1
Exhibit 10.2B
Execution Copy
$700,000,000
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
among
XXXXXX WORLDWIDE, INC.,
as the Company,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
ABN AMRO BANK N.V.,
as Administrative Agent, Issuing Bank,
and Dollar Swing Line Bank,
ABN AMRO BANK N.V.,
BELGIUM BRANCH,
as Multicurrency Swing Line Bank,
SUNTRUST BANK, ATLANTA,
as Syndication Agent,
and
WACHOVIA BANK N.A.,
as Documentation Agent,
Arranged By
ABN AMRO BANK N.V.,
as Lead Arranger and Book Runner,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Lead Arranger and Book Runner,
and
WACHOVIA SECURITIES, INC.,
as Co-Lead Arranger
2
TABLE OF CONTENTS
-----------------
Section Page
------- ----
ARTICLE I: DEFINITIONS...........................................................................................1
1.1 Certain Defined Terms....................................................................................1
1.2 References...............................................................................................7
1.3 Rounding and Other Consequential Changes.................................................................7
ARTICLE II: LOAN FACILITIES......................................................................................7
2.1 Revolving Loans..........................................................................................7
2.2 Competitive Bid Advances.................................................................................7
2.3 Swing Line Loans.........................................................................................7
2.4 Rate Options for all Advances; Maximum Interest Periods..................................................7
2.5 Optional Payments; Mandatory Prepayments.................................................................7
2.6 Reductions in Commitments................................................................................7
2.7 Method of Borrowing......................................................................................7
2.8 Method of Selecting Types and Interest Periods for Advances..............................................7
2.9 Minimum Amount of Each Advance...........................................................................7
2.10 Method of Selecting Types and Interest Periods for Conversion and........................................7
2.11 Default Rate.............................................................................................7
2.12 Method of Payment........................................................................................7
2.13 Evidence of Debt.........................................................................................7
2.14 Telephonic Notices.......................................................................................7
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and..................................7
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate......................................7
2.17 Lending Installations....................................................................................7
2.18 Non-Receipt of Funds by the Administrative Agent.........................................................7
2.19 Termination Date.........................................................................................7
2.20 Replacement of Certain Lenders...........................................................................7
2.21 Alternate Currency Loans.................................................................................7
2.22 Judgment Currency........................................................................................7
2.23 Market Disruption; Denomination of Amounts in Dollars; Dollar............................................7
2.24 Subsidiary Borrowers.....................................................................................7
ARTICLE III: THE LETTER OF CREDIT FACILITY........................................................................7
3.1 Obligation to Issue Letters of Credit....................................................................7
3.2 Transitional Provision...................................................................................7
3.3 Types and Amounts........................................................................................7
3.4 Conditions...............................................................................................7
3.5 Procedure for Issuance of Letters of Credit..............................................................7
3.6 Letter of Credit Participation...........................................................................7
3.7 Reimbursement Obligation.................................................................................7
3.8 Letter of Credit Fees....................................................................................7
3.9 Issuing Bank Reporting Requirements......................................................................7
3.10 Indemnification; Exoneration.............................................................................7
3.11 Cash Collateral..........................................................................................7
ARTICLE IV: CHANGE IN CIRCUMSTANCES..............................................................................7
4.1 Yield Protection.........................................................................................7
4.2 Changes in Capital Adequacy Regulations..................................................................7
4.3 Availability of Types of Advances........................................................................7
4.4 Funding Indemnification..................................................................................7
4.5 Lender Statements; Survival of Indemnity.................................................................7
-i-
3
ARTICLE V: CONDITIONS PRECEDENT..................................................................................7
5.1 Initial Advances and Letters of Credit...................................................................7
5.2 Initial Advance to Each New Subsidiary Borrower..........................................................7
5.3 Each Advance, Each Conversion or Continuation of an Advance, and Each Letter of Credit...................7
ARTICLE VI: REPRESENTATIONS AND WARRANTIES.......................................................................7
6.1 Organization; Corporate Powers...........................................................................7
6.2 Authorization and Validity...............................................................................7
6.3 No Conflict; Government Consent..........................................................................7
6.4 Financial Statements.....................................................................................7
6.5 Material Adverse Change..................................................................................7
6.6 Taxes....................................................................................................7
6.7 Litigation and Contingent Obligations....................................................................7
6.8 Subsidiaries.............................................................................................7
6.9 ERISA....................................................................................................7
6.10 Accuracy of Information..................................................................................7
6.11 Regulation U.............................................................................................7
6.12 Material Agreements......................................................................................7
6.13 Compliance With Laws.....................................................................................7
6.14 Ownership of Properties..................................................................................7
6.15 Statutory Indebtedness Restrictions......................................................................7
6.16 Environmental Matters....................................................................................7
6.17 Insurance................................................................................................7
6.18 Labor Matters............................................................................................7
6.19 Solvency.................................................................................................7
6.20 Year 2000 Issues.........................................................................................7
6.21 Default..................................................................................................7
6.22 Representations and Warranties of each Subsidiary Borrower...............................................7
6.23 Foreign Employee Benefit Matters.........................................................................7
ARTICLE VII: COVENANTS...........................................................................................7
7.1 Reporting................................................................................................7
7.2 Affirmative Covenants....................................................................................7
7.3 Negative Covenants.......................................................................................7
7.4 Financial Covenants......................................................................................7
ARTICLE VIII: DEFAULTS...........................................................................................7
8.1 Defaults.................................................................................................7
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES...................................7
9.1 Termination of Revolving Loan Commitments; Acceleration..................................................7
9.2 Amendments...............................................................................................7
9.3 Preservation of Rights...................................................................................7
ARTICLE X: GUARANTY..............................................................................................7
10.1 Guaranty.................................................................................................7
10.2 Waivers..................................................................................................7
10.3 Guaranty Absolute........................................................................................7
10.4 Acceleration.............................................................................................7
10.5 Marshaling; Reinstatement................................................................................7
10.6 Subrogation..............................................................................................7
10.7 Termination Date.........................................................................................7
ARTICLE XI: GENERAL PROVISIONS...................................................................................7
11.1 Survival of Representations..............................................................................7
-ii-
4
11.2 Governmental Regulation..................................................................................7
11.3 Headings.................................................................................................7
11.4 Entire Agreement.........................................................................................7
11.5 Several Obligations; Benefits of this Agreement..........................................................7
11.6 Expenses; Indemnification................................................................................7
11.7 Numbers of Documents.....................................................................................7
11.8 Accounting...............................................................................................7
11.9 Severability of Provisions...............................................................................7
11.10 Nonliability of Lenders..................................................................................7
11.11 GOVERNING LAW............................................................................................7
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL..................................................7
11.13 Other Transactions.......................................................................................7
11.14 Agreement Effectiveness..................................................................................7
ARTICLE XII: THE ADMINISTRATIVE AGENT............................................................................7
12.1 Appointment; Nature of Relationship......................................................................7
12.2 Powers...................................................................................................7
12.3 General Immunity.........................................................................................7
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.............................................7
12.5 Action on Instructions of Lenders........................................................................7
12.6 Employment of Agents and Counsel.........................................................................7
12.7 Reliance on Documents; Counsel...........................................................................7
12.8 The Administrative Agent's, Issuing Banks', Swing Line Banks' and Alternate Currency
Banks' Reimbursement and Indemnification.......................................................................7
12.9 Rights as a Lender.......................................................................................7
12.10 Lender Credit Decision...................................................................................7
12.11 Successor Administrative Agent...........................................................................7
12.12 No Duties Imposed Upon Syndication Agent, Documentation Agent or Lead Arrangers..........................7
12.13 Collateral Agent.........................................................................................7
ARTICLE XIII: SETOFF; RATABLE PAYMENTS...........................................................................7
13.1 Setoff...................................................................................................7
13.2 Ratable Payments.........................................................................................7
13.3 Application of Payments..................................................................................7
13.4 Relations Among Lenders..................................................................................7
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................7
14.1 Successors and Assigns...................................................................................7
14.2 Participations...........................................................................................7
14.3 Assignments..............................................................................................7
14.4 Confidentiality..........................................................................................7
14.5 Dissemination of Information.............................................................................7
ARTICLE XV: NOTICES..............................................................................................7
15.1 Giving Notice............................................................................................7
15.2 Change of Address........................................................................................7
15.3 Authority of Company.....................................................................................7
ARTICLE XVI: COUNTERPARTS........................................................................................7
-iii-
5
EXHIBITS AND SCHEDULES
EXHIBITS
--------
EXHIBIT A -- Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
EXHIBIT B -- Form of Borrowing/Conversion/Continuation Notice (Section
2.3 and Section 2.8 and Section 2.10)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 14.3)
EXHIBIT E -- Form of Officer's Certificate
(Section 7.1(A)(iii))
EXHIBIT F -- Form of Compliance Certificate
(Section 7.1(A)(iii))
EXHIBIT G-1 -- Form of Guaranty
(Definitions)
EXHIBIT G-2 -- Form of Subordination Agreement
(Definitions)
EXHIBIT H -- Form of Alternate Currency Addendum
(Definitions)
EXHIBIT I-1 -- Form of Revolving Loan Note (If Requested)
EXHIBIT I-2 -- Form of Term Loan Note (If Requested)
EXHIBIT I-3 -- Form of Competitive Bid Note (If Requested)
EXHIBIT J -- Form of Competitive Bid Quote Request
EXHIBIT K -- Form of Invitation for Competitive Bid Quotes
EXHIBIT L -- Form of Competitive Bid Quote
EXHIBIT M -- Form of Assumption Letter
-i-
6
SCHEDULES
---------
Schedule 1.1.1 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 7.2 -- Subsidiaries Subject to Stock Pledge (Section 7.2 (N)
-ii-
7
5-YEAR CREDIT AGREEMENT
This 5-YEAR CREDIT AGREEMENT dated as of October 20, 1999 is entered
into by and among, XXXXXX WORLDWIDE, INC., a Delaware corporation (the
"COMPANY"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "SUBSIDIARY
BORROWERS"), the institutions from time to time parties hereto as Lenders,
whether by execution of this Agreement or an Assignment Agreement pursuant to
SECTION 14.3, ABN AMRO BANK N.V. in its capacity as administrative agent (the
"ADMINISTRATIVE AGENT") for itself and the other Lenders, SUNTRUST BANK,
ATLANTA, as Syndication Agent (the "SYNDICATION AGENT") and WACHOVIA BANK N.A.,
as Documentation Agent (the "DOCUMENTATION AGENT"). The parties hereto agree as
follows:
ARTICLE I: DEFINITIONS
1.1 CERTAIN DEFINED TERMS. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ABN" means ABN AMRO Bank N.V., in its individual capacity, and its
successors.
"ABSOLUTE RATE" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Company.
"ABSOLUTE RATE ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to SECTION 2.2.
"ABSOLUTE RATE INTEREST PERIOD" means, with respect to an Absolute Rate
Advance, a period of not fewer than seven (7) and not more than one hundred
eighty (180) days commencing on a Business Day selected by the Company pursuant
to this Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall end on the
next succeeding Business Day.
"ABSOLUTE RATE LOAN" means a Loan which bears interest at the Absolute
Rate.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number
8
of votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding equity interests of another Person.
"ADMINISTRATIVE AGENT" means ABN in its capacity as administrative
agent for itself and the Lenders pursuant to ARTICLE XII hereof and any
successor Administrative Agent appointed pursuant to ARTICLE XII hereof.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain fee letter between
the Company and the Administrative Agent, dated as of October 7, 1999.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Eurocurrency Rate Advances and
Alternate Currency Loans, in the same currency and for the same Interest Period
and includes a Competitive Bid Advance.
"AFFECTED LENDER" is defined in SECTION 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than five percent (5%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Documentation Agent.
"AGGREGATE COMMITMENT" means, as of any date of determination, the sum
of (i) the Aggregate Revolving Loan Commitment as of such date and (ii) the
Aggregate Term Loan Commitment as of such date.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be adjusted from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Four Hundred Fifty Million and 00/100 Dollars ($450,000,000.00).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Term Loan
Commitments of all the Lenders. The initial Aggregate Term Loan Commitment is
Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00).
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such currency
remains an Eligible Currency, euro, and (iii) any other Eligible Currency which
the applicable Borrower requests the Administrative Agent to include as an
Agreed Currency hereunder and which is agreed to by the
-2-
9
Multicurrency Swing Line Bank and all of the Lenders with a Revolving Credit
Commitment; PROVIDED that the Administrative Agent shall promptly notify each
Lender of each such request and each Lender shall be deemed not to have agreed
to each such request unless its written consent thereto has been received by the
Administrative Agent within five (5) Business Days from the date of such
notification by the Administrative Agent to such Lender.
"AGREEMENT" means this 5-Year Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company included in the Form 10 and referred to in SECTION 6.4
hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to in the case of Loans in Dollars, the higher of (i)
the Prime Rate for such day and (ii) the sum of (a) the Federal Funds Effective
Rate for such day and (b) one half percent (.50%) per annum and in the case of
Loans in other Eligible Currencies, the comparable rate for such other Eligible
Currency, as reasonably determined by the Administrative Agent, the
Multicurrency Swing Line Lender or the Alternate Currency Bank, as applicable.
"ALTERNATE CURRENCY" shall mean any Eligible Currency which is not an
Agreed Currency and which the applicable Borrower requests the applicable
Alternate Currency Bank to include as an Alternate Currency hereunder and which
is acceptable to the applicable Alternate Currency Bank and with respect to
which an Alternate Currency Addendum has been executed by a Subsidiary Borrower
or the Company and the applicable Alternate Currency Bank in connection
therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the
form of EXHIBIT H with such modifications thereto as shall be approved by the
applicable Alternate Currency Bank and the Administrative Agent.
"ALTERNATE CURRENCY BANK" means ABN and any other Lender (or any
Affiliate, branch or agency thereof) to the extent it is party to an Alternate
Currency Addendum as the "Alternate Currency Bank" thereunder. If any agency,
branch or Affiliate of such Lender shall be a party to an Alternate Currency
Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of such Lender
hereunder; PROVIDED, HOWEVER, that such Lender shall to the exclusion of such
agency, branch or Affiliate, continue to have all the voting rights vested in it
by the terms hereof.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a Loan
made in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for any Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum,
-3-
10
as such amount may be modified from time to time pursuant to the terms of this
Agreement and the applicable Alternate Currency Addendum.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth in, or determined in
accordance with, the applicable Alternate Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Bank to a Subsidiary Borrower
or the Company pursuant to SECTION 2.21 and an Alternate Currency Addendum.
"ALTERNATE CURRENCY RATE" means, for any day for any Alternate Currency
Loan, the per annum rate of interest selected by the applicable Borrower under
and as set forth in the applicable Alternate Currency Addendum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under SECTION 2.15(C)(i) hereof determined in accordance with the
provisions of SECTION 2.15(D)(ii) hereof.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of SECTION 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of SECTION 2.15(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurocurrency Margin for Eurocurrency
Rate Loans in effect on such date.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction) to any Person other than the
Company or any of its wholly-owned Subsidiaries other than (i) the sale, rental
or lease of Inventory in the ordinary course of business (including sales of
leased Inventory and rental Inventory), (ii) the sale or other disposition of
any obsolete, excess, damaged or worn-out Equipment disposed of in the ordinary
course of business, (iii) the sale or liquidation of Cash
-4-
11
Equivalents and (iv) the sale-leaseback of Equipment used in the facilities
management business of the Company and its Subsidiaries, to the extent such
Equipment has an aggregate net depreciated book value of no more than
$25,000,000 at any one time.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to SECTION 14.3 hereof in
substantially the form of EXHIBIT D.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of EXHIBIT M hereto pursuant
to which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be
bound by the terms and conditions hereof.
"AUTHORIZED OFFICER" means any of the Chairman of the Board, the
President, the Treasurer, any Vice President or the Chief Financial Officer of
the Company, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
covered by Title IV of ERISA and in respect of which the Company or any other
member of the Controlled Group is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"BORROWERS" shall mean, collectively, the Company and the Subsidiary Borrowers.
"BORROWING DATE" means a date on which a Loan is made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate or Eurocurrency Bid
Rate Advances, a day (other than a Saturday or Sunday) on which banks are open
for business in Chicago, Illinois and New York, New York and (x) in addition,
for Loans denominated in Agreed Currencies (other than euro), on which dealings
in Dollars and the other applicable Agreed Currencies are carried on in the
London interbank market and (y) in addition, for Loans denominated in euro, on
which dealings in euro are carried on in Brussels, Belgium interbank market, and
(ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois and New York, New York.
"CAPITAL EXPENDITURES" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (i) the cost of assets acquired with Capitalized Lease Obligations,
(ii) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss and (iii) leasehold improvement expenditures for which the
Borrower or a Subsidiary is reimbursed promptly by the lessor.
-5-
12
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
PROVIDED, HOWEVER, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by Xxxxx'x
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (iii) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at
least Baa by Xxxxx'x Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (y) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Xxxxx'x Investors Services, Inc. (all such institutions
being, "QUALIFIED INSTITUTIONS"); and (iv) commercial paper of Qualified
Institutions; PROVIDED that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof.
"CHANGE" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act of 1934), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act of 1934, provided that a person shall be
deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of twenty-five percent (25%) or more
of the combined
-6-
13
voting power of the Company's outstanding Capital Stock
ordinarily having the right to vote at an election of
directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or
substantially all of its property to any Person, or any
corporation consolidates with or merges into the Company, in
either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or
changed into or exchanged for cash, securities or other
property.
"CLOSING DATE" means the date upon which the applicable conditions
precedent set forth in Article V have been satisfied and the initial Loans
hereunder made, which shall be on or after November 4, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL AGENT" means ABN in its capacity as collateral agent for
the Lenders and the "Lenders" under the 364-Day Agreement.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMMITMENT", as to each Lender, means (i) such Lender's Term Loan
Commitment and (ii) such Lender's Revolving Loan Commitment.
"COMPANY" means Xxxxxx Worldwide, Inc., a Delaware corporation,
together with its successors and assigns, including a debtor-in-possession on
behalf of the Company.
"COMPETITIVE BID ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"COMPETITIVE BID BORROWING NOTICE" is defined in SECTION 2.2(F).
"COMPETITIVE BID LOAN" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, or both, as the case may be and in either case in Dollars.
"COMPETITIVE BID MARGIN" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added to or subtracted
from such Eurocurrency Base Rate.
"COMPETITIVE BID RATE" means, for any day for any Competitive Bid Loan
for the relevant Interest Period, the per annum rate of interest selected by the
Company in accordance with SECTION 2.2.
-7-
14
"COMPETITIVE BID QUOTE" means a Competitive Bid Quote substantially in
the form of EXHIBIT L hereto completed and delivered by a Lender to the
Administrative Agent in accordance with SECTION 2.2(D).
"COMPETITIVE BID QUOTE REQUEST" means a Competitive Bid Quote Request
substantially in the form of EXHIBIT J hereto completed and delivered by the
Company to the Administrative Agent in accordance with SECTION 2.2(B).
"CONSOLIDATED NET ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill and other
intangible assets under Agreement Accounting Principles.
"CONSOLIDATED NET SALES" means all product and supply sales and
rentals, facilities management revenues and service income (net of returns and
allowances and excluding financial income) shown on a consolidated income
statement of the Company and its Subsidiaries, prepared in accordance with
Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, in each case as determined in
accordance with Agreement Accounting Principles; excluding the effects, whether
positive or negative, of foreign exchange translation adjustments after the
Closing Date.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the portion of the obligation so
guaranteed or otherwise supported, in the case of known recurring obligations,
and the maximum reasonably anticipated liability in respect of the portion of
the obligation so guaranteed or otherwise supported assuming such Person is
required to perform thereunder, in all other cases.
-8-
15
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date or, with respect to
the Company, was identified in the Form 10 as a Person who would become a member
of such board of directors in connection with the Spin-off, or (b) was nominated
for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, in each case ((i), (ii) or (iii))
giving effect to the consummation of the transactions contemplated by the Loan
Documents and the Spinoff Materials.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(ii) Statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or which thereafter can be paid without penalty or which are being
contested in good faith by appropriate proceedings properly instituted
and diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits;
PROVIDED that all such Liens do not in the aggregate materially detract
from the value of the Company's or its Subsidiaries' assets or property
taken as a whole or materially impair the use thereof in the operation
of their businesses taken as a whole;
-9-
16
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(v) Any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business; and
(vi) Liens securing the performance of bids, tenders,
contracts, surety and appeal bonds, incurred in the ordinary course of
business, not to exceed at any time $10,000,000 in the aggregate.
"DEFAULT" means an event described in ARTICLE VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is ninety-one (91) days after the Revolving Loan Termination Date.
"DIVIDEND" means the cash dividend of approximately $550,000,000 to be
paid by the Company to Xxxxxx in connection with the Spin-off.
"DOCUMENTATION AGENT" means Wachovia Bank N.A., in its capacity as
documentation agent for the loan transaction evidenced by this Agreement,
together with its successors and assigns.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOLLAR SWING LINE BANK" means the Administrative Agent or any other
Lender as a successor Swing Line Bank pursuant to the terms hereof.
"DOLLAR SWING LINE COMMITMENT" means the obligation of the Dollar Swing
Line Bank to make Dollar Swing Line Loans up to a maximum principal amount of
$25,000,000 at any one time outstanding.
"DOLLAR SWING LINE LOAN" means a Loan made to the Company by the Dollar
Swing Line Bank pursuant to SECTION 2.3 hereof.
-10-
17
"DOMESTIC SUBSIDIARY" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America (excluding
the Commonwealth of Puerto Rico).
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, PLUS (ii) Interest Expense to the extent
deducted in computing Net Income, PLUS (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
PLUS (iv) depreciation expense to the extent deducted in computing Net Income,
PLUS (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, PLUS (vi) other extraordinary non-cash charges to the extent deducted in
computing Net Income, MINUS (vii) other extraordinary non-cash credits to the
extent added in computing Net Income, PLUS (viii) nonrecurring after-tax losses
(or minus nonrecurring after-tax gains); PROVIDED that, with respect to fiscal
quarters ending on or before December 31, 1999, EBITDA shall be adjusted (x) to
add back all professional fees and expenses incurred by the Company in
connection with the Spin-off and this Agreement (not to exceed $15,000,000), to
the extent deducted in computing Net Income; (y) to add back the special charges
incurred by the Company for the fiscal quarter ended July 2, 1999, totaling
$18,700,000, and deducted in computing Net Income; and (z) to add back any
management fee charged by Xxxxxx to the Company, to the extent deducted in
computing Net Income, and to subtract the sum of $1,750,000 for each such fiscal
quarter (pro rated for the fiscal year ending December 31, 1999), representing
the PRO FORMA legal, audit and other similar expenses that the Company is
expected to incur after the Spin-off, all on the basis set forth in the PRO
FORMA adjustments described in Note (A) of the Unaudited Pro Forma Consolidated
Income Statement of the Company for the Fiscal Year ended July 2, 1999 set forth
in the Form 10.
"EBITDAR" means, for any period, on a consolidated basis for the
Company and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) EBITDA, PLUS Rentals to the extent deducted in computing Net
Income.
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect
to which the Administrative Agent or the applicable Borrower has not given
notice in accordance with SECTION 2.23 and that is readily available, freely
traded, in which deposits are customarily offered to banks in the London
interbank market (or other market where the Administrative Agent's or Alternate
Currency Bank's, as applicable, foreign currency operations in respect of such
currency are then being conducted), convertible into Dollars in the
international interbank market available to the Lenders in such market and as to
which an Equivalent Amount may be readily calculated. If, after the designation
pursuant to the terms of this Agreement of any currency as an Agreed Currency or
Alternate Currency, (i) currency control or other exchange regulations are
imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, such country's currency is, in
the determination of the Administrative Agent, no longer readily available or
freely traded or (ii) in the determination of the Administrative Agent, an
Equivalent Amount for such currency is not readily calculable (each of CLAUSE
(i) and (ii), a "DISQUALIFYING EVENT"), then the Administrative Agent shall
promptly notify the Lenders and the Company, and such country's currency shall
no longer be an Agreed Currency or Alternate Currency until such time as the
Disqualifying Event(s) no longer exist, but in any event within five (5)
Business Days of
-11-
18
receipt of such notice from the Administrative Agent, the applicable Borrowers
shall repay all Loans in such currency to which the Disqualifying Event applies
or convert such Loan into Loans in Dollars or another Agreed Currency or
Alternate Currency, subject to the other terms contained in ARTICLES II and IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 ET SEQ., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 ET SEQ., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 ET SEQ., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"EQUIPMENT" means all of the Company's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent or Alternate Currency Bank, as
applicable, in the London interbank market (or other market where the
Administrative Agent's or Alternate Currency Bank's, as applicable, foreign
exchange operations in respect of such currency are then being conducted) for
such other currency at or about 11:00 a.m. (local time) two (2) Business Days
prior to the date on which such amount is to be determined, rounded up to the
nearest amount of such currency as determined by the applicable Alternate
Currency Bank from time to time; PROVIDED, HOWEVER, that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or Alternate Currency Bank, as applicable, may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
-12-
19
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to SECTION 2.2.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan or Eurocurrency Bid Rate Loan for any specified Interest Period, (a) for
any Eurocurrency Bid Rate Loan or Eurocurrency Rate Loan in any Agreed Currency
other than euro, either (i) the rate of interest per annum equal to the rate for
deposits in the applicable Agreed Currency in the approximate amount of the Pro
Rata Revolving Share or Pro Rata Term Share, as applicable, of the
Administrative Agent of such Eurocurrency Rate Advance with a maturity
approximately equal to such Interest Period which appears on Telerate Page 3740
or Telerate Page 3750, as applicable, or, if there is more than one such rate,
the average of such rates rounded to the nearest 1/100 of 1%, as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest
Period or (ii) if no such rate of interest appears on Telerate Page 3740 or
Telerate Page 3750, as applicable, for any specified Interest Period, the rate
at which deposits in the applicable Agreed Currency are offered by the
Administrative Agent to first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of the Pro Rata Revolving
Share or Pro Rata Term Share, as applicable, of the Administrative Agent of such
Eurocurrency Rate Loan, or, in the case of a Eurocurrency Bid Rate Loan, the
amount of the Eurocurrency Bid Rate Loan requested by the Company, and having a
maturity approximately equal to such Interest Period; and (b) with respect to
any Eurocurrency Rate Loan in euro for any Interest Period, the interest rate
per annum equal to the rate determined by the Administrative Agent to be the
rate at which deposits in euro appear on Telerate Page 248 as of 11:00 a.m.
(Brussels time), on the date that is two (2) TARGET Settlement Days preceding
the first day of such Interest Period; PROVIDED, that if such rate does not
appear on Telerate Page 248, then the Eurocurrency Base Rate shall be an
interest rate per annum equal to the arithmetic mean determined by the
Administrative Agent (rounded upwards to the nearest .01%) of the rates per
annum at which deposits in euro are offered by the three (3) leading banks in
the euro-zone interbank market on or about 11:00 a.m. (Brussels time), on the
date which is two (2) TARGET Settlement Days prior to the first day of such
Interest Period to other leading banks in the euro-zone interbank market, in the
case of each of CLAUSE (a) and CLAUSE (b), as adjusted for Reserves. The terms
"Telerate Page 3740", "Telerate Page 3750" and "Telerate Page 248" mean the
display designated as "Page 3740", "Page 3750" and "Page 248", as applicable, on
the Associated Press-Dow Xxxxx Telerate Service (or such other page as may
replace Page 3740, Page 3750 or Page 248, as applicable, on the Associated
Press-Dow Xxxxx Telerate Service or such other service as may be nominated by
the British Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association interest rate settlement rates for the
relevant Agreed Currency). Any Eurocurrency Base Rate determined on the basis of
the rate displayed on Telerate
-13-
20
Page 3740 or Telerate Page 3750 or Telerate Page 248 in accordance with the
foregoing provisions of this subparagraph shall be subject to corrections, if
any, made in such rate and displayed by the Associated Press-Dow Xxxxx Telerate
Service within one hour of the time when such rate is first displayed by such
service.
"EUROCURRENCY BID RATE" means, with respect to a Eurocurrency Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (a) the
Eurocurrency Base Rate and (b) the Competitive Bid Margin offered by such Lender
and accepted by the Company.
"EUROCURRENCY BID RATE ADVANCE" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"EUROCURRENCY BID RATE LOAN" means a Loan which bears interest at the
Eurocurrency Bid Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency in EXHIBIT A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period PLUS the then Applicable Eurocurrency Margin, changing as and
when the Applicable Eurocurrency Margin changes.
"EUROCURRENCY RATE ADVANCE" means an Advance (other than a Eurocurrency
Bid Rate Advance) which bears interest at the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made by a Lender pursuant to
SECTION 2.1, which bears interest at the Eurocurrency Rate.
"FACILITY TERMINATION DATE" shall mean the date on which all of the
Termination Conditions have been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
-14-
21
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and that certain fee letter, dated as of October 7, 1999, by and among the
Company, the Lead Arrangers and the Agents and the related letter dated October
20, 1999 from the Administrative Agent to the Company.
"FIXED-RATE ADVANCE" means an Advance which bears interest at the
Eurocurrency Rate, the Eurocurrency Bid Rate, the Absolute Rate or at a fixed
Alternate Currency Rate.
"FIXED-RATE LOANS" means, collectively, the Eurocurrency Rate Loans,
the Eurocurrency Bid Rate Loans, the Absolute Rate Loans and the Alternate
Currency Loans.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to (a) in the case of Loans in Dollars or Multicurrency Swing Line Loans in any
Agreed Currency, the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, PLUS the then Applicable Floating Rate Margin, and
(b) in the case of Alternate Currency Loans, the rate specified as such in the
applicable Alternate Currency Addendum.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN SUBSIDIARY" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to Section
4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"FORM 10" means the Form 10/A (Amendment No. 3) Registration Statement
filed by the Company with the Commission on October 20, 1999 regarding the
Spin-off.
"GOVERNMENTAL ACTS" is defined in SECTION 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
-15-
22
"GUARANTEED OBLIGATIONS" is defined in SECTION 10.1 hereof.
"GUARANTOR" means each Subsidiary of the Company that from time to time
is party to a Guaranty.
"GUARANTY" means each of (i) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Subsidiary and each other Domestic Subsidiary of the Company as
required pursuant to SECTION 7.2(K) in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, in substantially the form of
EXHIBIT G-1 attached hereto, and (ii) the guaranty by the Company of all of the
Obligations of the Subsidiary Borrowers pursuant to this Agreement and the
Alternate Currency Addenda, in each case as amended, restated, supplemented or
otherwise modified from time to time.
"XXXXXX" means Xxxxxx Corporation, a Delaware corporation, and its
successors and assigns.
"HEDGING AGREEMENTS" is defined in SECTION 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time
to time and shall include (i) each Lender in respect of its Loans, (ii) each
Issuing Bank in respect of Reimbursement Obligations owed to it, (iii) the
Agents, the Lenders and the Issuing Banks in respect of all other present and
future obligations and liabilities of the Company or any of its Subsidiaries of
every type and description arising under or in connection with this Agreement or
any other Loan Document, (iv) each Indemnitee in respect of the obligations and
liabilities of the Company or any of its Subsidiaries to such Person hereunder
or under the other Loan Documents, and (v) their respective successors,
transferees and assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights, "phantom"
stock plans, employment agreements, non-competition agreements, subscription and
stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or
employees of the Company and its Subsidiaries.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade), (iii)
-16-
23
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
similar instruments, (v) Capitalized Lease Obligations, (vi) Hedging
Obligations, (vii) Contingent Obligations, (viii) actual and contingent
reimbursement obligations in respect of letters of credit, (ix) outstanding
principal balances (representing securitized but unliquidated assets) under
asset securitization agreements (including, without limitation, the outstanding
principal balance of Receivables under Receivables transactions) and (x) the
implied debt component of synthetic leases of which such Person is lessee or any
other off-balance sheet financing arrangements (including, without limitation,
any such arrangements giving rise to any Off-Balance Sheet Liabilities).
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit), all as determined in conformity with
Agreement Accounting Principles.
"INTEREST PERIOD" means (i) any Alternate Currency Interest Period,
(ii) any Absolute Rate Interest Period, and (iii) with respect to a Eurocurrency
Rate Loan or a Eurocurrency Bid Rate Loan, a period of one (1), two (2), three
(3) or six (6) months, commencing on a Business Day selected by the applicable
Borrower on which a Eurocurrency Rate Advance is made to such Borrower pursuant
to this Agreement. Such Interest Period described in CLAUSE (iii) above shall
end on (but exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter; PROVIDED, HOWEVER, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, PROVIDED, HOWEVER, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale, rental or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of the Company or any of its Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
-17-
24
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT K hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
SECTION 2.2(C).
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means ABN or any of its Affiliates or any of the Agents
or Managing Agents in its separate capacity as an issuer of Letters of Credit
pursuant to SECTION 3.1. The designation of any Lender as an Issuing Bank after
the date hereof shall be subject to the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld, and of
the Company and such Lender.
"L/C Documents" is defined in SECTION 3.4 hereof.
"L/C Draft" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C Interest" shall have the meaning ascribed to such term in SECTION
3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the Dollar Amount then available for drawing under
each of the Letters of Credit, (ii) the Dollar Amount equal to the face amount
of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C
Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate
outstanding Dollar Amount of all Reimbursement Obligations at such time and (iv)
the aggregate Dollar Amount equal to the face amount of all Letters of Credit
requested by the Borrowers but not yet issued (unless the request for an
unissued Letter of Credit has been denied).
"LEAD ARRANGERS" means each of ABN, as Lead Arranger, SunTrust
Equitable Securities Corporation, as Lead Arranger, and Wachovia Securities,
Inc., as Co-Lead Arranger, in their respective capacities as arrangers for the
loan transaction evidenced by this Agreement.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent.
"LETTER OF CREDIT" means standby letters of credit to be (a) issued by
the Issuing Banks pursuant to SECTION 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to SECTION 3.2 hereof.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
(a) Total Indebtedness on such date of determination to (b) EBITDA for the
period of four fiscal quarters ending on the fiscal quarter end occurring on
such date of determination.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential
-18-
25
arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"LOAN(s)" means, (i) in the case of any Lender, such Lender's portion
of any Advance made pursuant to SECTION 2.1 hereof, in the case of any Alternate
Currency Bank, any Alternate Currency Loan made by it pursuant to SECTION 2.21
and the applicable Alternate Currency Addendum, in the case of any Lender which
has made a Competitive Bid Loan, any Competitive Bid Loan made by it pursuant to
SECTION 2.2, and in the case of any Swing Line Bank, any Swing Line Loan made by
it pursuant to SECTION 2.3, and (ii) collectively, all Revolving Loans, Term
Loans, Alternate Currency Loans, Competitive Bid Loans and Swing Line Loans.
"LOAN ACCOUNT" is defined in SECTION 2.13(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Alternate Currency Addendum
executed hereunder, each Assumption Letter executed hereunder, the Pledge
Agreement, the Guaranty, the Subordination Agreement, the Fee Letters and all
other documents, instruments, notes and agreements executed in connection
therewith or contemplated thereby (other than the 364-Day Credit Agreement and
the documents related thereto), as the same may be amended, restated or
otherwise modified and in effect from time to time.
"LOAN PARTIES" means each of the Company, each Subsidiary Borrower and
each of the Guarantors.
"MANAGING AGENTS" means those Lenders identified as 'Managing Agents'
on the signature pages hereto.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or the Company and its Subsidiaries,
taken as a whole, (b) the ability of the Company or any of its Subsidiaries to
perform their respective obligations under the Loan Documents, or (c) the
ability of the Lenders or the Agents to enforce the Obligations.
"MATERIAL SUBSIDIARY" means each Subsidiary Borrower and each other
Subsidiary having assets in excess of $10,000,000 or annual sales (determined as
of the most recently ended fiscal quarter) in excess of $20,000,000.
"MULTICURRENCY SWING LINE BANK" means ABN AMRO Bank N.V., Belgium
Branch or any other Lender as a successor Multicurrency Swing Line Bank pursuant
to the terms hereof.
"MULTICURRENCY SWING LINE COMMITMENT" means the obligation of the
Multicurrency Swing Line Bank to make Multicurrency Swing Line Loans up to a
maximum principal Dollar Amount of $25,000,000 at any one time outstanding.
-19-
26
"MULTICURRENCY SWING LINE LOAN" means a Loan made to the Company by the
Multicurrency Swing Line Bank pursuant to SECTION 2.3 hereof.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro)
of each member state of the European Union that participates in the third stage
of Economic and Monetary Union.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NOTICE OF ASSIGNMENT" is defined in SECTION 14.3(B) hereof.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, any Swing Line Bank,
any Arranger, any Affiliate of the Administrative Agent or any Lender, any
Issuing Bank or any Indemnitee, of any kind or nature, present or future,
arising under this Agreement, the L/C Documents, any Alternate Currency Addendum
or any other Loan Document, whether or not evidenced by any note, guaranty or
other instrument, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Company or any of its Subsidiaries
under this Agreement or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (b) any liability
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (d) any
obligations of such Person or any of its Subsidiaries arising with respect to
any other transaction which is the functional equivalent of or takes the place
of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in SECTION 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in SECTION 14.2(A) hereof.
-20-
27
"PAYMENT DATE" means the last day of each March, June, September and
December, the Termination Date (or such earlier date on which the Aggregate
Commitment shall terminate or be cancelled), and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on SCHEDULE
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on SCHEDULE 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on SCHEDULE 1.1.3 to this Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Company, its Subsidiaries
or the Lenders than those applicable to the Indebtedness being replaced,
renewed, refinanced or extended; PROVIDED, that Indebtedness being refinanced at
maturity may be subject to then current market rates of interest, provisions and
fees.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" means one or more pledge agreements, each in form
and substance reasonably satisfactory to the Administrative Agent, executed and
delivered by the Company and/or certain of its Subsidiaries pursuant to SECTION
7.2(N) HEREOF, as the same may be amended, supplemented or otherwise modified
from time to time.
-21-
28
"PRIME RATE" means the "prime rate" of interest announced by ABN from
time to time at its Chicago office, changing when and as said prime rate
changes.
"PRO RATA REVOLVING SHARE" means, with respect to any Lender, the
percentage obtained by dividing (x) such Lender's Revolving Loan Commitment at
such time (as adjusted from time to time in accordance with the provisions of
this Agreement) by (y) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
PROVIDED, HOWEVER, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Revolving Share" means
the percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, PLUS (B) such Lender's share of the obligations to purchase
participations in Alternate Currency Loans and Letters of Credit PLUS (C) such
Lender's share of the obligations to refund or purchase participations in Swing
Line Loans PLUS (D) such Lender's Competitive Bid Advances, by (y) the sum of
(A) the aggregate outstanding amount of all Revolving Loans, PLUS (B) the
aggregate outstanding amount of all Alternate Currency Loans and all Letters of
Credit, PLUS (C) the aggregate outstanding amount of all Swing Line Loans, PLUS
(D) the aggregate outstanding amount of all Competitive Bid Advances.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) by (y) the
Aggregate Commitment at such time (as adjusted from time to time in accordance
with the provisions of this Agreement); PROVIDED, HOWEVER, if all of the
Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then "Pro Rata Share" means the percentage obtained by dividing (x)
the sum of (A) such Lender's Revolving Loans, PLUS (B) such Lender's Term Loans,
PLUS (C) such Lender's share of the obligations to purchase participations in
Alternate Currency Loans and Letters of Credit PLUS (D) such Lender's share of
the obligations to refund or purchase participations in Swing Line Loans PLUS
(E) such Lender's Competitive Bid Advances, by (y) the sum of (A) the aggregate
outstanding amount of all Revolving Loans, PLUS (B) the aggregate outstanding
amount of all Term Loans, PLUS (C) the aggregate outstanding amount of all
Alternate Currency Loans and all Letters of Credit, PLUS (D) the aggregate
outstanding amount of all Swing Line Loans, PLUS (E) the aggregate outstanding
amount of all Competitive Bid Advances.
"PRO RATA TERM SHARE" means, with respect to any Lender, the percentage
obtained by dividing such Lender's Term Loan Commitment by the Aggregate Term
Loan Commitment.
"PURCHASERS" is defined in SECTION 14.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate, the Floating Rate, the
Competitive Bid Rate or the Alternate Currency Rate, as applicable.
"RECEIVABLE(S)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, notes receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any
-22-
29
of the same may represent, and all rights, title, security and guaranties with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"REGISTER" is defined in SECTION 14.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property.
"REPLACEMENT LENDER" is defined in SECTION 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, PROVIDED, HOWEVER, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are at least fifty-one percent (51%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable
-23-
30
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject including, without limitation, the Securities Act
of 1933, the Securities Exchange Act of 1934, Regulations T, U and X, ERISA, the
Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act,
the Americans with Disabilities Act of 1990, and any environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in the Company's Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock, (ii) any redemption,
retirement, purchase or other acquisition for value, direct or indirect, of any
Equity Interests of the Company or any of its Subsidiaries now or hereafter
outstanding, other than in exchange for other Equity Interests of the Company
(other than Disqualified Stock), (iii) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness subordinated to the Obligations, and (iv) any payment of a
claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of, any Indebtedness (other than the
Obligations) or any Equity Interests of the Company, or any of its Subsidiaries,
or of a claim for reimbursement, indemnification or contribution arising out of
or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (i) the Aggregate Revolving Loan Commitment at such time exceeds
(ii) (a) the Dollar Amount of the Revolving Credit Obligations outstanding at
such time, PLUS (b) the aggregate unused Alternate Currency Commitments at such
time, plus (c) the unused Multicurrency Swing Line Commitment.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal Dollar Amount of the Revolving Loans at such
time, PLUS (ii) the outstanding L/C Obligations at such time, PLUS (iii) the
Dollar Amount of the outstanding principal amount of the Alternate Currency
Loans at such time, PLUS (iv) the outstanding principal amount of all
Competitive Bid Loans at such time PLUS (v) the outstanding principal amount of
all Swing Line Loans at such time.
"REVOLVING LOAN" is defined in SECTION 2.1 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans, to purchase participations in Letters of
Credit, to refund or participate in Swing Line Loans and to participate in
Alternate Currency Loans not exceeding the amount set forth on EXHIBIT A to this
Agreement opposite its name thereon under the heading "Revolving Loan
-24-
31
Commitment" or the signature page of the assignment and acceptance by which it
became a Lender as such amount may be modified from time to time pursuant to the
terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"REVOLVING LOAN TERMINATION DATE" means October 20, 2004.
"SALE AND LEASEBACK TRANSACTION" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SINGLE EMPLOYER PLAN" means a Benefit Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"SOLVENT" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value) is equal to or in excess of the
total amount of its liabilities, including, without limitation,
contingent liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SPIN-OFF" means the distribution of approximately ninety percent (90%)
of the Capital Stock of the Company by Xxxxxx to Xxxxxx'x stockholders.
"SPIN-OFF MATERIALS" means the Form 10, the Distribution Agreement
referred to therein, the Tax Disaffiliation Agreement referred to therein and
the Transition Services Agreement referred to therein, the Registration Rights
Agreement referred to therein and the Employee Benefits and Compensation
Allocation Agreement referred to therein.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Subsidiary of the Company listed on SCHEDULE 6.8 and each other Subsidiary of
the Company as required pursuant to SECTION 7.2(K) in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
in substantially the form of EXHIBIT G-2 attached hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
-25-
32
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, limited liability company,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" mean a Subsidiary of the Company.
"SUBSIDIARY BORROWER" means each of the Company's Subsidiaries listed
on the signature pages hereto and any other Subsidiaries of the Company duly
designated by the Company pursuant to SECTION 2.24 to request Advances
hereunder, which Subsidiary shall have delivered to the Administrative Agent an
Assumption Letter in accordance with SECTION 2.24 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns, including a debtor-in-possession on behalf of
such Subsidiary Borrower.
"SWING LINE BANK" means, as applicable, the Dollar Swing Line Bank or
the Multicurrency Swing Line Bank.
"SWING LINE COMMITMENT" means the sum of the Dollar Swing Line
Commitment and the Multicurrency Swing Line Commitment.
"SWING LINE LOAN" means, as applicable, a Dollar Swing Line Loan or a
Multicurrency Swing Line Loan.
"SYNDICATION AGENT" means SunTrust Bank, Atlanta, in its capacity as
syndication agent for the loan transaction evidenced by this Agreement, together
with its successors and assigns.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement,
dated as of October 20, 1999 among the Company, the subsidiary borrowers from
time to time parties thereto, the Agents and the financial institutions from
time to time parties thereto as lenders, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"TARGET SETTLEMENT DAY" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"TAXES" is defined in SECTION 2.15(E)(i) hereof.
"TERM LOAN" means a term loan made by a Lender pursuant to SECTION
2.1(C) hereof and, collectively, all such term loans.
"TERM LOAN COMMITMENT" means, for each Lender, (i) prior to the making
of the Term Loans, the amount set forth on EXHIBIT A to this Agreement opposite
its name thereon under the heading "Term Loan Commitment" and (ii) after the
making of the Term Loans, the outstanding principal balance of its Term Loan.
-26-
33
"TERM LOAN TERMINATION DATE" means October 20, 2001.
"TERMINATION CONDITIONS" is defined in SECTION 2.19.
"TERMINATION DATE" means the earlier of (a) the later of (i) the
Revolving Loan Termination Date and (ii) the Term Loan Termination Date, and (b)
the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to SECTION 2.6 hereof or the Revolving Loan Commitments pursuant to
SECTION 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA which are reasonably likely to lead to the termination of,
or the appointment of a trustee to administer, any Benefit Plan; (vi) that a
foreign governmental authority shall appoint or institute proceedings to appoint
a trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (vii) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"TOTAL INDEBTEDNESS" means, without duplication, (a) all Indebtedness
of the Company and its Subsidiaries, on a consolidated basis, required to be
reflected on a balance sheet prepared in accordance with Agreement Accounting
Principles, PLUS, without duplication, (b) (i) the face amount of all
outstanding letters of credit (including Letters of Credit) in respect of which
the Company or any Subsidiary has any actual or contingent reimbursement
obligation, PLUS (ii) the principal amount of all Indebtedness of any Person in
respect of which the Company or any Subsidiary has a Contingent Obligation, PLUS
(iii) outstanding principal balances (representing securitized but unliquidated
assets) under asset securitization agreements (including, without limitation,
the outstanding principal balance of Receivables under Receivables
transactions), PLUS (iv) the implied debt component of synthetic leases of which
the Company or any Subsidiary is lessee or any other off-balance sheet financing
arrangements (including, without limitation, any such arrangements giving rise
to any Off-Balance Sheet Liabilities).
"TRANSFEREE" is defined in SECTION 14.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of
-27-
34
assets of all Single Employer Plans as of the most recent measurement date for
which actuarial valuations have been completed and certified to the Company, all
as determined under FAS 87 using the methods and assumptions used by the Company
for financial accounting purposes, and (ii) in the case of Multiemployer Plans,
the withdrawal liability that would be incurred by the Controlled Group if all
members of the Controlled Group completely withdrew from all Multiemployer
Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless the context otherwise requires, "Wholly-Owned
Subsidiary" means a wholly-owned subsidiary of the Company.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data, including
dates, prior to, on and after January 1, 2000, as it affects the business,
operations, and financial condition of such Person and such Person's material
customers, suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 REFERENCES. Any references to Subsidiaries of the Company set forth
herein shall not in any way be construed as consent by the Administrative Agent
or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
1.3 ROUNDING AND OTHER CONSEQUENTIAL CHANGES. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in euro as the Administrative Agent may
from time to time specify unless such National Currency Unit remains available
and the Company and the Administrative Agent agree to use such National Currency
Unit instead of the euro.
-28-
35
ARTICLE II: LOAN FACILITIES
2.1 REVOLVING LOANS; TERM LOANS.
(A) Upon the satisfaction of the conditions precedent set forth in
Sections 5.1, 5.2 and 5.3, as applicable, from and including the Closing Date
and prior to the Revolving Loan Termination Date, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans to the Borrowers from time to time, in Dollars or Eurocurrency
Rate Loans in any Agreed Currency, in a Dollar Amount not to exceed such
Lender's Pro Rata Revolving Share of Revolving Credit Availability at such time
(each individually, a "REVOLVING LOAN" and, collectively, the "REVOLVING
LOANS"); provided, however, that (i) at no time shall the Dollar Amount of the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment;
(ii) upon giving effect to each Advance, the aggregate outstanding principal
Dollar Amount of all Eurocurrency Rate Advances in Agreed Currencies other than
Dollars and all L/C Obligations in Agreed Currencies other than Dollars and all
Alternate Currency Loans shall not exceed $150,000,000 at any time (iii) at no
time shall the Dollar Amount of the Revolving Credit Obligations of any
Subsidiary Borrower that is a Domestic Subsidiary exceed $200,000,000; and (iv)
at no time shall the aggregate Dollar Amount of the Revolving Credit Obligations
of all Foreign Subsidiaries exceed $150,000,000. Subject to the terms of this
Agreement, the Borrowers may borrow, repay and reborrow Revolving Loans at any
time prior to the Revolving Termination Date. Revolving Loans made after the
third (3rd) Business Day after the Closing Date shall be, at the option of the
applicable Borrower, selected in accordance with Section 2.10, and shall be
either Floating Rate Loans or Eurocurrency Rate Loans. On the Revolving Loan
Termination Date, the applicable Borrower shall repay in full the outstanding
principal balance of the Revolving Loans. Each Advance under this Section 2.1
shall consist of Revolving Loans made by each Lender ratably in proportion to
such Lender's respective Pro Rata Revolving Share.
(B) Making of Revolving Loans. Promptly after receipt of the Borrowing/
Conversion/Continuation Notice under Section 2.8 in respect of Revolving Loans,
the Administrative Agent shall notify each Lender with a Revolving Loan
Commitment by telex or telecopy, or other similar form of transmission, of the
requested Revolving Loan. Each Lender with a Revolving Loan Commitment shall
make available its Revolving Loan in accordance with the terms of Section 2.7.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall disburse
such proceeds in accordance with the applicable Borrower's disbursement
instructions set forth in such Borrowing/Conversion/Continuation Notice. The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the applicable Borrowing Date shall not relieve any
other Lender of its obligations hereunder to make its Revolving Loan on such
Borrowing Date.
(C) TERM LOANS. Upon the satisfaction of the conditions precedent set
forth in Section 5.1, each Lender severally and not jointly agrees, on the terms
and conditions set forth in this Agreement, to make a single term loan to the
Company on the Closing Date, in Dollars, in an amount not to exceed such
Lender's Term Loan Commitment. Amounts borrowed as a Term Loan which are repaid
or prepaid by the Company may not be reborrowed. The Company shall repay all
outstanding principal and all accrued but unpaid interest on the Term Loan
Termination Date.
-29-
36
2.2 COMPETITIVE BID ADVANCES.
(A) COMPETITIVE BID OPTION. In addition to Advances pursuant to Section
2.1, but subject to the terms and conditions of this Agreement (including,
without limitation, the limitation set forth in Section 2.2(B) as to the maximum
aggregate principal amount of all outstanding Advances hereunder), the Company
may, as set forth in this Section 2.2, request the Lenders, prior to the
Revolving Loan Termination Date, to make offers to make Competitive Bid Advances
to the Company in Dollars. Each Lender may, but shall have no obligation to,
make such offers and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.2. The aggregate
outstanding amount of Competitive Bid Advances shall reduce the available
portion of each Lender's Revolving Loan Commitment ratably relative to such
Lender's Pro Rata Revolving Share regardless of which Lender or Lenders make
such Competitive Bid Advances.
(B) COMPETITIVE BID QUOTE REQUEST. When the Company wishes to request
offers to make Competitive Bid Loans under this Section 2.2, it shall transmit
to the Administrative Agent by facsimile a Competitive Bid Quote Request
substantially in the form of Exhibit J hereto so as to be received no later than
(x) 11:00 a.m. (New York time) at least five (5) Business Days prior to the
Borrowing Date proposed therein, in the case of a Eurocurrency Auction or (y)
10:00 a.m. (New York time) at least one (1) Business Day prior to the Borrowing
Date proposed therein, in the case of an Absolute Rate Auction specifying:
(i) the proposed Borrowing Date, which shall be a Business
Day, for the proposed Competitive Bid Advance,
(ii) the aggregate principal amount of such Competitive Bid
Advance, which must be at least $10,000,000 (and in integral multiples
of $1,000,000 if in excess thereof),
(iii) whether the Competitive Bid Quotes requested are to set
forth a Eurocurrency Bid Rate or an Absolute Rate, or both, and
(iv) the Interest Period applicable thereto (which may not end
after the Revolving Loan Termination Date).
The Company may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five (5) Business Days (or such other number
of days as the Company and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. A Competitive Bid Quote Request that does not
conform substantially to the format of EXHIBIT J hereto shall be rejected, and
the Administrative Agent shall promptly notify the Company of such rejection by
facsimile. The aggregate amount of outstanding Competitive Bid Advances shall
not exceed $50,000,000. All Competitive Bid Loans shall be in Dollars.
(C) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.2(B),
the Administrative Agent shall send to each of the Lenders by facsimile an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit K
hereto,
-30-
37
which shall constitute an invitation by the Company to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section 2.2.
(D) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. (i) Each Lender
may, in its sole discretion, submit a Competitive Bid Quote containing an offer
or offers to make Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.2(D) and must be submitted to the Administrative
Agent by facsimile at its offices specified in or pursuant to Article XVII not
later than (x) 2:00 p.m. (New York time) at least four (4) Business Days prior
to the proposed Borrowing Date, in the case of a Eurocurrency Auction or (y)
10:00 a.m. (New York time) on the proposed Borrowing Date, in the case of an
Absolute Rate Auction (or, in either case upon reasonable prior notice to the
Lenders, such other time and date as the Company and the Administrative Agent
may agree); provided that Competitive Bid Quotes submitted by the Administrative
Agent may only be submitted if the Administrative Agent notifies the Company of
the terms of the offer or offers contained therein not later than 15 minutes
prior to the latest time at which the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to Articles V and XI, any Competitive
Bid Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Company.
(ii) Each Competitive Bid Quote shall be in substantially the
form of EXHIBIT L hereto and shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Revolving Loan Commitment of
the quoting Lender, (2) must be at least $5,000,000 (and in integral
multiples of $1,000,000 if in excess thereof), and (3) may not exceed
the principal amount of Competitive Bid Loans for which offers were
requested,
(c) in the case of a Eurocurrency Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan,
(d) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Company,
(e) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan,
(f) the identity of the quoting Lender, and
(g) the applicable Interest Period.
(iii) The Administrative Agent shall reject any Competitive Bid Quote
that:
-31-
38
(a) is not substantially in the form of EXHIBIT L hereto or
does not specify all of the information required by SECTION 2.2(D)(ii);
(b) contains qualifying, conditional or similar language,
other than any such language contained in EXHIBIT L hereto;
(c) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.2(D)(i).
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.2(D)(iii), then the Administrative Agent shall notify the relevant Lender of
such rejection as soon as practical.
(E) NOTICE TO COMPANY. The Administrative Agent shall promptly notify
the Company of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with SECTION 2.2(D) and (ii) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Administrative Agent's notice to the
Company shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Eurocurrency Bid Rates or Absolute Rates, as the case may be, so offered.
(F) ACCEPTANCE AND NOTICE BY COMPANY. Not later than (x) 10:00 a.m.
(New York time) at least three (3) Business Days prior to the proposed Borrowing
Date, in the case of a Eurocurrency Auction or (y) 11:00 a.m. (New York time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Lenders, such other time and
date as the Company and the Administrative Agent may agree), the Company shall
notify the Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to SECTION 2.2(E); PROVIDED, HOWEVER, that the failure
by the Company to give such notice to the Administrative Agent shall be deemed
to be a rejection of all such offers. In the case of acceptance, such notice (a
"COMPETITIVE BID BORROWING NOTICE") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Company may accept any
Competitive Bid Quote in whole or in part (subject to the terms of SECTION
2.2(D)(ii)(d)); PROVIDED that:
(a) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(b) acceptance of offers may only be made on the basis of
ascending Eurocurrency Bid Rates or Absolute Rates, as the case may be,
and
(c) the Company may not accept any offer that is described in
SECTION 2.2(D)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
-32-
39
(G) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are
made by two or more Lenders with the same Eurocurrency Bid Rates or
Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amount of
such offers PROVIDED, HOWEVER, that no Lender shall be allocated a
portion of any Competitive Bid Advance which is less than the minimum
amount which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same
Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such Competitive
Bid Advance allocated to each participating Lender.
(H) ADMINISTRATION FEE. The Company hereby agrees to pay to
the Administrative Agent an administration fee as detailed in the
Administrative Agent Fee Letter per each Competitive Bid Quote Request
transmitted by the Company to the Administrative Agent pursuant to
SECTION 2.2(B). Such administration fee shall be payable in arrears on
each Payment Date hereafter, on the Termination Date (or such earlier
date on which the Aggregate Revolving Loan Commitment shall terminate
or be canceled), and on the Facility Termination Date for any period
then ending for which such fee, if any, shall not have been theretofore
paid.
2.3 SWING LINE LOANS.
(A) AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the conditions
precedent set forth in Section 5.1, 5.2 and 5.3, as applicable, from and
including the Closing Date and prior to the Revolving Loan Termination Date, the
Dollar Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make revolving swing line loans (each, individually, a "DOLLAR
SWING LINE LOAN" and collectively, the "DOLLAR SWING LINE LOANS") to the Company
from time to time in Dollars; provided, however, that at no time shall the
aggregate outstanding principal amount of all Dollar Swing Line Loans exceed the
Dollar Swing Line Commitment; and provided further that, at no time shall the
Dollar Amount of the Revolving Credit Obligations exceed the Aggregate Revolving
Loan Commitment; and provided, further, that at no time shall the sum of (a) the
outstanding principal amount of the Dollar Swing Line Loans plus (b) the Dollar
Amount of the Dollar Swing Line Bank's Pro Rata Revolving Share of the
Multicurrency Swing Line Loans plus (c) the Dollar Amount of the Dollar Swing
Line Bank's Pro Rata Revolving Share of the Revolving Credit Obligations, exceed
the Dollar Swing Line Bank's Revolving Loan Commitment at such time. Upon the
satisfaction of the conditions precedent set forth in Section 5.1, 5.2 and 5.3,
as applicable, from and including the Closing Date and prior to the Revolving
Loan Termination Date, the Multicurrency Swing Line Bank agrees, on the terms
and conditions set forth in this Agreement, to make revolving swing line loans
(each, individually, a "MULTICURRENCY SWING LINE LOAN" and collectively, the
"MULTICURRENCY SWING LINE LOANS") to the Borrowers from time to time in any
Agreed Currency other than Dollars; provided, however, that, after giving effect
to any Multicurrency Swing Line Loan, the aggregate outstanding principal Dollar
Amount of all
-33-
40
Multicurrency Swing Line Loans shall not exceed the Multicurrency Swing Line
Commitment; provided further that at no time shall the Dollar Amount of the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment; and
provided further that at no time shall the sum of (a) the Dollar Amount of the
Multicurrency Swing Line Loans, plus (b) the Multicurrency Swing Line Bank's Pro
Rata Revolving Share of the Dollar Swing Line Loans, plus (c) principal amount
of the Dollar Amount of the Multicurrency Swing Line Bank's Pro Rata Revolving
Share of the Revolving Credit Obligations exceed the Multicurrency Swing Line
Bank's Revolving Loan Commitment at such time.
(B) BORROWING/CONVERSION/CONTINUATION NOTICE; INTEREST RATE. The
Company and/or the applicable Borrower shall deliver to the Administrative Agent
and the applicable Swing Line Bank a Borrowing/Conversion/Continuation Notice,
signed by it, (a) not later than 1:00 p.m. (New York time) on the Borrowing Date
of each Dollar Swing Line Loan (or at such later time as may be acceptable to
the Swing Line Bank in its sole discretion) or (b) not later than 11:00 a.m.
(Brussels time) on the Borrowing Date of each Multicurrency Swing Line Loan, in
each case, specifying (i) the applicable Borrowing Date (which date shall be a
Business Day and which may be the same date as the date the
Borrowing/Conversion/Continuation Notice is given, (ii) in the case of
Multicurrency Swing Line Loans, the Agreed Currency applicable thereto, and
(iii) the aggregate amount of the requested Swing Line Loan, the Dollar Amount
of which shall be not less than $1,000,000. The Swing Line Loans shall bear
interest at the Floating Rate.
(C) MAKING OF DOLLAR SWING LINE LOANS. Promptly after receipt of the
Borrowing/Conversion/ Continuation Notice under Section 2.3(B) in respect of
Dollar Swing Line Loans, the Administrative Agent shall notify each Lender by
telex or telecopy, or other similar form of transmission, of the requested
Dollar Swing Line Loan. Not later than 4:00 p.m. (New York time) on the
applicable Borrowing Date, the Dollar Swing Line Bank shall make available its
Dollar Swing Line Loan, in funds immediately available in New York, New York to
the Administrative Agent at its address specified pursuant to Article XV. The
Administrative Agent will promptly make the funds so received from the Dollar
Swing Line Bank available to the Company on the Borrowing Date at the
Administrative Agent's aforesaid address.
(D) MAKING OF MULTICURRENCY SWING LINE LOANS. Promptly after receipt of
the Borrowing/Conversion/ Continuation Notice under Section 2.3(B) in respect of
Multicurrency Swing Line Loans, the Administrative Agent shall notify each
Lender by telex or telecopy, or other similar form of transmission, of the
requested Multicurrency Swing Line Loan. Not later than 4:00 p.m. (Brussels
time) on the applicable Borrowing Date, the Multicurrency Swing Line Bank shall
make available its Multicurrency Swing Line Loan, in funds immediately available
to the Administrative Agent at its Eurocurrency Payment Office. The
Administrative Agent will promptly make the funds so received from the
Multicurrency Swing Line Bank available to the applicable Borrower on the
Borrowing Date at the Administrative Agent's aforesaid address.
(E) REPAYMENT OF DOLLAR SWING LINE LOANS. Each Dollar Swing Line Loan
shall be paid in full by the Company on or before the seventh (7th) Business Day
after the Borrowing Date for such Dollar Swing Line Loan. The Company may at any
time pay, without penalty or premium, all outstanding Dollar Swing Line Loans.
In addition, the Administrative Agent (i) may at any time in its sole discretion
with respect to any outstanding Dollar Swing Line Loan, or (ii) shall on the
seventh (7th) Business Day after the Borrowing Date of any Dollar Swing Line
Loan, require (by
-34-
41
giving notice thereof to each Lender with a Revolving Loan Commitment not later
than 11:00 a.m. (New York time) on the date of such Loan) each Lender with a
Revolving Loan Commitment (including the Dollar Swing Line Bank) to make a
Revolving Loan in the amount of such Lender's Pro Rata Revolving Share of such
Dollar Swing Line Loan, for the purpose of repaying any outstanding portion such
Swing Line Loan. Not later than 3:00 p.m. (New York time) on the date of any
notice received pursuant to this Section 2.3(E), each Lender shall make
available its required Revolving Loan, in funds immediately available in Chicago
to the Administrative Agent at its address specified pursuant to Article XV.
Revolving Loans made pursuant to this Section 2.3(E) shall initially be Floating
Rate Loans and thereafter may be continued as Floating Rate Loans or converted
into Eurocurrency Rate Loans in the manner provided in Section 2.10 and subject
to the other conditions and limitations therein set forth and set forth in this
Article II. Unless a Lender shall have notified the Dollar Swing Line Bank,
prior to its making any Dollar Swing Line Loan, that any applicable condition
precedent set forth in Sections 5.1, 5.2 and 5.3, as applicable, had not then
been satisfied, such Lender's obligation to make Revolving Loans pursuant to
this Section 2.3(E) to repay Dollar Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Administrative Agent, a Swing Line Bank or any other Person, (b) the occurrence
or continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Company, or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender fails
to make payment to the Administrative Agent of any amount due under this Section
2.3(E), the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.3(E) or may not make
any Revolving Loan required by this Section 2.3(E), such Lender shall be deemed,
at the option of the Administrative Agent, to have unconditionally and
irrevocably purchased from the applicable Swing Line Bank, without recourse or
warranty, an undivided interest and participation in the applicable Swing Line
Loan in the amount of such Revolving Loan, and such interest and participation
may be recovered from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date of
demand and ending on the date such amount is received. On the Revolving Loan
Termination Date, the Company shall repay in full the outstanding principal
balance of the Dollar Swing Line Loans.
(F) REPAYMENT OF MULTICURRENCY SWING LINE LOANS. Each Multicurrency
Swing Line Loan shall be paid in full by the Company on or before the seventh
(7th) Business Day after the Borrowing Date for such Multicurrency Swing Line
Loan. The Company may at any time pay, without penalty or premium, all
outstanding Multicurrency Swing Line Loans. In addition, the Administrative
Agent (i) may at any time in its sole discretion with respect to any outstanding
Multicurrency Swing Line Loan (ii) shall at any time at the direction of the
Multicurrency Swing Line Bank in its sole discretion with respect to any
outstanding Multicurrency Swing Line Loan, or (iii) shall on the seventh (7th)
Business Day after the Borrowing Date of any Multicurrency Swing Line Loan,
require (by giving notice thereof to each Lender with a Revolving Loan
Commitment not later than 10:00 a.m. (Brussels time) on the date of such Loan)
each Lender with a Revolving Loan Commitment (including the Multicurrency Swing
Line Bank) to make a Revolving Loan in the Dollar Amount of such Lender's Pro
Rata Revolving Share of such Multicurrency Swing Line Loan,
-35-
42
for the purpose of repaying any outstanding portion such Swing Line Loan. Not
later than 2:00 p.m. (Brussels time) on the date of any notice received pursuant
to this Section 2.3(F), each Lender shall make available its required Revolving
Loan or Revolving Loans, in Dollars immediately available to the Administrative
Agent at its address specified in Section 2.3(D). Revolving Loans made pursuant
to this Section 2.3(F) shall initially be Floating Rate Loans and thereafter may
be continued as Floating Rate Loans or converted into Eurocurrency Rate Loans in
the manner provided in Section 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this Article II. Unless a Lender
shall have notified the Multicurrency Swing Line Bank, prior to its making any
Multicurrency Swing Line Loan, that any applicable condition precedent set forth
in Sections 5.1, 5.2 and 5.3, as applicable, had not then been satisfied, such
Lender's obligation to make Revolving Loans pursuant to this Section 2.3(F) to
repay Multicurrency Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Administrative
Agent, a Swing Line Bank or any other Person, (b) the occurrence or continuance
of a Default or Unmatured Default, (c) any adverse change in the condition
(financial or otherwise) of the Company, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this Section 2.3(F),
the Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Administrative Agent receives such payment from such Lender
or such obligation is otherwise fully satisfied. In addition to the foregoing,
if for any reason any Lender fails to make payment to the Administrative Agent
of any amount due under this Section 2.3(F) or may not make any Revolving Loan
required to be made by this Section 2.3(F), such Lender shall be deemed, at the
option of the Administrative Agent or the Multicurrency Swing Line Bank, to have
unconditionally and irrevocably purchased from the applicable Swing Line Bank,
without recourse or warranty, an undivided interest and participation in the
applicable Swing Line Loan in the amount of such Revolving Loan, and such
interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received. On the Termination Date, the applicable Borrower shall repay in full
the outstanding principal balance of the Multicurrency Swing Line Loans.
2.4 RATE OPTIONS FOR ALL ADVANCES; MAXIMUM INTEREST PERIODS. The
Revolving Loans and Term Loans may be Floating Rate Advances or Eurocurrency
Rate Advances, or a combination thereof, selected by the Company or the
applicable Borrower in accordance with SECTION 2.10; provided that until
syndication of the Aggregate Commitment and the commitments under the 364-Day
Credit Facility has been completed to the satisfaction of the Administrative
Agent, the Revolving Loans and Term Loans shall be Floating Rate Advances. The
Company or the applicable Borrower may select, in accordance with SECTION 2.10,
Rate Options and Interest Periods applicable to portions of the Revolving Loans,
Term Loans and Alternate Currency Loans; provided that there shall be no more
than ten (10) Interest Periods in effect with respect to all of the Loans at any
time (unless otherwise provided in the applicable Alternate Currency Addendum
with respect to Alternate Currency Loans). Each Alternate Currency Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at the Alternate Currency Rate as set forth in the
applicable Alternate Currency Addendum.
-36-
43
2.5 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
(A) OPTIONAL PAYMENTS. The Company or the applicable Borrower may from
time to time and at any time upon at least one (1) Business Day's prior written
notice repay or prepay without penalty or premium all or any part of outstanding
Floating Rate Advances in an aggregate minimum amount of $10,000,000 and in
integral multiples of $1,000,000 in excess thereof. Eurocurrency Rate Advances,
Eurocurrency Bid Rate Advances and Absolute Rate Advances may be voluntarily
repaid or prepaid prior to the last day of the applicable Interest Period,
subject to the indemnification provisions contained in Section 4.4, provided
that the applicable Borrower may not so prepay Eurocurrency Rate Advances,
Eurocurrency Bid Rate Advances or Absolute Rate Advances unless it shall have
provided at least four (4) Business Days' prior written notice to the
Administrative Agent of such prepayment. Each Subsidiary Borrower may, upon
prior written notice to the Administrative Agent and to the applicable Alternate
Currency Bank as prescribed in the applicable Alternate Currency Addendum and
specifying that it is prepaying all or a portion of its Alternate Currency
Loans, prepay its Alternate Currency Loans in whole at any time, or from time to
time in part in a Dollar Amount aggregating $5,000,000 or any larger multiple
Dollar Amount of $1,000,000 (or as otherwise specified in the applicable
Alternate Currency Addendum) by paying the principal amount to be paid together
with all accrued and unpaid interest thereon to and including the date of
payment; provided that any such payment occurring prior to the last day of any
Interest Period related to such Alternate Currency Loan shall be subject to the
indemnification provisions contained in Section 4.4.
(B) MANDATORY PREPAYMENTS OF REVOLVING LOANS. (i) If at any time and
for any reason (other than fluctuations in currency exchange rates) the Dollar
Amount of the Revolving Credit Obligations is greater than the Aggregate
Revolving Loan Commitment, the Company shall immediately make or cause to be
made a mandatory prepayment of the Revolving Credit Obligations in an amount
equal to such excess.
(ii) On the last Business Day of each month, the Administrative Agent
shall calculate the Dollar Amount of all outstanding Alternate Currency Loans
and Revolving Credit Obligations using, for each currency, the arithmetic mean
of the buy and sell spot rates of exchange of the Administrative Agent in the
London interbank market (or other market where the Administrative Agent's
foreign exchange operations in respect of such currency are then being
conducted) and if, on such Business Day:
(x) the Dollar Amount of the Revolving Credit Obligations
exceeds one hundred percent (100%) of the Aggregate
Revolving Loan Commitment as a result of fluctuations
in currency exchange rates, the applicable Borrower
shall immediately prepay Loans for the ratable
benefit of the Lenders in an aggregate amount such
that after giving effect thereto the Dollar Amount of
the Revolving Credit Obligations is less than or
equal to the Aggregate Revolving Loan Commitment; or
(y) the Dollar Amount of all outstanding Alternate
Currency Loans under the Alternate Currency Addenda
exceeds one hundred percent (100%) of the aggregate
Alternate Currency Commitments with respect thereto
as a result of fluctuations in currency exchange
rates, the applicable Borrower shall on
-37-
44
such date prepay, or cause to be prepaid, Alternate
Currency Loans in an aggregate amount such that after
giving effect thereto the Dollar Amount of all such
Alternate Currency Loans is less than or equal to the
aggregate Alternate Currency Commitments with respect
thereto; or
(z) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans in the
same Alternate Currency exceeds the aggregate
Alternate Currency Commitments with respect thereto
as a result of fluctuations in currency exchange
rates, the applicable Borrowers shall on such date
prepay Alternate Currency Loans in such Alternate
Currency in an aggregate amount such that after
giving effect thereto the Dollar amount of all
Alternate Currency Loans is less than or equal to the
aggregate Alternate Currency Commitments with respect
thereto.
(iii) The Company shall make all mandatory prepayments required under
SECTION 2.6.
(iv) All of the mandatory prepayments made under this SECTION 2.5(B)
shall be applied first to Floating Rate Loans and to any Eurocurrency Rate Loans
and Alternate Currency Loans maturing on such date and then to subsequently
maturing Eurocurrency Rate Loans and Alternate Currency Loans in order of
maturity.
(C) Mandatory Prepayments of Term Loans. Upon the receipt by any
Borrower of (1) the proceeds from any sale of United States domestic Receivables
or (2) the proceeds from the incurrence of any single issue of Indebtedness in
excess of $50,000,000 which is not permitted by Section 7.3(D)(i)-(vi) hereof,
the Company shall immediately make a mandatory prepayment of the Term Loans in
an amount equal to such proceeds (applying the same first to accrued and unpaid
interest and then to principal).
2.6 REDUCTIONS IN COMMITMENTS. The Company may permanently reduce (i)
the Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $10,000,000 and in integral multiples
of $5,000,000 in excess of that amount (unless the Aggregate Revolving Loan
Commitment is reduced in whole), or (ii) the Swing Line Commitments in whole or
in part in amounts of $5,000,000 upon at least three (3) Business Day's prior
written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction or (iii) in whole and terminate the Aggregate Term
Loan Commitment upon any reduction in whole of the Aggregate Revolving Loan
Commitment; provided, however, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the aggregate principal Dollar Amount of the
outstanding Revolving Credit Obligations or below the aggregate amount of the
Swing Line Commitments. All accrued commitment fees shall be payable on the
effective date of any termination of all or any part the obligations of the
Lenders to make Loans hereunder. Each Subsidiary Borrower may, upon three (3)
Business Days prior written notice to the Administrative Agent and to the
applicable Alternate Currency Bank, terminate entirely at any time or reduce
from time to time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000 (or as set forth on the applicable Alternate Currency Addendum), the
unused portions of the applicable Alternate Currency Commitment as specified by
the applicable Subsidiary Borrower in such notice to the Administrative Agent
and the applicable Alternate Currency Bank; provided, however, that at no time
shall the Alternate Currency Commitment of any Lender in
-38-
45
respect of any Alternate Currency be reduced to an amount less than the total
outstanding principal amount of all Alternate Currency Loans of such Lender made
in such Alternate Currency.
2.7 METHOD OF BORROWING. Not later than 1:00 p.m. (New York time) on
each Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Administrative Agent
at its address specified on its signature page hereto or as otherwise specified
pursuant to ARTICLE XV, unless the Administrative Agent has notified the Lenders
that such Loan is to be made available to the applicable Borrower at the
Administrative Agent's Eurocurrency Payment office, in which case each Lender
shall make available its Loan or Loans, in funds immediately available to the
Administrative Agent at its Eurocurrency Payment Office, not later than 12:00
noon (local time in the city of the Administrative Agent's Eurocurrency Payment
Office) in the Agreed Currency designated by the Administrative Agent. The
Administrative Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's aforesaid
address.
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period, Agreed Currency and/or Alternate
Currency applicable to each Advance from time to time. The applicable Borrower
shall give the Administrative Agent irrevocable notice in substantially the form
of EXHIBIT B hereto (a "BORROWING/CONVERSION/CONTINUATION NOTICE") not later
than 10:00 a.m. (New York time) (a) on the Borrowing Date of each Floating Rate
Advance, and (b) three (3) Business Days before the Borrowing Date for each
Eurocurrency Rate Advance to be made in Dollars, and (c) four (4) Business Days
before the Borrowing Date for each Eurocurrency Rate Advance to be made in any
Agreed Currency other than Dollars and (d) three (3) Business Days before the
Borrowing Date for each Alternate Currency Loan (or such other period as may be
agreed to by the Administrative Agent and the applicable Borrower), and the
applicable Borrower shall give the applicable Alternate Currency Bank
irrevocable notice by 10:00 a.m. (local time) three (3) Business Days prior to
the Borrowing Date for such Alternate Currency Loan (or such other period as may
be agreed to by the applicable Alternate Currency Bank or specified in the
applicable Alternate Currency Addendum), specifying: (i) the Borrowing Date
(which shall be a Business Day) of such Advance; (ii) the aggregate amount of
such Advance; (iii) the Type of Advance selected; and (iv) in the case of each
Eurocurrency Rate Loan, the Interest Period and Agreed Currency or Alternate
Currency applicable thereto. Notwithstanding the foregoing, if the Company has
submitted a Competitive Bid Quote Request pursuant to SECTION 2.2(B), a
Borrowing/Conversion/Continuation Notice for a Floating Rate Advance may be
given not later than one (1) hour after the time which the Company is required
to reject one or more bids offered in connection with an Absolute Rate Auction
pursuant to SECTION 2.2(F) and a Borrowing/Conversion/Continuation Notice for a
Eurocurrency Rate Loan may be given not later than one (1) hour after the time
the Company is required to reject one or more bids offered in connection with a
Eurocurrency Auction pursuant to SECTION 2.2(F). Each Floating Rate Advance,
each Alternate Currency Loan bearing a fluctuating Alternate Currency Rate and
all Obligations other than Loans shall bear interest from and including the date
of the making of such Advance, in the case of Loans, and the date such
Obligation is due and owing in the case of such other Obligations, to (but not
including) the date of repayment thereof at the Floating Rate or Alternate
Currency Rate, as applicable, changing when and as such Floating Rate or
Alternate Currency Rate, as applicable, changes. Changes in the rate of interest
on that portion of any Advance maintained as a Floating Rate Loan will take
effect simultaneously with each change in the Alternate Base Rate.
-39-
46
Changes in the rate of interest on any portion of any Alternate Currency Loan
bearing a fluctuating Alternate Currency Rate will take effect simultaneously
with each change in such Alternate Currency Rate. Each Eurocurrency Rate Advance
shall bear interest from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined as applicable to such Eurocurrency Rate Advance
and shall change as and when the Applicable Eurocurrency Margin changes.
2.9 MINIMUM AMOUNT OF EACH ADVANCE. Each Advance (other than an Advance
to repay a Swing Line Loan or Reimbursement Obligation) shall be in the minimum
Dollar Amount of $20,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) and in Dollar Amount
multiples of $1,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) if in excess thereof (or
such other amounts as may be specified in the applicable Alternate Currency
Addendum), provided, however, that any Floating Rate Advance may be in the
amount of the unused Aggregate Revolving Loan Commitment.
2.10 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES.
(A) RIGHT TO CONVERT. The applicable Borrower may elect from time to
time, subject to the provisions of Section 2.4 and this Section 2.10, to convert
all or any part of a Loan (other than a Competitive Bid Loan or Swing Line Loan)
of any Type into any other Type or Types of Loans (other than a Competitive Bid
Loan or Swing Line Loan); provided that any conversion of any Eurocurrency Rate
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto.
(B) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue
as Eurocurrency Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans shall be automatically
converted into Floating Rate Loans unless the Company shall have given the
Administrative Agent notice in accordance with Section 2.10(D) requesting that,
at the end of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan. Unless a Borrowing/Conversion/Continuation Notice shall
have timely been given in accordance with the terms of this Section 2.10,
Eurocurrency Rate Advances in an Agreed Currency other than Dollars and
Alternate Currency Loans shall automatically continue as Eurocurrency Rate
Advances in the same Agreed Currency or Alternate Currency Loans in the same
Alternate Currency, as applicable, with an Interest Period of one (1) month.
(C) NO CONVERSION POST-DEFAULT OR POST-UNMATURED DEFAULT.
Notwithstanding anything to the contrary contained in Section 2.10(A) or Section
2.10(B), no Loan may be converted into or continued as a Eurocurrency Rate Loan
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(D) BORROWING/CONVERSION/CONTINUATION NOTICE. The Company shall give
the Administrative Agent a Borrowing/Conversion/Continuation Notice with respect
to each conversion of a Floating Rate Loan into a Eurocurrency Rate Loan or
continuation of a Eurocurrency Rate Loan
-40-
47
not later than 10:00 a.m. (New York time) (x) three (3) Business Days prior to
the date of the requested conversion or continuation, with respect to any Loan
to be converted or continued as a Eurocurrency Rate Loan in Dollars, (y) four
(4) Business Days prior to the date of the requested conversion or continuation
with respect to any Loan to be converted or continued as a Eurocurrency Rate
Loan in an Agreed Currency other than Dollars, and (z) five (5) Business Days
before the date of the requested conversion or continuation Borrowing Date with
respect to the conversion or continuation of any Alternate Currency Loan (or
such other period as may be agreed to by the Administrative Agent), and the
applicable Subsidiary Borrower shall give the applicable Alternate Currency Bank
irrevocable notice by 10:00 a.m. (local time) three (3) Business Days prior to
the conversion or continuation of such Alternate Currency Loan (or such other
period as may specified in the applicable Alternate Currency Addendum),
specifying: (1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Loan to be converted
or continued; and (3) the amount of Eurocurrency Rate Loan(s) or Alternate
Currency Loan(s), as applicable, into which such Loan is to be converted or
continued, the Agreed Currency or Alternate Currency, as applicable, and the
duration of the Interest Period applicable thereto.
(E) Notwithstanding anything herein to the contrary, (x) Eurocurrency
Rate Advances in an Agreed Currency may be continued as Eurocurrency Rate
Advances only in the same Agreed Currency, and (y) Alternate Currency Loans in
an Alternate Currency may be continued as Alternate Currency Loans only in the
same Alternate Currency.
2.11 DEFAULT RATE. After the occurrence and during the continuance of a
Default, each outstanding Loan shall bear interest at a rate equal to the rate
otherwise applicable thereto (giving effect to the provisions of SECTION
2.15(D)(ii)) plus 2% per annum.
2.12 METHOD OF PAYMENT. All payments of principal, interest, fees,
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in SECTION 2.15(E)), in
immediately available funds to the Administrative Agent (i) at the
Administrative Agent's address specified pursuant to ARTICLE XV with respect to
Advances or other Obligations denominated in Dollars and (ii) at the
Administrative Agent's Eurocurrency Payment Office with respect to any Advance
or other Obligations denominated in an Agreed Currency other than Dollars, or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Company, by 2:00 p.m. (New York time) on the
date when due and shall be applied ratably among the Lenders with respect to any
principal and interest due in connection with Loans. Each Advance shall be
repaid or prepaid in the Agreed Currency in which it was made in the amount
borrowed and interest payable thereon shall also be paid in such currency. Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds which the Administrative Agent received at its address
specified pursuant to ARTICLE XV or at any Lending Installation specified in a
notice received by the Administrative Agent from such Lender. The Company
authorizes the Administrative Agent to charge the account of the Company
maintained with ABN, after one (1) Business Day's prior written notice to the
Company, for each payment of principal, interest, fees, commissions and L/C
Obligations as it becomes due hereunder. Each reference to the Administrative
Agent in this SECTION 2.12 shall also be deemed to refer, and shall apply
equally, to each Issuing Bank, in the case of payments required to be made by
the Company to any Issuing Bank pursuant to ARTICLE III.
-41-
48
All payments to be made by the Borrowers hereunder in respect of any
Alternate Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, at the office or branch from
which the Loan was made pursuant to SECTION 2.21 and the applicable Alternate
Currency Addendum not later than 3:00 p.m. (local time) on the date on which
such payment shall become due. Promptly upon receipt of any payment of principal
of the Alternate Currency Loans the applicable Alternate Currency Bank shall
give written notice to the Administrative Agent by telex or telecopy of the
receipt of such payment.
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such Agreed
Currency or Alternate Currency, as applicable, with the result that different
types of such Agreed Currency or Alternate Currency, as applicable, (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders or Alternate
Currency Bank, as applicable, in such Original Currency, then all payments to be
made by the Borrowers hereunder in such currency shall be made to the
Administrative Agent or Alternate Currency Bank, as applicable, in such amount
and such type of the New Currency or Dollars as shall be equivalent to the
amount of such payment otherwise due hereunder in the Original Currency, it
being the intention of the parties hereto that the Borrowers take all risks of
the imposition of any such currency control or exchange regulations. In
addition, notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, the applicable
Borrower is not able to make payment to the Administrative Agent for the account
of the Lenders or the applicable Alternate Currency Bank in the type of currency
in which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead be repaid when
due in Dollars in a principal amount equal to the Dollar Amount (as of the date
of repayment) of such Advance.
2.13 EVIDENCE OF DEBT.
(A) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
Borrowers to such Lender owing to such Lender hereunder from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(B) The Register maintained by the Administrative Agent pursuant to
Section 14.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount and the currency of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 14.3, (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof, and (v) all other appropriate debits and credits as provided in
this Agreement, including, without limitation, all fees, charges, expenses and
interest.
(C) The entries made in the Loan Account, the Register and the other
accounts
-42-
49
maintained pursuant to subsections (A) or (B) of this Section shall be
presumptively correct for all purposes, absent manifest error, unless the
applicable Borrower (or the Company on behalf of such Borrower) objects to
information contained in the Loan Accounts, the Register or the other accounts
within thirty (30) days of the applicable Borrower's receipt of such
information; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrowers to repay the Obligations in accordance with the
terms of this Agreement.
(D) Any Lender may request that the Revolving Loans, the Term Loans or
Competitive Bid Loans made by it each be evidenced by a promissory note in
substantially the forms of Exhibit I-1, Exhibit I-2 or Exhibit I-3,
respectively, to evidence such Lender's Revolving Loans or Competitive Bid
Loans, as applicable. In such event, the applicable Borrower shall promptly
prepare, execute and deliver to such Lender a promissory note for such Loans
payable to the order of such Lender and in a form approved by the Administrative
Agent and consistent with the terms of this Agreement. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 14.3) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein.
2.14 TELEPHONIC NOTICES. The Borrowers authorize the Lenders and the
Administrative Agent to extend Loans, effect selections of Types of Advances and
submit Competitive Bid Quotes and to transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of the applicable Borrower. The Borrowers
agree to deliver promptly to the Administrative Agent a written confirmation,
signed by an Authorized Officer, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error. In case of disagreement
concerning such notices, if the Administrative Agent has recorded telephonic
borrowing notices, such recordings will be made available to the applicable
Borrower upon the Company's request therefor.
2.15 PROMISE TO PAY; INTEREST AND FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS.
(A) PROMISE TO PAY. All Loans shall be paid in full by the applicable
Borrowers on the earlier of (i) the Revolving Loan Termination Date (in the case
of Loans other than Term Loans) or Term Loan Termination Date (in the case of
Term Loans) and (ii) the Facility Termination Date; provided, that all
Competitive Bid Advances shall be paid in full by the Company on the last day of
the Interest Period applicable thereto, or, if earlier, on the Termination Date
or Facility Termination Date and all Swing Line Loans shall also be paid as set
forth in Section 2.3. Each Borrower unconditionally promises to pay when due the
principal amount of each Loan and all other Obligations incurred by it, and to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
(B) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate Loan
and each Alternate Currency Loan bearing a fluctuating Alternate Currency Rate
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or
-43-
50
otherwise). Interest accrued on each Fixed-Rate Loan shall be payable on the
last day of its applicable Interest Period, on any date on which the Fixed-Rate
Loan is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Fixed-Rate Loan having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval during
such Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on the last day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(C) FEES.
(i) The Company shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their Pro Rata Revolving
Shares, from and after the date of this Agreement until the Facility
Termination Date, a commitment fee accruing at the rate of the then
Applicable Commitment Fee Percentage on the unutilized portion of such
Lender's Revolving Loan Commitment (treating Letters of Credit, but not
Competitive Bid Loans or Swing Line Loans, as usage). The commitment
fee shall be payable in arrears on each Payment Date hereafter, and, in
addition, on any date on which the Aggregate Revolving Loan Commitment
shall be terminated in whole or, with respect to such terminated
amount, in part.
(ii) The Company shall pay to the Administrative Agent, for
the account of the Lenders in accordance with their Pro Rata Term
Shares, from and after the date of this Agreement until the earlier of
the Facility Termination Date and the making of the Term Loans, a
commitment fee accruing at the rate of the then Applicable Commitment
Fee Percentage on such Lender's Term Loan Commitment. The commitment
fee shall be payable in arrears at the time of the making of the Term
Loans and, in addition, on any date upon which the Aggregate Term Loan
Commitment shall be terminated.
(iii) The Company agrees to pay to the Administrative Agent,
for the sole account of the Administrative Agent, the Lead Arrangers
and the Agents (unless otherwise agreed between the Administrative
Agent, the Lead Arrangers, the Agents and any Lender) the fees set
forth in the Fee Letters, payable at the times and in the amounts set
forth therein.
(iv) The applicable Borrower agrees to pay to each Alternate
Currency Bank, for its sole account, a fronting fee equal to 0.25% of
the average daily outstanding Dollar Amount of all Alternate Currency
Loans made by such Alternate Currency Bank.
(D) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage.
(i) Interest on all Fixed-Rate Loans (except as provided
otherwise in the applicable Alternate Currency Addendum in the case of
an Alternate Currency Loan) and fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest on all Floating
Rate Loans shall be calculated for actual days elapsed on the basis of
a 365-, or when appropriate 366-, day year. Interest shall be payable
for the day an Obligation is
-44-
51
incurred but not for the day of any payment on the amount paid if
payment is received prior to 3:00 p.m. (New York time) at the place of
payment. If any payment of principal of or interest on a Loan or any
payment of any other Obligations shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of
time shall be included in computing interest, fees and commissions in
connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall be
determined on the basis of the then applicable Leverage Ratio as
described in this SECTION 2.15(D)(ii), from time to time by reference
to the following table:
------------------------------------- ------------------- --------------------------------- --------------------------
APPLICABLE APPLICABLE
FLOATING APPLICABLE COMMITMENT
LEVERAGE RATIO RATE EUROCURRENCY FEE
MARGIN MARGIN PERCENTAGE
------------------------------------- ------------------- --------------------------------- --------------------------
Less than 1.50 0.25% 1.25% 0.300%
------------------------------------- ------------------- --------------------------------- --------------------------
1.50 or greater, but less than 0.50% 1.50% 0.375%
2.00
------------------------------------- ------------------- --------------------------------- --------------------------
2.00 or greater, but less than 0.75% 1.75% 0.450%
2.50
------------------------------------- ------------------- --------------------------------- --------------------------
2.50 or greater, but less than 1.00% 2.00% 0.500%
3.00
------------------------------------- ------------------- --------------------------------- --------------------------
3.00 or greater 1.25% 2.25% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
The Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be 1.00%, 2.00%
and 0.500%, respectively, until the Administrative Agent has received
the Company's financial statements for the fiscal quarter ending
September 30, 2000; PROVIDED that if the Leverage Ratio as reflected in
the most recently delivered financial statements, delivered pursuant to
SECTIONS 7.1(A)(i) and (ii), as applicable, is 3.00 or greater, the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Commitment Fee Percentage shall be 1.25%, 2.25% and 0.500%,
respectively. Thereafter, upon receipt of the financial statements to
be delivered by the Company in accordance with SECTION 7.1(A)(i) or
(ii), as applicable, for any fiscal quarter or, if earlier, upon
receipt of the Company's unaudited financial statements for any fiscal
year, the Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Percentage shall be adjusted, such
adjustment being effective five (5) Business Days following the
Administrative Agent's receipt of such financial statements and the
compliance certificate required to be delivered in connection therewith
pursuant to SECTION 7.1(A)(iii); provided, that if the Company shall
not have timely delivered its financial statements in accordance with
SECTION 7.1(A)(i) or (ii), as applicable, then commencing on the date
upon which such financial statements should have been delivered and
continuing until such financial statements are actually delivered, it
shall be assumed for purposes of determining the Applicable Floating
Rate Margin, Applicable
-45-
52
Eurocurrency Margin and Applicable Commitment Fee Percentage that the
Leverage Ratio was greater than 3.00 to 1.0. Notwithstanding the
foregoing, for so long as any Default shall have occurred and been
continuing, the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall be
the highest Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Commitment Fee Margin set forth in the foregoing
table. At all times after the first anniversary of the Closing Date
until the Term Loans have been repaid in full, each of the Applicable
Floating Rate Margin and the Applicable Eurocurrency Margin shall
increase by 25 basis points.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether
in respect of principal, interest, fees or otherwise) shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any interest, penalties and liabilities with respect thereto including
those arising after the date hereof as a result of the adoption of or
any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but
excluding, in the case of each Lender and the Administrative Agent,
such taxes (including income taxes, franchise taxes and branch profit
taxes) as are imposed on or measured by such Lender's or the
Administrative Agent's, as the case may be, net income by the United
States of America or any Governmental Authority of the jurisdiction
under the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments,
the Loans or the Letters of Credit being hereinafter referred to as
"TAXES"). If any Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder or
under the other Loan Documents to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholdings (including
deductions applicable to additional sums payable under this SECTION
2.15(E)) such Lender or Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions or
withholdings been made, (ii) the applicable Borrower shall make such
deductions or withholdings, and (iii) the applicable Borrower shall pay
the full amount deducted or withheld to the relevant taxation authority
or other authority in accordance with applicable law. If a withholding
tax of the United States of America or any other Governmental Authority
shall be or become applicable (y) after the date of this Agreement, to
such payments by the applicable Borrower made to the Lending
Installation or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of
any other Lending Installation, to such payments made to such other
Lending Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce the
applicable Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Revolving Loan
Commitments of such Lender.
(ii) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which
-46-
53
arise from any payment made hereunder, from the issuance of Letters of
Credit hereunder, or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement, the other Loan Documents,
the Revolving Loan Commitments, the Loans or the Letters of Credit
(hereinafter referred to as "OTHER TAXES").
(iii) The Company and each Subsidiary Borrower shall indemnify
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under
this SECTION 2.15(E)) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date
such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. If the Taxes or Other Taxes with respect to
which the Company or any Subsidiary Borrower has made either a direct
payment to the taxation or other authority or an indemnification
payment hereunder are subsequently refunded to any Lender, such Lender
will return to the applicable Borrower an amount equal to the lesser of
the indemnification payment or the refunded amount. A certificate as to
any additional amount payable to any Lender or the Administrative Agent
under this SECTION 2.15(E) submitted to the applicable Borrower and the
Administrative Agent (if a Lender is so submitting) by such Lender or
the Administrative Agent shall show in reasonable detail the amount
payable and the calculations used to determine such amount and shall,
absent manifest error, be final, conclusive and binding upon all
parties hereto. With respect to such deduction or withholding for or on
account of any Taxes and to confirm that all such Taxes have been paid
to the appropriate Governmental Authorities, the applicable Borrower
shall promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative
Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Company or any Subsidiary Borrower, the
Company shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of the Company and the Subsidiary Borrowers hereunder, the agreements
and obligations of the Borrowers contained in this SECTION 2.15(E)
shall survive the payment in full of all Obligations, the termination
of the Letters of Credit and the termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"NON-U.S. LENDER") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to SECTION 12.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender
-47-
54
is legally entitled to do so), either (1) (x) two (2) duly completed
copies of either (A) IRS Form W-8BEN (or, if delivered on or before
December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or, if
delivered on or before December 31, 1999, IRS Form 4224), or in either
case an applicable successor form, and (y) for periods prior to January
1, 2000, a duly completed copy of IRS Form W-8 or W-9 or applicable
successor form; or (2) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in CLAUSE (vi)(1)(x),
(x) a certificate of a duly authorized officer of such Non-U.S. Lender
to the effect that such Non-U.S. Lender is not (A) a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Company or any Subsidiary Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code (such certificate, an
"EXEMPTION CERTIFICATE") and (y) two (2) duly completed copies of IRS
Form W-8BEN or applicable successor form. Each such Lender further
agrees to deliver to the Company and the Administrative Agent from time
to time a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in a form satisfactory to the Company
and the Administrative Agent, before or promptly upon the occurrence of
any event requiring a change in the most recent certificate previously
delivered by it to the Company and the Administrative Agent pursuant to
this SECTION 2.15(E)(vi). Further, each Lender which delivers a form or
certificate pursuant to this CLAUSE (vi) covenants and agrees to
deliver to the Company and the Administrative Agent within fifteen (15)
days prior to the expiration of such form, for so long as this
Agreement is still in effect, another such certificate and/or two (2)
accurate and complete original newly-signed copies of the applicable
form (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this SECTION
2.15(E), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to SECTION 2.15(E)(i), or to indemnify any Lender
pursuant to SECTION 2.15(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
SECTION 2.15(E)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any
material respect, or (z) the Lender designating a successor Lending
Installation at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; PROVIDED,
HOWEVER, that the applicable Borrower shall be obligated to gross up
any payments to any such Lender pursuant to SECTION 2.15(E)(i), and to
indemnify any such Lender pursuant to SECTION 2.15(E)(iii), in respect
of United States federal withholding taxes if (x) any such failure to
deliver a form or forms or an Exemption Certificate or the failure of
such form or forms or exemption certificate to establish a complete
exemption from U.S. federal withholding tax or inaccuracy or untruth
contained
-48-
55
therein resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of the
foregoing occurring after the date hereof, which change rendered such
Lender no longer legally entitled to deliver such form or forms or
Exemption Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate
untrue or inaccurate in any material respect, (y) the redesignation of
the Lender's Lending Installation was made at the request of the
Company or (z) the obligation to gross up payments to any such Lender
pursuant to SECTION 2.15(E)(i), or to indemnify any such Lender
pursuant to SECTION 2.15(E)(iii), is with respect to a Purchaser that
becomes a Purchaser as a result of an assignment made at the request of
the Company.
2.16 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
AGGREGATE REVOLVING LOAN COMMITMENT REDUCTIONS. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice,
Borrowing/Conversion/Continuation Notice, and repayment notice received by it
hereunder. The Administrative Agent will notify the applicable Borrower and each
Lender of the interest rate and Agreed Currency applicable to each Fixed-Rate
Loan promptly upon determination of such interest rate and Agreed Currency and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.17 LENDING INSTALLATIONS. Each Lender may book its Loans or Letters
of Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made.
2.18 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of any Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.19 TERMINATION DATE. This Agreement shall be effective until the
Facility Termination Date. Notwithstanding the termination of this Agreement,
until (A) all of the Obligations (other than contingent indemnity obligations)
shall have been fully and indefeasibly paid and satisfied, (B) all commitments
of the Lenders to extend credit hereunder have expired or have been terminated
and
-49-
56
(C) all of the Letters of Credit shall have expired, been canceled or terminated
(collectively, the "TERMINATION CONDITIONS"), all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
2.20 REPLACEMENT OF CERTAIN LENDERS. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Revolving Share of any
Advance requested by the applicable Borrower, or to make payment in respect of
any Alternate Currency Loan purchased by such Lender pursuant to SECTION
2.21(E), which such Lender is obligated to fund under the terms of this
Agreement and which failure has not been cured, (ii) requested compensation from
any Borrower under SECTIONS 2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or
other additional costs incurred by such Lender which are not being incurred
generally by the other Lenders except as provided under any applicable Alternate
Currency Addendum, or (iii) delivered a notice pursuant to SECTION 4.3 claiming
that such Lender is unable to extend Eurocurrency Rate Loans to the Company for
reasons not generally applicable to the other Lenders, then, in any such case,
after the engagement of one or more "Replacement Lenders" (as defined below) by
the Company and/or the Administrative Agent, the Company or the Administrative
Agent may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by the Company and a copy to the
Company in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall use commercially reasonable
efforts to assign pursuant to one or more duly executed Assignment Agreements
five (5) Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of SECTION 14.3(A) which the
Company or the Administrative Agent, as the case may be, shall have engaged for
such purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Revolving Loan Commitment, all Loans owing to it, all of
its participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit and Alternate Currency Loans
hereunder) in accordance with SECTION 14.3. The Administrative Agent is
authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the same
within five (5) Business Days after the date of such demand. With respect to
such assignment the Affected Lender shall be entitled to receive, in cash, all
amounts due and owing to the Affected Lender hereunder or under any other Loan
Document, including, without limitation, the aggregate outstanding principal
amount of the Loans owed to such Lender, together with accrued interest thereon
through the date of such assignment, amounts payable under SECTIONS 2.15(E),
4.1, and 4.2 with respect to such Affected Lender and compensation payable under
SECTION 2.15(C) in the event of any replacement of any Affected Lender under
CLAUSE (ii) or CLAUSE (iii) of this SECTION 2.20; provided that upon such
Affected Lender's replacement, such Affected Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.15(E),
4.1, 4.2, 4.4, and 11.7, as well as to any fees accrued for its account
hereunder and not yet paid, and shall continue to be obligated under Section
12.8.
2.21 ALTERNATE CURRENCY LOANS.
(A) Upon the satisfaction of the conditions precedent set forth in
Article V hereof and set forth in the applicable Alternate Currency Addendum,
from and including the later of the date of this Agreement and the date of
execution of the applicable Alternate Currency Addendum and prior to the
Termination Date (or such earlier termination date as shall be specified in or
pursuant to the applicable Alternate Currency Addendum), each Alternate Currency
Bank agrees, on the terms and
-50-
57
conditions set forth in this Agreement and in the applicable Alternate Currency
Addendum, to make Alternate Currency Loans under such Alternate Currency
Addendum to the applicable Borrower party to such Alternate Currency Addendum
from time to time in the applicable Alternate Currency, in an amount not to
exceed each such Alternate Currency Bank's applicable Alternate Currency
Commitment; provided, however, at no time shall the Dollar Amount of the
outstanding principal amount of the Alternate Currency Loans for all Alternate
Currencies plus the outstanding principal amount of all Eurocurrency Rate Loans
in Agreed Currencies other than Dollars exceed the Dollar Amount of $150,000,000
other than as a result of currency fluctuations and then only to the extent
permitted in Section 2.5(B)(ii); provided, further, at no time shall the Dollar
Amount of the Alternate Currency Loans for any specific Alternate Currency
exceed the maximum amount specified as the maximum amount for such Alternate
Currency in the applicable Alternate Currency Addendum other than as a result of
currency fluctuations and then only to the extent permitted in Section
2.5(B)(ii). Subject to the terms of this Agreement and the applicable Alternate
Currency Addendum, the applicable Borrowers may borrow, repay and reborrow
Alternate Currency Loans in the applicable Alternate Currency at any time prior
to the Termination Date (or such earlier termination date as shall be specified
in or pursuant to the applicable Alternate Currency Addendum). On the
Termination Date (or such earlier termination date as shall be specified in or
pursuant to the applicable Alternate Currency Addendum), the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the Termination Date (or such earlier
termination date as shall be specified in or pursuant to the applicable
Alternate Currency Addendum) prepayments of the Alternate Currency Loans shall
be made by the applicable Borrower if and to the extent required by Section
2.5(B)(ii).
(B) Borrowing Notice. When the applicable Borrower desires to borrow
under this Section 2.21, the applicable Borrower shall deliver to the applicable
Alternate Currency Bank and the Administrative Agent a
Borrowing/Conversion/Continuation Notice, signed by it, as provided in Section
2.8 specifying that such Borrower is requesting an Alternate Currency Loan
pursuant to this Section 2.21, and the Administrative Agent shall give prompt
notice to the Lenders of any such request for an Alternate Currency Loan. Any
Borrowing/Conversion/Continuation Notice given pursuant to this Section 2.21
shall be irrevocable.
(C) Termination. Except as otherwise required by applicable law, in no
event shall any Alternate Currency Bank have the right to accelerate the
Alternate Currency Loans outstanding under any Alternate Currency Addendum or to
terminate its commitments (if any) thereunder to make Alternate Currency Loans
prior to the stated termination date in respect thereof, except that each
Alternate Currency Bank shall have such rights upon an acceleration of the Loans
and a termination of the Revolving Credit Commitments pursuant to Article IX.
(D) Statements. Each Alternate Currency Bank shall furnish to the
Administrative Agent not less frequently than monthly, at the end of each Fiscal
Quarter, and at any other time at the reasonable request of the Administrative
Agent, a statement setting forth the outstanding Alternate Currency Loans made
and repaid during the period since the last such report under such Alternate
Currency Addendum.
(E) Risk Participation. Immediately and automatically upon the
occurrence of an Event of Default under Sections 8.1(A), (E) or (F), each Lender
shall be deemed to have unconditionally and irrevocably purchased from the
applicable Alternate Currency Bank, without recourse or
-51-
58
warranty, an undivided interest in and participation in each Alternate Currency
Loan ratably in an amount equal to such Lender's Pro Rata Revolving Share of the
amount of principal and accrued interest of such Loan, and immediately and
automatically all Alternate Currency Loans shall be converted to and
redenominated in Dollars equal to the Dollar Amount of each such Alternate
Currency Loan determined as of the date of such conversion; provided, that to
the extent such conversion shall occur other than at the end of an Interest
Period, the applicable Borrower shall pay to the applicable Alternate Currency
Bank, all losses and breakage costs related thereto in accordance with Section
4.4. Each of the Lenders shall pay to the applicable Alternate Currency Bank not
later than two (2) Business Days following a request for payment from such
Alternate Currency Bank, in Dollars, an amount equal to the undivided interest
in and participation in the Alternate Currency Loan purchased by such Lender
pursuant to this Section 2.21(E). In the event that any Lender fails to make
payment to the applicable Alternate Currency Bank of any amount due under this
Section 2.21(E), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives from such
Lender an amount sufficient to discharge such Lender's payment obligation as
prescribed in this Section 2.21(E) together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date of
demand by the applicable Alternate Currency Bank and ending on the date such
obligation is fully satisfied. The Administrative Agent will promptly remit all
payments received as provided above to the applicable Alternate Currency Bank.
In consideration of the risk participations prescribed in this Section 2.21(E),
each Lender shall receive, from the accrued interest paid for periods prior to
the conversion of any Alternate Currency Loan as described above by the
applicable Borrower on each Alternate Currency Loan, a fee equal to such
Lender's Pro Rata Revolving Share of the Applicable Eurocurrency Margin
component of the interest accrued on such Loan, as in effect from time to time
during the period such interest accrued. Such portion of the interest paid by
the applicable Borrower on Alternate Currency Loans to the applicable Alternate
Currency Bank shall be paid as promptly as possible by such Alternate Currency
Bank to the Administrative Agent, and the Administrative Agent shall as promptly
as possible convert such amount into Dollars at the spot rate of exchange in
accordance with its normal banking practices and apply such resulting amount
ratably among the Lenders (including the Alternate Currency Banks) in proportion
to their Pro Rata Revolving Share.
(F) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the essence. Such
Alternate Currency shall be the currency of account and payment of such Loans
under this Agreement and the applicable Alternate Currency Addendum.
Notwithstanding anything in this Agreement, the obligation of the applicable
Borrower in respect of such Loans shall not be discharged by an amount paid in
any other currency or at another place, whether pursuant to a judgment or
otherwise, to the extent the amount so paid, on prompt conversion into the
applicable Alternate Currency and transfer to such Lender under normal banking
procedure, does not yield the amount of such Alternate Currency due under this
Agreement or the applicable Alternate Currency Addendum. In the event that any
payment, whether pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment of the amount of such Alternate Currency
due under this Agreement or the applicable Alternate Currency Addendum, such
Lender shall have an independent cause of action against each of the Borrowers
for the currency deficit.
2.22 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from any Borrower hereunder in
the currency expressed to be
-52-
59
payable herein (the "SPECIFIED CURRENCY") into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's office in New York, New York
on the Business Day preceding that on which the final, non-appealable judgment
is given. The obligations of each Borrower in respect of any sum due to any
Lender or the Administrative Agent hereunder shall, notwithstanding any judgment
in a currency other than the specified currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be)
may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be, in
the specified currency and (b) any amounts shared with other Lenders as a result
of allocations of such excess as a disproportionate payment to such Lender under
SECTION 13.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to such Borrower.
2.23 MARKET DISRUPTION; DENOMINATION OF AMOUNTS IN DOLLARS; DOLLAR
EQUIVALENT OF REIMBURSEMENT OBLIGATIONS.
(A) Notwithstanding the satisfaction of all conditions referred to in
this Article II with respect to any Advance in any Agreed Currency other than
Dollars or an Alternate Currency, as applicable, if there shall occur on or
prior to the date of such Advance any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Company, any
Subsidiary Borrower, any Alternate Currency Bank, the Administrative Agent or
the Required Lenders make it impracticable for the Eurocurrency Rate Loans or
Alternate Currency Loans comprising such Advance to be denominated in the Agreed
Currency or Alternate Currency, as applicable, specified by the applicable
Borrower, then the Administrative Agent shall forthwith give notice thereof to
such Borrower, the applicable Alternate Currency Bank and the Lenders, or the
applicable Borrower shall give notice to the Administrative Agent, the
applicable Alternate Currency Bank and the Lenders, as the case may be, and such
Eurocurrency Rate Loans or Alternate Currency Loans shall not be denominated in
such currency but shall be made on such Borrowing Date in Dollars, in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice, as Floating Rate Loans, unless
the applicable Borrower notifies the Administrative Agent at least one (1)
Business Day before such date that (i) it elects not to borrow on such date or
(ii) it elects to borrow on a date at least three (3) Business Days thereafter
in a different Agreed Currency or Alternate Currency, as the case may be, in
which the denomination of such Loans would in the opinion of the Administrative
Agent, any Alternate Currency Bank, if applicable, and the Required Lenders be
practicable and in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Borrowing Notice.
(B) Except as set forth in Sections 2.1, 2.5 and 2.21, all amounts
referenced in this
-53-
60
Article II shall be calculated using the Dollar Amount determined based upon the
Equivalent Amount in effect as of the date of any determination thereof;
provided, however, to the extent that any Borrower shall be obligated hereunder
to pay in Dollars any Advance denominated in a currency other than Dollars, such
amount shall be paid in Dollars using the Dollar Amount of the Advance
(calculated based upon the Equivalent Amount in effect on the date of payment
thereof) and in the event that the applicable Borrower does not reimburse the
Administrative Agent and the Lenders are required to fund a purchase of a
participation in such Advance, such purchase shall be made in Dollars in an
amount equal to the Dollar Amount of such Advance (calculated based upon the
Equivalent Amount in effect on the date of payment thereof). Notwithstanding
anything herein to the contrary, the full risk of currency fluctuations shall be
borne by the Borrowers and the Borrowers agree to indemnify and hold harmless
each Issuing Bank, the Alternate Currency Banks, the Administrative Agent and
the Lenders from and against any loss resulting from any borrowing denominated
in a currency other than in Dollars and for which the Lenders are not reimbursed
on the day of such borrowing.
2.24 SUBSIDIARY BORROWERS. The Company may at any time or from time to
time, with the consent of the Administrative Agent add as a party to this
Agreement any Wholly-Owned Subsidiary to be a "Subsidiary Borrower" hereunder by
the execution and delivery to the Administrative Agent and the Lenders of (a) a
duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company at the foot thereof and (b) such other guaranty and subordinated
intercompany indebtedness documents as may be reasonably required by the
Administrative Agent, such documents with respect to any additional Subsidiaries
to be substantially similar in form and substance to the Loan Documents executed
on or about the date hereof by the Subsidiaries parties hereto as of the Closing
Date. Upon such execution, delivery and consent such Subsidiary shall for all
purposes be a party hereto as a Subsidiary Borrower as fully as if it had
executed and delivered this Agreement. So long as the principal of and interest
on any Advances made to any Subsidiary Borrower under this Agreement shall have
been repaid or paid in full, all Letters of Credit issued for the account of
such Subsidiary Borrower have expired or been returned and terminated and all
other obligations of such Subsidiary Borrower under this Agreement shall have
been fully performed, the Company may, by not less than five (5) Business Days'
prior notice to the Administrative Agent (which shall promptly notify the
Lenders thereof), terminate such Subsidiary Borrower's status as a "Subsidiary
Borrower".
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 OBLIGATION TO ISSUE LETTERS OF CREDIT. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in Dollars, in an Agreed Currency or
in any other Eligible Currency agreed to by the Company and the applicable
Issuing Bank in accordance with this Article III, from time to time during the
period, commencing on the Closing Date and ending on the Business Day prior to
the Termination Date.
3.2 TRANSITIONAL PROVISION. SCHEDULE 3.2 contains a schedule of certain
letters of credit issued by ABN for the account of the Company and its
Subsidiaries prior to the Closing Date. From
-54-
61
and after the time of the making of the initial Loans, such letters of credit
shall be deemed to be Letters of Credit issued pursuant to this Article III.
3.3 TYPES AND AMOUNTS. No Issuing Bank shall have any obligation to and
no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the Letter of
Credit requested hereunder, (i) the Dollar Amount of the Revolving
Credit Obligations at such time would exceed the Aggregate Revolving
Loan Commitment at such time, or (ii) the aggregate outstanding Dollar
Amount of the L/C Obligations would exceed $80,000,000, or (iii) the
Dollar Amount of all Eurocurrency Rate Loans and Letters of Credit in
Agreed Currencies other than Dollars would exceed $150,000,000; or
(B) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is the earlier of one (1)
year after the date of issuance thereof or the Termination Date;
PROVIDED, that any Letter of Credit with a one-year tenor may provide
for the renewal thereof for additional one-year periods (not to extend
beyond the Termination Date) with the consent of the applicable Issuing
Bank.
3.4 CONDITIONS. In addition to being subject to the satisfaction of the
conditions contained in SECTIONS 5.1, 5.2 and 5.3, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(A) the Company shall have delivered to the applicable Issuing
Bank (at such times and in such manner as such Issuing Bank may
reasonably prescribe) and the Administrative Agent, a request for
issuance of such Letter of Credit in substantially the form of EXHIBIT
C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly
executed applications for such Letter of Credit, and such other
documents, instructions and agreements as may be required pursuant to
the terms thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C DOCUMENTS"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(B) as of the date of issuance no order, judgment or decree of
any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain the applicable Issuing Bank from issuing
such Letter of Credit and no law, rule or regulation applicable to such
Issuing Bank and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over such
Issuing Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit generally or the issuance of
that Letter of Credit.
3.5 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. (A) Subject to the
terms and conditions of this ARTICLE III and provided that the applicable
conditions set forth in SECTIONS 5.1, 5.2 and 5.3 hereof have been satisfied,
the applicable Issuing Bank shall, on the requested date, issue a Letter of
Credit on behalf of the Company or a Subsidiary Borrower, as applicable in
accordance with such Issuing Bank's usual and customary business practices and,
in this connection, such Issuing Bank
-55-
62
may assume that the applicable conditions set forth in SECTION 5.3 hereof have
been satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable conditions
have not been met.
(B) Promptly, and in any event not more than one (1) Business Day
following the date of issuance of any Letter of Credit, the applicable Issuing
Bank shall give the Administrative Agent written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Letter of
Credit (PROVIDED, HOWEVER, that the failure to provide such notice shall not
result in any liability on the part of such Issuing Bank), and the
Administrative Agent shall promptly give notice to the Lenders of each such
issuance.
(C) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this SECTION 3.5 are met as though a new Letter of Credit
was being requested and issued.
3.6 LETTER OF CREDIT PARTICIPATION. On the date of this Agreement, with
respect to the Letters of Credit identified on SCHEDULE 3.2, and immediately
upon the issuance of each Letter of Credit hereunder, each Lender shall be
deemed to have automatically, irrevocably and unconditionally purchased and
received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the Company in
respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C INTEREST") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Revolving Share.
3.7 REIMBURSEMENT OBLIGATION. (a) The Company agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Company to reimburse the Administrative Agent for an advance made under a Letter
of Credit or L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by the Company no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, if the
Company shall have received notice of a Reimbursement Obligation later than 1:00
p.m. (New York time), on any Business Day or on a day which is not a Business
Day, no later than 1:00 p.m. (New York time), on the immediately following
Business Day or, in the case of any other draw on a Letter of Credit, the date
specified in the demand of such Issuing Bank. If the Company at any time fails
to repay a Reimbursement Obligation pursuant to this Section 3.7, the Issuing
Bank shall promptly notify the Administrative Agent and the Administrative Agent
shall promptly notify each Lender and the Company shall be deemed to have
requested to borrow Revolving Loans from the Lenders, as of the date of the
advance giving rise to the Reimbursement Obligation, equal in amount to the
Dollar Amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Revolving Loans.
(b) Each Lender with a Revolving Loan Commitment shall upon any notice
pursuant to SECTION 3.7(a) make available to the Administrative Agent for the
account of the relevant Issuing Bank an amount in Dollars and in immediately
available funds equal to its Pro Rata Revolving Share of the Dollar Equivalent
of the amount of the drawing, whereupon the Lenders shall
-56-
63
(subject to SECTION 3.7(d)) each be deemed to have made a Revolving Loan
constituting a Floating Rate Advance, the proceeds of which Advance shall be
used to repay such Reimbursement Obligation. If any Lender so notified fails to
make available to the Administrative Agent for the account of the Issuing Bank
the amount of such Lender's Pro Rata Revolving Share of the Dollar Equivalent of
the amount of the drawing by no later than 3:00 p.m. (New York time) on the date
of the advance giving rise to the Reimbursement Obligation, then interest shall
accrue on such Lender's obligation to make such payment, from such date to the
date such Lender makes such payment, at a rate per annum equal to the Federal
Funds Effective Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the draw,
but failure of the Administrative Agent to give any such notice in sufficient
time to enable any Lender to effect such payment on such date shall not relieve
such Lender from its obligations under this SECTION 3.7.
(c) Each Lender's obligation in accordance with this Agreement to make
the Revolving Loans, as contemplated by this SECTION 3.7, as a result of a
drawing under a Letter of Credit, shall be absolute and unconditional and
without recourse to the Issuing Banks and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender may have against an Issuing Bank, the
Company or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
(d) If, for any reason, the Company fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation to make Revolving Loans,
then such Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Floating Rate Advance.
3.8 LETTER OF CREDIT FEES. The Company agrees to pay:
(A) quarterly, in arrears, to the Administrative Agent for the
ratable benefit of the Lenders a letter of credit fee at a rate per
annum equal to the Applicable L/C Fee Percentage on the average daily
outstanding Dollar Amount available for drawing under all Letters of
Credit;
(B) quarterly, in arrears, to the applicable Issuing Bank, a
letter of credit fronting fee in an amount agreed to between the
Company and the applicable Issuing Bank on the average daily
outstanding face amount available for drawing under all Letters of
Credit issued by such Issuing Bank; and
(C) to the applicable Issuing Bank, all customary fees and
other issuance, amendment, document examination, negotiation and
presentment expenses and related charges in connection with the
issuance, amendment, presentation of L/C Drafts, and the like
customarily charged by such Issuing Banks with respect to standby and
commercial Letters of Credit, including, without limitation, standard
commissions with respect to commercial Letters of Credit, payable at
the time of invoice of such amounts.
-57-
64
3.9 ISSUING BANK REPORTING REQUIREMENTS. In addition to the notices
required by SECTION 3.5(B), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, expiration date and the reference number of each Letter of Credit
issued by it outstanding at any time during such month and the aggregate amount
paid by the Company during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative
Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
will provide to such Lender information concerning such Letters of Credit.
3.10 INDEMNIFICATION; EXONERATION. (A) In addition to amounts payable
as elsewhere provided in this ARTICLE III, the Company hereby agrees to protect,
indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and
each Lender from and against any and all liabilities and costs which the
Administrative Agent, such Issuing Bank or such Lender may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of the applicable Issuing Bank, as a result of
its gross negligence or willful misconduct, as determined by the final judgment
of a court of competent jurisdiction, or (ii) the failure of the applicable
Issuing Bank to honor a drawing under a Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto Governmental Authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
(B) As among the Company, the Lenders, the Administrative Agent and the
Issuing Banks, the Company assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Company at the time of request for any Letter of Credit, neither
the Administrative Agent, any Issuing Bank nor any Lender shall be responsible
(in the absence of gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction): (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (ii) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of a Letter of Credit to comply duly with conditions not expressly
provided on the face of such Letter of Credit and required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Banks
-58-
65
and the Lenders, including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any Issuing Bank's
rights or powers under this SECTION 3.10.
(C) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative Agent or any
Lender under any resulting liability to the Company or relieve the Company of
any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
this SECTION 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.11 CASH COLLATERAL. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of a Default, the Company shall, on the Business Day that it
receives the Administrative Agent's demand, deliver to the Administrative Agent
for the benefit of the Lenders and the Issuing Banks, cash, or other collateral
of a type satisfactory to the Required Lenders, having a value, as determined by
such Lenders, equal to one hundred percent (100%) of the aggregate Dollar Amount
of the outstanding L/C Obligations. In addition, if the Revolving Credit
Availability is at any time less than the Dollar Amount of all contingent L/C
Obligations outstanding at any time, the Company shall deposit cash collateral
with the Administrative Agent in Dollars in an amount equal to one-hundred five
percent (105%) of the Dollar Amount by which such L/C Obligations exceed such
Revolving Credit Availability. Any such collateral shall be held by the
Administrative Agent in a separate account appropriately designated as a cash
collateral account in relation to this Agreement and the Letters of Credit and
retained by the Administrative Agent for the benefit of the Lenders and the
Issuing Banks as collateral security for the Company's obligations in respect of
this Agreement and each of the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the Issuing Banks for drawings or payments under
or pursuant to Letters of Credit or L/C Drafts, or if no such reimbursement is
required, to payment of such of the other Obligations as the Administrative
Agent shall determine. If no Default shall be continuing, amounts remaining in
any cash collateral account established pursuant to this SECTION 3.11 which are
not to be applied to reimburse an Issuing Bank for amounts actually paid or to
be paid by such Issuing Bank in respect of a Letter of Credit or L/C Draft,
shall be returned to the Company within one (1) Business Day (after deduction of
the Administrative Agent's expenses incurred in connection with such cash
collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement or any
interpretation or application thereof by any Governmental Authority charged with
the interpretation or application thereof, or the compliance of any Lender
therewith,
(A) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge
-59-
66
or withholding on or from payments due from any Borrower (excluding taxation of
the overall net income of any Lender or taxation of a similar basis, which are
governed by Section 2.15(E)), or changes the basis of taxation of payments to
any Lender in respect of its Revolving Loan Commitment, Loans, its L/C
Interests, the Letters of Credit or other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency Rate Loans)
with respect to its Revolving Loan Commitment, Loans, L/C Interests or the
Letters of Credit, or
(C) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making, funding or
maintaining its Revolving Loan Commitment, Loans, the L/C Interests or the
Letters of Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with its Revolving Loan Commitment, Loans or
Letters of Credit, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Revolving Loan
Commitment, Loans or L/C Interests held or interest received by it or by
reference to the Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment, Loans, L/C
Interests, or Letters of Credit or to reduce any amount received under this
Agreement, then, within fifteen (15) days after receipt by the Company or any
other Borrower of written demand by such Lender pursuant to SECTION 4.5, the
applicable Borrowers shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender determines
is attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within fifteen (15) days
after receipt by the Company or any other Borrower of written demand by such
Lender pursuant to SECTION 4.5, the applicable Borrowers shall pay such Lender
the amount necessary to compensate for any shortfall in the rate of return on
the portion of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Revolving Loan Commitment, its Loans, its
L/C Interests, the Letters of Credit or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "RISK-BASED
CAPITAL GUIDELINES" means (i) the risk-based capital
-60-
67
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
4.3 AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency or maturity appropriate to match fund
Fixed-Rate Advances are not available or (y) the interest rate applicable to a
Fixed-Rate Advance does not accurately reflect the cost of making or maintaining
such an Advance, then the Administrative Agent shall suspend the availability of
the affected Type of Advance and, in the case of any occurrence set forth in
clause (i), require any Advances of the affected Type to be repaid or converted
into another Type.
4.4 FUNDING INDEMNIFICATION. If any payment of a Fixed-Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Fixed-Rate
Advance is not made on the date specified by the applicable Borrower for any
reason other than default by the Lenders, the Borrowers shall indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed-Rate Advance or Swing Line Loan, as
applicable.
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of any Borrower to such Lender
under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under SECTION 4.3, so long as such designation is not, in such Lender's
judgment, disadvantageous to such Lender. Any demand for compensation pursuant
to this ARTICLE IV shall be in writing and shall state the amount due, if any,
under SECTION 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Fixed-Rate Loan shall be
calculated as though each Lender funded its Fixed-Rate Loan through the purchase
of a deposit of the type, currency and maturity corresponding to the deposit
used as a reference in determining the Fixed-Rate applicable to such Loan,
whether in fact that is the case or not. The obligations of the Company and the
other Borrowers under SECTIONS 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
-61-
68
ARTICLE V: CONDITIONS PRECEDENT
5.1 INITIAL ADVANCES AND LETTERS OF CREDIT. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless (i)
such initial Loans are made not later than November 15, 1999; and (ii) the
Company has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, and the other conditions set forth below have
been satisfied:
(A) Copies of the Spin-off Materials and such other information with
respect to the Spin-off as the Lead Arrangers may reasonably request, which
shall be in form and substance satisfactory to the Administrative Agent, and
evidence satisfactory to the Administrative Agent that all conditions precedent
thereunder or otherwise to the consummation of the Spin-off (other than payment
of the Dividend) shall have been satisfied (and not waived).
(B) Arrangements satisfactory to the Administrative Agent shall have
been made for the consummation of the Spin-off promptly following the initial
Loans.
(C) Copies of the Certificate of Incorporation of each of the Loan
Parties, together with all amendments thereto and a certificate of good
standing, all certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(D) Copies, certified by the Secretary or Assistant Secretary of each
of the Loan Parties of their respective By-Laws and of their respective Board of
Directors' resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the Loan
Documents.
(E) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name and title
and bear the signature of the officers of the applicable Loan Party authorized
to sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any change
in writing by the applicable Loan Party.
(F) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of the Company,
stating that on the date of this Agreement (which shall be the initial Borrowing
Date) all the representations and warranties of the Loan Parties in the Loan
Documents are true and correct (unless such representation and warranty is made
as of a specific date, in which case, such representation and warranty shall be
true in all material respects as of such date) and no Default or Unmatured
Default has occurred and is continuing.
(G) The written opinions of the Loan Parties' US counsel, and, if
applicable, foreign counsel, addressed to the Agents and the Lenders, in form
and substance satisfactory to the Administrative Agent.
(H) Evidence reasonably satisfactory to the Administrative Agent that
the Company and each of its Subsidiaries (a) has made a reasonable assessment of
the Year 2000 Issues; (b) has a program for remediating the Year 2000 Issues,
including a timetable and budget of anticipated costs; and (c) has a source of
funds as required in such budget.
-62-
69
(I) The capital structure and corporate structure of the Company and
its Subsidiaries is consistent in all material respects with the Spin-off
Materials, and there exists no injunction or temporary restraining order which,
in the reasonable judgment of the Administrative Agent, could prohibit or impose
material restrictions on the Spin-off or prohibit the making of the Loans and
the other transactions contemplated by the Loan Documents or any litigation
seeking such an injunction or restraining order.
(J) A written solvency certificate from the chief financial officer of
the Borrower in form and substance satisfactory to the Administrative Agent,
dated the initial Borrowing Date, with respect to the value, Solvency and other
factual information of or relating to, as the case may be, the Borrower and its
Subsidiaries on a consolidated basis, after giving effect to the Dividend, the
Spin-off, and the incurrence of Indebtedness related thereto (including the
initial extensions of credit hereunder).
(K) The Administrative Agent shall have received (i) pro forma opening
financial statements giving effect to the Spin-off which must not be materially
less favorable, in the Administrative Agent's reasonable judgment, than the
projections previously provided to the Lead Arrangers and which must
demonstrate, in the reasonable judgment of the Administrative Agent, together
with all other information then available to the Administrative Agent, that the
Company and its Subsidiaries can repay their debts and satisfy their respective
other obligations as and when due, and can comply with the financial covenants
set forth herein, (ii) a certificate from an Authorized Officer demonstrating to
the satisfaction of the Administrative Agent that as of October 1, 1999, but
giving pro forma effect to the Spin-off, the Company would have been in
compliance with the financial covenants in Section 7.4 at the level prescribed
for the fiscal quarter ending December 31, 1999 and (iii) such information as
the Administrative Agent may reasonably request to confirm the tax, legal and
business assumptions made in such pro forma financial statements.
(L) The Administrative Agent shall have received a satisfactory
business plan for the Company for the five fiscal years following the Closing
Date, including a projected consolidated balance sheet, consolidated statements
of income, retained earnings and cash flow with assumptions used in preparing
the statements.
(M) All governmental, shareholder and third party consents and
approvals necessary in connection with this Agreement, the Spin-off and the
other transactions contemplated hereby shall have been obtained; all such
consents and approvals shall be in full force and effect; and all applicable
waiting periods shall have expired without any action being taken by any
Governmental Authority that could restrain, prevent or impose any material
adverse conditions on the Spin-off or such other transactions or that could seek
or threaten any of the foregoing, and no law or regulation shall be applicable
which in the judgment of any of the Agents could have such effect.
(N) There shall not have occurred a material adverse change since June
30, 1999 in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole.
(O) The Agents, Lenders and/or their Affiliates shall have received all
fees and expenses, including fees and expenses of Winston & Xxxxxx, required to
be paid on or before the Closing Date.
-63-
70
(P) The Administrative Agent shall have received evidence satisfactory
to it that all outstanding Indebtedness of the Company and its Subsidiaries
except for Permitted Existing Indebtedness has been paid in full and all Liens
securing such Indebtedness shall have been terminated.
(Q) Such other documents as the Administrative Agent or any Lender or
its counsel may have reasonably requested.
5.2 INITIAL ADVANCE TO EACH NEW SUBSIDIARY BORROWER. No Lender shall be
required to make an Advance hereunder or purchase participations in Letters of
Credit, Swing Line Loan or Alternate Currency Loans hereunder, no Issuing Lender
shall be required to issue a Letter of Credit hereunder, no Swing Line Bank
shall be required to make any Swing Line Loans hereunder, and no Alternate
Currency Bank shall be required to make any Alternate Currency Loans, in each
case, to a new Subsidiary Borrower added after the Closing Date unless the
Company has furnished or caused to be furnished to the Administrative Agent with
sufficient copies for the Lenders:
(A) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the
Company thereon, as contemplated by SECTION 2.24.
(B) Copies, certified by the Secretary, Assistant Secretary,
Director or Officer of the Subsidiary Borrower, of its Board
of Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by the Administrative Agent)
approving the Assumption Letter.
(C) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the Subsidiary
Borrower, which shall identify by name and title and bear the
signature of the officers of such Subsidiary Borrower
authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Subsidiary
Borrower hereunder, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Company.
(D) An opinion of counsel to such Subsidiary Borrower, in form and
substance satisfactory to the Administrative Agent.
(E) Guaranty documentation and contribution agreement
documentation from such Subsidiary Borrower in form and
substance satisfactory to the Administrative Agent.
(F) With respect to the initial Advance or any Swing Line Loan
made to any Subsidiary Borrower organized under the laws of
England and Wales, the Administrative Agent shall have
received originals and/or copies, as applicable, of all
filings required to be made and such other evidence as the
Administrative Agent may require establishing to the
Administrative Agent's satisfaction that each Lender, Swing
Line Bank and Issuing Lender is entitled to receive payments
under the Loan Documents without deduction or withholding of
any English taxes or with such deductions and withholding of
English taxes as may be acceptable to the Administrative
Agent.
-64-
71
5.3 EACH ADVANCE, EACH CONVERSION OR CONTINUATION OF AN ADVANCE, AND
EACH LETTER OF CREDIT. The Lenders shall not be required to make any Loan, or
convert or continue any Advance, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(A) There exists no Default or Unmatured Default;
(B) All of the representations and warranties contained in
ARTICLE VI are true and correct in all material respects as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material respects as of such date);
(C) (i) The Revolving Credit Obligations do not, and after
making such proposed Advance or issuing such Letter of Credit would
not, exceed the Aggregate Revolving Loan Commitment, and (ii) the
aggregate outstanding principal Dollar Amount of all Advances in Agreed
Currencies other than Dollars and all L/C Obligations in Agreed
Currencies other than Dollars and all Alternate Currency Loans does not
and would not exceed the Maximum Eurocurrency Amount; and
(D) the Administrative Agent has received a timely Borrowing
Notice with respect to the applicable Loan.
Each Borrowing/Conversion/Continuation Notice or Competitive Bid Quote
Request with respect to each such Advance and the letter of credit application
with respect to each Letter of Credit shall constitute a representation and
warranty by the Company that the conditions contained in SECTIONS 5.3(A), (B)
and (C) have been satisfied (except, in the case of any conversion or
continuation of a Loan, SECTION 6.5).
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrowers and to issue the Letters of Credit described herein, the Company
represents and warrants as follows to each Lender and the Administrative Agent
as of the date of this Agreement and on the Closing Date, giving effect to the
consummation of the transactions contemplated by the Loan Documents and the
Spin-off Materials as if each had occurred on the date hereof, and thereafter on
each date as required by SECTION 5.2 and 5.3:
6.1 ORGANIZATION; CORPORATE POWERS. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2 AUTHORIZATION AND VALIDITY. The Company has the requisite power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Company of
the Loan Documents and the performance of its
-65-
72
obligations thereunder have been duly authorized by proper proceedings, and the
Loan Documents constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
6.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by the Company of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any Subsidiary or the Company's or any Subsidiary's
articles of incorporation or by-laws or other constitutive documents and
agreements or the provisions of any indenture, instrument or agreement to which
the Company or any Subsidiary is a party or is subject, or by which it, or its
property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the property of
the Company or any of its Subsidiaries pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize the Company, or is required to be obtained by
the Company in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4 FINANCIAL STATEMENTS. Each of the consolidated financial statements
of the Company and its Subsidiaries for the fiscal years ended June 30, 1996,
June 27, 1997 and July 3, 1998 were prepared in accordance with Agreement
Accounting Principles except that restatements reflected in the Form 10 have not
been included for the Australian write-off and the 1998 restructuring reserves;
and the consolidated financial statements of the Company and its Subsidiaries
included in the Form 10 were prepared in accordance with Agreement Accounting
Principles and fairly present the consolidated financial condition and
operations of the Company and its Subsidiaries at such dates and the
consolidated results of their operations for the periods then ended.
6.5 MATERIAL ADVERSE CHANGE. Since July 2, 1999, there has occurred no
change in the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects, of the Company, or the Company
and its Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
6.6 TAXES. The Company and the Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided. No tax liens have been filed (other than to secure payment of
contested taxes in an amount not to exceed $5,000,000 in any one case and
$10,000,000 in the aggregate) and no claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of the Company
and the Subsidiaries in respect of any taxes or other governmental charges are
adequate.
6.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its Subsidiaries (i) challenging the Spin-off
-66-
73
or validity or enforceability of any material provision of the Loan Documents or
(ii) which could reasonably be expected to have a Material Adverse Effect. There
is no material loss contingency within the meaning of Agreement Accounting
Principles which has not been reflected in the consolidated financial statements
of the Company set forth in the Form 10 or prepared and delivered pursuant to
SECTION 7.1(A) for the fiscal period during which such material loss contingency
was incurred. Neither the Company nor any of its Subsidiaries is subject to or
in default with respect to any final judgment, writ, injunction, restraining
order or order of any nature, decree, rule or regulation of any court or
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect.
6.8 SUBSIDIARIES. SCHEDULE 6.8 hereto contains an accurate list of all
of the Subsidiaries of the Company in existence on the date of this Agreement,
setting forth their respective jurisdictions of formation and the percentage of
their respective capital stock owned directly or indirectly by the Company or
other Subsidiaries. All of the issued and outstanding Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
6.9 ERISA. As at March 31, 1999 the Unfunded Liabilities of all Single
Employer Plans did not in the aggregate exceed $0. Each Plan complies in all
material respects with all applicable requirements of law and regulations. No
Reportable Event has occurred with respect to any Single Employer Plan having
any Unfunded Liability which has or may reasonably be expected to result in a
liability to the Company in excess of $10,000,000. Neither the Company nor any
other members of the Controlled Group has terminated any Single Employer Plan
without in each instance funding all vested benefit obligations thereunder. Each
member of the Controlled Group has fulfilled its minimum funding obligations
with respect to each Multiemployer Plan.
6.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
including, without limitation, the Form 10, contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
6.11 REGULATION U. Margin Stock constitutes less than 25% of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
6.12 MATERIAL AGREEMENTS. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation the performance of which
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is subject to any charter or other
restriction in any constitutive agreement or document affecting its business,
properties, financial condition, prospects or results of operations which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any Contractual
Obligation to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
6.13 COMPLIANCE WITH LAWS. The Company and its Subsidiaries have
complied with all Requirements of Law except to the extent that such
non-compliance could not reasonably be
-67-
74
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received any notice to the effect that its operations are not in
material compliance with any Requirements of Law or the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
6.14 OWNERSHIP OF PROPERTIES. On the date of this Agreement, the
Company and its Subsidiaries have good title, free of all Liens, to all of the
properties and assets reflected in the financial statements included in the Form
10 as owned by it, except Liens permitted under SECTION 7.3(C).
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Company nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 ENVIRONMENTAL MATTERS. Each of the Company and its Subsidiaries is
in compliance with all Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business and as to which
the failure to so comply, in the aggregate for all such failures, would not
reasonably be likely to subject the Company to liability that would have a
Material Adverse Effect. Neither the Company nor any Subsidiary is subject to
any liability under the Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business that could
reasonably be expected to have a Material Adverse Effect. As of the date hereof,
neither the Company nor any Subsidiary has received any:
(A) notice from any Governmental Authority by which any of the
Company's or such Subsidiary's present or previously-owned or leased property
has been identified in any manner by any such Governmental Authority as a
hazardous substance disposal or removal site, "Super Fund" clean-up site or
candidate for removal or closure pursuant to any Environmental, Health or Safety
Requirements of Law; or
(B) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has attached to any of
the Company's or such Subsidiary's owned or leased property or any revenues of
the Company's or such Subsidiary's owned or leased property; or
(C) communication, written or oral, from any Governmental Authority
concerning action or omission by the Company or such Subsidiary in connection
with its ownership or leasing of any property resulting in the release of any
hazardous substance resulting in any violation of any Environmental, Health or
Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse Effect.
-68-
75
6.17 INSURANCE. The properties and assets and business of the Company
and its Subsidiaries are insured with financially sound and reputable insurance
companies not Subsidiaries of the Company (unless consented to by the
Administrative Agent), in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
are similarly situated.
6.18 LABOR MATTERS. As of the Closing Date, no labor disputes, strikes
or walkouts affecting the operations of the Company or any of its Subsidiaries,
are pending, or, to the Company's knowledge, threatened, planned or contemplated
which could reasonably be expected to have a Material Adverse Effect.
6.19 SOLVENCY. After giving effect to (i) the extensions of credit to
be made hereunder and under the 364-Day Agreement on the Closing Date and the
Dividend to be paid on the Closing Date or such other date as Loans requested
hereunder are made, (ii) the other transactions contemplated by this Agreement
and the other Loan Documents, including the Spin-off and (iii) the payment and
accrual of all transaction costs with respect to the foregoing, the Company and
its Subsidiaries taken as a whole are Solvent.
6.20 YEAR 2000 ISSUES. Each of the Company and its Subsidiaries has
made a reasonable assessment of the Year 2000 Issues and has a program for
remediating the Year 2000 Issues on a timely basis. Based on this assessment and
program, the Company does not reasonably anticipate any Material Adverse Effect
as a result of Year 2000 Issues.
6.21 DEFAULT. No Default or Unmatured Default has occurred and is
continuing.
6.22 REPRESENTATIONS AND WARRANTIES OF EACH SUBSIDIARY BORROWER. Each
Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary Borrower (i) is
a company duly formed and validly existing and in good standing under the laws
of the state or country of its organization (such jurisdiction being hereinafter
referred to as the "Home Country"); (ii) has the requisite power and authority
to own its property and assets and to carry on its business substantially as now
conducted except where the failure to have such requisite authority would not
have a material adverse effect on such Subsidiary Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver the
Alternate Currency Addendum to which it is a party and each other Loan Document
to which it is a party and the performance by it of its obligations thereunder
have been duly authorized by proper corporate proceedings.
(B) Binding Effect. Each Loan Document, including, without limitation,
any Alternate Currency Addendum, executed by such Subsidiary Borrower is the
legal, valid and binding obligations of such Subsidiary Borrower enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles.
(C) No Conflict; Government Consent. Neither the execution and delivery
by such Subsidiary Borrower of the Loan Documents to which it is a party, nor
the consummation by it of the transactions therein contemplated to be
consummated by it, nor compliance by such Subsidiary Borrower with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment,
-69-
76
injunction, decree or award binding on such Subsidiary Borrower or any of its
Subsidiaries or such Subsidiary Borrower's or any of its Subsidiaries' memoranda
or articles of association or the provisions of any indenture, instrument or
agreement to which such Subsidiary Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its property, is bound, or conflict with
or constitute a default thereunder, or result in the creation or imposition of
any lien in, of or on the property of such Subsidiary Borrower or any of its
Subsidiaries pursuant to the terms of any such indenture, instrument or
agreement in any such case which violation, conflict, default, creation or
imposition could reasonably be expected to have a material adverse effect on
such Subsidiary Borrower. No order, consent, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by,
any governmental agency is required to authorize, or is required in connection
with the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents.
(D) Filing. To ensure the enforceability or admissibility in evidence
of this Agreement and each Loan Document to which such Subsidiary Borrower is a
party (including, without limitation, any Alternate Currency Addendum) in its
Home Country, it is not necessary that this Agreement or any other Loan Document
to which such Subsidiary Borrower is a party or any other document be filed or
recorded with any court or other authority in its Home Country or that any stamp
or similar tax be paid to or in respect of this Agreement or any other Loan
Document of such Subsidiary Borrower. The qualification by any Lender or the
Administrative Agent for admission to do business under the laws of such
Subsidiary Borrower's Home Country does not constitute a condition to, and the
failure to so qualify does not affect, the exercise by any Lender or the
Administrative Agent of any right, privilege, or remedy afforded to any Lender
or the Administrative Agent in connection with the Loan Documents to which such
Subsidiary Borrower is a party or the enforcement of any such right, privilege,
or remedy against such Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii) result in any
tax or other monetary liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or taxing authority
thereof (provided that, should any such action result in any such tax or other
monetary liability to the Lender or the Administrative Agent, the Borrowers
hereby agree to indemnify such Lender or the Administrative Agent, as the case
may be, against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from such action
by such Lender or the Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the Administrative
Agent or any Lender will not constitute a Default) or (iii) violate any rule or
regulation of any federation or organization or similar entity of which the such
Subsidiary Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any of its assets
is entitled to immunity from suit, execution, attachment or other legal process.
Such Subsidiary Borrower's execution and delivery of the Loan Documents to which
it is a party constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(F) Application of Representations and Warranties. It is understood and
agreed by the parties hereto that the representations and warranties of each
Subsidiary Borrower in this Section 6.22 shall only be applicable to such
Subsidiary Borrower on and after the date of its execution of
-70-
77
an Assumption Letter and, if applicable, an Alternate Currency Addendum.
6.23 FOREIGN EMPLOYEE BENEFIT MATTERS. (a) Each Foreign Employee
Benefit Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Company or any Subsidiary or
any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained; and (d) there are no material actions, suits
or claims (other than routine claims for benefits) pending or, to the knowledge
of the Company and its Subsidiaries, threatened against the Company or any
Subsidiary of it or any member of its Controlled Group with respect to any
Foreign Employee Benefit Plan.
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1 REPORTING. The Company shall:
(A) Financial Reporting. Send to the Agents and the Lenders:
(i) QUARTERLY REPORTS. As soon as practicable and in any event
within forty-five (45) days after the end of the first three quarterly
periods of each of its fiscal years, for itself and the Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the end
of each such period and consolidated and consolidating statement of
income and consolidated and consolidating statement of changes in
owners' equity, and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, presented on
the same basis as described in SECTION 7.1(A)(ii) and on a comparative
basis with the statements for such period in the prior fiscal year of
the Company.
(ii) ANNUAL REPORTS. As soon as practicable, and in any event
within ninety (90) days after the end of each of its fiscal years, (a)
an audit report, certified (as to consolidated, but not consolidating
statements) by internationally recognized independent certified public
accountants, prepared in accordance with generally accepted accounting
principles, on a consolidated and consolidating basis for itself and
the Subsidiaries, including balance sheets as of the end of such
period, related statement of income and consolidated and consolidating
statement of changes in owners' equity, and a statement of cash flows,
which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position
of the Company and its Subsidiaries as at the dates indicated and the
results of operations and cash flows for the periods indicated in
conformity with
-71-
78
generally accepted accounting principles and that the examination by
such accountants in connection with such consolidated and consolidating
financial statements has been made in accordance with generally
accepted auditing standards and (b) projected balance sheets,
statements of income and cash flows for the three succeeding fiscal
years, prepared in accordance with generally accepted accounting
principles, on a consolidated basis, together with the appropriate
supporting details and a statement of underlying assumptions, all in
form similar to those delivered to the Lead Arrangers prior to the
Closing Date.
(iii) OFFICER'S CERTIFICATE. Together with each delivery of
any financial statement (a) pursuant to CLAUSES (i) and (ii) of this
SECTION 7.1(A), an Officer's Certificate of the Company, substantially
in the form of EXHIBIT E attached hereto and made a part hereof,
stating that as of the date of such Officer's Certificate no Default or
Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof and (b) pursuant to
CLAUSES (i) and (ii) of this SECTION 7.1(A), a compliance certificate,
substantially in the form of EXHIBIT F attached hereto and made a part
hereof, signed by the Company's chief financial officer, chief
accounting officer or treasurer, setting forth calculations for the
period then ended for SECTION 2.5(B), if applicable, which demonstrate
compliance, when applicable, with the provisions of SECTIONS 7.3(A)
through (G) and SECTION 7.4, and which calculate the Leverage Ratio for
purposes of determining the then Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer, controller
or general counsel of the Company obtaining actual knowledge (i) of any
condition or event which constitutes a Default or Unmatured Default, or becoming
aware that any Lender or Administrative Agent has given any written notice to
any Authorized Officer with respect to a claimed Default or Unmatured Default
under this Agreement, or (ii) that any Person has given any written notice to
any Authorized Officer or any Subsidiary of the Company or taken any other
action with respect to a claimed default or event or condition of the type
referred to in Section 8.1(D), the Company shall deliver to the Administrative
Agent and the Lenders an Officer's Certificate specifying (a) the nature and
period of existence of any such claimed default, Default, Unmatured Default,
condition or event, (b) the notice given or action taken by such Person in
connection therewith, and (c) what action the Company has taken, is taking and
proposes to take with respect thereto.
(C) LAWSUITS. (i) Promptly upon the Company obtaining actual knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any Governmental
Authority, against or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries not previously disclosed
pursuant to Section 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of its Subsidiaries to liability in an amount
aggregating $10,000,000 or more (exclusive of claims covered by insurance
policies of the Company or any of its Subsidiaries unless the
-72-
79
insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Company or any
of its Subsidiaries unless the indemnitor has disclaimed or reserved the right
to disclaim coverage thereof), give written notice thereof to the Administrative
Agent and the Lenders and provide such other information as may be reasonably
available to enable each Lender and the Administrative Agent and its counsel to
evaluate such matters; and (ii) in addition to the requirements set forth in
clause (i) of this Section 7.1(C), upon request of the Administrative Agent or
the Required Lenders, promptly give written notice of the status of any action,
suit, proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not jeopardize any attorney-client
privilege by disclosure to the Lenders to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
(D) ERISA NOTICES. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the following
information and notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after the Company, or within
twenty-five (25) Business Days after any member of the Controlled
Group, obtains knowledge that a Termination Event has occurred which
could reasonably be expected to subject the Company to liability in
excess of $25,000,000, a written statement of the chief financial
officer, treasurer or designee of the Company describing such
Termination Event and the action, if any, which the member of the
Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company, or
within twenty-five (25) Business Days after any of its Subsidiaries,
obtains knowledge that a material non-exempt prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer, treasurer or
designee of the Company describing such transaction and the action
which the Company or such Subsidiary has taken, is taking or proposes
to take with respect thereto;
(iii) within ten (10) Business Days after the Company, or
within twenty-five (25) Business Days after any of its Subsidiaries,
receives notice of any unfavorable determination letter from the IRS
regarding the qualification of a Plan under Section 401(a) of the Code,
copies of each such letter;
(iv) within ten (10) Business Days with respect to the
Company, and within twenty-five (25) Business Days with respect to a
member of the Controlled Group, after the filing thereof with the IRS,
a copy of each funding waiver request filed with respect to any Benefit
Plan and all communications received by the Company or a member of the
Controlled Group with respect to such request;
(v) within ten (10) Business Days after receipt by the
Company, or within twenty-five (25) Business Days after receipt by any
member of the Controlled Group, of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice;
-73-
80
(vi) within ten (10) Business Days after the Company, or
within twenty-five (25) days after any member of the Controlled Group,
fails to make a required installment or any other required payment
under Section 412 of the Code on or before the due date for such
installment or payment, a notification of such failure;
(vii) within ten (10) Business Days after the establishment of
any Foreign Employee Benefit Plan or the commencement of, or obligation
to commence, contributions to any Foreign Employee Benefit Plan to
which the Company or any Subsidiary was not previously contributing,
where the aggregate annual contributions to such Plan(s) resulting
therefrom are or could reasonably be expected to be in excess of
$10,000,000, notification of such establishment, commencement or
obligation to commence and the amount of such contributions; and
For purposes of this SECTION 7.1(D), the Company, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan which is a Single Employer Plan and which is
sponsored by such Company, Subsidiary or member of the Controlled Group,
respectively, and shall be deemed to know all facts known by the administrator
of any other Plan which is a Single Employer Plan 15 days after knowledge by
such administrator.
(E) LABOR MATTERS. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any material labor
dispute to which the Company or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any material Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of the Company or any of its
Subsidiaries.
(F) OTHER INDEBTEDNESS. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Company to the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $10,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Company from the holders of funded Indebtedness with an aggregate outstanding
principal amount in excess of $10,000,000 regarding potential or actual defaults
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Company.
(G) OTHER REPORTS. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial statements,
reports and non-routine notices, if any, sent or made available generally by the
Company to its securities holders or filed with the Commission by the Company,
and (ii) all notifications received from the Commission by the Company or its
Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules
promulgated thereunder other than routine reminders or notices that do not
relate to specific violations of rules promulgated by the Commission. The
Company shall include the Administrative Agent and the Lenders on its standard
distribution lists for all press releases made available generally by the
Company or any of the Company's Subsidiaries to the public concerning material
developments in the business of the Company or any such Subsidiary.
-74-
81
(H) ENVIRONMENTAL NOTICES. As soon as possible and in any event within
fifteen (15) days after receipt by the Company, deliver to the Administrative
Agent and the Lenders a copy of (i) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any violation
of any Environmental, Health or Safety Requirements of Law by the Company or any
of its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Company and each of its
Subsidiaries to liability individually or in the aggregate in excess of
$10,000,000.
(I) OTHER INFORMATION. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative Agent and
the Lenders such other information with respect to the Company or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
7.2 AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. The Company shall, and shall cause each
of its Subsidiaries to, at all times maintain its corporate existence and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its businesses except where, in the case
of Subsidiaries, failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(B) CORPORATE POWERS. The Company shall, and shall cause each of its
Subsidiaries to, qualify and remain qualified to do business in each
jurisdiction in which the nature of its business requires it to be so qualified
and where the failure to be so qualified will have or could reasonably be
expected to have a Material Adverse Effect.
(C) COMPLIANCE WITH LAWS, ETC. The Company shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, prospects, properties, assets
or operations of such Person, and (b) obtain as needed all permits necessary for
its operations and maintain such permits in good standing unless failure to
comply or obtain such permits could not reasonably be expected to have a
Material Adverse Effect.
(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Company shall
pay, and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, and (ii) all claims
(including, without limitation, claims for labor, services, materials and
supplies) for material sums which have become due and payable and which by law
have or may become a Lien (other than a Lien permitted by Section 7.3(C)) upon
any of the Company's or such Subsidiary's property or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto; provided,
however, that no such taxes, assessments and governmental charges referred to in
clause (i) above or claims referred to in clause (ii) above (and interest,
penalties or fines relating thereto) need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made therefor.
-75-
82
(E) INSURANCE. The Company will maintain, and will cause to be
maintained on behalf of each of its Subsidiaries, insurance coverage by
financially sound and reputable insurance companies or associations, against
such casualties and contingencies, of such types and in such amounts as are
customary for companies engaged in similar businesses and owning and operating
similar properties, it being understood that the Company and its Subsidiaries
may self-insure against hazards and risks with respect to which, and in such
amounts, as the Company in good faith determines prudent and consistent with
sound financial practice, and as are customary for companies engaged in similar
businesses and owning and operating similar properties. The Company shall
furnish to any Lender upon request full information as to the insurance carried.
(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Company
shall permit and cause each of the Company's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender (unless a Default has occurred and is continuing, only in conjunction
with an inspection conducted by the Administrative Agent) to visit and inspect,
for a reasonable purpose, any of the properties of the Company or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and their independent
certified public accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably requested. The
Company shall keep and maintain, and cause each of the Company's Subsidiaries to
keep and maintain proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses and activities.
(G) ERISA COMPLIANCE. The Company shall, and shall cause each of the
Company's Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans, except for
failures to comply which, in the aggregate, would not be reasonably likely to
subject the Company or any of its Subsidiaries to liability, individually or in
the aggregate, in excess of $10,000,000.
(H) MAINTENANCE OF PROPERTY. The Company shall cause all property used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
and except to the extent that the failure to so maintain such property could not
be reasonably expected to have a Material Adverse Effect.
(I) ENVIRONMENTAL COMPLIANCE. The Company shall, and shall cause each
of the Company's Subsidiaries to comply with, all Environmental, Health or
Safety Requirements of Law, except where noncompliance could not reasonably be
expected to have a Material Adverse Effect.
(J) USE OF PROCEEDS. The Borrowers shall use the proceeds of the
Advances to fund the
-76-
83
Dividend in whole or in part and to provide funds for the additional working
capital needs and other general corporate purposes of the Company and its
Subsidiaries, including, without limitation, the financing of Permitted
Acquisitions. The Company will not, nor will it permit any Subsidiary to, use
any of the proceeds of the Advances to make any Acquisition other than a
Permitted Acquisition made pursuant to Section 7.3(G).
(K) SUBSIDIARY GUARANTEES; SUBSIDIARY SUBORDINATION AGREEMENT. The
Company will:
(a) cause each Subsidiary Borrower that is a Domestic Subsidiary and
each Domestic Subsidiary which is a Wholly-Owned Subsidiary and has
assets with a book value in excess of $10,000,000 to execute the
Guaranty (and from and after the Closing Date cause each other
Subsidiary Borrower that is a Domestic Subsidiary and each other
Domestic Subsidiary which is a Wholly-Owned Subsidiary and has such
assets to execute and deliver to the Administrative Agent, within
ten (10) days after becoming a Subsidiary Borrower or another
Domestic Subsidiary which is a Wholly-Owned Subsidiary and has such
assets, as applicable, an assumption or joinder agreement pursuant
to which it agrees to be bound by the terms and provisions of the
Guaranty (whereupon such Subsidiary shall become a "Guarantor"
under this Agreement));
(b) in the event that at any time the book value of the assets of all
Domestic Subsidiaries which are not Wholly-Owned Subsidiaries and
are not Guarantors exceeds $100,000,000, within ten (10) days
thereafter cause one or more of such Subsidiaries to execute and
deliver to the Administrative Agent an assumption or joinder
agreement pursuant to which it or they agree to be bound by the
terms and provisions of the Guaranty (whereupon each such
Subsidiary shall become a "Guarantor" under this Agreement) such
that, after giving effect thereto, the book value of the assets of
all Domestic Subsidiaries which are not Wholly-Owned Subsidiaries
and are not Guarantors does not exceed $100,000,000;
(c) cause each Subsidiary, before it makes a loan to any of the
Borrowers, to execute the Subordination Agreement (and from and
after the Closing Date cause each other Subsidiary to execute and
deliver to the Administrative Agent, within ten (10) days after
becoming a Subsidiary, as applicable, an assumption or joinder
agreement pursuant to which it agrees to be bound by the terms and
provisions of the Subordination Agreement);
(d) deliver and cause such Subsidiaries to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably request,
all in form and substance reasonably satisfactory to the
Administrative Agent; and
(e) cause each Subsidiary which is a Subsidiary Borrower to be a
Wholly-Owned Subsidiary for so long as it remains a Subsidiary
Borrower.
(L) YEAR 2000 ISSUES. The Company shall, and shall cause each of its
Subsidiaries to,
-77-
84
take all actions reasonably necessary to address the Year 2000 Issues so that
any such Year 2000 Issues will not have a Material Adverse Effect. The Company
shall provide the Administrative Agent and each of the Lenders information
regarding the Company's and its Subsidiaries' program to address Year 2000
Issues. The Company shall advise the Administrative Agent, if after the date
hereof, it determines that Year 2000 Issues could reasonably be expected to have
a Material Adverse Effect.
(M) FOREIGN EMPLOYEE BENEFIT COMPLIANCE. The Company shall, and
shall cause each of its Subsidiaries and each member of its Controlled Group to,
establish, maintain and operate all Foreign Employee Benefit Plans to comply in
all material respects with all laws, regulations and rules applicable thereto
and the respective requirements of the governing documents for such Plans,
except for failures to comply which, in the aggregate, would not be reasonably
likely to subject the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $10,000,000.
(N) PLEDGE AGREEMENTS. Within 30 days after the date of this Agreement,
the Company and/or its Subsidiaries shall (a) grant, or cause to be granted, to
the Collateral Agent, to equally and ratably secure the Obligations, the
"Obligations" under the 364-Day Credit Agreement and all obligations of the
Company or its Subsidiaries under Hedging Agreements entered into in connection
with this Agreement or the 364-Day Credit Agreement, a pledge of 65% (or such
lesser percentage as is owned by the Company or applicable Subsidiary which is
not a Foreign Subsidiary) of the shares of the capital stock of each Subsidiary
listed on SCHEDULE 7.2, in each case pursuant to a Pledge Agreement and (b)
deliver to the Collateral Agent such Pledge Agreements, stock certificates and
stock powers relating to such shares and such opinions of counsel and other
documentation as the Collateral Agent may reasonably request. Notwithstanding
the foregoing, the Collateral Agent may, in its discretion, extend the time
period for delivery of the Pledge Agreements, stock certificates and stock
powers referenced in the preceding sentence. In addition, within 30 days (or, as
long as the Company uses its best efforts, such reasonably longer time as the
Company may need) after the date that any other Subsidiary is or becomes a
Foreign Subsidiary which is a Wholly-Owned Subsidiary, has assets with a book
value in excess of $10,000,000 and is owned by the Company and/or one or more
Domestic Subsidiaries, the Company shall, or as applicable shall cause its
Domestic Subsidiaries to, grant or cause to be granted to the Collateral Agent a
pledge of such Foreign Subsidiary's capital stock to the extent, in the manner
and accompanied by the documentation described in the preceding sentence.
7.3 NEGATIVE COVENANTS.
(A) SALE OF RECEIVABLES. The Company shall not, nor shall it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or without
recourse, except that the Company and the Subsidiaries may sell, transfer or
pledge any of their respective Receivables; provided, in the case of United
States domestic Receivables that the proceeds from the sale of such Receivables
are used to prepay the Term Loans in accordance with Section 2.5(C).
(B) SALES OF ASSETS. The Company shall not, nor shall it permit any
Subsidiary to, consummate any Asset Sale, except:
-78-
85
(i) Asset Sales in connection with the sale of Receivables
permitted under SECTION 7.3(A);
(ii) transfers of assets to the Company, between the Company
and any Guarantor which is a Domestic Subsidiary or between any such
Guarantors; and
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets if such transaction (a) is for not
less than fair market value (as determined in good faith by the
Company's chief financial officer), and (b) when combined with all such
other transactions (each such transaction being valued at book value)
and all Sale and Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period from the
Closing Date to the date of such proposed transaction, represents the
disposition of not greater than ten percent (10%) of the Company's
Consolidated Net Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered
into.
(C) LIENS. The Company shall not, nor shall it permit any Subsidiary
to, directly or indirectly create, incur, assume or permit to exist a Lien on or
with respect to the Capital Stock of any Subsidiary of the Company. In addition,
the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any of their respective other property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to property acquired by the Company
or any of its Subsidiaries after the date hereof (and not created in
contemplation of such acquisition) pursuant to a Permitted Acquisition;
PROVIDED, that such Liens shall extend only to the property so
acquired;
(iv) Liens on Receivables created in connection with a
transaction permitted under SECTION 7.3(A); PROVIDED, that each such
Lien represents an interest no greater than the related purchaser's
pro-rata interest in the pool of eligible Receivables so sold;
(v) Liens securing Indebtedness of a Subsidiary to the
Company;
(vi) Additional Liens, provided the Indebtedness secured
thereby does not exceed in the aggregate $10,000,000;
(vii) Liens, if any, created by the Loan Documents or
otherwise securing the Obligations and Liens securing Indebtedness
under the 364-Day Credit Agreement only to the extent such Liens are
equal and ratable with, or subordinate to, any Liens granted to the
Administrative Agent for the benefit of the Lenders; and
(viii) The replacement, extension or renewal of any Lien
permitted above upon or in the same property theretofore subject
thereto in connection with the replacement,
-79-
86
extension or renewal (pursuant to Permitted Refinancing Indebtedness)
of the obligations secured thereby.
(D) INDEBTEDNESS. The Company shall not, nor shall it permit any
Subsidiary to, cause or permit, directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and related Permitted
Refinancing Indebtedness of the type described in CLAUSE (i) of the
definition thereof;
(iii) Indebtedness in an aggregate principal amount not to
exceed $200,000,000 at any time incurred in connection with the 364-Day
Credit Agreement and related Permitted Refinancing Indebtedness of the
type described in CLAUSE (i) of the definition thereof;
(iv) Indebtedness arising from intercompany loans and advances
from the Company or any Subsidiary to any Domestic Subsidiary which is
a Guarantor; provided, that such Indebtedness shall be expressly
subordinate to the payment in full in cash of the Obligations;
(v) Contingent Obligations to the extent permitted under
SECTION 7.3(E);
(vi) Hedging Obligations;
(vii) Indebtedness incurred in connection with a
securitization to the extent such transaction is otherwise permitted
pursuant to SECTION 7.3(A);
(viii) additional unsecured Indebtedness in an aggregate
amount at any time outstanding not exceeding (a) $150,000,000, LESS (b)
the aggregate Dollar Amount of securitized (i) United States domestic
Receivables in excess of $250,000,000, and (ii) European Receivables in
excess of $100,000,000, LESS (c) the amount of Permitted Existing
Indebtedness, of which not more than $50,000,000 may be incurred by
Subsidiaries which are not Subsidiary Borrowers or Guarantors; and
(ix) additional unsecured Indebtedness, the proceeds of which
are used to repay the Term Loans.
(E) CONTINGENT OBLIGATIONS. The Company shall not, nor shall it permit
any Subsidiary to, directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, guaranties and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of the Company
or such Subsidiary; (iv) Contingent Obligations of the Subsidiaries of the
Company (a) under the Guaranty to which they are a party and (b) as guarantors
of the 364-
-80-
87
Day Credit Agreement, (v) obligations arising under or related to the Loan
Documents; (vi) Contingent Obligations in respect of other Indebtedness
permitted by Section 7.3(D) above, and (vii) additional Contingent Obligations
in an aggregate amount not to exceed in the aggregate five percent (5%) of
Consolidated Net Worth at any one time outstanding.
(F) RESTRICTED PAYMENTS. The Company shall not, nor shall it permit any
Subsidiary to, make or declare any Restricted Payments (other than (i) the
Dividend, and (ii) Restricted Payments to the Company or to a Wholly-Owned
Subsidiary of the Company); provided, however, that so long as no Default or an
Unmatured Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom, the Company may make
Restricted Payments (in addition to the Dividend) in an aggregate amount of up
to 25% of Net Income for the prior fiscal year.
(G) CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS. The Company shall
not, nor shall it permit any Subsidiary to, engage in any business other than
the businesses engaged in by the Company on the date hereof and any business or
activities which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize any
Subsidiary after the date hereof unless (i) no Default or Unmatured Default
which is not being cured shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct in all
material respects (unless such representation and warranty is made as of a
specific date, in which case, such representation or warranty shall be true in
all material respects as of such date); and (iii) after such creation,
acquisition or capitalization the Company shall be in compliance with the terms
of Section 7.2(K). The Company shall not make any Acquisitions, other than
Acquisitions meeting the following requirements (each such Acquisition
constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the target
company's board of directors (and shareholders, if necessary) prior to
the consummation of the Acquisition;
(iii) if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock consideration
paid and Indebtedness or other liabilities assumed) exceeds
$25,000,000, prior to each such Acquisition, the Company shall have
delivered to the Administrative Agent and the Lenders a certificate
from one of the Authorized Officers, demonstrating that after giving
effect to such Acquisition, on a PRO FORMA basis in respect of each
such Acquisition as if the Acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of the Company's most recently completed fiscal
quarter, the Company would have been in compliance with the financial
covenants in SECTION 7.4 and not otherwise in Default;
(iv) if the purchase price for the Acquisition exceeds,
together with all other Permitted Acquisitions permitted under this
SECTION 7.3(G) during the same fiscal year, $150,000,000 (the
"PERMITTED ACQUISITION BASKET") (including the incurrence or assumption
-81-
88
of any Indebtedness in connection therewith), the Required Lenders
shall have consented to such Acquisition; PROVIDED that (a) if the Term
Loans have been repaid and all of the Term Loan Commitments have been
irrevocably terminated, the Permitted Acquisition Basket shall be
$250,000,000 and (b) if the Term Loans have been repaid and all of the
Term Loan Commitments have been irrevocably terminated and the
Company's senior unsecured debt is rated "BBB" or better by Standard &
Poor's Ratings Group or "Baa" or better by Xxxxx'x Investors Services,
Inc., the Permitted Acquisition Basket shall be $350,000,000;
(v) the businesses being acquired shall be similar to that of
the Company and its Subsidiaries as of the Closing Date, related or
incidental thereto or logical extensions thereof; and
(vi) such Acquisition shall be structured as an asset
acquisition, as an acquisition of one hundred percent (100%) of the
outstanding voting securities of the target company or as a merger
permitted hereby.
(H) INVESTMENTS. Neither the Company nor any of its Subsidiaries shall
purchase or acquire, or make any commitment therefor, any capital stock, equity
interest, or any obligations or other securities of, or any interest in, any
Person, or make or commit to make any advance, loan, extension of credit or
capital contribution to or any other investment in, any Person including any
Affiliate of the Company, except for:
(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor;
(ii) Investments incurred in order to consummate Permitted
Acquisitions otherwise permitted herein;
(iii) Investments in Cash Equivalents; and
(iv) other Investments in an aggregate amount not to exceed
$20,000,000 (based on the initial amount invested).
(I) TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Neither the Company
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with, or make loans
or advances to, any Affiliate of the Company which is not its Wholly-Owned
Subsidiary, on terms that are less favorable to the Company or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate, except for (i) Restricted Payments permitted by Section 7.3(F) and
(ii) as otherwise contemplated by the Spin-off Materials.
(J) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Company nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Company's consolidated business or
property (each such transaction a "FUNDAMENTAL CHANGE"), whether now or
hereafter acquired,
-82-
89
except (i) Fundamental Changes permitted under Sections 7.3(B), 7.3(D) or
7.3(G), (ii) a Subsidiary of the Company may be merged into or consolidated with
the Company or any Wholly-Owned Subsidiary of the Company (in which case the
Company or such Wholly-Owned Subsidiary shall be the surviving corporation);
provided that if the predecessor Subsidiary was a Guarantor, the surviving
Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation
of any Subsidiary of the Company into the Company or another Subsidiary of the
Company, as applicable, and (iv) the Company may merge with any other Person, or
any Subsidiary of the Company may consolidate or merge with any other Person,
provided, that (A) no Default or Unmatured Default shall exist immediately after
giving effect to such Fundamental Change, (B) in the case of any merger of the
Company, the Company is the surviving corporation in such merger and such merger
is with a Person in a line of business substantially similar to that of the
Company and its Subsidiaries as of the Closing Date or any business or
activities which are similar, related or incidental thereto or logical
extensions thereof, and (C) in the case of any merger or consolidation of any
Subsidiary of the Company, the surviving corporation in such Fundamental Change
is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and
if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be
a Guarantor hereunder, and (D) such transaction is with a Person in a line of
business substantially similar to that of the Company and its Subsidiaries as of
the Closing Date.
(K) MARGIN REGULATIONS. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. (a) The Company shall not:
(i) engage, or permit any of its Subsidiaries to engage, in
any material prohibited transaction described in Sections 406 of ERISA
or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from
the DOL;
(ii) permit to exist any material accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required material contributions or material annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Company or any Controlled Group member under Title IV
of ERISA;
(v) fail to make any material contribution or payment to any
Multiemployer Plan which the Company or any Controlled Group member may
be required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
-83-
90
(vi) permit any material unfunded liabilities with respect to
any Foreign Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by the
Borrower or any member of its Controlled Group and such annual
contributions are not less than the minimum amounts, if any, required
under applicable local law;
(vii) fail, or permit any of its Subsidiaries or Controlled
Group members to fail, to pay any required contributions or payments to
a Foreign Pension Plan on or before the due date for such required
installment or payment;
(viii) fail, or permit any Controlled Group member to fail, to
pay any required material installment or any other payment required
under Section 412 of the Code on or before the due date for such
installment or other payment; or
(ix) amend, or permit any Controlled Group member to amend, a
Plan resulting in a material increase in current liability for the plan
year such that the Company or any Controlled Group member is required
to provide security to such Plan under Section 401(a)(29) of the Code.
(b) For purposes of this SECTION 7.3(L), "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Company or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $25,000,000.
(M) CERTAIN DOCUMENTS. Neither the Company nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions of the
Distribution Agreement, the Tax Disaffiliation Agreement (as such terms are
referenced in the definition of "Spin-off Materials") or of any of their
respective constituent documents as in effect on the date hereof in any manner
materially adverse to the interests of the Lenders.
(N) FISCAL YEAR. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the twelve-month period ending on the Friday nearest to the
last day of June of each year, except as required by Agreement Accounting
Principles or by law and disclosed to the Lenders and the Administrative Agent.
(O) SUBSIDIARY COVENANTS. The Company will not, and will not permit any
Subsidiary to, create or otherwise permit to exist or cause to become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock, or make
any other Restricted Payment, pay any Indebtedness or other Obligation owed to
the Company or any other Subsidiary, make loans or advances or other Investments
in the Company or any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary.
(P) HEDGING OBLIGATIONS. The Company shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its
-84-
91
Subsidiaries has hedged its actual or anticipated interest rate, foreign
currency or commodity exposure. Such permitted hedging agreements entered into
by the Company or its Subsidiaries and any Lender or any Affiliate of any Lender
are sometimes referred to herein as "HEDGING AGREEMENTS."
(Q) CAPITAL EXPENDITURES. The Company shall not, and shall not permit
any of its Subsidiaries to, make Capital Expenditures in any fiscal year to the
extent that during any fiscal year the aggregate amount of Capital Expenditures
for the Company and its Subsidiaries would exceed (i) for fiscal years ending
prior to the third anniversary of the Closing Date, $150,000,000, and (ii)
thereafter, $175,000,000, in each case excluding any amount attributable to a
Permitted Acquisition.
(R) RESTRICTIVE AGREEMENTS. The Company shall not, nor shall it permit
any of its Subsidiaries to, enter into any indenture, agreement, instrument or
other arrangement which directly or indirectly prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of the Company or any Subsidiary to create Liens
upon their assets securing the Obligations or of any Subsidiary to (a) pay
dividends or make other distributions (i) on its Capital Stock or (ii) with
respect to any other interest or participation in, or measured by, its profits,
(b) make loans or advances to the Company or any Subsidiary, (c) repay loans or
advances from the Company or any Subsidiary or (d) transfer any of its
properties to the Company or any Subsidiary.
7.4 FINANCIAL COVENANTS.
(A) MINIMUM COVERAGE RATIO. The Company shall maintain as of the end of
each fiscal quarter set forth below a ratio of (i) EBITDAR for the four fiscal
quarter period then ending to (ii) Interest Expense plus Rentals for such period
of not less than the ratio set forth below opposite such period:
-85-
92
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 2.75
July 1, 2000 through June 29, 2001 2.75
June 30, 2001 through June 28, 2002 3.00
June 29, 2002 through June 27, 2003 3.25
June 28, 2003 through July 2, 2004 3.50
July 3, 2004 and thereafter 3.75
(B) MAXIMUM LEVERAGE RATIO. The Company shall maintain as of the end of
each fiscal quarter set forth below a Leverage Ratio for the four fiscal quarter
period then ending of not greater than the ratio set forth below opposite such
period:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 3.25
July 1, 2000 through June 29, 2001 3.00
June 30, 2001 through June 28, 2002 2.75
June 29, 2002 through June 27, 2003 2.50
June 28, 2003 through July 2, 2004 2.25
July 3, 2004 and thereafter 2.00
(C) MINIMUM CONSOLIDATED NET WORTH. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a) 85% of
Consolidated Net Worth on the date immediately following the Closing Date plus
(b) fifty percent (50%) of Net Income (if positive) calculated separately for
(i) the remainder of the quarterly accounting period in which the Closing Date
occurs and (ii) each subsequent quarterly accounting period, in each case,
excluding changes in cumulative foreign exchange translation adjustment.
ARTICLE VIII: DEFAULTS
8.1 DEFAULTS. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) FAILURE TO MAKE PAYMENTS WHEN DUE. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations consisting of
principal with respect to any Loan or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(B) BREACH OF CERTAIN COVENANTS. The Company or any Subsidiary Borrower
shall fail duly and punctually to perform or observe any agreement, covenant or
obligation binding on it under:
(i) SECTIONS 7.1(B), 7.2(J), 7.2(K), 7.3 or 7.4 or
(ii) any section of this Agreement or any other Loan Document
not covered by SECTION 8.1(A) or 8.1(B)(i) and such failure shall
continue unremedied for thirty (30) days after the occurrence thereof.
-86-
93
(C) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents or in
any statement or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false as to a material fact or
matter on the date as of which made or deemed made.
(D) Default as to Other Indebtedness.
(i) The Company or any of its Subsidiaries shall fail to pay
when due any Indebtedness arising under the 364-Day Agreement
aggregating in excess of $10,000,000 (any such Indebtedness being
"MATERIAL INDEBTEDNESS"); or the Company or any of its Subsidiaries
shall fail to perform (beyond the applicable grace period with respect
thereto, if any) any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created or is
governed, or any other event shall occur or condition exist, the effect
of which default or event is to cause, or to permit the holder or
holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall
be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof.
(E) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company
or any of the Company's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company or any of the Company's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company or any of the Company's Subsidiaries or over all or a
substantial part of the property of the Company or any of the Company's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of the Company or any of the Company's Subsidiaries or of all
or a substantial part of the property of the Company or any of the
Company's Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the
property of the Company or any of the Company's Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment or
issuance.
(F) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Company or
any of the Company's Subsidiaries shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under
-87-
94
any such law, (iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property, (iv) make any assignment for the benefit of creditors or (v) take any
corporate action to authorize any of the foregoing.
(G) JUDGMENTS AND ATTACHMENTS. Any money judgment(s) (other than a
money judgment covered by insurance as to which the applicable insurance company
has not disclaimed or reserved the right to disclaim coverage), writ or warrant
of attachment, or similar process against the Company or any Material Subsidiary
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $10,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed
sale thereunder.
(H) DISSOLUTION. Any order, judgment or decree shall be entered against
the Company or any Material Subsidiary decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of forty-five (45) days; or the Company or any Material Subsidiary shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(I) TERMINATION EVENT. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to liability in
excess of $25,000,000. The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $50,000,000.
(J) WAIVER OF MINIMUM FUNDING STANDARD. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or any Controlled
Group member to liability in excess of $25,000,000.
(K) CHANGE OF CONTROL. A Change of Control shall occur.
(L) GUARANTOR REVOCATION. Any Guaranty shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect; in each
case other than a Guarantor's ceasing to be a Subsidiary Borrower pursuant to
Section 2.24 hereof or the disposition of such Guarantor in any transaction
permitted by Section 7.3(B) hereof.
(M) SPIN-OFF. The Spin-off shall not be consummated within three (3)
Business Days after the making of the initial Loans.
(N) PLEDGE AGREEMENT. Any Pledge Agreement shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Pledge Agreement, or any pledgor under any
Pledge Agreement shall fail to comply with any of the terms or provisions of
such Pledge Agreement or shall deny, or give notice to such effect, that it has
any further liability under such Pledge Agreement.
-88-
95
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.2.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION. If any
Default described in SECTION 8.1(E) or 8.1(F) occurs with respect to the Company
or any Subsidiary Borrower, the obligations of the Lenders to make Loans
(including, without limitation, Alternate Currency Loans) hereunder and the
obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders may terminate
or suspend the obligations of the Lenders to make Loans (including, without
limitation, Alternate Currency Loans) hereunder and the obligation of the
Issuing Banks to issue Letters of Credit hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrowers expressly waive.
9.2 AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Revolving Loan Termination Date,
the Term Loan Termination Date or any other date fixed for any payment
of principal of, or interest on, the Loans, the Reimbursement
Obligations or any fees or other amounts payable to such Lender (except
with respect to a waiver of the application of the default rate of
interest pursuant to SECTION 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders hereunder specified
to be the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders", "Pro Rata
Revolving Share", "Pro Rata Share" or "Pro Rata Term Share."
(iv) Increase the amount of the Revolving Loan Commitment or
Term Loan Commitment of any Lender hereunder or increase any Lender's
Pro Rata Share, Pro Rata Revolving Share or Pro Rata Term Share.
(v) Permit the Company or any Subsidiary Borrower to assign
its rights under this Agreement.
-89-
96
(vi) Release the Company from its obligations under the
Guaranty set forth in ARTICLE X hereof.
(vii) Amend this SECTION 9.2.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) any Issuing Bank shall be effective without the
written consent of such Issuing Bank and (c) any Swing Line Loan or Swing Line
Bank shall be effective without the written consent of the applicable Swing Line
Bank. The Administrative Agent may waive payment of the fee required under
SECTION 14.3(B) without obtaining the consent of any of the Lenders.
9.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Company or
any other Borrower to satisfy the conditions precedent to such Loan or issuance
of such Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to SECTION 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X : GUARANTY
10.1 GUARANTY. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Subsidiary Borrower and to make, issue and participate in Letters of Credit,
Swing Line Loans and Alternate Currency Loans, the Company hereby absolutely and
unconditionally guarantees prompt payment when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of any and all
existing and future obligations including without limitation the Obligations, of
each Subsidiary Borrower to the Agents, the Lenders, the Swing Line Banks, the
Issuing Lenders, the Alternate Currency Banks, or any of them, under or with
respect to the Loan Documents or under or with respect to any Hedging Agreement
entered into in connection with this Agreement, whether for principal, interest,
fees, expenses or otherwise (collectively, the "GUARANTEED OBLIGATIONS", and
each such Subsidiary Borrower being an "OBLIGOR" and collectively, the
"OBLIGORS").
10.2 WAIVERS. The Company waives notice of the acceptance of this
guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Company further waives presentment, protest, notice of
notices delivered or demand made on any Obligor or action or delinquency in
respect of the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to xxx any Obligor, any
other guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise
-90-
97
to enforce payment thereof against any collateral securing the Guaranteed
Obligations or any part thereof, and PROVIDED FURTHER that if at any time any
payment of any portion of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of any of the Obligors or otherwise, the Company's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had not been made and whether or not the Administrative
Agent or the Lenders are in possession of this guaranty. The Administrative
Agent and the Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the Obligors.
10.3 GUARANTY ABSOLUTE. This guaranty is a guaranty of payment and not
of collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent's
or any Lender's election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion any Lender's claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor other than the defense of payment; all whether or not the Company
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (a) through (n) of this paragraph. It is agreed that the
Company's liability hereunder is several and independent of any other guaranties
or other obligations at any time
-91-
98
in effect with respect to the Guaranteed Obligations or any part thereof and
that the Company's liability hereunder may be enforced regardless of the
existence, validity, enforcement or non-enforcement of any such other guaranties
or other obligations or any provision of any applicable law or regulation
purporting to prohibit payment by any Obligor of the Guaranteed Obligations in
the manner agreed upon between the Obligor and the Administrative Agent and the
Lenders.
10.4 ACCELERATION. The Company agrees that, as between the Company on
the one hand, and the Lenders and the Administrative Agent, on the other hand,
the obligations of each Obligor guaranteed under this ARTICLE X may be declared
to be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in SECTION 9.1 hereof for purposes of this ARTICLE X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this ARTICLE X.
10.5 MARSHALING; REINSTATEMENT. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to xxxxxxxx any assets in
favor of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any Borrower or any other guarantor of all or any
part of the Guaranteed Obligations makes a payment or payments to any Lender or
the Administrative Agent, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, the Company, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6 SUBROGATION. Until the irrevocable payment in full of the
Obligations and termination of all commitments which could give rise to any
Guaranteed Obligation, the Company hereby (i) waives and postpones any right of
subrogation with respect to the Guaranteed Obligations, (ii) waives and
postpones any right to enforce any remedy which the Administrative Agent and/or
the Lenders now has or may hereafter have against the Company, any endorser or
any other guarantor of all or any part of the Guaranteed Obligations, and (iii)
waives and postpones any benefit of, and any right to participate in, any
security or collateral given to the Administrative Agent and/or the Lenders to
secure payment of the Guaranteed Obligations or any part thereof or any other
liability of any Obligor to the Administrative Agent and/or the Lenders.
10.7 TERMINATION DATE. This guaranty shall continue in effect until the
earlier of (a) the Facility Termination Date, and (b) the date on which this
Agreement has otherwise expired or been terminated in accordance with its terms
and all of the Guaranteed Obligations have been paid in full in cash.
ARTICLE XI: GENERAL PROVISIONS
-92-
99
11.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Company contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
11.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agents and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agents and the
Lenders relating to the subject matter thereof other than the Fee Letters.
11.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.6 EXPENSES; INDEMNIFICATION.
(A) Expenses. The Borrowers shall reimburse the Administrative Agent
for any reasonable costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Administrative Agent, Issuing Banks, Swing Line Banks and Alternative
Currency Banks paid or incurred by the Administrative Agent in connection with
the preparation, negotiation, execution, delivery, syndication, review, proposed
or completed amendment, waiver or modification, and administration of the Loan
Documents. The Borrowers also agree to reimburse the Agents, each Alternate
Currency Bank, and each Lead Arranger and each of the Lenders for any reasonable
costs and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agents,
each Alternate Currency Bank, each Lead Arranger and each Lender, which
attorneys and paralegals may be employees of such Agent, such Alternate Currency
Bank, such Lead Arranger, or the Lenders) paid or incurred by the Agents, the
Alternate Currency Banks or the Lead Arrangers or any Lender in connection with
the collection of the Obligations and enforcement of the Loan Documents. The
Administrative Agent shall provide the Borrowers with a detailed statement of
all reimbursements requested under this Section 11.6(A).
-93-
100
(B) Indemnity. The Borrowers hereby further agree to indemnify the
Agents, the Lead Arrangers, the Alternate Currency Banks, the Issuing Banks and
each and all of the Lenders and each of their respective Affiliates, and each of
such Agent's, Lead Arranger's, Alternate Currency Bank's, Issuing Bank's,
Lender's and Affiliate's directors, officers, employees, attorneys and agents
(all such persons, "Indemnitees") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not such
Indemnitee is a party thereto) which any of them may pay or incur arising out of
or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder except to the extent that they
are determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the party seeking indemnification.
(C) Waiver of Certain Claims. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 11.6 shall survive the termination of this
Agreement.
11.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.8 ACCOUNTING. Except with respect to the pricing grid calculations
in Section 2.15 and the financial covenant calculations in Section 7.4 both of
which shall be made in accordance with Agreement Accounting Principles as in
effect on the date hereof, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with
generally accepted accounting principles as in effect from time to time,
consistently applied.
11.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.10 NONLIABILITY OF LENDERS. The relationship between the Borrowers
and the Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrowers or the Guarantors. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any
Borrower or Guarantor to review or inform any Borrower or Guarantor of any
matter in connection with any phase of the Borrowers' business or operations.
11.11 GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS
-94-
101
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (BUT WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK.
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, BUT THE PARTIES
HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN
-95-
102
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF SECTION 11.6 AND THIS SECTION 11.12, WITH ITS COUNSEL.
11.13 OTHER TRANSACTIONS. Each of the Agents, the Lead Arrangers, the
Lenders, the Issuing Banks, the Swing Line Banks and the Borrowers acknowledge
that the Agents and the Lenders (or Affiliates of the Agents and the Lenders)
may, from time to time, effect transactions for their own accounts or the
accounts of customers, and hold positions in loans or options on loans of the
Company, the Company's Subsidiaries and other companies that may be the subject
of this credit arrangement and nothing in this Agreement shall impair the right
of any such Person to enter into any such transaction (to the extent it is not
expressly prohibited by the terms of this Agreement) or give any other Person
any claim or right of action hereunder as a result of the existence of the
credit arrangements hereunder, all of which are hereby waived. In addition,
certain Affiliates of one or more of the Lenders are or may be securities firms
and as such may effect, from time to time, transactions for their own accounts
or for the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents may from time to time
provide other financial services and products to the Company and its
Subsidiaries.
11.14 AGREEMENT EFFECTIVENESS. This Agreement shall be binding upon the
signatories hereto upon its execution by all parties other than the
Multicurrency Swing Line Bank despite the fact that the Agreement has not been
signed by the Multicurrency Swing Line Bank. Notwithstanding any provision
herein to the contrary, unless and until the Multicurrency Swing Line Bank shall
have executed this Agreement (whereupon it shall be bound hereby) the Borrowers
shall not be entitled to borrow Multicurrency Swing Line Loans.
ARTICLE XII : THE ADMINISTRATIVE AGENT
12.1 APPOINTMENT; NATURE OF RELATIONSHIP. ABN is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this ARTICLE XII. Notwithstanding the use of the
defined term "Administrative Agent,"
-96-
103
it is expressly understood and agreed that the Administrative Agent shall not
have any fiduciary responsibilities to any Holder of Obligations by reason of
this Agreement and that the Administrative Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Administrative Agent (i) does not assume any
fiduciary duties to any of the Holders of Obligations, (ii) is a
"representative" of the Holders of Obligations within the meaning of Section
9-105 of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Lenders, for
itself and on behalf of its Affiliates as Holders of Obligations, agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Holder of Obligations waives.
12.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Person.
12.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents, or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of any
guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.
12.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all
-97-
104
owners of Loans and on all Holders of Obligations. The Administrative Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
12.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 THE ADMINISTRATIVE AGENT'S, ISSUING BANKS' AND ALTERNATE CURRENCY
BANKS' REIMBURSEMENT AND INDEMNIFICATION. (a) The Lenders agree to reimburse and
indemnify the Administrative Agent ratably in proportion to their respective Pro
Rata Shares (i) for any expenses incurred by the Administrative Agent on behalf
of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (ii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen primarily from the gross negligence or willful
misconduct of the Administrative Agent.
(b) The Lenders with a Revolving Loan Commitment agree to
reimburse and indemnify the Administrative Agent, the Issuing Banks, the Swing
Line Banks and the Alternate Currency Banks ratably in proportion to their
respective Pro Rata Revolving Shares (i) any amounts not reimbursed by any
Borrower for which the Administrative Agent, the Issuing Banks, the Swing Line
Banks and the Alternate Currency Banks are entitled to reimbursement by any
Borrower under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent, any Issuing Bank, any Swing Line Bank or any Alternate
Currency Bank on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent, any Issuing Bank, any Swing Line Bank or any Alternate
Currency Bank in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or
-98-
105
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
primarily from the gross negligence or willful misconduct of the Administrative
Agent, the applicable Issuing Bank, the applicable Swing Line Bank or the
applicable Alternate Currency Bank.
12.9 RIGHTS AS A LENDER. With respect to its Revolving Loan Commitment,
Loans made by it, Swing Line Loans made by it, and Letters of Credit issued by
it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender or Issuing Bank and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders", "Swing Line Bank", "Swing Line Banks", "Issuing Bank" or "Issuing
Banks" shall, unless the context otherwise indicates, include the Administrative
Agent in its individual capacity. The Administrative Agent may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Company or any of its Subsidiaries in which such
Person is not prohibited hereby from engaging with any other Person.
12.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on the financial statements prepared by
the Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
12.11 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Company prior to the occurrence of a Default (which
consent shall not be unreasonably withheld), to appoint, on behalf of the
Borrowers and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
-99-
106
12.12 NO DUTIES IMPOSED UPON SYNDICATION AGENT, DOCUMENTATION AGENT OR
LEAD ARRANGERS. None of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a "Syndication Agent" or "Documentation Agent" or "Lead Arranger" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than, if such Person is a Lender, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Persons identified
on the cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreements as a "Syndication Agent" or "Documentation Agent"
or "Lead Arranger" shall have or be deemed to have any fiduciary duty to or
fiduciary relationship with any Lender. In addition to the agreements set forth
in SECTION 12.10, each of the Lenders acknowledges that it has not relied, and
will not rely, on any of the Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
12.13 COLLATERAL AGENT. ABN is appointed by the Lenders as the
Collateral Agent hereunder and under each of the Pledge Agreements. Each
reference to the Administrative Agent in this Article XII shall be deemed to
refer also to the Collateral Agent.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to the Company or any other Borrower (including all
account balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
13.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 4.1, 4.2 OR 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 APPLICATION OF PAYMENTS. The Administrative Agent shall apply all
payments and prepayments in respect of any Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any Lender
for which the Administrative Agent has not then been reimbursed by such Lender
or the applicable Borrower and to pay any Swing Line Loan, Alternate Currency
Loan or Reimbursement Obligation that has not been unpaid;
(B) second, to the ratable payment of the Obligations then due and
payable; and
(C) third, to the ratable payment of all other Obligations.
-100-
107
13.4 RELATIONS AMONG LENDERS. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (A) no
Borrower shall have any right to assign its rights or obligations under the Loan
Documents without the consent of all of the Lenders, and any such assignment in
violation of this SECTION 14.1(A) shall be null and void, and (B) any assignment
by any Lender must be made in compliance with SECTION 14.3 hereof.
Notwithstanding clause (B) of this SECTION 14.1 or SECTION 14.3, (i) any Lender
may at any time, without the consent of any Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement to a Federal
Reserve Bank and (ii) any Lender which is a fund or commingled investment
vehicle that invests in commercial loans in the ordinary course of its business
may at any time, without the consent of any Borrower or the Administrative
Agent, pledge or assign all or any part of its rights under this Agreement to a
trustee or other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or securities;
provided, however, that no such assignment or pledge shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat each Lender as the owner of the Loans made by such Lender hereunder for
all purposes hereof unless and until such Lender complies with SECTION 14.3
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Loan, Revolving Loan Commitment, L/C
Interest or any other interest of a lender under the Loan Documents agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of any
Loan, shall be conclusive and binding on any subsequent owner, transferee or
assignee of such Loan.
14.2 PARTICIPATIONS.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 14.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan Documents on a pro
rata or non-pro rata basis. Notice of such participation to the Company and the
Administrative Agent shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender or an Affiliate
thereof. Upon receiving said notice, the Administrative Agent shall record the
participation in the Register it maintains. Moreover, notwithstanding such
recordation, such participation shall not be considered an assignment under
Section 14.3 of this Agreement and such Participant shall not be considered a
Lender. In the event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of all Loans made by it for all purposes under the Loan Documents, all
amounts payable by the applicable Borrower under this Agreement shall be
-101-
108
determined as if such Lender had not sold such participating interests, and the
applicable Borrower and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents except that, for purposes of Article IV
hereof, the Participants shall be entitled to the same rights as if they were
Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan, Letter of Credit or Revolving Loan Commitment
in which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment.
14.3 ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. (i) Any Lender (each such assigning Lender
under this Section 14.3 being a "SELLER") may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities (other than the Company or any of its Affiliates)
("PURCHASERS") all or a portion of its rights and obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment, any
Loans owing to it, all of its participation interests in existing Letters of
Credit, Swing Line Loans and Alternate Currency Loans, and its obligation to
participate in additional Letters of Credit, Swing Line Loans and Alternate
Currency Loans hereunder) in accordance with the provisions of this Section
14.3. Such assignment shall be substantially in the form of Exhibit D hereto and
shall not be permitted hereunder unless such assignment is either for all of
such Seller's rights and obligations under the Loan Documents or, without the
prior written consent of the Administrative Agent and the Company, involves
loans and commitments as a consequence of which neither the Seller nor the
Purchaser will have a Commitment of less than $5,000,000 (for Sellers which are
Managing Agents or Agents) or $10,000,000 (for all other Sellers); provided that
the foregoing restrictions with respect to Commitments having a minimum
aggregate amount (i) shall not apply to any assignment between Lenders, or to an
Affiliate or Approved Fund of any Lender, and (ii) in any event may be waived by
the Administrative Agent and the Company). The written consent of the
Administrative Agent, and, prior to the occurrence of a Default, the Company
(which consent, in each such case, shall not be unreasonably withheld), shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate or Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein, any
Lender (each such Lender, a "GRANTING BANK") may grant to a special purpose
funding vehicle (each such special purpose funding vehicle, a "SPC"), identified
as such in writing from time to time by the applicable Granting Bank to the
Administrative Agent and the Company, the option to provide to the Company and
the other Borrowers all or any part of any Advance that such Granting Bank would
otherwise be obligated to make to the applicable Borrower pursuant to this
Agreement; provided, that (i) nothing herein shall constitute a commitment by
any SPC to make any Advance, (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Advance, the applicable
Granting Bank shall be obligated to make such Advance pursuant to the terms
hereof. The
-102-
109
making of an Advance by any SPC hereunder shall utilize the Revolving Loan
Commitment of the applicable Granting Bank to the same extent, and as if, such
Advance were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or other similar payment obligation under
this Agreement (all liability for which shall remain with the applicable
Granting Bank). All notices hereunder to any Granting Bank or the related SPC,
and all payments in respect of the Obligations due to such Granting Bank or the
related SPC, shall be made to such Granting Bank. In addition, each Granting
Bank shall vote as a Lender hereunder without giving effect to any assignment
under this SECTION 14.3(A)(II), and not SPC shall have any vote as a Lender
under this Agreement for any purpose. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereto. In addition, notwithstanding anything to the contrary contained
in this SECTION 14.3, any SPC may (i) with notice to, but without the prior
written consent of, the Company and the Administrative Agent and without paying
any processing or administrative fee therefor, assign all or a portion of its
interest in any Advances to the Granting Bank or to any financial institutions
(consented to by the Company and the Administrative Agent in accordance with the
terms of SECTION 14.3(A)(I)) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Advances and
(ii) disclose on a confidential basis any non-public information relating to its
Advances to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This SECTION
14.3(A)(II) may not be amended without the written consent of each SPC affected
thereby.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent and the Alternate Currency Banks of a notice of assignment, substantially
in the form attached as Appendix I to Exhibit D hereto (a "NOTICE OF
ASSIGNMENT"), together with any consent required by Section 14.3(A) hereof, (ii)
payment of a $3,500 fee by the assignee or the assignor (as agreed) to the
Administrative Agent for processing such assignment (other than an assignment by
a Lender to an Affiliate of such Lender or an Approved Fund of such Lender), and
(iii) the completion of the recording requirements in Section 14.3(C), such
assignment shall become effective on the later of such date when the
requirements in clauses (i), (ii), and (iii) are met or the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Revolving Loan Commitment, Loans and L/C
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by any Borrower, the
Lenders, the Alternate Currency Banks or the Administrative Agent shall be
required to release the Seller with respect to the percentage of the Aggregate
Revolving Loan Commitment, Loans and Letter of Credit, Swing Line Loans and
Alternate Currency Loan participations assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section 14.3(B),
the Seller, the Administrative Agent, the
-103-
110
Alternate Currency Banks and the Borrowers shall make appropriate arrangements
so that, to the extent notes have been issued to evidence any of the transferred
Loans, replacement notes are issued to such Seller and new notes or, as
appropriate, replacement notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Revolving Loan Commitment, as adjusted
pursuant to such assignment. Notwithstanding anything to the contrary herein, no
Borrower shall, at any time, be obligated to pay under Section 2.15(E) to any
Lender that is a Purchaser, assignee or transferee any sum in excess of the sum
which such Borrower would have been obligated to pay to the Lender that was the
Seller, assignor or transferor had such assignment or transfer not been
effected.
(C) THE REGISTER. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and the
Administrative Agent hereby accepts such designation, to serve as such
Borrower's contractual representative solely for purposes of this Section
14.3(C). In this connection, the Administrative Agent shall maintain at its
address referred to in Section 15.1 a copy of each assignment delivered to and
accepted by it pursuant to this Section 14.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of, principal amount of and interest on the Loans owing to, each
Lender from time to time and whether such Lender is an original Lender or the
assignee of another Lender pursuant to an assignment under this Section 14.3.
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company and each of its Subsidiaries, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
14.4 CONFIDENTIALITY. Subject to SECTION 14.5, the Administrative Agent
and the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Company; provided, however, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Company in connection with this Agreement.
14.5 DISSEMINATION OF INFORMATION. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with SECTION 14.4 the confidentiality of any confidential information described
therein.
-104-
111
ARTICLE XV: NOTICES
15.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.14 with
respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 CHANGE OF ADDRESS. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
15.3 AUTHORITY OF COMPANY. Each of the Subsidiary Borrowers, by its
execution hereof or of an Assumption Letter (i) irrevocably authorizes the
Company, on behalf of such Subsidiary Borrower, to give and receive all notices
under the Loan Documents and to make all elections under the Loan Documents and
to give all Borrowing/Conversion/Continuation Notices on its behalf, (ii) agrees
to be bound by any such notices or elections and (iii) agrees that the
Administrative Agent and Lenders may rely upon any such policies or elections as
if they had been given or made by such Subsidiary Borrower.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
Remainder of This Page Intentionally Blank
-105-
112
IN WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent have executed this Agreement as of the date first
above written.
XXXXXX WORLDWIDE, INC., as the Company
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
113
XXXXXX EUROPE AG, as a Subsidiary Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
114
XXXXXX EUROPE B.V., as a Subsidiary Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
115
XXXXXX HOLDINGS, INC., as a Subsidiary Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
000
XXXXXX XXXXXX XXXX, XXX., as a Subsidiary
Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
Address: c/x Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President Finance and
Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
117
ABN AMRO BANK N.V., as Administrative Agent,
Issuing Bank, Dollar Swing Line Bank, Alternate
Currency Bank, and Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: XXXX XXXXXX
Title: GROUP VICE PRESIDENT
By: /s/ Xxxx Honda
-----------------------------------------
Name: XXXX HONDA
Title: VICE PRESIDENT
Address: 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Honda
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
118
ABN AMRO BANK N.V., BELGIUM BRANCH, as
Multicurrency Swing Line Bank and Lender
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
Address: Xxxxxxxxxx 00
0000 Xxxxxxxx
Xxxxxxx
Attention: Jan Van den Eynde
Koen Provoost
Telephone No.: 00 0 000 0000
Facsimile No.: 32 2 546 0400
119
SUNTRUST BANK, ATLANTA, as Syndication Agent and
Lender
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
-----------------------------------------
Name: J. XXXXXXXXXXX XXXXXXX
Title: DIRECTOR
Address: 000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
120
WACHOVIA BANK N.A., as Documentation Agent and
Lender
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
Address: 000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
121
EXHIBIT A
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
COMMITMENTS
LOAN COMMITMENTS
Lender Amount of Revolving Amount of Term Total
------ ------------------- -------------- -----
Loan Commitment Loan Commitment Commitment
--------------- --------------- ----------
ABN AMRO Bank N.V. $150,000,000 $83,333,333.34 $233,333,333.34
Suntrust Bank, Atlanta $150,000,000 $83,333,333.33 $233,333,333.33
Wachovia Bank N.A. $150,000,000 $83,333,333.33 $233,333,333.33
Total $450,000,000 $250,000,000 $700,000,000
122
EXHIBIT A-1
EUROCURRENCY PAYMENT OFFICES
--------------------------------------------------------------------------------
AGREED CURRENCY ABN AMRO BANK N.V., AS ADMINISTRATIVE AGENT
--------------------------------------------------------------------------------
DOLLARS ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Loan Administration
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
--------------------------------------------------------------------------------
123
EXHIBIT B
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF BORROWING/CONVERSION/CONTINUATION NOTICE
TO: ABN AMRO Bank N.V., as administrative agent for itself and the other
Lenders (the "ADMINISTRATIVE AGENT") under that certain 5-Year Credit
Agreement dated as of October 20, 1999 among Xxxxxx Worldwide, Inc.
(the "Company"), the Subsidiary Borrowers from time to time party
thereto, the financial institutions parties thereto (the "Lenders"),
the Administrative Agent, Suntrust Bank, Atlanta, individually and as
Syndication Agent, and Wachovia Bank N.A., individually and as
Documentation Agent (such 5-Year Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement").
The [Company] [undersigned Subsidiary Borrower] hereby gives to the
Administrative Agent a [Borrowing/Conversion/Continuation Notice pursuant to
SECTION 2.8] [a Borrowing/ Conversion/Continuation Notice pursuant to SECTION
2.10] of the Credit Agreement, and the [Company] [undersigned Subsidiary
Borrower] hereby requests to [borrow] [convert] [continue] on ______ ___, ____
(the "BORROWING DATE") from the Lenders on a pro rata basis an aggregate
principal amount of:
[US $____________ ] [______________] in the Agreed Currency
described below] in Revolving Loans as a
[ ] Floating Rate Advance
[ ] Eurocurrency Rate Advance
- Applicable Interest Period of ________ month(s).
- Agreed Currency: _______.
124
The undersigned hereby certifies to the Agents and the Lenders that (i)
the representations and warranties of the undersigned contained in
Article VI of the Credit Agreement are and shall be true and correct in
all material respects on and as of the date hereof and on and as of the
Borrowing Date (unless such representation and warranty is made as of a
specified date, in which case, such representation and warranty shall
be true and correct in all material respects as of such date) except
for changes in the Schedules to the Credit Agreement affecting
transactions permitted by or not in violation of the Credit Agreement;
(ii) no Default or Unmatured Default has occurred and is continuing on
the date hereof or on the Borrowing Date or will result from the making
of the proposed Advance; and (iii) the conditions set forth in SECTION
5.3 of the Credit Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Borrowing/Conversion/Continuation Notice.
Dated ________ __, 1999
[XXXXXX WORLDWIDE, INC.] [SUBSIDIARY
BORROWER]
By:
----------------------------------
Name:
Title:
-2-
125
EXHIBIT C
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF REQUEST FOR LETTER OF CREDIT
TO: ______________________(1), an Issuing Bank under that certain 5-Year
Credit Agreement dated as of October 20, 1999 among Xxxxxx Worldwide,
Inc. (the "Company"), the Subsidiary Borrowers from time to time party
thereto, the financial institutions parties thereto (the "Lenders"),
ABN AMRO Bank N.V., individually and as Administrative Agent, Suntrust
Bank, Atlanta, individually and as Syndication Agent, and Wachovia Bank
N.A., individually and as Documentation Agent (such 5-Year Credit
Agreement, as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement").
TO: ABN AMRO BANK N.V.
Trade Services New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Confirmation: (000) 000-0000
WITH COPIES TO: 1) ABN AMRO BANK N.V., as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Honda
Telecopier: (000) 000-0000
Confirmation: (000) 000-0000
2) ABN AMRO BANK N.V., as Administrative Agent
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Confirmation: (000) 000-0000
Pursuant to SECTION 3.4 of the Credit Agreement, [the Company][the
undersigned Subsidiary Borrower] hereby gives to the Issuing Bank a request for
issuance of a Letter of
------------------------
(1) INSERT NAME OF ISSUING BANK.
126
Credit on behalf of [____________, a Subsidiary of] the Company for the benefit
of _______________(2), in the following Agreed Currency: [___________], in the
amount of [US $______________] [_________ in such Agreed Currency], with an
effective date of _______________, ____ (the "Effective Date") and an expiry
date of _______________, ____.
The undersigned hereby certifies that (i) the representations and
warranties of the undersigned contained in Article VI of the Credit Agreement
are and shall be true and correct in all material respects on and as of the date
hereof and on and as of the Effective Date (unless such representation and
warranty is made as of a specified date, in which case, such representation and
warranty shall be true and correct in all material respects as of such date)
except for changes in the Schedules to the Credit Agreement affecting
transactions permitted by or not in violation of the Credit Agreement; (ii) no
Default or Unmatured Default has occurred and is continuing on the date hereof
or on the Effective Date or will result from the issuance of the proposed Letter
of Credit; and (iii) the conditions set forth in SECTIONS 3.4 and 5.3 of the
Credit Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Request for Letter of Credit.
Dated ________ ____, _____
[XXXXXX WORLDWIDE, INC.]
[SUBSIDIARY BORROWER]
By:
---------------------------------
Name:
Title:
--------------------
(2) INSERT NAME OF BENEFICIARY.
2
127
EXHIBIT D
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between
______________ (the ASSIGNOR) and ____________ (the "ASSIGNEE") is dated as of
____ ___, _____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a 5-Year Credit
Agreement (which, as it may be amended, restated, supplemented, modified,
renewed or extended from time to time is herein called the "CREDIT AGREEMENT")
described in Item I of SCHEDULE 1 attached hereto ("SCHEDULE 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item [3] of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item [3] of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item [4] of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"EFFECTIVE DATE") shall be the later of the date specified in SECTION 14.3(B) of
the Credit Agreement and the date specified in Item [5] of Schedule 1 or [two]
Business Days (or such shorter period agreed to by the Administrative Agent)
after a Notice of Assignment substantially in the form of APPENDIX I (attached
hereto) has been delivered to the Administrative Agent. Such Notice of
Assignment must include the consents, if any, required to be delivered to the
Administrative Agent and the Company by SECTION 14.3(A) of the Credit Agreement.
In no event will the Effective Date occur if the payments required to be made by
the Assignee to the Assignor on the Effective Date under SECTIONS 4 and 5 hereof
are not made on the proposed Effective Date. The Assignor will notify the
Assignee of the proposed Effective Date no later than the Business Day prior to
the proposed Effective Date. As of the Effective Date, (i) the Assignee shall
have the rights and obligations of a Lender under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder and
(ii) the Assignor shall relinquish its rights and be released from its
corresponding obligations under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder.
128
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each Eurocurrency Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Rate Loan
either becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter referred to
as the "PAYMENT DATE"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Eurocurrency Rate Loan assigned to
the Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Rate Loan shall be
the Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the existing Interest Period applicable to such Eurocurrency Rate
Loan (the "AGREED INTEREST RATE") and any interest received by the Assignee in
excess of the Agreed Interest Rate shall be remitted to the Assignor. In the
event interest for the period from the Effective Date to but not including the
Payment Date is not paid by the applicable Borrower with respect to any
Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder, the
Assignee shall pay to the Assignor interest for such period on the portion of
such Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder at
the applicable rate provided by the Credit Agreement. In the event a prepayment
of any Eurocurrency Rate Loan which is existing on the Payment Date and assigned
by the Assignor to the Assignee hereunder occurs after the Payment Date but
before the end of the Interest Period applicable to such Eurocurrency Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Eurocurrency Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Administrative Agent with respect to Eurocurrency Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Loans assigned to
the Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans or fees, or the Payment Date, in the case of Eurocurrency
Rate Loans, and not previously paid by the Assignee to the Assignor.](1) In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The [Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or commitment fees is
made under the Credit
--------------------
(1) EACH ASSIGNOR MAY INSERT ITS STANDARD PAYMENT PROVISIONS IN LIEU OF THE
PAYMENT TERMS INCLUDED IN THIS EXHIBIT.
2
129
Agreement with respect to the amounts assigned to the Assignee hereunder (other
than a payment of interest or commitment fees for the period prior to the
Effective Date or, in the case of Eurocurrency Rate Loans, the Payment Date,
which the Assignee is obligated to deliver to the Assignor pursuant to Section 4
hereof). The amount of such fee shall be the difference between (i) the interest
or fee, as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was ___of 1% less than the interest rate paid by the applicable
Borrower or if the commitment fee was ___ of 1% less than the commitment fee
paid by the applicable Borrower, as applicable. In addition, the] [Assignee]
[Assignor] agrees to pay a $3,500 processing fee required to be paid to the
Administrative Agent in connection with this Assignment Agreement.(2)
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. The
Assignor represents and warrants that it has the power and authority and legal
right to execute and deliver this Assignment Agreement and to perform its
obligations hereunder. The execution and delivery by the Assignor of this
Assignment Agreement and the performance by it of its obligations hereunder have
been duly authorized by proper proceedings. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor, the Administrative Agent, nor any other
Lender, nor any of its officers, directors, employees, Agents or attorneys shall
be responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrowers or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and
warrants that it has the power and authority and legal right to execute and
deliver this Assignment Agreement and to perform its obligations hereunder. The
execution and delivery by the Assignee of this Assignment Agreement and the
performance by it of its obligations hereunder have been duly authorized by
proper proceedings. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements requested by
the Assignee and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
-------------------
(2) ASSIGNOR AND ASSIGNEE TO INSERT APPLICABLE PAYMENT TERMS.
3
130
taking action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to take such action as contractual representative on its
behalf and to exercise such powers under the Loan Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents
are required to be performed by it as a Lender, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes].(3)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to SECTION 14.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [SECTIONS 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Revolving Loan Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 3 of
Schedule 1 shall remain the same, but the dollar amount purchased shall be
recalculated based on such reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
New York.
------------------
(3) TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF
THE UNITED STATES, OR A STATE THEREOF.
4
131
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: ----------------------------
Name:
Title
[NAME OF ASSIGNEE]
By: ----------------------------
Name:
Title:
5
132
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement: 5-Year Credit
Agreement dated as of October 20, 1999 among Xxxxxx Worldwide,
Inc. (the "Company"), the Subsidiary Borrowers from time to
time party thereto, the financial institutions parties thereto
(the "Lenders"), ABN AMRO Bank N.V., individually and as
Administrative Agent, Suntrust Bank, Atlanta, individually and
as Syndication Agent, and Wachovia Bank N.A., individually and
as Documentation Agent.
2. Date of Assignment Agreement: ______, ___
3. Amounts to be Assigned(4) (As of Date of item 2 above):
REVOLVING TERM
LOAN FACILITY LOAN FACILITY
TOTAL OF COMMITMENTS (LOANS)
UNDER THE CREDIT AGREEMENT $____________ $__________
ASSIGNEE'S PERCENTAGE OF EACH
FACILITY PURCHASED UNDER THE
ASSIGNMENT AGREEMENT ------% ------%
AMOUNT OF ASSIGNED SHARE OF
EACH FACILITY UNDER THE ASSIGNMENT AGREEMENT $___________
4. ASSIGNEE'S AGGREGATE (LOAN AMOUNT)
COMMITMENT AMOUNT PURCHASED HEREUNDER.
$____________ $__________
5. Proposed Effective Date: _______ __, ____
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
--------------------------- -------------------------
Name: Name:
Title: Title:
---------------------
(4) Amounts to be described in Dollars or Agreed Currency, as applicable.
6
133
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
7
134
APPENDIX I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-------------
---------, ---
To: ABN AMRO Bank, N.V., as Administrative Agent [and as Alternate Currency
Banks]
ABN AMRO Bank, N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Honda
Telephone No.: 312/000-0000
Facsimile No.: 312/606-8425
ABN AMRO Bank, N.V.
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone No. 212/000-0000
Facsimile No.: 212/314-1712
XXXXXX WORLDWIDE, INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice-President -- Treasurer
Telephone No.: 770/000-0000
Facsimile No.: 770/621-1367
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that 5-year Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent and the Alternate Currency Banks pursuant to SECTION
14.3(B) of the Credit Agreement.
8
135
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____, __ (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in SECTION 14.3(B) of the Credit Agreement and
the date specified in Item 5 of Schedule 1 or two Business Days (or such shorter
period as agreed to by the Administrative Agent) after this Notice of Assignment
and any consents and fees required by SECTIONS 14.3(A) AND 14.3(B) of the Credit
Agreement have been delivered to the Administrative Agent and the Alternate
Currency Banks, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee has not been
satisfied.
4. The Assignor and the Assignee hereby give to the Company and the
Alternate Currency Banks and the Administrative Agent notice of the assignment
and delegation referred to herein. The Assignor will confer with the
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent and the Alternate
Currency Banks if the Assignment Agreement does not become effective on any
proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor of the Assignee shall pay to the Administrative Agent
on or before the Effective Date the processing fee of $3,500 required by SECTION
14.3(B) of the Credit Agreement.
6. If notes are outstanding on the Effective Date, the Assignor and the
Assignee may request and direct that the Administrative Agent prepared and cause
the Borrowers to execute and deliver new notes or, as appropriate, replacement
notes, to the Assignor and the Assignee. The Assignor and the Assignee, as
applicable, each agree to deliver to the Administrative Agent the original note
received by it from the Applicable Borrower upon its receipt of a new note in
the appropriate amount.
7. The Assignee advises the Administrative Agent and the Alternate
Currency Banks that notice and payment instructions are set forth in the
Attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets' under ERISA.
9. The Assignee authorizes the Administrative Agent and the Alternate
Currency Banks to act as its contractual representative under the Loan Documents
in accordance
9
136
with the terms thereof. The Assignee acknowledges that the Administrative Agent
has no duty to supply information with respect to the Borrowers or the Loan
Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE}
By: By:
-------------------------- ---------------------------
Name: Name:
Title: Title:
10
137
ACKNOWLEDGED AND CONSENT TO:
______________, as Administrative [and as ______________, as the Company
Alternate Currency Bank]
By: By:
-------------------------- ---------------------------
Name: Name:
Title: Title:
[add additional Alternate Currency Banks]
[Attach photocopy of Schedule 1 to Assignment]
11
138
EXHIBIT E
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am the ____________________
of Xxxxxx Worldwide, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"). Capitalized terms used herein and
not otherwise defined herein are as defined in that certain 5-Year Credit
Agreement dated as of October 20, 1999 among the Company, the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent (as amended,
restated, supplemented or modified from time to time, the "Credit Agreement").
I further certify on behalf of the Company, that as of the date hereof,
to the best of my knowledge, after diligent inquiry of all relevant persons at
the Company and its Subsidiaries, as of the date of this Officer's Certificate
no Default or Unmatured Default exists [other than the following (describe the
nature of the Default or Unmatured Default and the status thereof)].
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the Company
on this _____ day of ___________,_____.
-------------------------
[insert Name of Officer]
139
EXHIBIT F
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF COMPLIANCE CERTIFICATE
Pursuant to SECTION 7.1(A)(iii) of the 5-Year Credit Agreement (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), dated as of October 20, 1999 among Xxxxxx Worldwide, Inc. (the
"Company"), the Subsidiary Borrowers from time to time party thereto, the
financial institutions parties thereto (the "Lenders"), ABN AMRO Bank N.V.,
individually and as Administrative Agent, Suntrust Bank, Atlanta, individually
and as Syndication Agent, and Wachovia Bank N.A., individually and as
Documentation Agent (as amended, restated, supplemented or modified from time to
time, the "Credit Agreement") on behalf of the Lenders, the Company, through its
____________, hereby delivers to the Administrative Agent [, together with the
financial statements being delivered to the Administrative Agent pursuant to
SECTION 7.1(A) of the Credit Agreement,] this Compliance Certificate (the
"Certificate") [for the accounting period from _____________, ____ to
____________, ____]. Capitalized terms used herein shall have the meanings set
forth in the Credit Agreement. Subsection references herein relate to
subsections of the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of the Company;
2. I have reviewed the terms of the Credit Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Company and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate [except as set forth below]; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Company's compliance with certain covenants of the
Credit Agreement, all of which data and computations are true, complete and
correct.
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of _________, 19/20__.
140
SCHEDULE I
to COMPLIANCE CERTIFICATE
I. SECTION 2.15: PRICING CALCULATIONS
LEVERAGE RATIO (SECTION 2.15(d))
1. Total Indebtedness $__________
2. EBITDA for the period for
___________ to ____________ $__________
3. "Leverage Ratio" (Ratio of (1) to (2))
______ to 1.0
II. SECTION 7.3: NEGATIVE COVENANTS
A. INDEBTEDNESS (Section 7.3(D)(viii))
1. Permitted aggregate additional unsecured
Indebtedness $__________
2. Actual aggregate additional unsecured
Indebtedness $__________
3. State whether (2) is less than (1) Yes/No
B. RESTRICTED PAYMENTS (Section 7.3(F))
1. Permitted aggregate Restricted Payments
for the period from __________________
to __________________ (25% of Net
Income for prior fiscal years) $__________
2. Actual aggregate Restricted Payments
for the period from __________________
to __________________ $__________
3. State whether (2) is less than (1) Yes/No
C. ACQUISITIONS (Section 7.3(G))
1. Permitted aggregate permitted Acquisitions
for the period from _________________ to
___________________ $__________
2
141
2. Actual aggregate Permitted Acquisitions
for the period from _________________ to
___________________ $__________
3. State whether (2) is less than (1) Yes/No
D. CAPITAL EXPENDITURES (Section 7.3(Q))
1. Permitted aggregate Capital Expenditures for the
period from _________________ to _________________
($150,000,000 for fiscal years ending prior to the
third anniversary of the Closing Date, $175,000,000
for fiscal years ending thereafter) $__________
2. Actual aggregate Capital Expenditures
for the period from _______________ to
___________________ $__________
3. State whether (2) is less than (1) Yes/No
III. SECTION 7.4: FINANCIAL COVENANTS
A. MINIMUM COVERAGE RATIO (SECTION 7.4(A))
1. EBITDAR for the period from
________ to ____________ $__________
2. Interest Expense plus Rentals
for the period from ____________
to ______________ $__________
3. "Coverage Ratio" (Ratio of (1) to (2)) ______ to 1.0
Minimum Leverage Ratio is as follows:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 2.75
July 1, 2000 through June 29, 2001 2.75
June 30, 2001 through June 28, 2002 3.00
June 29, 2002 through June 27, 2003 3.25
June 28, 2003 through July 2, 2004 3.50
July 3, 2004 and thereafter 3.75
3
142
B. MAXIMUM LEVERAGE RATIO (SECTION 7.4(B))
1. Total Indebtedness $__________
2. EBITDA for the period from __________
to ___________ $__________
3. "Leverage Ratio" (Ratio of (1) to (2)) ______to 1.0
Maximum Leverage Ratio is as follows:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 3.25
July 1, 2000 through June 29, 2001 3.00
June 30, 2001 through June 28, 2002 2.75
June 29, 2002 through June 27, 2003 2.50
June 28, 2003 through July 2, 2004 2.25
July 3, 2004 and thereafter 2.00
C. MINIMUM CONSOLIDATED NET WORTH (SECTION 7.4(C))
1. Consolidated Net Worth as of the last day of
the fiscal quarter ending on ___________,_____ $__________
2. Eighty-five percent (85%) of Consolidated
Net Worth as of the date immediately following
the Closing Date $__________
3. Fifty percent (50%) of Net Income (if positive)
calculated separately for (i) the remainder of the
quarterly accounting period in which the Closing Date
occurs and (ii) each subsequent quarterly accounting
period, in each case excluding changes in cumulative
foreign exchange translation adjustment
$__________
4. Sum of 2) plus 3) $__________
5. State whether (1) is less than (4) YES/NO
The Company hereby certifies, through its __________, that the
information set forth above is accurate as of ____________,____________, to the
best of such officer's knowledge, after diligent inquiry, and that the financial
statements delivered herewith present fairly the financial position of the
Company and its Subsidiaries at the dates indicated and the results of their
operations and changes in their financial position for the periods indicated in
conformity with Agreement Accounting Principles, consistently applied.
4
143
Dated: ________________,________
XXXXXX WORLDWIDE, INC.
By:
____________________________
Name:
Title:
5
144
EXHIBIT G-1
FORM OF
SUBSIDIARIES GUARANTY (5 YEAR AGREEMENT)
----------------------------------------
This Subsidiaries Guaranty (this "GUARANTY") is made as of the 20th day
of October, 1999 by each of the corporations that is a signatory hereto
(individually, a "GUARANTOR"; collectively, the "GUARANTORS"), in favor of the
Agents and the Lenders (each as defined below), under the Credit Agreement
referred to below.
RECITALS:
X. Xxxxxx Worldwide, Inc. (the "Company"), the Subsidiary Borrowers
from time to time party thereto, the institutions from time to time party
thereto as Lenders, ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent have entered into
that certain 5-Year Credit Agreement dated as of the date hereof (as from time
to time amended, restated, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accomodations to be made by the Lenders
to the Company and the Subsidiaries;
B. Each of the Guarantors is a Wholly-Owned Subsidiary of the Company
and will receive substantial and direct benefits from the extensions of credit
contemplated by the Credit Agreement and is entering into this Guaranty to
induce the Agents and the Lenders to enter into the Credit Agreement and extend
credit to the Borrowers thereunder; and
C. The execution and delivery of this Guaranty is a condition precedent
to the obligation of the Lenders to extend credit to the Company and to the
Subsidiary Borrowers pursuant to the Credit Agreement;
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration and as an inducement to the Lenders to enter
into the Credit Agreement and extend credit to the Company and to the Subsidiary
Borrowers, each Guarantor hereby agrees as follows:
1. Terms defined in the Credit Agreement and not otherwise
defined herein have, as used herein, the respective meanings provided for
therein.
2. Each Guarantor, jointly and severally, hereby absolutely,
irrevocably and unconditionally guarantees prompt, full and complete payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of the Obligations, including, without limitation, (a) the
principal of and interest on each Advance made to the
145
Company or any Subsidiary Borrower pursuant to the Credit Agreement, (b) any
Reimbursement Obligations of the Company or a Subsidiary Borrower, (c) any
obligations under or with respect to any Hedging Agreement entered into in
connection with the Credit Agreement and (d) all other amounts payable by the
Company and the Subsidiary Borrowers or any of their respective Subsidiaries
under the Credit Agreement and the other Loan Documents (collectively, the
"GUARANTEED DEBT"). This is a guaranty of payment and not a guaranty of
collection.
3. Each Guarantor waives notice of the acceptance of this
Guaranty and of the extension or incurrence of the Guaranteed Debt or any part
thereof. Each Guarantor further waives all setoffs and counterclaims and
presentment, protest, notice, filing of claims with a court in the event of
receivership, bankruptcy or reorganization of any Borrower, demand or action on
delinquency in respect of the Guaranteed Debt or any part thereof, including any
right to require the Agents or the Lenders to xxx the Company, any Subsidiary
Borrower, any other Guarantor or any other Person obligated with respect to the
Guaranteed Debt or any part thereof, or otherwise to enforce payment thereof
against any collateral securing the Guaranteed Debt or any part thereof.
4. Each Guarantor hereby agrees that, to the fullest extent
permitted by law, its obligations hereunder shall be continuing, absolute and
unconditional under any and all circumstances and not subject to any reduction,
limitation, impairment, termination, defense (other than indefeasible payment in
full or a defense arising under the Agreement based upon the gross negligence or
willful misconduct of any Agent or Lender), setoff, counterclaim or recoupment
whatsoever (all of which are hereby expressly waived by it to the fullest extent
permitted by law), whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise. The validity and enforceability of this Guaranty shall
not be impaired or affected by any of the following: (a) any extension,
modification or renewal of, or indulgence with respect to, or substitution for,
the Guaranteed Debt or any part thereof or any agreement relating thereto at any
time; (b) any failure or omission to perfect or maintain any lien on, or
preserve rights to, any security or collateral or to enforce any right, power or
remedy with respect to the Guaranteed Debt or any part thereof or any agreement
relating thereto, or any collateral securing the Guaranteed Debt or any part
thereof; (c) any waiver of any right, power or remedy or of any default with
respect to the Guaranteed Debt or any part thereof or any agreement relating
thereto or with respect to any collateral securing the Guaranteed Debt or any
part thereof; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Debt or any part thereof, any other guaranties with
respect to the Guaranteed Debt or any part thereof, or any other obligations of
any person or entity with respect to the Guaranteed Debt or any part thereof;
(e) the enforceability or validity of the Guaranteed Debt or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Guaranteed Debt or any part thereof;
(f) the application of payments received from any source to the payment of
indebtedness other than the Guaranteed Debt, any part thereof or amounts which
are not covered by this Guaranty even though the Lenders might lawfully have
elected to apply such payments to any part or all of the Guaranteed Debt or to
amounts which are not covered by this Guaranty; (g) any change of ownership of
any Borrower or the insolvency, bankruptcy or any other change in the legal
status of any Borrower; (h) any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair,
-2-
146
delay or in any way affect the validity, enforceability or the payment when due
of the Guaranteed Debt; (i) the failure of any Borrower to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Guaranteed Debt or this Guaranty, or to take any other action required in
connection with the performance of all obligations pursuant to the Guaranteed
Debt or this Guaranty; (j) the existence of any claim, setoff or other rights
which any Guarantor may have at any time against any Borrower or any other
Guarantor or any other Person in connection herewith or with any unrelated
transaction; (k) the Lenders' election, in any case or proceeding instituted
under chapter 11 of the United States Bankruptcy Code, of the application of
section 1111(b)(2) of the United States Bankruptcy Code; (l) any borrowing, use
of cash collateral, or grant of a security interest by any Borrower, as debtor
in possession, under section 363 or 364 of the United States Bankruptcy Code;
(m) the disallowance of all or any portion of any of the Lenders' claims for
repayment of the Guaranteed Debt under section 502 or 506 of the United States
Bankruptcy Code; or (n) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of any
Guarantor from its obligations hereunder, all whether or not such Guarantor
shall have had notice or knowledge of any act or omission referred to in the
foregoing CLAUSES (a) THROUGH (n) of this paragraph. It is agreed that each
Guarantor's liability hereunder is independent of each other Guarantor's
liability hereunder with respect to the Guaranteed Debt and any other guaranties
or other obligations at any time in effect with respect to the Guaranteed Debt
or any part thereof, and that each Guarantor's liability hereunder may be
enforced regardless of the existence, validity, enforcement or non-enforcement
of any such other guaranties or other obligations or any provision of any
applicable law or regulation purporting to prohibit payment by any Borrower of
the Guaranteed Debt in the manner agreed upon among the Agents, the Lenders and
the Borrowers.
5. Credit may be granted or continued from time to time by the
Lenders to the Borrowers without notice to or authorization from any Guarantor
regardless of any Borrower's financial or other condition at the time of any
such grant or continuation. No Agent or Lender shall have an obligation to
disclose or discuss with any Guarantor its assessment of the financial condition
of any Borrower.
6. Each Guarantor authorizes the Lenders to take any action or
exercise any remedy with respect to any collateral from time to time securing
the Guaranteed Debt, which the Lenders in their sole discretion shall determine,
without notice to any Guarantor.
7. In the event the Lenders in their sole discretion elect to
give notice of any action with respect to any collateral securing the Guaranteed
Debt or any part thereof, ten (10) days' written notice mailed to the Guarantors
by ordinary mail at the address shown hereon shall be deemed reasonable notice
of any matters contained in such notice. Each Guarantor consents and agrees that
neither the Agents nor the Lenders shall be under any obligation to xxxxxxxx any
assets in favor of any Guarantor or against or in payment of any or all of the
Guaranteed Debt.
8. In the event that acceleration of the time for payment of
any of the Guaranteed Debt is stayed upon the insolvency, bankruptcy or
reorganization of any Borrower, or otherwise, all such amounts shall nonetheless
be payable by each Guarantor forthwith upon demand by the Agents or the Lenders.
Each Guarantor further agrees that, to the extent that any Borrower makes a
payment or payments to any of the Lenders on the Guaranteed Debt, or the
-3-
147
Agents or the Lenders receive any proceeds of collateral securing the Guaranteed
Debt, which payment or receipt of proceeds or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be returned or repaid to such Borrower, its estate, trustee, receiver, debtor in
possession or any other party, including, without limitation, each Guarantor,
under any insolvency or bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment, return or repayment, the
obligation or part thereof which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred.
9. No delay on the part of the Agents or the Lenders in the
exercise of any right, power or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Agents or the Lenders of any right, power or
remedy shall preclude any further exercise thereof; nor shall any amendment,
supplement, modification or waiver of any of the terms or provisions of this
Guaranty be binding upon the Agents or the Lenders, except as expressly set
forth in a writing duly signed and delivered by the Agents. The failure by the
Agents or the Lenders at any time or times hereafter to require strict
performance by any Borrower or any Guarantor of any of the provisions,
warranties, terms and conditions contained in any promissory note, security
agreement, agreement, guaranty, instrument or document now or at any time or
times hereafter executed pursuant to the terms of, or in connection with, the
Agreement by any Borrower or any Guarantor and delivered to the Agents or the
Lenders shall not waive, affect or diminish any right of the Agents or the
Lenders at any time or times hereafter to demand strict performance thereof, and
such right shall not be deemed to have been waived by any act or knowledge of
the Agents or the Lenders, their agents, officers or employees, unless such
waiver is contained in an instrument in writing duly signed and delivered by the
Agents. No waiver by the Agents or the Lenders of any default shall operate as a
waiver of any other default or the same default on a future occasion, and no
action by the Agents or the Lenders permitted hereunder shall in any way affect
or impair the Agents' or the Lenders' rights or powers, or the obligations of
any Guarantor under this Guaranty. Any determination by a court of competent
jurisdiction of the amount of any Guaranteed Debt owing by any Borrower to the
Lenders shall be conclusive and binding on each Guarantor irrespective of
whether such Guarantor was a party to the suit or action in which such
determination was made.
10. Subject to the provisions of SECTION 8, this Guaranty
shall continue in effect until the Credit Agreement have terminated, the
Guaranteed Debt has been paid in full and the other conditions of this Guaranty
have been satisfied.
11. In addition to and without limitation of any rights,
powers or remedies of the Agents or the Lenders under applicable law, any time
after maturity of the Guaranteed Debt, whether by acceleration or otherwise, the
Agents or the Lenders may, in their sole discretion, with notice after the fact
to the Guarantors and regardless of the acceptance of any security or collateral
for the payment hereof, appropriate and apply toward the payment of the
Guaranteed Debt (a) any indebtedness due or to become due from any of the
Lenders to any Guarantor, and (b) any moneys, credits or other property
belonging to any Guarantor (including all account balances, whether provisional
or final and whether or not collected or available) at any time held by or
coming into the possession of any Agents or any Lender whether for deposit or
otherwise.
-4-
148
12. Each Guarantor agrees to pay all costs, fees and expenses
(including reasonable attorneys' fees and time charges, which attorneys may be
employees of an Agent or Lender) incurred by an Agent or Lender in collecting or
enforcing the obligations of each Guarantor under this Guaranty.
13. This Guaranty shall bind each Guarantor and its successors
and assigns and shall inure to the benefit of the Agents, the Lenders and their
successors and assigns. All references herein to the Lenders shall for all
purposes also include all Purchasers and Participants (as such terms are defined
in the Agreement). All references herein to a Borrower shall be deemed to
include its successors and assigns including, without limitation, a receiver,
trustee or debtor in possession of or for such Borrower.
14. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AT NEW
YORK, NEW YORK, AND SHALL BE CONSTRUED AND THE RIGHTS AND LIABILITIES OF THE
AGENTS, THE LENDERS AND THE GUARANTORS DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF
NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS GUARANTY, EACH GUARANTOR, THE AGENTS AND THE LENDERS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH GUARANTOR, THE AGENTS AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR, THE AGENTS AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
15. EACH GUARANTOR, THE LENDERS AND THE AGENTS EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH GUARANTOR, THE LENDERS AND
THE AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR
-5-
149
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.
16. Wherever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
17. Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered to any party hereto under
this Guaranty shall be in writing by facsimile, U.S. mail or overnight courier
and addressed or delivered to such party (a) if to the Agents or the Lenders, at
their respective addresses set forth in the Agreement, or (b) if to any
Guarantor, at its address indicated on EXHIBIT A hereto, or to such other
address as the Agents or the Lenders or any Guarantor designates to the Agents
in writing. All notices by United States mail shall be sent certified mail,
return receipt requested. All notices hereunder shall be effective upon delivery
or refusal of receipt; PROVIDED, HOWEVER, that any notice transmitted by
facsimile shall be deemed given when transmitted.
18. Each Guarantor hereby represents and warrants to the
Agents and the Lenders that:
(a) each Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation and is duly qualified and in good
standing as a foreign corporation and is duly authorized to conduct its
business in each jurisdiction in which its business is conducted or
proposed to be conducted;
(b) each Guarantor has all requisite power and
authority (corporate and otherwise) and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder;
(c) the execution and delivery by each Guarantor of
this Guaranty and the performance of its obligations hereunder have
been duly authorized by proper corporate proceedings and this Guaranty
constitutes the legal, valid and binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally; and
(d) neither the execution and delivery by each
Guarantor of this Guaranty nor compliance with the provisions of this
Guaranty will, or at the relevant time did, (i) violate any law, rule,
regulation (including Regulation T, U or X), order, writ, judgment,
-6-
150
injunction, decree or award binding on any Guarantor or any Guarantor's
charter, articles or certificate of incorporation or by-laws, (ii)
violate the provisions of or require the approval or consent of any
party to any indenture, instrument or agreement to which any Guarantor
is a party or is subject, or by which it, or its property, is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien (other than Liens permitted by, and
created under, the Loan Documents) in, of or on the property of any
Guarantor pursuant to the terms of any such indenture, instrument or
agreement, or (iii) require any consent of the stockholders of any
Person or any Governmental Authority.
Each Guarantor agrees that the foregoing representations and warranties shall be
deemed to have been made by such Guarantor on the date of this Guaranty, and on
each Borrowing Date, Conversion/Continuation Date or Issuance Date.
19. It is understood that while the amount of the Guaranteed
Debt guaranteed hereby is not limited, if in any action or proceeding involving
any state, federal or foreign bankruptcy, insolvency or other law affecting the
rights of creditors generally, this Guaranty would be held or determined to be
void, invalid or unenforceable on account of the amount of the aggregate
liability under this Guaranty with respect to one or more of the Guarantors,
then, notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of such liability shall, with respect to any such Guarantor,
without any further action of the Agents, the Lenders or any other Person, be
automatically limited and reduced with respect to any such Guarantor to the
highest amount which is valid and enforceable as determined in such action or
proceeding.
20. Pursuant to SECTION 7.2(N) of the Credit Agreement,
certain Subsidiaries are from time to time required to enter into this Guaranty
as a Guarantor. Upon execution and delivery after the date hereof by a
Subsidiary of a supplement in the form of EXHIBIT A hereto, such Subsidiary
shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any Guarantor hereunder, of any Borrower or of any Agent
or Lender. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party hereto.
[signature page to follow]
-7-
151
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first above written.
[SUBSIDIARY]
By:
-------------------------------
Its:
------------------------------
[SUBSIDIARY]
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
-8-
152
EXHIBIT A TO GUARANTY
JOINDER AGREEMENT
This Joinder Agreement dated as of ______________, ____ is delivered
pursuant to that certain Subsidiary Guaranty as of October 20, 1999 by the
direct and indirect subsidiaries of Xxxxxx Worldwide, Inc. party thereto (as
amended, supplemented, or modified from time to time, the "Guaranty"). The
undersigned hereby agrees that on and after the date hereof it shall be a
"Guarantor" under the Guaranty and be obligated to perform all of the
obligations of a Guarantor thereunder and hereby makes the representations and
warranties therein as of the date first set forth above.
[GUARANTOR]
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
[address for notices]
-9-
153
EXHIBIT G-2
FORM OF SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "SUBORDINATION AGREEMENT") is made
as of the [___] day of October, 1999, by and among XXXXXX WORLDWIDE, INC., a
Delaware corporation (the "COMPANY"), each of the corporations that is a
signatory hereto (collectively, the "INITIAL GRANTORS" and along with each other
Subsidiary of the Company which become parties to this Subordination Agreement
by executing an Addendum hereto in the form attached as ANNEX I, the "GRANTORS")
in favor of the Agents and the Lenders under (and as defined in) the Credit
Agreement referred to below;
WITNESSETH:
WHEREAS, the Company, one or more Subsidiaries of the Company (whether
now existing or hereafter formed, collectively referred to herein as the
"SUBSIDIARY BORROWERS"), the institutions from time to time parties hereto as
Lenders, and ABN AMRO Bank N.V., in its capacity as Administrative Agent (the
"ADMINISTRATIVE AGENT"), SUNTRUST BANK, ATLANTA, as Syndication Agent (the
"SYNDICATION AGENT") and WACHOVIA BANK N.A., as Documentation Agent (the
"DOCUMENTATION AGENT"). have entered into a certain 5-Year Credit Agreement
dated as of October 20, 1999 (as the same may be amended, modified, supplemented
and/or restated, and as in effect from time to time, the " CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for extensions of credit
and other financial accommodations to be made by the Lenders to the Company and
the Subsidiary Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Grantors
execute and deliver this Subordination Agreement; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each of the
Grantors represents and warrants (which representations and warranties shall be
deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, limited liability company,
partnership or other commercial entity duly incorporated or formed, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation and has all requisite authority to conduct its
business as a foreign Person in each jurisdiction in which its business is
conducted, except where the failure to have such requisite authority would not
have a Material Adverse Effect.
154
(b) It has the power and authority and legal right to execute
and deliver this Subordination Agreement and to perform its obligations
hereunder. The execution and delivery by it of this Subordination Agreement and
the performance by it of its obligations hereunder have been duly authorized by
proper proceedings, and this Subordination Agreement constitutes a legal, valid
and binding obligation of such Grantor, enforceable against such Grantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution and delivery by it of this
Subordination Agreement, nor the consummation by it of the transactions herein
contemplated, nor compliance by it with the terms and provisions hereof, will
violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on it or its certificate or articles of incorporation or by-laws,
limited liability company or partnership agreement (as applicable) or the
provisions of any indenture, instrument or material agreement to which it is a
party or is subject, or by which it, or its property, is bound, or conflict with
or constitute a default thereunder, or result in the creation or imposition of
any Lien in, of or on its property pursuant to the terms of any such indenture,
instrument or material agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority that has not been made, obtained or
given, or which, if not made, obtained or given, individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect, is
required to authorize, or is required in connection with the execution, delivery
and performance by it of this Subordination Agreement.
In addition to the foregoing, each of the Grantors covenants
that, so long as any Lender has any Commitment outstanding under the Credit
Agreement or any amount payable under the Credit Agreement or any other
Obligations shall remain unpaid, it will, and, if necessary, will enable the
Company to (to the extent practicable), fully comply with those covenants and
agreements of the Company applicable to each of the Grantors set forth in the
Credit Agreement.
SECTION 3. SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. Each of the
Grantors agrees that any and all claims of such Grantor against either the
Company, any Subsidiary Borrower or any other Grantor hereunder (each an
"OBLIGOR"), any endorser or obligor of all or any part of the Obligations, or
against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Obligations; PROVIDED,
that, and not in contravention of the foregoing, so long as no Default or
Unmatured Default has occurred and is continuing such Grantor may make loans to
and receive payments in the ordinary course with respect to any "Intercompany
Indebtedness" (as defined below) to the extent permitted by the terms of the
Credit Agreement and the other Loan Documents. Notwithstanding any right of any
Grantor to ask, demand, xxx for, take or receive any payment from any Obligor
all rights, liens and security interests of such Grantor, whether now or
hereafter arising and howsoever existing, in any assets of any other Obligor
shall be and are subordinated to the rights of the Lenders and the Agents in
those assets. No Grantor shall have any right to possession of any such asset or
to foreclose upon any such asset, whether by judicial action or otherwise,
unless and until all of the
155
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document among the Company or any Subsidiary Borrower and the Lenders have been
terminated. If all or any part of the assets of any Obligor, or the proceeds
thereof, are subject to any distribution, division or application to the
creditors of such Obligor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of any such Obligor is dissolved or if
substantially all of the assets of any such Obligor are sold, then, and in any
such event, any payment or distribution of any kind or character, either in
cash, securities or other property, which shall be payable or deliverable upon
or with respect to any indebtedness of any Obligor to any Grantor ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative Agent
for application on any of the Obligations, due or to become due, until such
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Each Grantor irrevocably authorizes and
empowers the Administrative Agent to demand, xxx for, collect and receive every
such payment or distribution and give acquittance therefor and to make and
present for and on behalf of such Grantor such proofs of claim and take such
other action, in the Administrative Agent's own name or in the name of such
Grantor or otherwise, as the Administrative Agent may deem necessary or
advisable for the enforcement of this SECTION 3. The Administrative Agent may
vote such proofs of claim in any such proceeding, receive and collect any and
all dividends or other payments or disbursements made thereon in whatever form
the same may be paid or issued and apply the same on account of any of the
Obligations. Should any payment, distribution, security or instrument or
proceeds thereof be received by any Grantor upon or with respect to the
Intercompany Indebtedness prior to the satisfaction of all of the Obligations
(other than contingent indemnity obligations) and the termination of all
financing arrangements among the Company or any Subsidiary Borrower and the
Agents and the Lenders, such Grantor shall receive and hold the same in trust,
as trustee, for the benefit of the Agents and the Lenders and shall forthwith
deliver the same to the Administrative Agent, for the benefit of the Agents and
the Lenders, in precisely the form received (except for the endorsement or
assignment of such Grantor where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by such Grantor as the property of the Lenders. If any such Grantor fails
to make any such endorsement or assignment to the Administrative Agent, the
Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. Each of the Grantors agrees that until the
Obligations (other than contingent indemnity obligations) have been paid in full
(in cash) and satisfied and all financing arrangements among the Company and the
Subsidiary Borrowers and the Agents and the Lenders have been terminated, no
Grantor will assign or transfer to any Person (other than the Administrative
Agent) any claim any such Grantor has or may have against any Obligor.
SECTION 4. SUCCESSORS AND ASSIGNS. This Subordination Agreement is for
the benefit of the Agents and the Lenders and their respective successors and
permitted assigns and in the event of an assignment of any amounts payable under
the Credit Agreement, any Hedging Agreement between the Company or any of its
Subsidiaries and any Lender or any Affiliate of any Lender, or the other Loan
Documents in accordance with the respective terms thereof, the rights
thereunder, to the extent applicable to the indebtedness so assigned, may be
transferred
156
with such indebtedness. This Subordination Agreement shall be binding upon each
of the Grantors and their respective successors and assigns.
SECTION 5. CHANGES IN WRITING. Other than in connection with the
addition of additional Material Subsidiaries which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Subordination Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the
Grantors and the Administrative Agent with the consent of the Required Lenders
under the Credit Agreement (or all of the Lenders if required pursuant to the
terms of SECTION 10.3 of the Credit Agreement).
SECTION 6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GRANTOR AND ANY AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS
OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
SECTION 7. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION
(B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE
PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A)
ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GRANTORS AGREES THAT ANY AGENT,
ANY LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST
THE GRANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GRANTOR OR (2) ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GRANTORS AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR
157
THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH OF THE GRANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH A PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN
THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GRANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GRANTORS IN CARE OF THE COMPANY AT THE ADDRESS
PROVIDED FOR NOTICES TO THE COMPANY UNDER THE CREDIT AGREEMENT. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GRANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SUBORDINATION AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GRANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS SUBORDINATION AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
158
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES PRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS SUBORDINATION AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 7, WITH ITS COUNSEL.
SECTION 8. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Subordination Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Subordination Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Subordination
Agreement.
SECTION 9. SEVERABILITY. Wherever possible, each provision of this
Subordination Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Subordination
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Subordination Agreement.
SECTION 10. MERGER. This Subordination Agreement represents the final
agreement of the Grantors with respect to the matters contained herein and may
not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Grantors and any Lender or any Agent.
SECTION 11. HEADINGS. Section headings in this Subordination Agreement
are for convenience of reference only and shall not govern the interpretation of
any provision of this Subordination Agreement.
159
IN WITNESS WHEREOF, each of the undersigned Grantors has caused this
Subordination Agreement to be duly executed by its authorized officer as of the
day and year first above written.
XXXXXX WORLDWIDE, INC.
By:
------------------------------
Its:
-----------------------------
[-----------------------------]
By:
------------------------------
Its:
-----------------------------
[------------------------------]
By:
------------------------------
Its:
-----------------------------
[------------------------------]
By:
------------------------------
Its:
-----------------------------
160
ANNEX I TO SUBORDINATION AGREEMENT
Reference is hereby made to the Subordination Agreement (the
"Subordination Agreement") made as of the 20th day of October, 1999 by Xxxxxx
Worldwide, Inc., a Delaware corporation and certain of its Subsidiaries
(collectively, the "Initial Grantors" and along with any other Subsidiaries of
the Company which have become parties thereto and together with the undersigned,
the "Grantors") in favor of the Agents and the Lenders under the Credit
Agreements. Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Subordination Agreement. By its execution below,
the undersigned [name of new grantor], a [corporation] [partnership] [limited
liability company], agrees to become, and does hereby become a Grantor under the
Subordination Agreement and agrees to be bound by such Subordination Agreement
as if originally a party thereto. By its execution below, the undersigned
represents and warrants as to itself that all of the representations and
warranties contained in SECTION 2 of the Subordination Agreement are true and
correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GRANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Subordination Agreement as of this _______________ day of
______________ __________,_______.
[NAME OF NEW GRANTOR]
By:
---------------------------
Title:
------------------------
161
EXHIBIT H
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF ALTERNATE CURRENCY ADDENDUM
-----------------------------------
162
[CURRENCY]
ALTERNATE CURRENCY ADDENDUM
[CURRENCY] ADDENDUM (including the Schedules hereto, the "ADDENDUM") dated as of
____________ __, ____ to the Credit Agreement (as defined below).
ARTICLE I
---------
DEFINITIONS
-----------
SECTION 1.01. DEFINED TERMS. As used in this Addendum, the following
terms shall have the meanings specified below:
"ALTERNATE CURRENCY LOAN" shall mean any extension of credit,
denominated in the Currency made to [applicable Borrower], a _________________
organized and existing under the laws of ______________, pursuant to SECTION
2.21 of the Credit Agreement and this Addendum. An Alternate Currency Loan shall
bear interest at the rates specified in SCHEDULE II.
["ASSOCIATED COSTS RATE" means for any Alternate Currency Loan
denominated in [currency] for any Interest Period, a percentage rate per annum,
as determined in accordance with Annex I attached hereto on the first day of
such Interest Period, determined by the Alternate Currency Bank as reflecting
the cost, loss or difference in return which would be suffered or incurred by
the Alternate Currency Bank as a result of: (a) funding (at the Eurocurrency
Rate and on a match funded basis) any special deposit or cash ratio deposit
required to be placed with the [applicable central bank] (or any other authority
which replaces all or any of its functions) and/or (b) any charge imposed by the
[applicable Governmental Authority] (or any other authority which replaces a or
any of its functions).]
"CREDIT AGREEMENT" shall mean the 5-Year Credit Agreement dated as of
October 20, 1999, among Xxxxxx Worldwide, Inc., a Delaware corporation (the
"COMPANY"), the Subsidiary Borrowers from time to time party thereto, the
financial institutions from time to time party thereto as Lenders, and ABN AMRO
Bank, N.V. as contractual representative for itself and the other Lenders (the
"ADMINISTRATIVE AGENT"), as the same may be amended, waived, modified or
restated from time to time.
"CURRENCY" means [SPECIFY ALTERNATE CURRENCY].
SECTION 1.02. TERMS GENERALLY. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have the same meanings in this Addendum.
Wherever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"'including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Sections and Schedules shall be deemed references to
Sections of and Schedules to this Addendum unless the context shall otherwise
require.
2
163
ARTICLE II
THE CREDITS
-----------
SECTION 2.01. ALTERNATE CURRENCY LOANS. (a) This Addendum (as the same
may be amended, waived, modified or restated from time to time) is an "Alternate
Currency Addendum" as defined in the Credit Agreement and is, together with the
borrowings made hereunder, subject in all respects to the terms and provisions
of the Credit Agreement except to the extent that the terms and provisions of
the Credit Agreement are modified by this Addendum. The Alternate Currency Bank
party to this Addendum is set forth on SCHEDULE I.
(b) Any modifications to the interest payment dates, Interest Periods,
interest rates and any other special provisions applicable to Alternate Currency
Loans under this Addendum are set forth on SCHEDULE II. If SCHEDULE II states
"Same as Credit Agreement" with respect to any item listed thereon, then the
corresponding provisions of the Credit Agreement, without modification, shall
govern this Addendum and the Alternate Currency Loans made pursuant to this
Addendum.
(c) Any special borrowing procedures or funding arrangements for
Alternate Currency Loans under this Addendum, any provisions for the issuance of
promissory notes to evidence the Alternate Currency Loans made hereunder and any
additional information requirements applicable to Alternate Currency Loans under
this Addendum are set forth on SCHEDULE III. If no such special procedures,
funding arrangements, provisions or additional requirements are set forth on
SCHEDULE III, then the corresponding procedures, funding arrangements,
provisions and information requirements set forth in the Credit Agreement shall
govern this Addendum.
SECTION 2.02. MAXIMUM BORROWING AMOUNTS. (a) The Alternate Currency
Commitment is set forth on SCHEDULE I.
(b) The Company or the applicable Alternate Currency Borrower may
permanently reduce the Alternate Currency Commitment under this Addendum in
whole, or in part, in an aggregate minimum Dollar Amount equal to $1,000,000 (or
any larger multiple of $1,000,000) upon at least one (1) Business Day's prior
written notice to the Alternate Currency Bank, which notice shall be given not
later than 11:00 am. (London time) and shall specify the amount of such
reduction; PROVIDED, HOWEVER, that the amount of the Alternate Currency
Commitment may not be reduced below the aggregate principal amount of the
outstanding Alternate Currency Loans with respect thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Alternate Currency Borrower party hereto makes and confirms each
representation and warranty applicable to the Alternate Currency Borrower or any
of its Subsidiaries contained in Article VI of the Credit Agreement. The
Alternate Currency Borrower represents and warrants to the Alternate Currency
Bank party to this Addendum that no Default or Unmatured
3
164
Default has occurred and is continuing, and no Default or Unmatured Default
shall arise as a result of the making of Alternate Currency Loans hereunder or
any other transaction contemplated hereby.
ARTICLE IV
MISCELLANEOUS PROVISIONS
------------------------
SECTION 4.01. EFFECTIVENESS: AMENDMENT; TERMINATION. (a) This Addendum
shall not become effective until executed by the parties hereto and acknowledged
by the Administrative Agent.
(b) This Addendum may not be amended without the prior written consent
of the Alternate Currency Bank.
(c) This Addendum may not be terminated without the prior written
consent of the Alternate Currency Bank party hereto unless there are no
Alternate Currency Loans outstanding hereunder, in which case no such consent
shall be required; PROVIDED, HOWEVER, that all obligations of the Alternate
Currency Bank to lend hereunder shall automatically terminate on the Termination
Date.
SECTION 4.02. ASSIGNMENTS. ARTICLE XIV of the Credit Agreement shall
apply to assignments by the Alternate Currency Bank of obligations, commitments
and Loans hereunder; PROVIDED, HOWEVER, that the Alternate Currency Bank may not
assign any obligations, commitments or rights hereunder to any Person who is not
(and does not simultaneously become) a Lender under the Credit Agreement.
SECTION 4.03. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Alternate Currency Borrower under this Addendum, at:
(b) if to the Alternate Currency Bank, to it at:
----------------------------------
----------------------------------
Attention: ----------------------------------
Telecopier:----------------------------------
Confirmation: ----------------------------------
with a copy to the Administrative Agent at its address or telecopy number
referenced in the Credit Agreement.
All notices and other communications given to any party hereto in accordance
with the provisions of this Addendum shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in
4
165
this Section or in accordance with the latest unrevoked direction from such
party given in accordance with this Section.
SECTION 4.04. APPLICABLE LAW. THIS ADDENDUM SHALL BE GOVERNED
BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK. WITHOUT LIMITING THE FOREGOING, ANY DISPUTE BETWEEN ANY
SUBSIDIARY BORROWER AND ANY AGENT, ANY LENDER, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS ADDENDUM OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF
THE STATE OF NEW YORK.
[Remainder of this Page Intentionally Blank]
5
166
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
[APPLICABLE BORROWER], as the
Alternate Currency Borrower under this
Addendum
By::
--------------------------------------
Name:
Title:
------------------------------------------
as the Alternate Currency Bank under this
Addendum
By::
--------------------------------------
Name:
Title:
Acknowledged this ___ day of
______________, _____
ABN AMRO BANK N.V.,
as Administrative Agent
By::
-----------------------
Name:
Title:
By::
-----------------------
Name:
Title:
6
167
SCHEDULE I
to Alternate Currency Addendum
for [(Currency)]
ALTERNATE CURRENCY BANK
ALTERNATE CURRENCY COMMITMENT
---------------------------------------------------------------------------
Alternate Currency Bank Alternate Currency Commitment
Name
---------------------------------------------------------------------------
US $________________
---------------------------------------------------------------------------
7
168
SCHEDULE II
to Alternate Currency Addendum
for [Currency]
MODIFICATIONS
1. BUSINESS DAY DEFINITION:
"BUSINESS DAY" shall mean a day (other than a Saturday or Sunday) on
which banks are open for business in ___________.
2. INTEREST PAYMENT DATES: [Same as Credit Agreement] [specify others]
3. INTEREST PERIODS: [Same as Credit Agreement] [specify others]
4. INTEREST RATES:
ALTERNATE CURRENCY LOANS: Each Alternate Currency Loan denominated in
the Currency and for which an Interest Period has been selected in accordance
with the terms of ARTICLE II of the Credit Agreement and this Addendum shall
bear interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at a rate
per annum equal to the sum of (i) the Eurocurrency Rate Base (determined by
reference to the amount of such Loan rather than any Pro-Rata share of the
Administrative Agent) for such Alternate Currency Loan for such Interest Period
PLUS (ii) the Applicable Eurocurrency Margin as in effect from time to time
during such Interest Period [PLUS (iii) the Associated Costs Rate for such
Alternate Currency Loan for such Interest Period]; PROVIDED, HOWEVER, after the
occurrence and during the continuance of a Default, the provisions of Section
2.11 of the Credit Agreement shall be applicable.
5. APPLICABLE MARGINS. Same as Credit Agreement.
6. MODIFICATIONS TO INTEREST PERIOD SELECTION/CONVERSION:
Notice of selection of Interest Period or conversion/continuation shall
be given by the applicable Alternate Currency Borrower to the Alternate Currency
Bank as follows:
Alternate Currency Loans: ______ a.m. (________ time) two Business Days
prior.
7. OTHER:
Additional Conditions Precedent: [None] [specify others]
Termination Date for Addendum: [Same as Credit Agreement] [specify
earlier date]
8
169
Maximum Number of Interest Periods: [Unlimited (provided the Alternate Currency
Borrower is in compliance with minimum borrowing amounts and increments).]
[specify other]
Prepayment Notices: The applicable Alternate Currency Borrower shall be
permitted to prepay the Alternate Currency Loans provided notice thereof is
given to the Alternate Currency Bank not later than ______ am. (_______ time) at
least _____ (__) Business Day(s) prior to the date of such prepayment.
[Authorized Officer: In addition to the Authorized Officers set forth in the
Credit Agreement, those individuals designated in writing by an Authorized
Officer to borrow on behalf of a Borrower shall also be authorized to borrow
Alternate Currency Loans hereunder.]
9
170
SCHEDULE III
to Alternate Currency Addendum
for Pounds Sterling
OTHER PROVISIONS
1. BORROWING PROCEDURES:
Notice of Borrowing shall be given by the Alternate Currency Borrower
to the Alternate Currency Bank as follows:
Alternate Currency Loans: ___:00 __.m. (________ time) on the date of
the proposed borrowing or such later time as the Alternate Currency
Bank shall agree to.
2. FUNDING ARRANGEMENTS:
Minimum amounts/increments for Alternate Currency Loans, repayments and
prepayments:
3. PROMISSORY NOTES: [None required] [Note form to be as specified by the
Alternate Currency Bank]
10
171
ANNEX I
to Alternate Currency Addendum
for [Currency]
ASSOCIATED COSTS RATE
[complete if applicable]
11
172
EXHIBIT I-1
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF REVOLVING LOAN NOTE (IF REQUESTED)
------------------------------------------
Attached
173
REVOLVING LOAN NOTE
U.S. $[__________________] Chicago, Illinois
[DATE]
FOR VALUE RECEIVED, the undersigned, [XXXXXX WORLDWIDE, INC., a
Delaware corporation (the "Company")][____________, a ___________ corporation
(the "Subsidiary Borrower")], HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of [_______________] (the "Lender") the principal sum of [______________]
AND NO/100 DOLLARS ($[_________________]), or, if less, the aggregate unpaid
amount of all "Revolving Loans" (as defined in the Credit Agreement referred to
below) made by the Lender to such [Company] [Subsidiary Borrower] pursuant to
the "Credit Agreement" (as defined below), on the "Termination Date" (as defined
in the Credit Agreement) or on such earlier date as may be required by the terms
of the Credit Agreement. Capitalized terms used herein and not otherwise defined
herein are as defined in the Credit Agreement.
The [Company] [Subsidiary Borrower] promises to pay interest on the
unpaid principal amount of each Revolving Loan made to it from the date of such
Revolving Loan until such principal amount is paid in full at a rate or rates
per annum determined in accordance with the terms of the Credit Agreement.
Interest hereunder is due and payable at such times and on such dates as set
forth in the Credit Agreement.
Both principal and interest are payable in Dollars to the
Administrative Agent (as defined below), to such account as the Administrative
Agent may designate, in same day funds. At the time of each Revolving Loan, and
upon each payment or prepayment of principal of each Revolving Loan, the Lender
shall make a notation either on the schedule attached hereto and made a part
hereof, or in such Lender's own books and records, in each case specifying the
amount of such Revolving Loan, the respective Interest Period thereof (in the
case of Eurocurrency Rate Loans) or the amount of principal paid or prepaid with
respect to such Revolving Loan, as applicable; PROVIDED that the failure of the
Lender to make any such recordation or notation shall not affect the Obligations
of the [Company] [Subsidiary Borrower] hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the promissory notes referred to in,
and is entitled to the benefits of, that certain 5-Year Credit Agreement dated
as of October 20, 1999 among Xxxxxx Worldwide, Inc. (the "Company"), the
Subsidiary Borrowers from time to time party thereto, the financial institutions
parties thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as
Administrative Agent, Suntrust Bank, Atlanta, individually and as Syndication
Agent, and Wachovia Bank N.A., individually and as Documentation Agent (as
amended, restated, supplemented or modified from time to time, the "Credit
Agreement"). The Credit Agreement, among other things, (i) provides for the
making of Revolving Loans by the Lender to the [Company] [Subsidiary Borrower]
under the Credit Agreement from time to time in an aggregate amount not to
exceed at any time outstanding the Dollar Amount first above mentioned, the
indebtedness of the [Company] [Subsidiary Borrower] resulting from each such
Revolving Loan to it being evidenced by this Revolving Loan Note, and (ii)
contains provisions for acceleration
2
174
of the maturity hereof upon the happening of certain stated events and also for
prepayments of the principal hereof prior to the maturity hereof upon the terms
and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the [Company] [Subsidiary Borrower].
Whenever in this Revolving Loan Note reference is made to the
Administrative Agent, the Lender or the [Company] [Subsidiary Borrower], such
reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Revolving Loan Note
shall be binding upon and shall inure to the benefit of said successors and
assigns. The [Company's] [Subsidiary Borrower's] successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the [Company] [Subsidiary Borrower].
This Revolving Loan Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws of the
State of New York.
[XXXXXX WORLDWIDE, INC.]
[SUBSIDIARY BORROWER]
By:
-----------------------------------------
Name:
Title:
3
175
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
-------------------------------------------------------
Date Amount of Loan Type of Loan Interest Period/ Amount of Unpaid Notation Made
Rate Principal Paid or Principal By
Prepaid Balance
-------------- --------------- --------------- ------------------- -------------------- -------------- ---------------
4
176
EXHIBIT I-2
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF TERM LOAN NOTE (IF REQUESTED)
-------------------------------------
Attached
177
TERM LOAN NOTE
U.S. $[__________________] Chicago, Illinois
[DATE]
FOR VALUE RECEIVED, the undersigned, [XXXXXX WORLDWIDE, INC., a
Delaware corporation (the "Company")][____________, a ___________ corporation
(the "Subsidiary Borrower")], HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of [_______________] (the "Lender") the principal sum of [______________]
AND NO/100 DOLLARS ($[_________________]), or, if less, the unpaid amount of the
"Term Loan" (as defined in the Credit Agreement referred to below) made by the
Lender to such [Company] [Subsidiary Borrower] pursuant to the "Credit
Agreement" (as defined below), on the "Termination Date" (as defined in the
Credit Agreement) or on such earlier date as may be required by the terms of the
Credit Agreement. Capitalized terms used herein and not otherwise defined herein
are as defined in the Credit Agreement.
The [Company] [Subsidiary Borrower] promises to pay interest on the
unpaid principal amount of the Term Loan made to it from the date of the Term
Loan until such principal amount is paid in full at a rate or rates per annum
determined in accordance with the terms of the Credit Agreement. Interest
hereunder is due and payable at such times and on such dates as set forth in the
Credit Agreement.
This Term Loan Note is one of the promissory notes referred to in, and
is entitled to the benefits of, that certain 5-Year Credit Agreement dated as of
October 20, 1999 among Xxxxxx Worldwide, Inc. (the "Company"), the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent (as amended,
restated, supplemented or modified from time to time, the "Credit Agreement").
The Credit Agreement, among other things, (i) provides for the making of a Term
Loan by the Lender to the [Company] [Subsidiary Borrower] under the Credit
Agreement on the Closing Date in an aggregate amount not to exceed at any time
outstanding the Dollar Amount first above mentioned, the indebtedness of the
[Company] [Subsidiary Borrower] resulting from each such Term Loan to it being
evidenced by this Term Loan Note, and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments of the principal hereof prior to the maturity hereof upon the terms
and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the [Company] [Subsidiary Borrower].
Whenever in this Term Loan Note reference is made to the Administrative
Agent, the Lender or the [Company] [Subsidiary Borrower], such reference shall
be deemed to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Term Loan Note shall be binding upon and
shall inure to the benefit of said successors and assigns. The [Company's]
[Subsidiary Borrower's] successors and assigns shall include, without
2
178
limitation, a receiver, trustee or debtor in possession of or for the [Company]
[Subsidiary Borrower].
This Term Loan Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws of the
State of New York.
[XXXXXX WORLDWIDE, INC.]
[SUBSIDIARY BORROWER]
By:
-----------------------------------
Name:
Title:
3
179
SCHEDULE OF TERM LOAN AND PAYMENTS OR PREPAYMENTS
Date Amount of Principal Unpaid Principal Balance Notation Made By
Paid or Prepaid
--------------------------------------------------------------------------------
4
180
EXHIBIT I-3
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF NOTE
------------
(Competitive Bid Loans)
BID NOTE
$ [DATE]
Xxxxxx Worldwide, Inc., a Delaware corporation (the "Company"), promises to
pay to the order of _____________ (the "Lender") the aggregate unpaid principal
amount of all Competitive Bid Loans made by the Lender to the Company pursuant
to Section 2.2 of the 5-Year Credit Agreement hereinafter referred to (as the
same may be amended or modified, herein called the "Credit Agreement"), in
lawful money of the United States in immediately available funds at the main
office of ABN AMRO Bank N.V., as administrative agent (the "Administrative
Agent"), in Chicago, Illinois, together with interest, in like money and funds,
on the unpaid principal amount hereof at the rates and on the dates determined
in accordance with the Credit Agreement. The Company shall pay each Competitive
Bid Loan in full on the last day of such Competitive Bid Loan's applicable
Interest Period, or, if earlier, on the Termination Date or the Facility
Termination Date (as such terms are defined in the Credit Agreement), or, if
earlier, when due under SECTION 9.1 of the Credit Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice, the
date and amount of each Competitive Bid Loan and the date and amount of each
principal payment hereunder; provided, however, that the failure to so record
shall not affect the Company's obligations hereunder or under the Credit
Agreement.
This Note (Competitive Bid Loans) is one of the Notes issued pursuant to,
and is entitled to the benefits of, the 5-Year Credit Agreement dated as of
October 20, 1999 among Xxxxxx Worldwide, Inc. (the "Company"), the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), ABN AMRO Bank N.V., individually and as Administrative
Agent, Suntrust Bank, Atlanta, individually and as Syndication Agent, and
Wachovia Bank N.A., individually and as Documentation Agent to which Credit
Agreement reference is hereby made for a statement of the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with the
meanings attributed to them in the Credit Agreement.
181
XXXXXX WORLDWIDE, INC.
By:
---------------------------------
Name:
Title:
2
182
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL TO
PROMISSORY NOTE (COMPETITIVE BID LOANS)
OF XXXXXX WORLDWIDE, INC.
Principal Amount Maturity of Principal
Date of Loan Interest Bond Amount Paid Balance
---- ------- ------------- ----------- -------
3
183
EXHIBIT J
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF COMPETITIVE BID QUOTE REQUEST
-------------------------------------
(Section 2.2(B))
COMPETITIVE BID QUOTE REQUEST
________, 19__
To: ABN AMRO Bank N.V.,
as administrative agent (the "Administrative Agent")
From: Xxxxxx Worldwide, Inc. (the "Company")
Re: 5-Year Credit Agreement (the "Credit Agreement") dated as of
October 20, 1999 among the Company, the financial institutions
parties thereto (the "Lenders"), ABN AMRO Bank N.V.,
individually and as Administrative Agent, Suntrust Bank,
Atlanta, individually and as Syndication Agent, and Wachovia
Bank N.A., individually and as Documentation Agent.
We hereby give notice pursuant to Section 2.2(B) of the Credit Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Advance(s):
Borrowing Date: ___________, 19__
Principal Amount(1) Interest Period(2)
------------------- ------------------
$
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of such date the representations and warranties made in
the Credit Agreement to the extent specified in Article V thereof. Capitalized
terms used herein have the meanings assigned to them in the Credit Agreement.
------------------
(1) Amount must be at least $5,000,000 and in integral multiples of $1,000,000
if in excess thereof.
(2) One, two, three or six months (Eurocurrency Auction) or at least 7 and up to
180 days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
184
XXXXXX WORLDWIDE, INC.
By:
------------------------------------
Name:
Title:
2
185
EXHIBIT K
TO
5-YEAR CREDIT AGREEMENT
Dated as of October 20, 1999
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
---------------------------------------------
(Section 2.2 (C))
INVITATION FOR COMPETITIVE BID QUOTES
--------, ----
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
Xxxxxx Worldwide, Inc. (the "Company")
Pursuant to SECTION 2.2 (C) of the 5-Year Credit Agreement dated as of October
20, 1999 (the "Credit Agreement") among the Company, the Subsidiary Borrowers
from time to time party thereto, the financial institutions parties thereto (the
"Lenders"), ABN AMRO Bank N.V., individually and as Administrative Agent,
Suntrust Bank, Atlanta, individually and as Syndication Agent, and Wachovia Bank
N.A., individually and as Documentation Agent, we are pleased on behalf of the
Company to invite you to submit Competitive Bid Quotes to the Company for the
following proposed Competitive Bid Advance(s):
Borrowing Date: _________ ____
Principal Amount Interest Period
---------------- ---------------
$
Such Competitive Bid Quotes should offer a [Competitive Bid Margin] [Absolute
Rate]. Your Competitive Bid Quote must comply with SECTION 2.2(D) of the Credit
Agreement and the foregoing terms in which the Competitive Bid Quote Request was
made. Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
1
186
Please respond to this invitation by no later than [2:00 p.m.] [10:00 a.m.] New
York time on __________,____.
ABN AMRO Bank N.V., as Administrative Agent
By:
----------------------------------------
Authorized Officer
2
187
EXHIBIT L
TO
5-YEAR CREDIT AGREEMENT
Dated As of October 20, 1999
FORM OF COMPETITIVE BID QUOTE
-----------------------------
(Section 2.2 (D))
COMPETITIVE BID QUOTE
------------------------,-------
To: ABN AMRO Bank N.V.,
as administrative agent (the "Administrative Agent")
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Re: Competitive Bid Quote to Xxxxxx Worldwide, Inc. (the
"Company")
In response to your invitation on behalf of the Company dated ________ ____, we
hereby make the following Competitive Bid Quote pursuant to SECTION 2.2(D) of
the Credit Agreement hereinafter referred to and on the following terms:
1. Quoting Bank: ______________
2. Person to contact at Quoting Bank: _____________
3. Borrowing Date: __________, ______(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
--------------------------
(1) As specified in the related Invitation for Competitive Bid Quotes.
1
188
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period (3) Bid Margin(4)] Rate(5)] Amount(6)
$
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the 5-Year Credit
Agreement dated as of October 20, 1999 among the Company, the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), Suntrust Bank, Atlanta, individually and as Syndication
Agent, and Wachovia Bank N.A., individually and as Documentation Agent, and
yourselves, as Administrative Agent on behalf of the Lenders, irrevocably
obligates us to make the Competitive Bid Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated:________ ____ By:
--------------------------------
Authorized Officer
-----------------------
(2) Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for $5,000,000 and in integral
multiples of $1,000,000 if in excess thereof.
(3) One, two, three or six months (Eurocurrency Auction) or at least 7 and
up to 180 days (Absolute Rate Auction), as specified in the related
Invitation for Competitive Bid Quotes.
(4) Competitive Bid Margin over or under the Eurocurrency Base Rate
determined for the applicable Interest Period. Specify percentage
(rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of
1%).
(6) Specify minimum amount which the Company may accept (see Section 2.1
(D)(ii)(d)).
2
189
EXHIBIT M
TO
5-YEAR CREDIT AGREEMENT
Dated as October 20, 1999
FORM OF ASSUMPTION LETTER
-------------------------
----------, -----
To the Lenders party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the 5-Year Credit Agreement dated as of October
20, 1999 initially among Xxxxxx Worldwide, Inc., the Subsidiary Borrowers from
time to time parties thereto, the Lenders parties thereto, ABN AMRO Bank N.V.,
individually and as Administrative Agent, Suntrust Bank, Atlanta, individually
and as Syndication Agent, and Wachovia Bank N.A., individually and Documentation
Agent (as amended and in effect from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein are used herein as defined
therein.
The undersigned, _______ (the "Subsidiary"), a ______ [corporation],
wishes to become a "Subsidiary Borrower" under the Credit Agreement, and
accordingly hereby agrees that from the date hereof it shall become a
"Subsidiary Borrower" under the Credit Agreement and agrees that from the date
hereof and until the payment in full of the principal of and interest on all
Advances made to it under the Credit Agreement and performance of all of its
other obligations thereunder, and termination hereunder of its status as a
"Subsidiary Borrower" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are stated to
apply to a "Borrower" or a "Subsidiary Borrower." Without limiting the
generality of the foregoing, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Sections 6.1, 6.2,
6.3, and 6.22 of the Credit Agreement is hereby made by such Subsidiary on and
as of the date hereof as if made on and as of the date hereof and as if such
Subsidiary is the "Company" and this Assumption Letter is the "Agreement"
referenced therein, and (ii) it has heretofore received a true and correct copy
of the Credit Agreement (including any modifications thereof or supplements or
waivers thereto) as in effect on the date hereof. In addition, the Subsidiary
hereby authorizes the Company to act on its behalf as and to the extent provided
for in Article II of the Credit Agreement in connection with the selection of
Types and Interest Periods for Advances and with the issuance of Letters of
Credit, and the conversion and continuation of Advances.
So long as the principal of and interest on all Advances and Letters of
Credit made to the Subsidiary under the Credit Agreement shall have been paid in
full and all other obligations of the Subsidiary under the Credit Agreement
shall have been fully performed, the Company may
1
