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as U.S. Agent
By Xxxxxxxxx Xxxxx
Title Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Lender
By Xxxxx X. Xxxxxxxx
Title Managing Director
THE FIRST NATIONAL BANK
OF CHICAGO
By Xxxxx X. Xxxxx
Title Corporate Banking Officer
NATIONSBANK, N.A.
By Xxxxxxx X. Xxxxx
- 203 -
Title Senior Vice President
- 204 -
MELLON BANK, N.A.
By Xxxxx X. Xxxxxx
Title Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By Xxxx X. Xxxxxxx
Title Vice President
- 205 -
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Lender Commitment Share
Bank of America National U.S.$ 60,000,000 30.0%
Trust and Savings
Association
The First National U.S.$ 50,000,000 25.0%
Bank of Chicago
NationsBank, X.X. X.X.$ 50,000,000 25.0%
Mellon Bank, X.X. X.X.$ 20,000,000 10.0%
Xxxxxx Guaranty Trust U.S.$ 20,000,000 10.0%
Company of New York
TOTAL U.S.$200,000,000 100.0%
- 206 -
SCHEDULE 5.05
LITIGATION
None
- 207 -
SCHEDULE 5.07
ERISA MATTERS
None
- 208 -
SCHEDULE 5.12
ENVIRONMENTAL MATTERS
None
- 209 -
SCHEDULE 5.15
LIST OF MATERIAL SUBSIDIARIES
AND MATERIAL EQUITY INVESTMENTS
Part (a) - Material Subsidiaries:
Xxxxx Beauty Company, Inc.
Xxxxxxx-Xxxxxx USA, Inc.
Xxxxxxx-Xxxxxx International, Inc.
Part (b) - Material Equity Investments:
None
- 210 -
SCHEDULE 7.01
EXISTING LIENS
None
- 211 -
SCHEDULE 11.02
ADDRESSES FOR NOTICES
Xxxxxxx-Xxxxxx USA, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: President
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy of each notice to:
Xxxxxxx-Xxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxx Beauty Company, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy of each notice to:
Xxxxxxx-Xxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Tel: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as a Lender
Domestic and Eurocurrency Lending Office:
- 212 -
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Notices (other than Notices of Committed Borrowings and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
Domestic and Eurocurrency Lending Office:
The First National Bank of Chicago
0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Notices (other than Notices of Committed Borrowings and Notices of
Conversion/Continuation):
The First National Bank of Chicago
0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
- 213 -
NATIONSBANK, N.A.
Domestic and Eurocurrency Lending Office:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx 00X
Xxxxxxxxx, X.X. 00000-0000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Notices (other than Notices of Committed Borrowings and Notices of
Conversion/Continuation):
NationsBank, N.A.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
MELLON BANK, N.A.
Domestic and Eurocurrency Lending Office:
Mellon Bank, N.A.
Three Mellon Bank Center
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx/Loan Administration
Fax: (000) 000-0000/2028
Tel: (000) 000-0000
Notices (other than Notices of Committed Borrowings and Notices of
Conversion/Continuation):
Mellon Bank, N.A.
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
- 214 -
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
Domestic Lending Office:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Eurocurrency Lending Office:
Xxxxxx Guaranty Trust Company of New York
Nassau Bahamas Office
c/o X.X. Xxxxxx Services Inc.
Euro-Loan Servicing Xxxx
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
Notices (other than Notices of Committed Borrowings and Notices of
Conversion/Continuation):
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10260-0060
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
- 215 -
EXHIBIT A
FORM OF BORROWING SUBSIDIARY AGREEMENT
BORROWING SUBSIDIARY AGREEMENT, dated as of ______________ (this "Agreement")
among [NAME OF BORROWING SUBSIDIARY], a __________________ (the "Borrowing
Subsidiary"), Xxxxxxx-Xxxxxx Company (the "Company"), and Bank of America
National Trust and Savings Association, a national banking association, as agent
(in such capacity, the "U.S. Agent") for the several lenders and other financial
institutions (the "Lenders") from time to time parties to the Multicurrency
Credit Agreement, dated as of September 11, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Company, the Borrowing Subsidiaries (as defined in the Credit Agreement) from
time to time parties thereto, the Lenders and the U.S. Agent.
The parties hereto hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
2. Pursuant to Section 4.03 of the Credit Agreement, the Company
hereby delivers this Borrowing Subsidiary Agreement and designates [name of
Borrowing Subsidiary] as a Borrowing Subsidiary under the Credit Agreement.
3. Each of the Company and the Borrowing Subsidiary, jointly and
severally, represents and warrants that the representations and warranties
contained in the Credit Agreement are true and correct on and as of the date
hereof to the extent such representations and warranties relate to the Borrowing
Subsidiary and this Agreement.
4. The Company agrees that the guarantee of the Company contained in
Article VIII of the Credit Agreement will apply to the Obligations of the
Borrowing Subsidiary.
5. Upon execution of this Agreement by the Company, the Borrowing
Subsidiary and the U.S. Agent, the Borrowing Subsidiary shall be a party to the
Credit Agreement and shall be a Borrowing Subsidiary for all purposes thereof,
and the Borrowing Subsidiary hereby agrees to be bound by all provisions of the
Credit Agreement, including, without limitation, Sections 4.01(g) and 4.03
thereof.
6. The Borrowing Subsidiary hereby acknowledges that it has received
and reviewed a complete copy (in execution form) of the Credit Agreement
(including, without limitation, all amendments, supplements and other
modifications thereto).
- 216 -
7. The address to which communications to the Borrowing Subsidiary
under the Credit Agreement should be directed is:
Telephone:
Fax No.:
8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
9. This Agreement may be executed in any number of counterparts
(including by facsimile transmission), each of which shall be an original,and
all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized officers as of the date first appearing
above.
[BORROWING SUBSIDIARY]
By:______________________________
Title:
XXXXXXX-XXXXXX COMPANY
By:______________________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as U.S. Agent
- 217 -
By:______________________________
Title:
- 218 -
- 219 -
EXHIBIT B
FORM OF BORROWING SUBSIDIARY TERMINATION
----------------, -----
Bank of America National Trust
and Savings Association, as U.S. Agent
for the Lenders referred to below
[Address]
RE: BORROWING SUBSIDIARY TERMINATION
Ladies and Gentlemen:
Reference is madeto the Multicurrency Credit Agreement dated as of September 11,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxxx-Xxxxxx Company, each Borrowing Subsidiary
from time to time parties thereto, the several lenders and other financial
institutions from time to time parties thereto (the "Lenders") and Bank of
America
- 220 -
National Trust and Savings Association, as U.S. Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
The Company hereby terminates the status and rights of __________________ (the
"Terminated Borrowing Subsidiary") as a Borrowing Subsidiary under the Credit
Agreement. [The undersigned represents and warrants that no Loans made to the
Terminated Borrowing Subsidiary are outstanding as of the date hereof and that
all amounts payable by the Terminated Borrowing Subsidiary in respect of
interest and/or fees (and, to the extent notified by the U.S. Agent, the
European Payment Agent or any Lender, any other amounts payable under the Credit
Agreement) pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof.] [The undersigned acknowledges that the Terminated Borrowing
Subsidiary shall continue to be a Borrowing Subsidiary until such time as all
Loans made to the Terminated Borrowing Subsidiary and all amounts payable by the
Terminated Borrowing Subsidiary in respect of interest and/or fees (and, to the
extent notified by the U.S. Agent, the European Payment Agent or any Lender, all
other amounts payable under the Credit Agreement) pursuant to the Credit
Agreement shall have been paid in full, provided that the Terminated Borrowing
Subsidiary shall not have the right to make further Borrowings as a Borrowing
Subsidiary under the Credit Agreement.]
THIS BORROWING SUBSIDIARY TERMINATION SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
- 221 -
OF ILLINOIS. This Borrowing Subsidiary Termination may be executed in any number
of counterparts, each of which shall be an original, and all of which, when
taken together, shall constitute one agreement; provided, however, that the
effectiveness of this Borrowing Subsidiary Termination shall not be affected if
the Terminated Borrowing Subsidiary fails to execute this document. Delivery of
an executed signature page of this Borrowing Subsidiary Termination by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
Very truly yours,
XXXXXXX-XXXXXX COMPANY
By:__________________
Title:
Acknowledged and Agreed:
[Borrowing Subsidiary]
By:______________________________
- 222 -
Title:
- 223 -
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
To Bank of America National Trust and Savings Association (individually and as
U.S. Agent) and the other Lenders parties to the Multicurrency Credit Agreement
dated as of September 11, 1997 (as amended or otherwise modified, the
"Agreement") with Xxxxxxx-Xxxxxx Company and the Borrowing Subsidiaries from
time to time parties thereto
- 224 -
This certificate is furnished to you pursuant to Section 6.02(a) of
the Agreement concurrently with the delivery of the financial statements
required pursuant to Section 6.01 (a) and (b) of the Agreement. Terms not
otherwise defined herein are used herein as defined in the Agreement.
The Company hereby certifies to you that:
(A) no Default or Event of Default has occurred and is continuing,
except as described in Attachment 1 hereto;
(B) the computations set forth below are true and correct as of
________________, 19__1:
(1) Section 7.02(d) Investment Amount
(a) Investment Amount reflected as
"receivables sold" in the Company's
most recent internal, unaudited
consolidated balance sheet
(b) Maximum Investment Amount under Section 7.02(d)
--------
1 The last day of the accounting period for which financial statements
are being concurrently delivered.
- 225 -
$75,000,000
Section 7.08 Interest Coverage
(a) Ratio of Earnings Before Interest
and Taxes to Interest Expense under
Section 7.08 ___ to 1.0
(b) Minimum ratio of Earnings Before
Interest and Taxes to Interest Expense
permitted under Section 7.08 2.0 to 1.0
(3) Section 7.09 Leverage
(a) Ratio of Funded Debt to
Total Capitalization under
Section 7.09 ___ to 1.0
(b) Maximum ratio of Funded Debt
to Total Capitalization permitted
under Section 7.09 0.60 to 1.0
- 226 -
(C) if the financial statements of the Company being concurrently
delivered were not prepared in accordance with GAAP, Attachment 2 hereto sets
forth any derivations required to conform the relevant data in such financial
statements to the computations set forth below; and
(D) there have been no material changes in accounting policies or
financial reporting practices other than those required by GAAP by the Company
or any of its consolidated Subsidiaries since the date of the last compliance
certificate delivered to you.
Dated this ________ day of ______________, 19__.
XXXXXXX-XXXXXX COMPANY
By:____________________________
Its:___________________________
- 227 -
- 228 -
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BIDS
Via Facsimile
To the Lenders on Schedule A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Multicurrency Credit Agreement dated
as of September 11, 1997 (as amended from time to time, the "Credit Agreement"),
among Xxxxxxx-Xxxxxx Company (the "Company"), the Borrowing Subsidiaries from
time to time parties thereto, the Lenders parties thereto, and Bank of America
National Trust and Savings Association, as agent for the Banks (the "U.S.
Agent"). Capitalized terms used herein have the meanings specified in the Credit
Agreement.
Pursuant to subsection 2.07(b) of the Credit Agreement, you are hereby
invited to submit offers to make Bid Loans to the Company or another Bid
Borrower based on the following specifications:
- 229 -
1. Identity of Bid Borrower: ;
2. Borrowing date: _______________, 199_;
3. Aggregate amount requested by the Bid Borrower:
$-------------------;
4. [LIBOR Bid Loans] [Specific Rate Bid Loans]; and
5. Interest Period[s]: ____________________,
[________________] and [________________].
All Competitive Bids must be in the form of Exhibit I to the Credit Agreement.
Please respond to this invitation by no later than 8:30 a.m. (or in the case of
BofA only, 8:15 a.m.) (Chicago time) on , 199 .2 Your response should be
submitted to the U.S. Agent. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOC-
IATION, as U.S. Agent
By: _____________________________
Title: __________________________
--------
2 Insert a date which is three Business Days prior to the date of
Borrowing, in the case of a LIBOR Auction, or on the date of
Borrowing, in the case of a Specific Rate Auction.
- 230 -
Schedule A
List of Lenders
Bank of America National Trust
and Savings Association, as a Lender
Facsimile: (000) 000-0000
[Lender]
Facsimile: (___) ___-____
[Lender]
Facsimile: (___) ___-____
[Lender]
Facsimile: (___) ___-____
[Lender]
Facsimile: (___) ___-____
- 231 -
EXHIBIT E
FORM OF NOTICE OF COMMITTED BORROWING
Date: , 199
To: Bank of America National Trust and Savings Association as U.S.
Agent for the Lenders parties to the Multicurrency Credit
Agreement dated as of September 11, 1997 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement")
among Xxxxxxx-Xxxxxx Company, the Borrowing Subsidiaries from
time to time parties thereto, certain Lenders which are signatories
thereto and Bank of America National Trust and Savings
Association, as U.S. Agent
Ladies and Gentlemen:
The undersigned, Xxxxxx-Xxxxxx Company (the "Company"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.03 of
the Credit Agreement, of the Committed Borrowing specified herein:
1. The Borrower is [the Company] [ , a Borrowing Subsidiary].
2. The aggregate amount of the proposed Borrowing is .
3. The Borrowing Date of the proposed Borrowing is , 19 .
4. The Type of Committed Loans comprising the Committed Borrowing
is [Base Rate Loans] [Eurodollar Loans] Eurocurrency Loans].
[If Eurocurrency Loans are requested, specify Available Currency.]
5. [If applicable:] The duration of the Interest Period for the
[Eurodollar Loans] [Eurocurrency Loans] included in the
Borrowing shall be months.
The undersigned hereby certifies that the following statements are
true as of the date of the proposed Borrowing, before and after giving effect
thereto and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company [and the
Borrowing Subsidiary] contained in Article V of the Credit Agreement
are true and correct as
- 232 -
though made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Default or Event of Default shall exist or shall result
from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate
principal amount of the Dollar Equivalent of all outstanding Committed
Loans together with the aggregate principal amount of all outstanding
Bid Loans, to exceed the combined Commitments.
XXXXXXX-XXXXXX COMPANY
By:
Title:
- 233 -
EXHIBIT F
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: , 199
To: Bank of America National Trust and Savings Association, as U.S.
Agent for the Lenders parties to the Multicurrency Credit
Agreement dated as of September 11, 1997 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement")
among Xxxxxxx-Xxxxxx Company, the Borrowing Subsidiaries from
time to time parties thereto, certain Lenders which are signatories
thereto and Bank of America National Trust and Savings
Association, as U.S. Agent
Ladies and Gentlemen:
The undersigned, Xxxxxxx-Xxxxxx Company (the "Company"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.04 of
the Credit Agreement, of the [conversion] [continuation] of the Committed Loans
specified herein, that:
1. The Borrower of the Committed Loans to be [converted]
[continued] is [the Company] [ , a Borrowing Subsidiary].
2. The Conversion/Continuation Date is , 19 .
3. The aggregate amount of the Loans to be [converted] [continued]
is .
4. The Type of Loans resulting from the proposed [conversion]
[continuation] are [Base Rate Loans] [Eurodollar Loans]
[Eurocurrency Loans].
5. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be
months.
The undersigned hereby certifies that the following statements are
true as of the proposed Conversion/Continuation Date, before and after giving
effect thereto and to the application of the proceeds therefrom:
- 234 -
(a) the representations and warranties of the Company [and
the Borrowing Subsidiary] contained in Article V of the Credit
Agreement are true and correct as though made on and as of such date
(except to the extent such representations and warranties expressly
refer to an earlier date, in which case they are true and correct as
of such earlier date);
(b) no Default or Event of Default shall exist or shall
result from such proposed [conversion] [continuation]; and
(c) the proposed [conversion][continuation] will not cause
the aggregate principal amount of the Dollar Equivalent of all
outstanding Committed Loans together with the aggregate principal
amount of all outstanding Bid Loans, to exceed the combined
Commitments.
XXXXXXX-XXXXXX COMPANY
By:
Title:
- 235 -
EXHIBIT G
FORM OF BID LOAN NOTE
September 11, 1997
The undersigned for value received, promises to pay to the order of
______________ (herein called the Lender), at the offices of Bank of America
National Trust and Savings Association located at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 (herein called the U.S. Agent) or at such other
offices as the U.S. Agent may specify from time to time, the principal amount of
each Bid Loan made by the Lender to the undersigned from time to time from the
date hereof up to the Termination Date pursuant to Section 2.07 of that certain
Multicurrency Credit Agreement dated as of September 11, 1997, as amended,
supplemented or otherwise modified from time to time (herein called the Credit
Agreement) by and between Xxxxxxx-Xxxxxx Company, the Borrowing Subsidiaries
from time to time parties thereto, various lenders (including the Lender) and
the U.S. Agent, on the last day of the Interest Period for such Bid Loan. In any
event, the aggregate unpaid principal amount of all Bid Loans shall be due and
payable on the Termination Date.
The aggregate unpaid principal amount from time to time of Bid Loans
made by the Lender to the undersigned shall bear interest until paid at the
rate(s) per annum as agreed to by the Lender and the undersigned pursuant to the
Credit Agreement, payable at such time(s) as is therein provided.
All capitalized terms appearing herein are, unless otherwise
indicated, used with the meanings assigned to such terms in the Credit
Agreement.
This promissory note is one of the Bid Loan Notes issued pursuant to
the Credit Agreement and evidences indebtedness of the undersigned incurred
under, and is subject to the terms and provisions of, the Credit Agreement (and,
if amended, all amendments thereto), to which reference is hereby made for a
statement of said terms and provisions.
The principal hereof and interest hereon are payable in lawful money
of the United States of America in immediately available funds. Prior to any
transfer of this Note to the extent allowed under the Credit Agreement, each Bid
Loan made by the Lender to the undersigned under the Credit Agreement (including
any refinancing thereof), the interest rate and Interest Period applicable
thereto and all payments of principal hereof by the undersigned to the Lender
shall be endorsed on a grid schedule or grid schedules in the form of the
schedule attached hereto and by this reference thereto made a part of this Note.
Notwithstanding the foregoing, the failure to make, or an error in making, such
endorsement shall not in any manner increase the obligation of the undersigned
hereunder.
- 236 -
THIS NOTE HAS BEEN MADE UNDER AND IS GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF ILLINOIS.
[Bid Borrower]
By:
-----------------------
Title: ____________________
Address:
- 237 -
SCHEDULE
Amount of Interest Maturity Interest Amount of Principal Outstanding Name of Person
Date Bid Loan Rate of Interest Period Paid Repaid Balance Making Notation
- 238 -
EXHIBIT H
FORM OF COMPETITIVE BID REQUEST
________________, 199_
Bank of America National Trust
and Savings Association,
as U.S. Agent
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Agency Administrative Services #5596
Ladies and Gentlemen:
Reference is made to the Multicurrency Credit Agreement dated as of
September 11, 1997 (as amended from time to time, the "Credit Agreement"), by
and among Xxxxxxx-Xxxxxx Company (the "Company"), the Borrowing Subsidiaries
from time to time parties thereto, the Lenders parties thereto, and Bank of
America National Trust and Savings Association, as agent for the Banks (the
"U.S. Agent"). Capitalized terms used herein have the meanings specified in the
Credit Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section
2.07(a) of the Credit Agreement as follows:
(i) The identity of the Bid Borrower is: .
(ii) The Business Day of the proposed Bid Borrowing is _____________, 199_.
(iii)The aggregate amount of the proposed Bid Borrowing is U.S. $______________.
(iv) The proposed Bid Borrowing to be made pursuant to Section 2.07 shall
be comprised of [LIBOR] [Specific Rate] Bid Loans
(v) The Interest Period[s] for the Bid Loans comprised in the Borrowing
shall be _______________, [_________________] and
[___________________].
- 239 -
.
XXXXXXX-XXXXXX COMPANY
By:
---------------------
Title:
------------------
- 240 -
EXHIBIT I
FORM OF COMPETITIVE BID
________________, 199_
Bank of America National Trust
and Savings Association,
as U.S. Agent
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Agency Administrative Services #5596
Ladies and Gentlemen:
Reference is made to the Multicurrency Credit Agreement dated as of September
11, 1997 (as amended from time to time, the "Credit Agreement"), by and among
Xxxxxxx-Xxxxxx Company (the "Company"), the Borrowing Subsidiaries from time to
time parties thereto, the Lenders parties thereto, and Bank of America National
Trust and Savings Association, as agent for the Banks (the "U.S. Agent").
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
In response to the Invitation for Competitive Bids dated _____________,
199_ and in accordance with subsection 2.07(c)(ii) of the Credit Agreement, the
undersigned Lender offers to make [a] Bid Loan[s] thereunder to [name of Bid
Borrower] in the following principal amount[s] at the following interest rates
for the following Interest Period[s]:
- 241 -
Date of Borrowing: ________________, 199_
Aggregate Maximum Bid Amount: $__________________
Principal Principal Principal
Amount $_________ Amount $_________ Amount $_________
Interest: Interest: Interest:
[Specific [Specific [Specific
Rate __%, __%, __%]3 Rate __%, __%, __%]1 Rate __%, __%, __%]1
or
[LIBOR Bid [LIBOR Bid [LIBOR Bid
Margin +/- __%, Margin +/- __%, Margin +/- __%,
+/- __%, +/- __%]1 +/- __%, +/- __%]1 +/- __%, +/- __%]1
Interest Interest Interest
Period __________ Period __________ Period __________
===================================== ==========================================
[NAME OF LENDER]
By: _____________________
Title: __________________
--------
3 Interest rate may be quoted to five decimal places.
- 242 -
EXHIBIT J
LENDER'S RESPONSE TO PRO RATA COMMITMENT INCREASE REQUEST
SUPPLEMENT, dated , 19 , to the Multicurrency Credit Agreement, dated as
of September 11, 1997 (as amended from time to time, the "Agreement"), among
XXXXXXX- XXXXXX COMPANY (the "Company"), the Borrowing Subsidiaries from time to
time parties thereto, the lenders parties thereto (individually a "Lender" and
collectively the "Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Lenders (the "U.S. Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.10 thereof, that
the Company may request the Lenders to increase the aggregate Commitments, and
each Lender has the option, in its sole discretion, to subscribe for its
proportionate share of such requested increase, according to its then existing
Pro Rata Share, by executing and delivering to the Company and the U.S. Agent a
supplement to the Agreement in substantially the form of this Supplement; and
WHEREAS, at the Company's request the undersigned now desires to
increase the amount of its Commitments under the Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
- 243 -
1. The undersigned agrees, subject to the terms and conditions of the
Agreement, that on the date this Supplement is accepted by the Company and the
U.S. Agent, it shall have its Commitment to the Company increased by U.S.$ ,
thereby making the amount of its Commitment U.S.$ .
2. Terms defined in the Agreement shall have their meanings defined
therein when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
By:
Title:
- 244 -
Accepted this day of , 199 .
XXXXXXX-XXXXXX COMPANY
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as U.S. Agent
By:
Title:
- 245 -
EXHIBIT K
SUPPLEMENT FOR NON-PRO RATA COMMITMENT INCREASE (EXISTING LENDER)
SUPPLEMENT, dated , 19 , to the Multicurrency Credit Agreement, dated as
of September 11, 1997 (as amended from time to time, the "Agreement"), among
XXXXXXX- XXXXXX COMPANY (the "Company"), the Borrowing Subsidiaries from time to
time parties thereto, the lenders parties thereto (individually a "Lender" and
collectively the "Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Lenders (the "U.S. Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.10 thereof, that
in the event all of the Lenders do not subscribe for their proportionate share
of an increase in the aggregate Commitments requested by the Company pursuant to
such section, then a Lender may subscribe for a non-proportionate increase in
its Commitment, by executing and delivering to the Company and the U.S. Agent a
supplement to the Agreement in substantially the form of this Supplement; and
WHEREAS, at the Company's request the undersigned now desires to
increase the amount of its Commitments under the Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the
Agreement, that on the date this Supplement is accepted by the Company and the
U.S. Agent,
- 246 -
it shall have its Commitment to the Company increased by U.S.$ ,
thereby making the amount of its Commitment U.S.$ .
2. Terms defined in the Agreement shall have their meanings defined
therein when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
By:
Title:
- 247 -
Accepted this day of , 199 .
XXXXXXX-XXXXXX COMPANY
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as U.S. Agent
By:
Title:
- 248 -
EXHIBIT L
SUPPLEMENT FOR COMMITMENT INCREASE (NEW LENDER)
SUPPLEMENT, dated , 19 , to the Multicurrency Credit Agreement, dated as
of September 11, 1997 (as amended from time to time, the "Agreement") among
XXXXXXX- XXXXXX COMPANY (the "Company"), the Borrowing Subsidiaries from time to
time parties thereto, the lenders parties thereto (individually a "Lender" and
collectively the "Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Lenders (the "U.S. Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.10 thereof, that
any bank meeting the qualifications of an Eligible Assignee, although not
originally a party thereto, may become a party to the Agreement with the consent
of the Company and the U.S. Agent by executing and delivering to the Company and
the U.S. Agent a supplement to the Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned was not an original party to the Agreement but
now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the Agreement and
agrees that, on the date this Supplement is accepted by the Company and the U.S.
Agent, it shall become a Lender for all purposes of the Agreement to the same
extent as if originally a party thereto. The undersigned agrees that it will
perform in accordance with their terms all of the
- 249 -
obligations which by the terms of the Agreement are required to be performed by
it as a Lender, including the requirements concerning confidentiality.
2. As of the acceptance date noted below, the amount of the Commitment of the
undersigned shall be U.S.$ .
3. The following administrative details apply to the undersigned:
(A) Domestic Lending Office:
Name:
Address:
Attention:
Telephone: ( )
Facsimile: ( )
(B) Eurocurrency Lending Office:
Name:
Address:
Attention:
Telephone: ( )
Facsimile: ( )
- 250 -
(C) Notice Address:
Name:
Address:
Attention:
Telephone: ( )
Facsimile: ( )
(D) Payment Instructions:
Account No.:
At:
Reference:
Attention:
4. The undersigned (a) acknowledges that it has received a copy of the
Agreement and the Schedules and Exhibits thereto, together with copies of the
financial statements referred to in Section 6.01 of the Agreement, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into the Agreement; and (b)
agrees that it will, independently and without reliance upon the U.S. Agent, the
European Payment Agent 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 and legal decisions in taking or not taking action under the Agreement.
- 251 -
5. The undersigned agrees to comply with Sections 3.02 and 10.10 of the
Agreement (if applicable).
6. The undersigned represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Supplement and any other documents
required or permitted to be executed or delivered by it in connection with this
Supplement, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Supplement; and apart from any agreements or undertaking or filings
required by the Agreement, no further action by, or notice to, or filing with,
any person is required of it for such execution, delivery or performance; (iii)
this Supplement has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the undersigned, enforceable against the
undersigned in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general equitable
principles; and (iv) it is an Eligible Assignee.
7. Terms defined in the Agreement shall have their meanings defined
therein when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
By:
Title:
- 252 -
Accepted this day of , 199 .
XXXXXXX-XXXXXX COMPANY
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as U.S. Agent
By:
Title:
- 253 -
EXHIBIT M
Form of Opinion of Counsel to the Company
September 11, 0000
Xxxx xx Xxxxxxx National Trust and
Savings Association, as U.S. Agent
Each of the Lenders referred to as the
Lenders in the Agreement mentioned below
c/o Bank of America National Trust and
Savings Association 0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000
Ladies and Gentlemen:
This opinion is furnished to you in connection with the execution and
delivery of the Multicurrency Credit Agreement dated as of September 11, 1997
among Xxxxxxx-Xxxxxx Company, a Delaware corporation (the "Company"), the
Borrowing Subsidiaries from time to time parties thereto and Bank of America
National Trust and Savings Association as agent (the "U.S. Agent") for the
Lenders named on the signature pages thereto (the "Lenders") (the "Agreement").
- 254 -
The undersigned is of the Company. In rendering this opinion, I have consulted
with officers of the Company and the Other Borrowers (as defined below), outside
counsel, and other attorneys within the Company's Law Department, as I have
deemed appropriate for purposes of this opinion.
This opinion is provided pursuant to Section 4.01(d) of the Agreement on
behalf of the Company, Xxxxxxx-Xxxxxx USA, Inc., a Delaware corporation
("Xxxxxxx-Xxxxxx USA") and Xxxxx Beauty Company, Inc., a Delaware corporation
("Xxxxx Beauty") (Xxxxxxx-Xxxxxx USA and Xxxxx Beauty being sometimes referred
to herein as the "Other Borrowers"). Capitalized terms not otherwise defined
herein have the respective meanings set forth in the Agreement.
In connection with this opinion, I, or other attorneys within the
Company's Law Department under my supervision, have reviewed the Agreement, the
Notes, the other Loan Documents (collectively, the "Loan Documents"), and such
other documents as I have deemed necessary and appropriate for purposes of this
opinion, including, without limitation, the Articles of Incorporation and the
By-laws of the Company and the Other Borrowers. In addition, I, or other
attorneys within the Company's Law Department, have investigated such questions
of law (including where deemed appropriate, consulting with outside counsel) and
reviewed such certificates of government officials and information from officers
and representatives of the Company and the Other Borrowers as I have deemed
necessary or appropriate for the purposes of this opinion.
In rendering the opinions expressed below, I have assumed, with the
Lenders' permission and without verification:
(a) the authenticity of all Loan Documents submitted to me as originals,
(b) the genuineness of all signatures,
(c) the legal capacity of natural persons,
- 255 -
(d) the conformity to originals of the Loan Documents submitted to me as
copies,
(e) the due authorization, execution and delivery of the Loan Documents by
the parties thereto other than the Company and the Other Borrowers, and
(f) that the Loan Documents constitute the valid, binding and enforceable
obligations of the parties thereto other than the Company and the Other
Borrowers.
Based on the foregoing, and subject to the qualifications set forth below, I am
of the opinion that:
1. The Company, each Other Borrower and each of the Material Subsidiaries,
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to conduct business under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent that failure
to do so would not reasonably be expected to have a Material Adverse
Effect (as defined in the Agreement). The Company and the Other Bor-
rowers have the requisite corporate power to execute, deliver and per-
form their respective obligations under the Loan Documents.
2. The execution, delivery and performance by the Company and the Other
Borrowers of the respective Loan Documents to which each of them is a
party have been duly authorized by all requisite corporate action. The
Loan Documents have been duly executed and delivered by the Company and
the Other Borrowers and constitute the valid and binding obligations of
the Company and the Other Borrowers, respectively, enforceable against
the Company and the Other Borrowers, in accordance with their respective
terms.
- 256 -
3. The execution and delivery by the Company and the Other Borrowers of the
Loan Documents to which each of them is a party, and the performance by
the Company and the Other Borrowers of their respective obligations
thereunder, do not and will not (a) violate any provision of law,
statute, rule or regulation or any order, writ, judgment, injunction,
decree, determination or award of any court, governmental agency or
arbitrator presently in effect having applicability to such Person,
which violation would reasonably be expected to have a Material Adverse
Effect, (b) violate any provision of the respective Articles of
Incorporation or respective By-laws of the Company or the Other
Borrowers,(c) result in a breach or constitute a default under any
indenture, loan or credit agreement or any other material agreement,
lease or instrument known to me to which the Company or the Other
Borrowers is a party or by which any of them or any of their properties
may be bound or result in the creation of a Lien thereunder, which
breach, default or creation of a Lien would reasonably be expected to
have a Material Adverse Effect.
4. 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 is required on the part of the
Company or the Other Borrowers to authorize, or is required in
connection with the execution, delivery and performance of, or the
legality, validity or binding effect or enforceability of, the Loan
Documents.
5. Except as disclosed on Schedule 5.05 of the Agreement, there are no
actions, suits or proceedings pending or, to the best of my knowledge,
overtly threatened against or affecting the Company, the Other Borrowers
or any of their respective properties before any court or arbitrator, or
any governmental department, board, agency or other instrumentality
which (i) challenge the legality, validity or enforceability of the Loan
Documents, or (ii) would reasonably be expected to have a Material
Adverse Effect.
- 257 -
6. The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
7. There is no litigation pending or, to the best of my knowledge,
threatened, alleging that any slogan or other advertising device,
product, process, method, substance, part or other material now employed
by the Company or any Subsidiary infringes upon any rights of any other
Person which would reasonably be expected to have a Material Adverse
Effect.
8. The use of the proceeds of the Loans as provided in the Agreement does
not violate Regulations G, U or X of the Federal Reserve Board.
The opinions set forth above are subject to the following qualifications and
exceptions:
(a) I express no opinion as to the laws of any jurisdiction other than the
State of Illinois and the federal laws of the United States of America.
(b) My opinions are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent transfer
or other similar law of general application affecting creditors' rights
generally.
(c) My opinions are subject to the effect of general principles of equity
and concepts of materiality, reasonableness, good faith and fair
dealing, and other similar doctrines affecting the enforceability of
agreements generally (regardless of whether considered in a proceeding
in equity or at law).
- 258 -
(d) My opinion with respect to the enforceability of the provisions of the
Agreement is qualified to the extent that the availability of specific
performance, injunctive relief and other equitable remedies is subject
to the discretion of the tribunal before which any proceeding therefor
may be brought.
(e) My opinion is limited solely to facts and laws existing as of the date
hereof.
The foregoing opinions are being furnished to you solely for your benefit and
may not be relied upon by, nor may copies be delivered to, any other person
except any Participant or Assignee without my prior written consent. By your
acceptance, you acknowledge that this opinion is given without personal recourse
of any nature to me individually.
Very truly yours,
- 259 -
EXHIBIT N
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement")
dated as of , 19 is made between (the "Assignor")
and (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Multicurrency Credit
Agreement dated as of September 11, 1997 among XXXXXXX-XXXXXX COMPANY, a
Delaware corporation (the "Company"), the Borrowing Subsidiaries from time to
time parties thereto, the lenders parties thereto (including the Assignor, the
"Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as U.S.
Agent (as from time to time amended, modified or supplemented, the "Credit
Agreement"). Any terms defined in the Credit Agreement and not defined in this
Agreement are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to make Committed Loans to the Company in an aggregate amount not to
exceed U.S.
(the "Commitment");
WHEREAS, [the Assignor has made Committed Loans in the aggregate
principal amount of $ 4 to the Company] [no Committed Loans are outstanding
under the Credit Agreement]; and
--------
4 Specify aggregate amount in each Applicable Currency.
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WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Committed Loans,] in an amount equal to U.S.$ (the "Assigned
Amount") on the terms and subject to the conditions set forth herein, and the
Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
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1.
Assignment and Acceptance.
(a) Subject to the terms and conditions of this Agreement, (i) the Assignor
hereby sells, transfers and assigns to the Assignee, and (ii) the Assignee
hereby purchases, assumes and undertakes from the Assignor, without recourse and
without representation or warranty (except as provided in this Agreement) ___%
(the "Assignee's Percentage Share") of (A) the Commitment [and the Committed
Loans] of the Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Credit Agreement and the Loan Documents.
[If appropriate, add paragraph specifying payment to Assignor by Assignee of
outstanding principal of, accrued interest on, and fees with respect to,
Committed Loans assigned.]
(b) With effect on and after the Effective Date (as defined herein), the
Assignee shall be a party to the Credit Agreement and succeed to all of the
rights and be obligated to perform all of the obligations of a Lender under the
Credit Agreement, including the requirements concerning confidentiality, with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender. It is the intent of the parties hereto that the Commitment of the
Assignor shall, as of the Effective Date, be reduced by an amount equal to the
Assigned Amount and the Assignor shall relinquish its rights and be released
from its obligations under the Credit Agreement to the extent such obligations
have been assumed by the Assignee.
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After giving effect to the assignment and assumption, on the
Effective Date the Assignee's Commitment will be U.S.$ and the
Assignor's remaining Commitment will be U.S.$ .
2.
Payments.
(a) As consideration for the sale, assignment and transfer contemplated
in Section 1, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to 5,
representing the Assignee's Percentage Share of the principal amount
of all Committed Loans previously made, and currently owed, by the
Company to the Assignor under the Credit Agreement and outstanding
on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 11.08(a) of the
Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued prior to the Effective
Date with respect to the Committed Loans and the Commitment shall be
for the account of the Assignor. Any interest, fees and other
payments accrued on and after the Effective Date with respect to the
Assigned Amount shall be for the account of the Assignee. Each of
the Assignor and the Assignee agrees that it will hold in trust for
the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the
preceding two sentences and pay to the other party any such amounts
which it may receive promptly upon receipt.
4. Independent Credit Decision.
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5 Specify payment amount in each Applicable Currency.
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The Assignee (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, together
with copies of the financial statements referred to in Section 6.01
of the Credit Agreement, and such other documents and information as
it has deemed appropriate to make its own credit and legal analysis
and decision to enter into this Agreement; and (b) agrees that it
will, independently and without reliance upon the Assignor, the U.S.
Agent, the Arranger 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 and legal decisions in taking or not taking
action under the Credit Agreement.
5. Effective Date; Notices.
(a)As between the Assignor and the Assignee, the effective date for
this Agreement shall be , 199_ (the "Effective Date"); provided that
the following conditions precedent have been satisfied on or before
the Effective Date:
(I)this Agreement shall be executed and delivered by the Assignor
and the Assignee;
(ii)the written consent of the Company and the U.S. Agent required
for an effective assignment of the Assigned Amount by the Assignor
to the Assignee under Section 11.08(a) of the Credit Agreement shall
have been duly obtained and shall be in full force and effect as of
the Effective Date;
(iii)the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Agreement;
(iv)the Assignor and the Assignee shall have complied with Sections
3.02 and 10.10 of the Credit Agreement (if applicable); and
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(v)the processing fee referred to in Section 2(b) hereof and in
Section 11.08(a) of the Credit Agreement shall have been paid to the
Agent.
(b)Promptly following the execution of this Agreement, the Assignor
shall deliver to the Company and the U.S. Agent for acknowledgement
by the U.S. Agent, a Notice of Assignment in the form attached
hereto as Schedule 1.
6. Agent [INCLUDE ONLY IF ASSIGNOR IS AGENT].
(a)
The Assignee hereby appoints and authorizes the Assignor to take
such action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the U.S. Agent by the
Lenders pursuant to the terms of the Credit Agreement.
(b)The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as U.S. Agent under the Credit Agreement.]
7. Withholding Tax.
The Assignee agrees to comply with Sections 3.02 and 10.10 of the
Credit Agreement (if applicable).
8. Representations and Warranties.
(a)
The Assignor represents and warrants that (i) 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 lien, security interest
or other adverse claim; (ii) it is duly organized and existing and
it has the full power and authority to take, and has taken, all
action necessary to
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execute and deliver this Agreement and any other documents required
or permitted to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations hereunder; (iii) no
notices to, or consents, authorizations or approvals of, any person
are required (other than any already given or obtained) for its due
execution, delivery and performance of this Agreement, and apart
from any agreements or undertaking or filings required by the Credit
Agreement, no further action by, or notice to, or filing with, any
person is required of it for such execution, delivery or
performance; and (iv) this Agreement has been duly executed and
delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and
to general equitable principles.
(b)The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company or any Borrowing Subsidiary, or the
performance or observance by the Company or any Borrowing
Subsidiary, of any of their respective obligations under the Credit
Agreement or any other instrument or document furnished in
connection therewith.
(c)The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this
Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Agreement, and
to fulfill its
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obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Agreement; and apart from any agreements or
undertaking or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any person is required of
it for such execution, delivery or performance; (iii) this Agreement
has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignee, enforceable
against the Assignee in accordance with the terms hereof, subject,
as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and
(iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agrees to execute and
deliver such other instruments, and take such other action, as
either party may reasonably request in connection with the
transactions contemplated by this Agreement, including the delivery
of any notices or other documents or instruments to the Company or
the U.S. Agent, which may be required in connection with the
assignment and assumption contemplated hereby.
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10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing signed by the parties hereto. No failure
or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of
this Agreement shall be without prejudice to any rights with
respect to any other or further breach hereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement.
(d) This Agreement may be executed in any number of counterparts
and all of such counterparts taken together shall be deemed
to constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The
Assignor and the Assignee each irrevocably submits to the
non-exclusive
jurisdiction of any Illinois State or Federal court sitting
in the city of Chicago, Illinois over any suit, action or
proceeding arising out of or relating to this Agreement and
irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in such Illinois
State or Federal court. Each party to this Agreement hereby
irrevocably waives, to the fullest extent it may effect-
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ively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT, THE CREDIT
AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not
inconsistent with the Credit Agreement.]
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
Assignor
By:
Title:
Address:
Assignee
By:
Title:
Address:
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Schedule 1 to Exhibit N
__________________, 19___
Bank of America National Trust
and Savings Association,
as U.S. Agent
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Agency Management
Xxxxxxx-Xxxxxx Company
Attention:
Ladies and Gentlemen:
We refer to the Multicurrency Credit Agreement dated as of September
11, 1997 (the "Credit Agreement") among Xxxxxxx-Xxxxxx Company (the "Company"),
the Borrowing Subsidiaries from time to time parties thereto, the Lenders
referred to therein, and Bank of America National Trust and Savings Association,
as U.S. Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
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1. We hereby give you notice of, and request the consent of the Company
and the U.S. Agent to, the assignment by _______________ (the "Assignor") to
________ (the "Assignee") of ___% of the right, title and interest of the
Assignor in and to the Credit Agreement (including, without limitation, the
right, title and interest of the Assignor in and to the Commitment of the
Assignor and all outstanding Committed Loans made by the Assignor) pursuant to
that certain Assignment and Acceptance Agreement, dated ______, 19___ (the
"Assignment and Acceptance Agreement"), by and between Assignor and Assignee, a
copy of which Assignment and Acceptance Agreement is attached hereto. Before
giving effect to such assignment the Assignor's Commitment is U.S.$_________ and
the aggregate principal amount of its outstanding Committed Loans is
__________________1.
-------------------
1 Specify aggregate amount in each Applicable Currency.
2. The Assignee agrees that, upon receiving the written consent of the
Company and the U.S. to such assignment and from and after the Effective Date
(as such term is defined in Section 5 of the Assignment and Acceptance
Agreement), the Assignee will be bound by the terms of the Credit Agreement,
with respect to the interest in the Credit Agreement assigned to it as specified
above, as fully and to the same extent as if the Assignee were the Lender
originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Eurocurrency Lending Office:
Assignee name:
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Address:
Attention:
Telephone: ( )
Facsimile: ( )
(B) Eurocurrency Lending Office:
Assignee name:
Address:
Attention:
Telephone: ( )
Facsimile: ( )
(C) Notice Address:
Assignee name:
Address:
Attention:
Telephone: ( )
Facsimile: ( )
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(D) Payment Instructions:
Account No.:
At:
Reference:
Attention:
This Notice of Assignment may be executed by the Assignor and the Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same notice and agreement.
Adjusted Commitment: [ASSIGNOR]
$ By
Title
Commitment: [ASSIGNEE]
$ By
Title
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ACKNOWLEDGED this day of
, 19 :
XXXXXXX-XXXXXX COMPANY
By
Title
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as U.S. Agent
By
Title
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