Exhibit 10.1
[EXECUTION COPY]
SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 21, 2001
(amending and restating the Amended and Restated
Credit Agreement, dated as of January 16, 2001)
among
WEIGHT WATCHERS INTERNATIONAL, INC.,
as a Borrower,
WW FUNDING CORP.,
as the SP1 Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CREDIT SUISSE FIRST BOSTON,
as the Syndication Agent,
a Lead Arranger and a Book Manager,
BHF (USA) CAPITAL CORPORATION, and
FORTIS (USA) FINANCE LLC,
as the Documentation Agents, and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent,
a Lead Arranger and a Book Manager.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................3
SECTION 1.1. Defined Terms................................................................3
SECTION 1.2. Use of Defined Terms........................................................33
SECTION 1.3. Cross-References............................................................33
SECTION 1.4. Accounting and Financial Determinations.....................................33
SECTION 1.5. Currency Conversions........................................................33
ARTICLE II CONTINUATION OF CERTAIN EXISTING LOANS,
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES, LETTERS OF CREDIT AND
ADDITIONAL TLC PROVISIONS.................................................................34
SECTION 2.1. Loan Commitments............................................................34
SECTION 2.1.1. Continuation of Existing Term Loans; Term Loan Commitments..........34
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment............34
SECTION 2.1.3. Letter of Credit Commitment.........................................35
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans.....................35
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.........36
SECTION 2.1.6. Designated Additional Loans.........................................36
SECTION 2.2. Reduction of the Commitment Amounts.........................................37
SECTION 2.2.1. Optional............................................................37
SECTION 2.2.2. Mandatory...........................................................37
SECTION 2.3. Borrowing Procedures and Funding Maintenance................................37
SECTION 2.3.1. Term Loans and Revolving Loans......................................37
SECTION 2.3.2. Swing Line Loans....................................................38
SECTION 2.4. Continuation and Conversion Elections.......................................39
SECTION 2.5. Funding.....................................................................40
SECTION 2.6. Issuance Procedures.........................................................40
SECTION 2.6.1. Other Lenders' Participation........................................41
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans........................41
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SECTION 2.6.3. Reimbursement.......................................................42
SECTION 2.6.4. Deemed Disbursements................................................42
SECTION 2.6.5. Nature of Reimbursement Obligations.................................43
SECTION 2.7. Notes.......................................................................43
SECTION 2.8. Registered Notes............................................................44
SECTION 2.9. Additional TLC Facility.....................................................44
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES................................................44
SECTION 3.1. Repayments and Prepayments; Application.....................................44
SECTION 3.1.1. Repayments and Prepayments..........................................44
SECTION 3.1.2. Application.........................................................48
SECTION 3.2. Interest Provisions.........................................................48
SECTION 3.2.1. Rates...............................................................48
SECTION 3.2.2. Post-Maturity Rates.................................................49
SECTION 3.2.3. Payment Dates.......................................................49
SECTION 3.3. Fees........................................................................50
SECTION 3.3.1. Commitment Fee......................................................50
SECTION 3.3.2. Administrative Agent's Fee..........................................50
SECTION 3.3.3. Letter of Credit Fee................................................50
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS....................................................51
SECTION 4.1. LIBO Rate Lending Unlawful..................................................51
SECTION 4.2. Deposits Unavailable........................................................51
SECTION 4.3. Increased LIBO Rate Loan Costs, etc.........................................51
SECTION 4.4. Funding Losses..............................................................52
SECTION 4.5. Increased Capital Costs.....................................................52
SECTION 4.6. Taxes.......................................................................53
SECTION 4.7. Payments, Computations, etc.................................................55
SECTION 4.8. Sharing of Payments.........................................................55
SECTION 4.9. Setoff......................................................................56
SECTION 4.10. Mitigation..................................................................56
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ARTICLE V CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS...............................57
SECTION 5.1. Conditions Precedent to the Effectiveness of This Agreement and
Making of Credit Extensions.................................................57
SECTION 5.2. All Credit Extensions.......................................................57
SECTION 5.2.1. Compliance with Warranties, No Default, etc.........................57
SECTION 5.2.2. Credit Extension Request............................................57
SECTION 5.2.3. Satisfactory Legal Form.............................................57
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................58
SECTION 6.1. Organization, etc...........................................................58
SECTION 6.2. Due Authorization, Non-Contravention, etc...................................58
SECTION 6.3. Government Approval, Regulation, etc........................................58
SECTION 6.4. Validity, etc...............................................................59
SECTION 6.5. Financial Information.......................................................59
SECTION 6.6. No Material Adverse Change..................................................59
SECTION 6.7. Litigation, Labor Controversies, etc........................................59
SECTION 6.8. Subsidiaries................................................................59
SECTION 6.9. Ownership of Properties.....................................................60
SECTION 6.10. Taxes.......................................................................60
SECTION 6.11. Pension and Welfare Plans...................................................60
SECTION 6.12. Environmental Warranties....................................................60
SECTION 6.13. Regulations U and X.........................................................61
SECTION 6.14. Accuracy of Information.....................................................61
SECTION 6.15. Seniority of Obligations, etc...............................................62
SECTION 6.16. Solvency....................................................................62
ARTICLE VII COVENANTS.................................................................................63
SECTION 7.1. Affirmative Covenants.......................................................63
SECTION 7.1.1. Financial Information, Reports, Notices, etc........................63
SECTION 7.1.2. Compliance with Laws, etc...........................................64
SECTION 7.1.3. Maintenance of Properties...........................................65
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SECTION 7.1.4. Insurance...........................................................65
SECTION 7.1.5. Books and Records...................................................65
SECTION 7.1.6. Environmental Covenant..............................................66
SECTION 7.1.7. Future Subsidiaries.................................................66
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property............................................................67
SECTION 7.1.9. Use of Proceeds, etc................................................68
SECTION 7.2. Negative Covenants..........................................................68
SECTION 7.2.1. Business Activities.................................................68
SECTION 7.2.2. Indebtedness........................................................68
SECTION 7.2.3. Liens...............................................................70
SECTION 7.2.4. Financial Condition.................................................71
SECTION 7.2.5. Investments.........................................................71
SECTION 7.2.6. Restricted Payments, etc............................................73
SECTION 7.2.7. Capital Expenditures, etc...........................................74
SECTION 7.2.8. Consolidation, Merger, etc..........................................75
SECTION 7.2.9. Asset Dispositions, etc.............................................75
SECTION 7.2.10. Modification of Certain Agreements..................................76
SECTION 7.2.11. Transactions with Affiliates........................................77
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc.......................77
SECTION 7.2.13. Stock of Subsidiaries...............................................78
SECTION 7.2.14. Sale and Leaseback..................................................78
SECTION 7.2.15. Fiscal Year.........................................................78
SECTION 7.2.16. Designation of Senior Indebtedness..................................78
SECTION 7.3. Maintenance of Separate Existence...........................................78
ARTICLE VIII GUARANTY..................................................................................81
SECTION 8.1. The Guaranty................................................................81
SECTION 8.2. Guaranty Unconditional......................................................81
SECTION 8.3. Reinstatement in Certain Circumstances......................................82
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SECTION 8.4. Waiver......................................................................82
SECTION 8.5. Postponement of Subrogation, etc............................................82
SECTION 8.6. Stay of Acceleration........................................................83
ARTICLE IX EVENTS OF DEFAULT.........................................................................83
SECTION 9.1. Listing of Events of Default................................................83
SECTION 9.1.1. Non-Payment of Obligations..........................................83
SECTION 9.1.2. Breach of Warranty..................................................83
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations................84
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations..................84
SECTION 9.1.5. Default on Other Indebtedness.......................................84
SECTION 9.1.6. Judgments...........................................................84
SECTION 9.1.7. Pension Plans.......................................................84
SECTION 9.1.8. Change in Control...................................................84
SECTION 9.1.9. Bankruptcy, Insolvency, etc.........................................85
SECTION 9.1.10. Impairment of Security, etc.........................................85
SECTION 9.1.11. Senior Subordinated Notes...........................................86
SECTION 9.1.12. Redemption..........................................................86
SECTION 9.2. Action if Bankruptcy, etc...................................................86
SECTION 9.3. Action if Other Event of Default............................................86
ARTICLE X THE AGENTS................................................................................87
SECTION 10.1. Actions.....................................................................87
SECTION 10.2. Funding Reliance, etc.......................................................87
SECTION 10.3. Exculpation.................................................................88
SECTION 10.4. Successor...................................................................88
SECTION 10.5. Credit Extensions by each Agent.............................................89
SECTION 10.6. Credit Decisions............................................................89
SECTION 10.7. Copies, etc.................................................................89
SECTION 10.8. Reliance by the Administrative Agent........................................89
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SECTION 10.9. Defaults....................................................................90
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................90
SECTION 11.1. Waivers, Amendments, etc....................................................90
SECTION 11.2. Notices.....................................................................91
SECTION 11.3. Payment of Costs and Expenses...............................................91
SECTION 11.4. Indemnification.............................................................92
SECTION 11.5. Survival....................................................................93
SECTION 11.6. Severability................................................................94
SECTION 11.7. Headings....................................................................94
SECTION 11.8. Execution in Counterparts...................................................94
SECTION 11.9. Governing Law; Entire Agreement.............................................94
SECTION 11.10. Successors and Assigns......................................................94
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in Loans, Notes
and Additional TLCs.........................................................95
SECTION 11.11.1. Assignments.........................................................95
SECTION 11.11.2. Participations......................................................97
SECTION 11.11.3. Register............................................................99
SECTION 11.12. Other Transactions..........................................................99
SECTION 11.13. Forum Selection and Consent to Jurisdiction................................100
SECTION 11.14. Waiver of Jury Trial.......................................................100
SECTION 11.15. Confidentiality............................................................101
SECTION 11.16. Judgment Currency..........................................................101
SECTION 11.17. Release of Security Interests..............................................101
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Commitments and Percentages
SCHEDULE III - Notice Information, Domestic Offices and LIBOR Offices
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT A-3 - Form of Term A Note
EXHIBIT A-4 - Form of Additional TLC
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EXHIBIT A-5 - Form of Additional Term B Note
EXHIBIT A-6 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of Additional TLC Purchase Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of December
21, 2001 (amending and restating the
Credit Agreement dated as of January 16,
2001), is among WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation
("WWI"), WW FUNDING CORP., a Delaware corporation (the "SP1 BORROWER", and
together with WWI, the "BORROWERS"), the various financial institutions as are
or may become parties hereto (collectively, the "Lenders"), CREDIT SUISSE FIRST
BOSTON ("CSFB"), as the syndication agent and as a lead arranger (in such
capacities, the "SYNDICATION AGENT" and a "LEAD ARRANGER", respectively), BHF
(USA) CAPITAL CORPORATION and FORTIS (USA) FINANCE LLC, as the documentation
agents (in such capacity, the "DOCUMENTATION AGENTS") and THE BANK OF NOVA
SCOTIA ("SCOTIABANK"), as (x) the administrative agent, paying agent and
registration agent for the Additional TLCs (as defined below) and (y) a lead
arranger (in such capacities, the "ADMINISTRATIVE AGENT" and a "LEAD ARRANGER",
respectively) and as Issuer (as defined below) for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated
Credit Agreement, dated
as of January 16, 2001 (as amended prior to the date hereof, the "EXISTING
CREDIT AGREEMENT"), among the Borrowers, certain financial institutions and
other Persons from time to time party thereto (the "EXISTING LENDERS") and the
Agents, the Existing Lenders committed to make extensions of credit to the
Borrowers on the terms and conditions set forth therein and
(a) made term A loans (the "EXISTING TERM A LOANS"), term B
loans (the "EXISTING TERM B Loans"), term D loans (the "EXISTING TERM D
LOANS", together with the Existing Term A Loans and the Existing Term B
Loans, the "EXISTING TERM LOANS"), TLC facilities (the "EXISTING
TLCS"), revolving loans (the "EXISTING REVOLVING LOANS"), swing line
loans (the "EXISTING SWING LINE LOANS", and collectively with the
Existing Term Loans, the Existing TLCs and the Existing Revolving
Loans, the "EXISTING LOANS") to the Borrowers and
(b) issued or participated in letters of credit (the "EXISTING
LETTERS OF CREDIT") for the account of WWI;
WHEREAS, in connection with the ongoing working capital and general
corporate needs of the Borrowers, the Borrowers desire to, among other things,
continue the Existing Loans (other than the Existing Term B Loans, Existing TLCs
and Existing Term D Loans) as Loans under this Agreement, to continue the
Existing Letters of Credit as Letters of Credit under this Agreement and
maintain and obtain the Commitments to make Credit Extensions set forth herein;
WHEREAS, the Borrowers have requested that the Existing
Credit
Agreement be amended and restated in its entirety to become effective and
binding on the Borrowers pursuant to the terms of this Agreement and Amendment
No.3 (the "AMENDMENT AGREEMENT") to the Existing
Credit Agreement of even date
herewith, and the Lenders (including the Existing Lenders) have agreed (subject
to the terms of this Agreement) to amend and restate the Existing
Credit Agreement in its entirety to read as set forth in this Agreement, and it
has been agreed by the parties to the Existing Credit Agreement that (a) the
commitments which the Existing Lenders have agreed to extend to the Borrowers
under the Existing Credit Agreement shall be extended or advanced upon the
amended and restated terms and conditions contained in this Agreement, and (b)
the Existing Revolving Loans, the Existing Letters of Credit, Existing Swing
Line Loans, Existing Term A Loans and other Obligations (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement
(other than the Existing Term B Loans, Existing TLCs and Existing Term D Loans)
shall be governed by and deemed to be outstanding under the amended and restated
terms and conditions contained in this Agreement, with the intent that the terms
of this Agreement shall supersede the terms of the Existing Credit Agreement
(each of which shall hereafter have no further effect upon the parties thereto,
other than as referenced herein and other than for accrued fees and expenses,
and indemnification provisions, accrued and owing under the terms of the
Existing Credit Agreement on or prior to the date hereof or arising (in the case
of an indemnification) under the terms of the Existing Credit Agreement, in each
case to the extent provided for in the Existing Credit Agreement); PROVIDED,
that any Rate Protection Agreements with any one or more Existing Lenders (or
their respective Affiliates) shall continue unamended and in full force and
effect;
WHEREAS, the Borrowers desire to obtain or continue the following
financing facilities from the Lenders as set forth below:
(a) the Existing Term A Loans shall continue to remain outstanding as
Term A Loans hereunder in an aggregate principal amount of $63,638,390.86;
(b) the Existing Term B Loans, Existing Term D Loans and Existing TLCs,
shall be refinanced (the "REFINANCING") with a new term B facility consisting of
(i) a tranche of additional term B loans (the "ADDITIONAL TERM B LOANS")
hereunder in an aggregate principal amount of $108,000,000 and (ii) additional
Additional TLCs (the "ADDITIONAL TLCS") in an aggregate principal amount of
$64,000,000;
(c) a revolving loan commitment (to include availability for revolving
loans, swing line loans and letters of credit) pursuant to which Borrowings of
revolving loans are and will continue to be made to the Borrowers from time to
time as set forth herein;
(d) a letter of credit commitment pursuant to which the Issuer has
Existing Letters of Credit and will continue to issue letters of credit for the
account of the Borrowers or any of their Subsidiaries (as defined below) from
time to time;
WHEREAS, all Loans, Reimbursement Obligations and other Obligations
shall continue to be and shall be guaranteed pursuant to the Subsidiary Guaranty
executed and delivered by each Subsidiary party thereto required to do so under
the Existing Credit Agreement and secured pursuant to the Security Agreements
executed and delivered by the Borrowers and the applicable Subsidiaries pursuant
to the Existing Credit Agreement; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions set forth in the Amendment Agreement and hereinafter
set forth, to so amend and restate the Existing Credit Agreement and to maintain
or extend such Commitments and make
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such Loans to the Borrowers and issue or maintain (or participate in) Letters of
Credit for the account of the Borrowers;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate
the Existing Credit Agreement, and the Existing Credit Agreement is amended and
restated in its entirety as set forth herein:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ADDITIONAL TERM B LOAN" is defined in the FOURTH RECITAL.
"ADDITIONAL TERM B LOAN COMMITMENT" is defined in CLAUSE (B) of
SECTION 2.1.1.
"ADDITIONAL TERM B LOAN COMMITMENT AMOUNT" means $108,000,000.
"ADDITIONAL TERM B LOAN COMMITMENT TERMINATION DATE" means the earliest
of:
(a) January 31, 2002, if the Additional Term B Loans have not
been made on or prior to such date;
(b) the date of the making of the Additional Term B Loans
(immediately after the making of such Additional Term B Loans on such
date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSES (B) or (C), the Additional
Term B Loan Commitments shall terminate automatically and without any further
action.
"ADDITIONAL TERM B LOAN LENDER" means any Lender which has a Percentage
of the Additional Term B Loan Commitment Amount.
"ADDITIONAL TLC" is defined in the FOURTH RECITAL.
"ADDITIONAL TLC COMMITMENT" is defined in CLAUSE (B) of SECTION 2.9.
"ADDITIONAL TLC COMMITMENT AMOUNT" means $64,000,000.
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"ADDITIONAL TLC COMMITMENT TERMINATION DATE" means the earliest of:
(a) January 31, 2002, if the Additional TLCs have not been
made on or prior to such date;
(b) the date of the making of the Additional TLCs (immediately
after the making of such Additional TLCs on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSES (B) or (C), the Additional
TLC Commitments shall terminate automatically and without any further action.
"ADDITIONAL TLC LENDER" means any Lender which has a Percentage of the
Additional TLC Commitment Amount.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 10.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the Syndication
Agent and the Documentation Agents.
"AGREEMENT" means, on any date, this Credit Agreement, as amended and
restated hereby and as further amended, supplemented, amended and restated, or
otherwise modified from time to time and in effect on such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for U.S. Dollar
loans in the United States; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
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The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate Base Rate.
"AMENDMENT AGREEMENT" is defined in the THIRD RECITAL.
"APPLICABLE MARGIN" means at all times,
(a) with respect to the unpaid principal amount of Existing
Loans and Existing TLCs, the applicable percentage set forth in the
Existing Credit Agreement;
(b) with respect to the unpaid principal amount of Additional
Term B Loans and Additional TLCs maintained as a
(i) Base Rate Loan, 1.50% per annum; and
(ii) LIBO Rate Loan, 2.50% per annum;
(c) with respect to the unpaid principal amount of each
Revolving Loan and Swing Line Loans and each Term A Loan maintained as
a Base Rate Loan at the applicable percentage per annum set forth below
under the column entitled "Applicable Margin for Base Rate Loans"; and
(d) with respect to the unpaid principal amount of each
Revolving Loan, and Swing Line Loan and each Term A Loan maintained as
a LIBO Rate Loan, at the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for LIBO Rate
Loans":
APPLICABLE MARGIN FOR REVOLVING LOANS, SWING LINE LOANS AND TERM A
LOANS:
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Applicable Margin Applicable Margin
Debt to EBITDA Ratio for Base Rate Loans for Libo Rate Loans
-------------------- ------------------- -------------------
Greater than or equal to 4.75 to 1.00 2.250% 3.250%
Less than 4.75 to 1.00 and greater than or equal 1.875% 2.875%
to 4.25 to 1.00
Less than 4.25 to 1.00 and greater than or equal 1.500% 2.500%
to 3.75 to 1.00
Less than 3.75 to 1.00 and greater than or equal 1.125% 2.125%
to 3.25 to 1.00
Less than 3.25 to 1.00 0.750% 1.750%
The Debt to EBITDA Ratio used to compute the Applicable Margin for
Revolving Loans, Swing Line Loans and Term A Loans shall be the Debt to EBITDA
Ratio set forth in the Compliance Certificate most recently delivered by WWI to
the Administrative Agent pursuant to CLAUSE (c) of SECTION 7.1.1; changes in the
Applicable Margin for Revolving Loans, Swing Line
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Loans, and Term A Loans resulting from a change in the Debt to EBITDA Ratio
shall become effective upon delivery by WWI to the Administrative Agent of a new
Compliance Certificate pursuant to CLAUSE (c) of SECTION 7.1.1. If WWI shall
fail to deliver a Compliance Certificate within the number of days after the end
of any Fiscal Quarter as required pursuant to CLAUSE (c) of SECTION 7.1.1
(without giving effect to any grace period), the Applicable Margin for Revolving
Loans, Swing Line Loans, and Term A Loans from and including the first day after
the date on which such Compliance Certificate was required to be delivered to
but not including the date WWI delivers to the Administrative Agent a Compliance
Certificate shall conclusively equal the highest Applicable Margin for Revolving
Loans, Swing Line Loans, and Term A Loans set forth above.
The Applicable Margin for Designated New Term Loans shall be determined
pursuant to SECTION 2.1.6.
"ASSIGNEE LENDER" is defined in SECTION 11.11.1.
"AUSTRALIAN DOLLAR" or "A$" means the lawful money of Australia.
"AUSTRALIAN GUARANTY" means the Guaranty, dated September 29, 1999, by
WW Australia, FPL and GB in favor of the Administrative Agent, as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
"AUSTRALIAN PLEDGE AGREEMENT" means the Australian Share Mortgage
Agreement, dated September 29, 1999, by WW Australia and FPL in favor of the
Administrative Agent, together with each Supplement thereto delivered pursuant
to CLAUSE (B) of SECTION 7.1.7, as amended, amended and restated, supplemented
or otherwise modified from time to time pursuant to the terms thereof.
"AUSTRALIAN SECURITY AGREEMENT" means the Security Agreement, dated
September 29, 1999, by WW Australia, FPL and GB in favor of the Administrative
Agent, together with each Supplement thereto delivered pursuant to CLAUSE (A) of
SECTION 7.1.7, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"AUSTRALIAN SUBSIDIARY" means any Subsidiary that is organized under
the laws of Australia or any territory thereof.
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders in writing from time to time.
"AVERAGE LIFE" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing:
(x) the sum of the products of numbers of years from the date
of determination to the dates of each successive scheduled principal
payment of or redemption or similar payment with respect to such
Indebtedness multiplied by the amount of such payment
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by
(y) the sum of all such payments.
"BASE AMOUNT" is defined in SECTION 7.2.7.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWERS" is defined in the PREAMBLE.
"BORROWING" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by the relevant Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate duly executed
by an Authorized Officer of the applicable Borrower, substantially in the form
of EXHIBIT B-1 hereto.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in
New
York City; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day on which dealings in U.S. Dollars are
carried on in the London interbank market.
"CAPITAL EXPENDITURES" means for any period, the sum, without
duplication, of
(a) the aggregate amount of all expenditures of WWI and its
Subsidiaries for fixed or capital assets made during such period which,
in accordance with GAAP, would be classified as capital expenditures;
and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"CAPITAL SECURITIES" means, (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock, including shares of preferred or preference stock, (ii) all
partnership interests (whether general or limited) in any Person which is a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
"CAPITALIZED LEASE LIABILITIES" means, without duplication, all
monetary obligations of WWI or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date
-7-
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the United States
Government;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-l
by S&P or P-l by ▇▇▇▇▇'▇, or
(ii) any Lender which is an Eligible Institution (or
its holding company);
(c) any certificate of deposit or bankers acceptance, maturing
not more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member
of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000,
or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either ▇▇▇▇▇'▇ or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are
comprised exclusively of any of the items specified in CLAUSES (A)
through (D) above and as to which withdrawals are permitted at least
every 90 days; or
(f) in the case of any Subsidiary of WWI organized in a
jurisdiction outside the United States: (i) direct obligations of the
sovereign nation (or any agency thereof) in which such Subsidiary is
organized and is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency
thereof), (ii) investments of the type and maturity described in
CLAUSES (a) through (e) above of foreign obligors, which investments or
obligors (or the parents of such obligors) have ratings described in
such clauses or equivalent ratings from comparable foreign ratings
agencies or (iii) investments of the type and maturity described in
CLAUSES (a) through (e) above of foreign obligors (or the parents of
such obligors), which investments or obligors (or the parents of such
obligors) are not rated as provided above but which are, in the
reasonable judgment of WWI, comparable in investment quality to such
investments and obligors (or the parents of such obligors); PROVIDED
that the aggregate face amount
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outstanding at any time of such investments of all foreign Subsidiaries
of WWI made pursuant to this CLAUSE (iii) does not exceed $25,000,000.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means
(a) any "person" or "group" (as such terms are used in Rule
13d-5 under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and Sections 13(d) and 14(d) of the Exchange Act) of
persons (other than the Permitted ARTAL Investor Group) becomes,
directly or indirectly, in a single transaction or in a related series
of transactions by way of merger, consolidation, or other business
combination or otherwise, the "beneficial owner" (as such term is used
in Rule 13d-3 of the Exchange Act) of more than 20% of the total voting
power in the aggregate of all classes of Capital Securities of WWI then
outstanding entitled to vote generally in elections of directors of
WWI;
(b) at all times, as applicable, individuals who on September
29, 1999 constituted the Board of Directors of WWI (together with any
new directors whose election to such Board or whose nomination for
election by the stockholders of WWI was approved by a member of the
Permitted ARTAL Investor Group or a vote of 66.67% of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of WWI then in office;
(c) at all times, as applicable, the failure of WWI to own,
free and clear of all Liens (other than in favor of the Administrative
Agent pursuant to a Loan Document), all of the outstanding shares of
Capital Securities of each of (x) ▇▇▇▇▇, ▇▇▇▇▇ and WW Australia (other
than shares of Capital Securities issued pursuant to a Local Management
Plan), and (y) the SP1 Borrower, in each case on a fully diluted basis;
or
(d) any other event constituting a Change of Control (as
defined in the Senior Subordinated Note Indenture).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, as the context may require, a Lender's Letter of
Credit Commitment, Revolving Loan Commitment, Swing Line Loan Commitment,
Additional Term B Loan Commitment or Additional TLC Commitment.
"COMMITMENT AMOUNT" means, as the context may require, the Letter of
Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line
Loan Commitment Amount, the Additional Term B Loan Commitment Amount or the
Additional TLC Commitment Amount.
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"COMMITMENT TERMINATION DATE" means, as the context may require, the
Revolving Loan Commitment Termination Date, the Additional Term B Loan
Commitment Termination Date or the Additional TLC Commitment Termination Date.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default described in
CLAUSES (a) through (d) of SECTION 9.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans and the Additional
TLCs to be due and payable pursuant to SECTION 9.3, or
(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to WWI that the Commitments have been
terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and
executed by the chief financial Authorized Officer of WWI, substantially in the
form of EXHIBIT E hereto.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of EXHIBIT C hereto.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with WWI, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"COPYRIGHT SECURITY AGREEMENT" means the Copyright Security Agreement,
dated September 29, 1999, delivered by WWI and each of its U.S. Subsidiaries
party thereto in favor of the Administrative Agent, as amended, supplemented,
amended and restated or otherwise modified.
-10-
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender;
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any previously issued Letter of Credit, by
the Issuer; or
(c) the purchase of an Additional TLC by an Additional TLC
Lender.
"CREDIT EXTENSION REQUEST" means, as the context may require, any
Borrowing Request or Issuance Request.
"CURRENT ASSETS" means, on any date, without duplication, all assets
(other than cash) which, in accordance with GAAP, would be included as current
assets on a consolidated balance sheet of WWI and its Subsidiaries at such date
as current assets (excluding, however, amounts due and to become due from
Affiliates of WWI which have arisen from transactions which are other than
arm's-length and in the ordinary course of its business).
"CURRENT LIABILITIES" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet of WWI and its Subsidiaries at such date,
excluding current maturities of Indebtedness.
"DEBT" means the outstanding principal amount of all Indebtedness of
WWI and its Subsidiaries of the type referred to in CLAUSES (a), (b), (c) and
(e) of the definition of "Indebtedness" or any Contingent Liability in respect
thereof.
"DEBT TO EBITDA RATIO" means, as of the last day of any Fiscal Quarter,
the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
TO
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"DESIGNATED ADDITIONAL REVOLVING LOAN COMMITMENTS" is defined in
SECTION 2.1.6.
"DESIGNATED ADDITIONAL TERM A LOANS" is defined in SECTION 2.1.6.
"DESIGNATED ADDITIONAL TERM B LOANS" is defined in SECTION 2.1.6.
"DESIGNATED NEW TERM LOANS" is defined in SECTION 2.1.6.
"DESIGNATED SUBSIDIARY" means The Weight Watchers Foundation, Inc., a
New York not-for-profit corporation.
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"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISBURSEMENT DUE DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrowers with the written consent of the Required Lenders.
"DISPOSITION" (or correlative words such as "Dispose") means any sale,
transfer, lease contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of WWI's or its
Subsidiaries', assets (including accounts receivable and Capital Securities of
Subsidiaries) to any other Person (other than to another Obligor) in a single
transaction or series of transactions.
"DOCUMENTATION AGENTS" is defined in the PREAMBLE.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such
Lender designated as such on SCHEDULE III hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EBITDA" means, for any applicable period, the sum (without
duplication) of
(a) Net Income,
PLUS
(b) the amount deducted, in determining Net Income,
representing amortization of assets (including amortization with
respect to goodwill, deferred financing costs, other non-cash interest
and all other intangible assets),
PLUS
(c) the amount deducted, in determining Net Income, of all
income taxes (whether paid or deferred) of WWI and its Subsidiaries,
PLUS
(d) Interest Expense,
PLUS
(e) the amount deducted, in determining Net Income,
representing depreciation of assets,
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PLUS
(f) an amount equal to all non-cash charges deducted in
arriving at Net Income,
PLUS
(g) an amount equal to all minority interest charges deducted
in determining Net Income (net of Restricted Payments made in respect
of such minority interest),
PLUS
(h) an amount equal to the cash royalty payment received
pursuant to the Warnaco Agreement, to the extent not included in the
calculation of Net Income,
PLUS
(i) the amount deducted, in determining Net Income, due to
foreign currency translation required by FASB 52 or FASB 133 arising
after June 30, 1997,
PLUS
(j) the amount deducted in determining Net Income of expenses
incurred in connection with the Weighco Acquisition,
MINUS
(k) an amount equal to the amount of all non-cash credits
included in arriving at Net Income.
"EFFECTIVE DATE" means the date on which all the conditions precedent
set forth in ARTICLE V have been satisfied in the reasonable judgment of the
Administrative Agent.
"ELIGIBLE INSTITUTION" means a financial institution that either (a)
has combined capital and surplus of not less than $500,000,000 or its equivalent
in foreign currency, whose long-term certificate of deposit rating or long-term
senior unsecured debt rating is rated "BBB" or higher by S&P and "Baa2" or
higher by ▇▇▇▇▇'▇ or an equivalent or higher rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing ratings
of investments or (b) is reasonably acceptable to the Administrative Agent and
the Issuer.
"ENVIRONMENTAL LAWS" means all applicable federal, state, local or
foreign statutes, laws, ordinances, codes, rules and regulations (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EURO" means the single currency of participating member States of the
European Union.
"EVENT OF DEFAULT" is defined in SECTION 9.1.
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"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING LENDERS" is defined in the FIRST RECITAL.
"EXISTING LETTERS OF CREDIT" is defined in the CLAUSE (b) of the FIRST
RECITAL.
"EXISTING LOANS" is defined in the CLAUSE (a) of the FIRST RECITAL.
"EXISTING REVOLVING LOANS" is defined in the CLAUSE (a) of the FIRST
RECITAL.
"EXISTING SWING LINE LOANS" is defined in the CLAUSE (a) of the FIRST
RECITAL.
"EXISTING TERM A LOANS" is defined in the CLAUSE (a) of the FIRST
RECITAL.
"EXISTING TERM B LOANS" is defined in the CLAUSE (a) of the FIRST
RECITAL.
"EXISTING TERM LOANS" is defined in the CLAUSE (a) of the FIRST
RECITAL.
"EXISTING TLCS" is defined in the CLAUSE (a) of the FIRST RECITAL.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"FEE LETTERS" means, collectively, (a) the confidential fee letter,
dated as of July 20, 1999, between Artal International S.A., a Luxembourg
corporation ("AI"), and the Administrative Agent, as assumed by ARTAL and (b)
the confidential fee letter, dated as of December 21, 2001 among WWI, the
Administrative Agent and the Syndication Agent.
"FINAL TERMINATION DATE" means the later of:
(x) the Stated Maturity Date with respect to Term B Loans and
the Additional TLCs, and
(y) the date on which all Obligations are satisfied and paid
in full.
"FISCAL QUARTER" means any three-month period ending on a Saturday
closest to March 31, June 30, September 30, or December 31 of any Fiscal Year.
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"FISCAL YEAR" means any year ending on the Saturday closest to
December 31 (e.g., the "2001 FISCAL YEAR" refers to the Fiscal Year ending on
December 29, 2001).
"FIXED CHARGE COVERAGE RATIO" means, as of the last day of any Fiscal
Quarter, the ratio of, for the period consisting of such Fiscal Quarter and each
of the three immediately preceding Fiscal Quarters,
(a) EBITDA MINUS Capital Expenditures made during such period
TO
(b) (i) Interest Expense for such period PLUS (ii) scheduled
repayments of Debt in respect of such period, whether or not paid PLUS
(iii) dividends paid in cash on the WWI Preferred Shares in respect of
such period.
"FNZ" means Weight Watchers New Zealand Unit Trust, a New Zealand trust
which owns and operates the Weight Watchers classroom franchise and business in
New Zealand.
"FNZ GUARANTY" means the Guaranty, dated December 16, 1999, made by FNZ
in favor of the Administrative Agent, as amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms.
"FNZ SECURITY AGREEMENT" means the Security Agreement, dated December
16, 1999, by FNZ in favor of the Administrative Agent, together with each
Supplement thereto delivered pursuant to CLAUSE (C) of SECTION 7.1.13, as
amended, amended and restated, supplemented or otherwise modified from time to
time pursuant to the terms thereof.
"FOREIGN CURRENCY" means any currency other than U.S. Dollars.
"FPL" means Fortuity Pty. Ltd. (ACN 007 148 683), an Australian company
incorporated in the State of Victoria which operates the Weight Watchers
classroom franchise and business in Victoria.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"FRANCHISE ACQUISITION" means the acquisition of any Weight Watchers
franchise by WWI or one of its Subsidaries.
"GAAP" is defined in SECTION 1.4.
"GB" means Gutbusters Pty. Ltd. (ACN 059 073 157), an Australian
company incorporated in the State of New South Wales.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local (or the equivalent thereof), and any agency, authority, instrumentality,
regulatory body, court, central bank or other
-15-
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GUARANTEED OBLIGATIONS" is defined in SECTION 8.1.
"GUARANTIES" means, collectively, (a) the WWI Guaranty, (b) the
Australian Guaranty, (c) the Subsidiary Guaranty, (d) the FNZ Guaranty and (e)
each other guaranty delivered from time to time pursuant to the terms of this
Agreement.
"GUARANTOR" means any Person which has or may issue a Guaranty
hereunder.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA or
equivalent applicable foreign law;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended or equivalent applicable
foreign law;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates, including but not limited to Rate Protection
Agreements.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"HJH" means ▇.▇. ▇▇▇▇▇ Company, a Pennsylvania Corporation.
"HJH PLEDGE AGREEMENT" means the HJH Pledge Agreement, dated September
29, 1999, by HJH in favor of the Administrative Agent, as amended, amended and
restated, supplemented or otherwise modified from time to time pursuant to the
terms thereof.
"IMMATERIAL SUBSIDIARY" means, at any date of determination, any
Subsidiary or group of Subsidiaries of WWI having assets as at the end of or
EBITDA for the immediately preceding four Fiscal Quarter period for which the
relevant financial information has been delivered
-16-
pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1 of less than 5% of total
assets of WWI and its Subsidiaries or $2,000,000, respectively, individually or
in the aggregate.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause such Obligor to be in default of any of its
obligations under SECTION 7.2.4.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, other than the WWI Preferred Shares, and
indebtedness (excluding prepaid interest thereon and interest not yet
due) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; PROVIDED,
HOWEVER, that, for purposes of determining the amount of any
Indebtedness of the type described in this clause, if recourse with
respect to such Indebtedness is limited to specific property financed
with such Indebtedness, the amount of such Indebtedness shall be
limited to the fair market value (determined on a
-17-
basis reasonably acceptable to the Administrative Agent) of such
property or the principal amount of such Indebtedness, whichever is
less; and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing;
PROVIDED, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding the Indebtedness incurred through
the borrowing of money or Contingent Liabilities in connection therewith. For
all purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"INDEMNIFIED LIABILITIES" is defined in SECTION 11.4.
"INDEMNIFIED PARTIES" is defined in SECTION 11.4.
"INITIAL PUBLIC OFFERING" means any sale of the Capital Securities of
WWI to the public pursuant to an initial, primary offering registered under the
Securities Act of 1933 and, for purposes of the Change in Control definition
only, pursuant to which no less than 10% of the Capital Securities of WWI
outstanding after giving effect to such offering was sold pursuant to such
offering.
"INTERCOMPANY SUBORDINATION AGREEMENT" means the Intercompany
Subordination Agreement, dated September 29, 1999, by WWI, the ▇▇▇ ▇▇▇▇▇▇▇▇ and
each of the Guarantors in favor of the Administrative Agent.
"INTEREST COVERAGE RATIO" means, at the close of any Fiscal Quarter,
the ratio computed (except as set forth in the proviso set forth below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of:
(a) EBITDA (for such period)
TO
(b) Interest Expense (for such period).
"INTEREST EXPENSE" means, for any Fiscal Quarter, the aggregate
consolidated cash interest expense (net of interest income) of WWI and its
Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense.
"INTEREST PERIOD" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3.1 or
2.4 and shall end on (but exclude) the day which numerically
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corresponds to such date one, two, three or six or, with the consent of each
applicable Lender, nine or twelve months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), in
either case as WWI may select in its relevant notice pursuant to SECTION 2.3 or
2.4; PROVIDED, HOWEVER, that
(a) WWI shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on
more than ten different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b) any ownership or similar interest held by such Person in
any other Person; and
(c) any purchase or other acquisition of all or substantially
all of the assets of any Person or any division thereof.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of WWI, substantially in the form of
EXHIBIT B-2 hereto.
"ISSUER" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by WWI and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"LEAD ARRANGERS" means Scotiabank and CSFB.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT D hereto.
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"LENDERS" is defined in the PREAMBLE.
"LENDER'S ENVIRONMENTAL LIABILITY" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, the Syndication Agent, any Lead Arranger, any Lender or any Issuer or any
of such Person's Affiliates, shareholders, directors, officers, employees, and
agents in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of WWI or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from WWI or any of its Subsidiaries' or any of their
respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in SECTION 6.12;
(c) any violation or claim of violation by WWI or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by WWI or any of its Subsidiaries, or in connection
with any property owned or formerly owned by WWI or any of its
Subsidiaries.
"LETTER OF CREDIT" is defined in SECTION 2.1.3.
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to SECTION 2.6.1.
"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum
amount of $10,000,000, as such amount may be reduced from time to time pursuant
to SECTION 2.2.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit,
PLUS
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
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"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which U.S. Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO RATE
--------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to WWI and the Administrative Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
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"LOAN" means, as the context may require, a Revolving Loan, a Swing
Line Loan, a Term A Loan (including each Designated Additional Term A Loan), a
Term B Loan (including each Designated Additional Term B Loan) and each
Designated New Term Loan of any type.
"LOAN DOCUMENT" means this Agreement, the Notes, the Additional TLCs,
the Letters of Credit, each Rate Protection Agreement under which that
counterpart to such agreement is (or at the time such Rate Protection Agreement
was entered into, was) a Lender or an Affiliate of a Lender relating to Hedging
Obligations of WWI or any of its Subsidiaries, the Fee Letter, each Pledge
Agreement, each Guaranty, each Security Agreement, the TLC Deed Poll, the
Intercompany Subordination Agreement and each other agreement, document or
instrument delivered in connection with this Agreement or any other Loan
Document, whether or not specifically mentioned herein or therein.
"LOCAL MANAGEMENT PLAN" means an equity plan or program for (i) the
sale or issuance of Capital Securities of a Subsidiary in an amount not to
exceed 5% of the outstanding common equity of such Subsidiary to local
management or a plan or program in respect of Subsidiaries of WWI whose
principal business is conducted outside of the United States, (ii) the direct
purchase from ARTAL by WWI management employees, in one transaction or a series
of transactions, of not more than 3% in the aggregate of the WWI Common Shares
owned by ARTAL or (iii) the issuance by WWI to its management employees, in one
transaction or a series of transactions, of stock options to purchase not more
than 6% in the aggregate of the WWI Common Shares on a fully diluted basis.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of WWI and its
Subsidiaries, taken as a whole, (b) a material impairment other than an event or
set of circumstances described in CLAUSE (A) of the ability of any Obligor
(other than any Immaterial Subsidiary) to perform its respective material
obligations under the Loan Documents to which it is or will be a party, or (c)
an impairment of the validity or enforceability of, or a material impairment of
the rights, remedies or benefits available to the Administrative Agent, the
Issuer or the Lenders under, this Agreement or any other Loan Document.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including CLAUSE (B) of
SECTION 7.1.8.
"NET DEBT TO EBITDA RATIO" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
(less the amount of cash and Cash Equivalent Investments of WWI and its
Subsidiaries as of such date)
TO
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
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"NET DISPOSITION PROCEEDS" means, with respect to a Permitted
Disposition of the assets of WWI or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by WWI or any of its
Subsidiaries from any Permitted Disposition and any cash payments
received in respect of promissory notes or other non-cash consideration
delivered to WWI or such Subsidiary in respect of any Permitted
Disposition,
LESS
(b) the sum of
(i) all reasonable and customary fees and expenses
with respect to legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with
such Permitted Disposition which have not been paid to
Affiliates of WWI,
(ii) all taxes and other governmental costs and
expenses actually paid or estimated by WWI (in good faith) to
be payable in cash in connection with such Permitted
Disposition, and
(iii) payments made by WWI or any of its Subsidiaries
to retire Indebtedness (other than the Loans) of WWI or any of
its Subsidiaries where payment of such Indebtedness is
required in connection with such Permitted Disposition;
PROVIDED, HOWEVER, that if, after the payment of all taxes with respect to such
Permitted Disposition, the amount of estimated taxes, if any, pursuant to CLAUSE
(B)(II) above exceeded the tax amount actually paid in cash in respect of such
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to CLAUSE (B) of SECTION 3.1.1, as Net Disposition Proceeds.
Notwithstanding the foregoing, Net Disposition Proceeds shall not include fees
or other amounts paid to WWI or its Subsidiaries in respect of a license of
intellectual property (not related to the classroom business of WWI or its
Subsidiaries) having customary terms and conditions for similar licenses.
"NET INCOME" means, for any period, the net income of WWI and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
gains.
"NETCO" means Weight ▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation.
"NON-EXCLUDED TAXES" means any taxes other than (i) net income and
franchise taxes imposed with respect to any Secured Party by a Governmental
Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office and (ii) any taxes imposed on a Secured
Party by any jurisdiction as a result of any former or present
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connection between such Secured Party and such jurisdiction other than a
connection arising from a Secured Party entering into this Agreement or making
any loan hereunder.
"NON-GUARANTOR SUBSIDIARY" means the Designated Subsidiary and any
other Subsidiary of WWI other than any Person which has or may issue a Guaranty
hereunder.
"NON-U.S. LENDER" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) any estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"NOTE" means, as the context may require, a Revolving Note, a Swing
Line Note, a Registered Note, a Term A Note, an Additional Term B Note or any
promissory note representing a Designated New Term Loan.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes, each Letter of Credit and each other Loan Document, and
Hedging Obligations owed to a Lender or an Affiliate thereof (unless the Lender
or such Affiliate otherwise agrees).
"OBLIGOR" means any Borrower or any other Person (other than any Agent,
any Lender or the Issuer) obligated under any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements (or the foreign equivalent thereof) applicable to any of
its authorized shares of Capital Securities.
"OTHER TAXES" means any and all stamp, documentary or similar taxes, or
any other excise or property taxes or similar levies that arise on account of
any payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"PARTICIPANT" is defined in SECTION 11.11.2.
"PATENT SECURITY AGREEMENT" means the Patent Security Agreement, dated
September 29, 1999, by WWI and each of its U.S. Subsidiaries in favor of the
Administrative Agent, as amended, supplemented, amended and restated or
otherwise modified.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"PENSION PLAN" means a "PENSION PLAN", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which WWI
or any corporation, trade or business that is, along with WWI, a member of a
Controlled Group, has or within the prior six years has had any liability,
including any liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under section
4069 of ERISA.
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"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Additional Term B Loans, Term A Loans, Term B Loans, Term D Loans,
Designated New Term Loans, Swing Line Loans, Revolving Loans, Additional TLCs,
or Additional TLCs, as the case may be, as set forth opposite its name on
SCHEDULE II hereto under the applicable column heading or set forth in Lender
Assignment Agreement(s) under the applicable column heading, as such percentage
may be adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
SECTION 11.11. A Lender shall not have any Commitment to make a particular
Tranche of Loans or purchase Additional TLCs (as the case may be) if its
percentage under the respective column heading is zero (0%), and no Lender has a
Commitment with respect to Existing Term A Loans, Existing Term B Loans or
Existing Term D Loans as the Term A Loan Commitments, Term B Loan Commitments
and the Term D Loan Commitments (each as defined in the Existing Credit
Agreement) have been terminated by the making of the Existing Term A Loans,
Existing Term B Loans and the Existing Term D Loans.
"PERMITTED ACQUISITION" means an acquisition (whether pursuant to an
acquisition of Capital Securities, assets or otherwise) by any Borrower or any
of the Subsidiaries from any Person of a business in which the following
conditions are satisfied:
(a) immediately before and after giving effect to such
acquisition no Default shall have occurred and be continuing or would
result therefrom (including under SECTION 7.2.1);
(b) if the acquisition is of Capital Securities of a Person
such Person becomes a Subsidiary;
(c) (i) the consideration for such acquisition is the voting
Capital Securities of WWI or (ii) the aggregate amount of other
consideration (including cash) for all such acquisitions since the date
hereof shall not exceed an amount equal to $30,000,000 in any Fiscal
Year; or (iii) such acquisition is a Franchise Acquisition, PROVIDED,
that in the case of this clause (iii) the aggregate amount of other
consideration (including cash and incurrence or assumption of
Indebtedness, but excluding consideration of the type described in
CLAUSE (I) above) for each Franchise Acquisition shall not exceed
$75,000,000 per Franchise Acquisition (including the incurrence or
assumption of up to $30,000,000 in Indebtedness per Franchise
Acquisition); and
(d) Holdings shall have delivered to the Agents a Compliance
Certificate for the period of four full Fiscal Quarters immediately
preceding such acquisition (prepared in good faith and in a manner and
using such methodology which is consistent with the most recent
financial statements delivered pursuant to SECTION 7.1.1) giving PRO
FORMA effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in SECTION 7.2.4.
"PERMITTED ARTAL INVESTOR GROUP" means ARTAL or any of its direct or
indirect Wholly-owned Subsidiaries and ARTAL Group S.A., a Luxembourg
corporation or any of its direct or indirect Wholly-owned Subsidiaries.
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"PERMITTED DISPOSITION" means a Disposition in accordance with the
terms of CLAUSE (b) (other than as permitted by CLAUSE (a)) of SECTION 7.2.9.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PLEDGE AGREEMENTS" means, collectively, (a) the WWI Pledge Agreement,
(b) the ARTAL Pledge Agreement, (c) the HJH Pledge Agreement, (d) the Australian
Pledge Agreement, (e) the U.K. Pledge Agreement, and (f) each other pledge
agreement delivered from time to time pursuant to CLAUSE (B) of SECTION 7.1.7.
"QUALIFIED ASSETS" is defined in CLAUSE (b) of SECTION 3.1.1.
"QUARTERLY PAYMENT DATE" means the last day of each March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day.
"RATE PROTECTION AGREEMENTS" means, collectively, arrangements entered
into by any Person designed to protect such Person against fluctuations in
interest rates or currency exchange rates, pursuant to the terms of this
Agreement.
"RECAPITALIZATION" means those transactions contemplated and undertaken
pursuant to the Recapitalization Agreement.
"RECAPITALIZATION AGREEMENT" means that certain Recapitalization and
Stock Purchase Agreement, dated as of July 22, 1999 among WWI, ARTAL and HJH.
"REFINANCE" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"REFINANCING" is defined in the FOURTH RECITAL.
"REFINANCING INDEBTEDNESS" means Indebtedness that Refinances any
Indebtedness of WWI or any of its Subsidiaries existing on September 29, 1999 or
otherwise permitted hereunder, including Indebtedness that Refinances
Refinancing Indebtedness; PROVIDED, HOWEVER, that:
(i) such Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(ii) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced; and
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(iii) such Refinancing Indebtedness has an aggregate principal
amount (or if incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced;
PROVIDED FURTHER, HOWEVER, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of WWI or (B)
Indebtedness of WWI or a Subsidiary that Refinances Indebtedness of another
Subsidiary.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (B) of SECTION 2.3.2.
"REGISTER" is defined in SECTION 11.11.3.
"REGISTERED NOTE" means a promissory note of WWI payable to any
Registered Noteholder, in the form of EXHIBIT A-6 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of WWI to such Lender resulting from
outstanding Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"REGISTERED NOTEHOLDER" means any Lender that has been issued a
Registered Note.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RELATED FUND" means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor of such Lender or by an Affiliate of such investment
advisor or collateralized debt or loan obligation fund managed or operated by a
Lender or an Affiliate of a Lender.
"RELEASE" means a "RELEASE", as such term is defined in CERCLA.
"REQUIRED LENDERS" means, at any time, Lenders holding at least 51% of
the Total Exposure Amount.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect
from time to time.
"RESTRICTED PAYMENTS" is defined in SECTION 7.2.6.
"REVOLVING LOAN" is defined in CLAUSE (A) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT" is defined in CLAUSE (A) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT AMOUNT" means, on any date, $45,000,000, as
such amount may be (i) reduced from time to time pursuant to SECTION 2.2 or (ii)
increased pursuant to SECTION 2.1.6.
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"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) September 30, 2005;
(b) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to SECTION 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSES (B) or (C), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"REVOLVING NOTE" means a promissory note of WWI payable to a Lender,
substantially in the form of EXHIBIT A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding
Revolving Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
"SCOTIABANK" is defined in the PREAMBLE.
"SECURED PARTIES" means, collectively, the Lenders, the Issuers, the
Administrative Agent, the Syndication Agent, the Lead Arrangers, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof and
(in each case) and each of their respective successors, transferees and assigns.
"SECURITY AGREEMENTS" means, collectively, (a) the WWI Security
Agreement, (b) the Australian Security Agreement, (c) the U.K. Security
Agreement, (d) the Patent Security Agreements, the Trademark Security Agreements
and the Copyright Security Agreements, (e) the FNZ Security Agreement and (f)
each other security agreement executed and delivered from time to time pursuant
to CLAUSE (A) of SECTION 7.1.7, in each case, as amended, amended and restated,
supplemented or otherwise modified from time to time pursuant to the terms
thereof.
"SENIOR DEBT" means all Debt other than Subordinated Debt.
"SENIOR DEBT TO EBITDA RATIO" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Senior Debt outstanding on the last day of such Fiscal
Quarter
TO
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
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"SENIOR SUBORDINATED DEBT" means, collectively, debt of WWI under its
13% Senior Subordinated Notes in an aggregate principal amount of $150,000,000
and its 13% Senior Subordinated Notes in an aggregate principal amount of Euro
100,000,000, issued under the Senior Subordinated Note Indenture pursuant to a
Rule 144A private placement.
"SENIOR SUBORDINATED NOTE INDENTURE" means, collectively, that certain
Senior Subordinated Note Indenture, dated as of September 29, 1999 between WWI
and Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of $150,000,000 Senior Subordinated Notes and that certain Senior
Subordinated Note Indenture, dated as of September 29, 1999, between WWI and
Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of Euro 100,000,000 Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTEHOLDER" means, at any time, any holder of a
Senior Subordinated Note. "SENIOR SUBORDINATED NOTES" means those certain 13%
Senior Subordinated Notes due 2009, issued pursuant to the Senior Subordinated
Note Indenture.
"SOLVENT" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"STATED AMOUNT" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"STATED MATURITY DATE" means
(a) in the case of any Revolving Loan, September 30, 2005;
(b) in the case of any Term A Loan, September 30, 2005;
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(c) in the case of any Additional Term B Loan, December 31,
2007; and
(d) in the case of any Additional TLC, December 31, 2007; and
(e) in the case of any Designated New Term Loan, as determined
in accordance with SECTION 2.1.6.
"SUBORDINATED DEBT" means, as the context may require, (i) the
unsecured Debt of WWI evidenced by the Senior Subordinated Notes and (ii) to the
extent permitted by the Required Lenders, any other unsecured Debt of WWI
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to the Administrative Agent and Required Lenders.
"SUBORDINATED GUARANTY" means, collectively, (i) the Guaranty executed
and delivered by certain Subsidiaries of WWI pursuant to Section 4.13 of the
Senior Subordinated Note Indenture and (ii) each other guaranty, if any,
executed from time to time by any Subsidiary of WWI pursuant to which the
guarantor thereunder has any Contingent Liability with respect to any
Subordinated Debt.
"SUBORDINATION PROVISIONS" is defined in SECTION 9.1.11.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Securities (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Securities (or other ownership interest) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term "Subsidiary" shall be a reference to a Subsidiary of WWI.
"SUBSIDIARY GUARANTY" means the Guaranty, dated September 29, 1999, by
the U.S. Subsidiaries signatory thereto, ▇▇▇▇▇, ▇▇▇▇▇ and WWUK and its
Subsidiaries in favor of the Administrative Agent, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"SWING LINE LENDER" means Scotiabank (or another Lender designated by
Scotiabank with the consent of WWI, if such Lender agrees to be the Swing Line
Lender hereunder), in such Person's capacity as the maker of Swing Line Loans.
"SWING LINE LOAN" is defined in CLAUSE (B) of SECTION 2.1.2.
"SWING LINE LOAN COMMITMENT" means, with respect to the Swing Line
Lender, the Swing Line Lender's obligation pursuant to CLAUSE (B) of SECTION
2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to SECTION
2.3.2.
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"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note of WWI payable to the Swing
Line Lender, in substantially the form of EXHIBIT A-2 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of WWI to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.]
"SYNDICATION AGENT" is defined in the PREAMBLE.
"TERM LOANS" means, collectively, the Term A Loans, the Additional Term
B Loans and the Designated New Term Loans.
"TERM A LOAN" is defined in CLAUSE (a) of SECTION 2.1.1.
"TERM A LOAN LENDER" means any Lender which has an outstanding Term A
Loan.
"TERM A NOTE" means a promissory note of WWI, payable to the order of
any Lender, in the form of EXHIBIT A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term A
Loans (including Additional Term A Loans), and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"TLC" means an instrument executed by the SP1 Borrower, which
acknowledges the Indebtedness of the SP1 Borrower with respect to any Lender, in
the form of EXHIBIT A-4 hereto (as such instrument may be amended, endorsed or
otherwise modified from time to time), and also means all other instruments
accepted from time to time in substitution therefor or renewal thereof.
"TLC DEED POLL" means the Deed Poll, dated as of September 29, 1999,
among the SP1 Borrower and each Additional TLC Holder (as defined therein), as
amended, amended and restated, supplemented or otherwise modified from time to
time.
"TOTAL EXPOSURE AMOUNT" means, on any date of determination, the then
outstanding principal amount of all Term Loans, the Additional TLCs and the then
effective Revolving Loan Commitment Amount.
"TRADEMARK SECURITY AGREEMENT" means the Trademark Security Agreement,
dated September 29, 1999, by WWI and each of its U.S. Subsidiaries signatory
thereto in favor of the Administrative Agent, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"TRANCHE" means, as the context may require, the (a) Loans constituting
Term A Loans, Additional Term B Loans, Swing Line Loans or Revolving Loans or
(b) Additional TLCs.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
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"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of
New York.
"UKHC1" means Weight Watchers UK Holding Ltd, a company incorporated
under the laws of England.
"UKHC2" means Weight Watchers International Ltd, a company incorporated
under the laws of England.
"U.K. PLEDGE AGREEMENT" means, collectively, (i) the Deeds of Charge
executed and delivered by WWI to ▇▇▇▇▇, ▇▇▇▇▇ and WWUK and its Subsidiaries and
(ii) each other pledge agreement delivered pursuant to CLAUSE (B) of SECTION
7.1.7, as amended, amended and restated, supplemented or otherwise modified from
time to time pursuant to the terms thereof.
"U.K. SECURITY AGREEMENT" means, collectively, (i) the Debentures
executed and delivered by ▇▇▇▇▇, ▇▇▇▇▇ and WWUK and each of its Subsidiaries and
(ii) each other security agreement delivered pursuant to CLAUSE (A) of SECTION
7.1.7, as amended, amended and restated, supplemented or otherwise modified from
time to time pursuant to the terms thereof.
"U.K. SUBSIDIARY" means any Subsidiary that is incorporated under the
laws of England.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. DOLLAR" and the sign "$" mean lawful money of the United States.
"U.S. SUBSIDIARY" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof or the District
of Columbia.
"VOTING STOCK" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"WAIVER" means an agreement in favor of the Administrative Agent for
the benefit of the Lenders and the Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"WARNACO AGREEMENT" means that certain License Agreement, dated as of
January 8, 1999, between Warnaco Inc., a Delaware corporation, and WWI.
"WEIGHCO ACQUISITION" the acquisition by WWI and its Subsidiaries of
substantially all of the assets and business of Weighco Enterprises, Inc., and
various of its Affiliates on January 16, 2001.
"WELFARE PLAN" means a "WELFARE PLAN", as such term is defined in
section 3(1) of ERISA, and to which WWI or any of its Subsidiaries has any
liability.
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"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities (and all rights and
options to purchase such Capital Securities) of which, other than directors'
qualifying shares or shares sold pursuant to Local Management Plans, are owned,
beneficially and of record, by such Person and/or one or more Wholly-owned
Subsidiaries of such Person.
"WW AUSTRALIA" means Weight Watchers International Pty. Ltd. (ACN 070
836 449), an Australian company incorporated in the State of New South Wales and
resident in Australia and the direct corporate parent of FPL and the SP1
Borrower.
"WWI COMMON SHARES" means shares of common stock of WWI, par value
$1.00 per share.
"WWI GUARANTY" means the Guaranty made by WWI contained in ARTICLE
VIII.
"WWI PLEDGE AGREEMENT" means the Pledge Agreement, dated September 29,
1999, by WWI and its U.S. Subsidiaries signatory thereto in favor of the
Administrative Agent, together with each Supplement thereto delivered pursuant
to CLAUSE (B) of SECTION 7.1.7, as amended, amended and restated, supplemented
or otherwise modified from time to time pursuant to the terms thereof.
"WWI PREFERRED SHARES" means no par value preferred shares of WWI with
an aggregate amount liquidation preference equal to $25,000,000.
"WWI SECURITY AGREEMENT" means the Security Agreement dated September
29, 1999, by WWI and all U.S. Subsidiaries of WWI (other than the Designated
Subsidiary) in favor of the Administrative Agent, together with each Supplement
thereto delivered pursuant to CLAUSE (A) of SECTION 7.1.7, as amended, amended
and restated, supplemented or otherwise modified from time to time pursuant to
the terms thereof.
"WWUK" means Weight Watchers UK Limited and its Subsidiaries.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. All accounting
determinations and computations made pursuant to SECTION 7.2.4 shall be made in
accordance with those generally accepted accounting principles ("GAAP") as in
effect as of December 30, 2000. For purposes of providing the financial
statements required to be delivered hereunder,
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"GAAP" shall mean those generally accepted accounting principles as in effect at
such time. For purposes of computing the covenants set forth in SECTION 7.2.4
(and any financial calculations required to be made or included within such
ratios) as of the end of any Fiscal Quarter, all components of such ratios for
the period of four Fiscal Quarters ending at the end of such Fiscal Quarter
shall include (or exclude), without duplication, such components of such ratios
attributable to any business or assets that have been acquired (or disposed of)
by WWI or any of the Subsidiaries (including through mergers or consolidations)
after the first day of such period of four Fiscal Quarters and prior to the end
of such period, on a pro forma basis for such period of four Fiscal Quarters as
if such acquisition or disposition had occurred on such first day of such
period.
SECTION 1.5. CURRENCY CONVERSIONS. If it shall be necessary for
purposes of this Agreement to convert an amount in one currency into another
currency, unless otherwise provided herein, the exchange rate shall be
determined by reference to the
New York foreign exchange selling rates (such
determination to be made as at the date of the relevant transaction), as
determined by the Administrative Agent (in accordance with its standard
practices).
ARTICLE II
CONTINUATION OF CERTAIN EXISTING LOANS, COMMITMENTS, BORROWING
AND ISSUANCE PROCEDURES, NOTES, LETTERS OF CREDIT
AND ADDITIONAL TLC PROVISIONS
SECTION 2.1. LOAN COMMITMENTS. On the terms and subject to the
conditions of this Agreement (including ARTICLE V), the Lenders, the Swing Line
Lender and the Issuer severally agree to the continuation of Existing Loans and
Existing Letters of Credit and to make Credit Extensions as set forth below.
SECTION 2.1.1. CONTINUATION OF EXISTING TERM LOANS; TERM LOAN
COMMITMENTS. Subject to compliance by the Obligors with the terms of SECTIONS
2.1.4, 5.1 and 5.2:
(a) each of the parties hereto acknowledges and agrees that
the Existing Term A Loans shall continue as "Term A Loans" being the
"Term A Loans" for all purposes under this Agreement and the Loan
Documents, with each Lender's share of Term A Loans being set forth
opposite its name on SCHEDULE II hereto under the Term A Loan column
set forth in a Lender Assignment Agreement under the Term A column, as
applicable, as such amount may be adjusted from time to time pursuant
to the terms hereof; and
(b) in a single Borrowing occurring on or prior to the
Additional Term B Loan Commitment Termination Date, each Lender that
has an Additional Term B Loan Commitment will make Additional Term B
Loans to WWI in an amount equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Additional Term B Loans requested
by WWI to be made on such day (with the commitment of each such Lender
described in this CLAUSE (B) herein referred to as its "ADDITIONAL TERM
B LOAN COMMITMENT").
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No amounts paid or prepaid with respect to Term Loans may be
reborrowed.
SECTION 2.1.2. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN
COMMITMENT. Subject to compliance by the Obligors with the terms of SECTION
2.1.4, SECTION 5.1 and SECTION 5.2, the Revolving Loans and Swing Line Loans
will be continued and/or made as set forth below:
(a) From time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans but prior to
the Revolving Loan Commitment Termination Date, each Lender that has a
Revolving Loan Commitment will make loans (relative to such Lender, its
"REVOLVING LOANS") to WWI in U.S. Dollars, equal to such Lender's
Percentage of the aggregate amount of the Borrowing of the Revolving
Loans requested by such Borrower to be made on such day. The Commitment
of each Lender described in this CLAUSE (A) is herein referred to as
its "REVOLVING LOAN COMMITMENT". On the terms and subject to the
conditions hereof, any Borrower may from time to time borrow, prepay
and reborrow the Revolving Loans. All Existing Revolving Loans shall be
continued as Revolving Loans hereunder.
(b) From time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans, but prior to
the Revolving Loan Commitment Termination Date, the Swing Line Lender
will make loans (relative to the Swing Line Lender, its "SWING LINE
LOANS") to WWI equal to the principal amount of the Swing Line Loans
requested by WWI. On the terms and subject to the conditions hereof,
WWI may from time to time borrow, prepay and reborrow such Swing Line
Loans. All Existing Swing Line Loans shall be continued as Swing Line
Loans hereunder.
SECTION 2.1.3. LETTER OF CREDIT COMMITMENT. Subject to compliance by
the Obligors with the terms of SECTION 2.1.5, SECTION 5.1 and SECTION 5.2, from
time to time on any Business Day occurring from and after September 29, 1999 but
prior to the Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby or documentary letters of credit
(each referred to as a "LETTER OF CREDIT") for the account of WWI in
the Stated Amount requested by WWI on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) the Revolving Loan Commitment Termination Date and
(y) one year from the date of such extension.
All Existing Letters of Credit shall be maintained as Letters of Credit
hereunder.
SECTION 2.1.4. LENDERS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No
Lender shall be permitted or required to, and WWI shall not request that any
Lender, make
(a) any Additional Term B Loan if, after giving effect
thereto, the aggregate original principal amount of all the Additional
Term B Loans:
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(i) of all Lenders would exceed the Additional Term B
Loan Commitment Amount; or
(ii) of such Lender would exceed such Lender's
Percentage of the Additional Term B Loan Amount;
(b) any Revolving Loan or Swing Line Loan if, after giving
effect thereto, the aggregate outstanding principal amount of all the
Revolving Loans and Swing Line Loans
(i) of all the Lenders with Revolving Loan
Commitments, together with the aggregate amount of all Letter
of Credit Outstandings, would exceed the Revolving Loan
Commitment Amount; or
(ii) of such Lender with a Revolving Loan Commitment
(other than the Swing Line Lender), together with such
Lender's Percentage of the aggregate amount of all Letter of
Credit Outstandings, would exceed such Lender's Percentage of
the Revolving Loan Commitment Amount; or
(c) any Swing Line Loan if after giving effect to the making
of such Swing Line Loan, the outstanding principal amount of all Swing
Line Loans would exceed the then existing Swing Line Loan Commitment
Amount.
SECTION 2.1.5. ISSUER NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF
CREDIT. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.1.6. DESIGNATED ADDITIONAL LOANS. At any time that no Default
has occurred and is continuing, from time to time and on or before September 30,
2004, WWI may notify the Administrative Agent that WWI is requesting that, on
the terms and subject to the conditions contained in this Agreement, the Lenders
and/or other lenders not then a party to this Agreement provide up to an
aggregate amount of $30,000,000 in commitments to provide (i) additional
Revolving Loan Commitments ("DESIGNATED ADDITIONAL REVOLVING LOAN COMMITMENTS),
(ii) additional Term A Loans ("DESIGNATED ADDITIONAL TERM A LOANS"), (iii)
additional Term B Loans ("DESIGNATED ADDITIONAL TERM B Loans") and/or, (iv)
loans to be provided under a new tranche of Term Loans ("DESIGNATED NEW TERM
LOANS") which have terms and conditions, (including interest rate and
amortization schedule) as mutually agreed to by WWI, the Agents and the Lenders
providing such new tranche of Loans. Upon receipt of any such notice, the
Administrative Agent shall use commercially reasonable efforts to arrange for
the Lenders or other Eligible Institutions to provide such additional
commitments; PROVIDED that the Administrative Agent will first offer each of the
Lenders that then has a Percentage of the Commitment or Loans of the type
proposed to be obtained a pro rata portion of any such additional commitment.
Nothing contained in this SECTION 2.1.6 or otherwise in this Agreement is
intended to commit any Lender or any Agent to provide any portion of any such
additional
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commitments. If and to the extent that any Lenders and/or other lenders agree,
in their sole discretion, to provide any such additional commitments, (i) in the
case of Designated Additional Revolving Loan Commitments, the Revolving Loan
Commitment Amount shall be increased by the amount of the additional Revolving
Loan Commitments agreed to be so provided, (ii) subject to compliance with the
terms of SECTION 5.2 and such other terms and conditions mutually agreed to
among WWI, the Agents and the Lenders providing any such other commitments,
Loans of the type requested by WWI will be made on the date as agreed among such
Persons, (iii) the Percentages of the respective Lenders in respect of the
applicable Commitment or type of Loan shall be proportionally adjusted (provided
that the Percentage of each Lender shall not be increased without the consent of
such Lender), (iv) in the case of Designated Additional Revolving Loan
Commitment at such time and in such manner as WWI and the Administrative Agent
shall agree (it being understood that WWI and the Agents will use commercially
reasonable efforts to avoid the prepayment or assignment of any LIBO Rate Loan
on a day other than the last day of the Interest Period applicable thereto), the
Lenders shall assign and assume outstanding Revolving Loans and participations
in outstanding Letters of Credit so as to cause the amounts of such Revolving
Loans and participations in Letters of Credit held by each Lender to conform to
the respective Percentages of the Revolving Loan Commitment of the Lenders and
(v) WWI shall execute and deliver any additional Notes or other amendments or
modifications to this Agreement or any other Loan Document as the Administrative
Agent may reasonably request. Any fees payable in respect of any commitment
provided for in this SECTION 2.1.6 shall be as agreed to by WWI and the
Administrative Agent. Any designation of a commitment hereunder (i) shall be
irrevocable, (ii) shall reduce the amount of commitments that may be requested
under the SECTION 2.1.6 PRO TANTO and (iii) shall be in a minimum principal
amount of $5,000,000 and integral multiples of $1,000,000.
SECTION 2.2. REDUCTION OF THE COMMITMENT AMOUNTS. The Commitment
Amounts are subject to reductions from time to time pursuant to this SECTION
2.2.
SECTION 2.2.1. OPTIONAL. WWI may, from time to time on any Business Day
occurring after the time of the initial Credit Extension hereunder, voluntarily
reduce the Swing Line Loan Commitment Amount, the Letter of Credit Commitment
Amount or the Revolving Loan Commitment Amount; PROVIDED, HOWEVER, that all such
reductions shall require at least three Business Days' prior notice to the
Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral
multiple of $100,000. Any reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below the sum of (i) the
Swing Line Loan Commitment Amount and (ii) the Letter of Credit Commitment
Amount shall result in an automatic and corresponding reduction of the Swing
Line Loan Commitment Amount and/or Letter of Credit Commitment Amount (as
directed by WWI in a notice to the Administrative Agent delivered together with
the notice of such voluntary reduction in the Revolving Loan Commitment Amount)
to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as
so reduced, without any further action on the part of the Swing Line Lender or
the Issuer.
SECTION 2.2.2. MANDATORY. Following the prepayment in full of the Term
Loans and the Additional TLCs, the Revolving Loan Commitment Amount shall,
without any further action, automatically and permanently be reduced on the date
the Term Loans and the Additional
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TLCs would otherwise have been required to be prepaid with any Net Disposition
Proceeds, Net Equity Proceeds, or Excess Cash Flow, in an amount equal to the
amount by which the Term Loans and the Additional TLCs would otherwise be
required to be prepaid if Term Loans and the Additional TLCs had been
outstanding. Any reduction of the Revolving Loan Commitment Amount which reduces
the Revolving Loan Commitment Amount below the sum of (i) the Swing Line Loan
Commitment Amount and (ii) the Letter of Credit Commitment Amount shall result
in an automatic and corresponding reduction of the Swing Line Loan Commitment
Amount and/or Letter of Credit Commitment Amount (as directed by WWI in a notice
to the Administrative Agent) to an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so reduced, without any further action on
the part of the Swing Line Lender or the Issuer.
SECTION 2.3. BORROWING PROCEDURES AND FUNDING MAINTENANCE. Loans shall
be made by the Lenders in accordance with this Section.
SECTION 2.3.1. TERM LOANS AND REVOLVING LOANS. By delivering a
Borrowing Request to the Administrative Agent on or before 12:00 noon,
New York
time, on a Business Day, WWI may from time to time irrevocably request, on not
less than one (in the case of Base Rate Loans) and three (in the case of LIBO
Rate Loans) nor more than (in each case) five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$2,000,000, and an integral multiple of $500,000, and in the case of Base Rate
Loans, in a minimum amount of $500,000 and an integral multiple thereof or, in
either case, in the unused amount of the applicable Commitment. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be comprised
of the type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. On or before 11:00 a.m.,
New York time, on such Business Day
each Lender shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the applicable Borrower by wire transfer to the accounts such Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. SWING LINE LOANS.
(a) By telephonic notice, promptly followed (within three
Business Days) by the delivery of a confirming Borrowing Request, to
the Swing Line Lender on or before 11:00 a.m.,
New York time, on a
Business Day, WWI may from time to time irrevocably request that Swing
Line Loans be made by the Swing Line Lender in an aggregate minimum
principal amount of $200,000 and an integral multiple of $100,000. Each
request by WWI for a Swing Line Loan shall constitute a representation
and warranty by WWI that on the date of such request and (if different)
the date of the making of the Swing Line Loan, both immediately before
and after giving effect to such Swing Line Loan and the application of
the proceeds thereof, the statements made in SECTION 5.2.1 are true and
correct. All Swing Line Loans shall be made as Base Rate Loans and
shall not be entitled to be converted into LIBO Rate Loans. The
proceeds of each Swing Line Loan shall be made available by the Swing
Line Lender, by its close of business on the
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Business Day telephonic notice is received by it as provided in the
preceding sentences, to WWI by wire transfer to the accounts WWI shall
have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more
than four full Business Days or (ii) after giving effect to any request
for a Swing Line Loan or a Revolving Loan the aggregate principal
amount of Revolving Loans and Swing Line Loans outstanding to the Swing
Line Lender, together with the Swing Line Lender's Percentage of all
Letter of Credit Outstandings, would exceed the Swing Line Lender's
Percentage of the Revolving Loan Commitment Amount, the Swing Line
Lender, at any time in its sole and absolute discretion may request
each Lender that has a Revolving Loan Commitment, and each such Lender,
including the Swing Line Lender hereby agrees, to make a Revolving Loan
(which shall always be initially funded as a Base Rate Loan) in an
amount equal to such Lender's Percentage of the amount of the Swing
Line Loans ("REFUNDED SWING LINE LOANS") outstanding on the date such
notice is given. On or before 11:00 a.m. (
New York time) on the first
Business Day following receipt by each Lender of a request to make
Revolving Loans as provided in the preceding sentence, each such Lender
(other than the Swing Line Lender) shall deposit in an account
specified by the Administrative Agent to the Lenders from time to time
the amount so requested in same day funds, whereupon such funds shall
be immediately delivered to the Swing Line Lender (and not WWI) and
applied to repay the Refunded Swing Line Loans. On the day such
Revolving Loans are made, the Swing Line Lender's Percentage of the
Refunded Swing Line Loans shall be deemed to be paid. Upon the making
of any Revolving Loan pursuant to this clause, the amount so funded
shall become due under such Lender's Revolving Note and shall no longer
be owed under the Swing Line Note. Each Lender's obligation to make the
Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including,
(i) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, WWI or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of
any Default; (iii) any adverse change in the condition (financial or
otherwise) of WWI or any other Obligor, subsequent to the date of the
making of a Swing Line Loan; (iv) the acceleration or maturity of any
Loans or the termination of the Revolving Loan Commitment after the
making of any Swing Line Loan; (v) any breach of this Agreement by WWI,
any other Obligor or any other Lender; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
(c) In the event that (i) WWI or any Subsidiary is subject to
any bankruptcy or insolvency proceedings as provided in SECTION 9.1.9
or (ii) the Swing Line Lender otherwise requests, each Lender with a
Revolving Loan Commitment shall acquire without recourse or warranty an
undivided participation interest equal to such Lender's Percentage of
any Swing Line Loan otherwise required to be repaid by such Lender
pursuant to the preceding clause by paying to the Swing Line Lender on
the date on which such Lender would otherwise have been required to
make a Revolving Loan in respect of such Swing Line Loan pursuant to
the preceding clause, in same day funds, an amount equal to such
Lender's Percentage of such Swing Line Loan, and no Revolving Loans
shall be made by such Lender pursuant to the preceding clause. From and
after the date on which any Lender purchases an undivided participation
interest in a Swing Line
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Loan pursuant to this clause, the Swing Line Lender shall distribute to
such Lender (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participation
interest is outstanding and funded) its ratable amount of all payments
of principal and interest in respect of such Swing Line Loan in like
funds as received; PROVIDED, HOWEVER, that in the event such payment
received by the Swing Line Lender is required to be returned to WWI,
such Lender shall return to the Swing Line Lender the portion of any
amounts which such Lender had received from the Swing Line Lender in
like funds.
(d) Notwithstanding anything herein to the contrary, the Swing
Line Lender shall not be obligated to make any Swing Line Loans if it
has elected after the occurrence of a Default not to make Swing Line
Loans and has notified WWI in writing or by telephone of such election.
The Swing Line Lender shall promptly give notice to the Lenders of such
election not to make Swing Line Loans.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon,
New York time, on a Business Day, WWI may from time to time irrevocably
elect, on not less than one (in the case of a conversion of LIBO Rate Loans to
Base Rate Loans) and three (in the case of a continuation of LIBO Rate Loans or
a conversion of Base Rate Loans into LIBO Rate Loans) nor more than (in each
case) five Business Days' notice that all, or any portion in an aggregate
minimum amount of $2,000,000 and an integral multiple of $500,000, in the case
of the continuation of, or conversion into, LIBO Rate Loans, or an aggregate
minimum amount of $500,000 and an integral multiple thereof, in the case of the
conversion into Base Rate Loans (other than Swing Line Loans as provided in
CLAUSE (A) of SECTION 2.3.2) be, in the case of Base Rate Loans, converted into
LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted into a Base
Rate Loan or continued as a LIBO Rate Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); PROVIDED, HOWEVER, that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of the
relevant Lenders, and (y) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to WWI; PROVIDED, HOWEVER, that such
LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by
such Lender, and the obligation of WWI to repay such LIBO Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch, Affiliate
or international banking facility; and PROVIDED FURTHER, HOWEVER, that such
Lender shall cause such foreign branch, Affiliate or international banking
facility to comply with the applicable provisions of CLAUSE (B) of SECTION 4.6
with respect to such LIBO Rate Loan. In addition, WWI hereby consents and agrees
that, for purposes of any determination to be made for purposes of SECTIONS 4.1,
4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected to
fund all
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LIBO Rate Loans by purchasing U.S. Dollar deposits in its LIBOR Office's
interbank eurodollar market.
SECTION 2.6. ISSUANCE PROCEDURES. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York time, on a Business
Day, WWI may, from time to time irrevocably request, on not less than three nor
more than ten Business Days' notice (or such shorter notice as may be acceptable
to the Issuer), in the case of an initial issuance of a Letter of Credit, and
not less than three nor more than ten Business Days' notice (unless a shorter
notice period is acceptable to the Issuer) prior to the then existing Stated
Expiry Date of a Letter of Credit, in the case of a request for the extension of
the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or extend
the Stated Expiry Date of, as the case may be, an irrevocable Letter of Credit
for WWI's account or for the account of any wholly-owned U.S. Subsidiary of WWI
that is a party to the Subsidiary Guaranty and the WWI Security Agreement and
whose outstanding Capital Securities is pledged to the Administrative Agent for
the benefit of the Lenders pursuant to the WWI Pledge Agreement, in such form as
may be requested by WWI and approved by the Issuer, solely for the purposes
described in SECTION 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, WWI hereby
acknowledges and agrees that it shall be obligated to reimburse the Issuer upon
each Disbursement of a Letter of Credit, and it shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether the
account party on such Letter of Credit is WWI or a Subsidiary of WWI). Upon
receipt of an Issuance Request, the Administrative Agent shall promptly notify
the Issuer and each Lender thereof. Each Letter of Credit shall by its terms be
stated to expire on a date (its "STATED EXPIRY DATE") no later than the earlier
to occur of (i) the Revolving Loan Commitment Termination Date or (ii) one year
from the date of its issuance. The Issuer will make available to the beneficiary
thereof the original of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto (or the continuation of an
Existing Letter of Credit hereunder), and without further action, each Lender
(other than the Issuer) that has a Revolving Loan Commitment shall be deemed to
have irrevocably purchased from the Issuer, to the extent of its Percentage to
make Revolving Loans, and the Issuer shall be deemed to have irrevocably granted
and sold to such Lender a participation interest in such Letter of Credit
(including the Contingent Liability and any Reimbursement Obligation and all
rights with respect thereto), and such Lender shall, to the extent of its
Revolving Loan Commitment Percentage, be responsible for reimbursing promptly
(and in any event within one Business Day) the Issuer for Reimbursement
Obligations which have not been reimbursed by WWI in accordance with SECTION
2.6.3. In addition, such Lender shall, to the extent of its Percentage to make
Revolving Loans, be entitled to receive a ratable portion of the Letter of
Credit fees payable pursuant to SECTION 3.3.3 with respect to each Letter of
Credit and of interest payable pursuant to SECTION 3.2 with respect to any
Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from WWI or otherwise) in respect of such Disbursement.
SECTION 2.6.2. DISBURSEMENTS; CONVERSION TO REVOLVING LOANS. The Issuer
will notify WWI and the Administrative Agent promptly of the presentment for
payment of any Letter of
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Credit issued by the Issuer, together with notice of the date (the "DISBURSEMENT
DATE") such payment shall be made (each such payment, a "DISBURSEMENT"). Subject
to the terms and provisions of such Letter of Credit and this Agreement, the
Issuer shall make such payment to the beneficiary (or its designee) of such
Letter of Credit. Prior to 12:00 noon, New York time, on the first Business Day
following the Disbursement Date (the "DISBURSEMENT DUE DATE"), WWI will
reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit, together
with interest thereon at the rate per annum otherwise applicable to Revolving
Loans (made as Base Rate Loans) from and including the Disbursement Date to but
excluding the Disbursement Due Date and, thereafter (unless such Disbursement is
converted into a Base Rate Loan on the Disbursement Due Date), at a rate per
annum equal to the rate per annum then in effect with respect to overdue
Revolving Loans (made as Base Rate Loans) pursuant to SECTION 3.2.2 for the
period from the Disbursement Due Date through the date of such reimbursement;
PROVIDED, HOWEVER, that, if no Default shall have then occurred and be
continuing, unless WWI has notified the Administrative Agent no later than one
Business Day prior to the Disbursement Due Date that it will reimburse the
Issuer for the applicable Disbursement, then the amount of the Disbursement
shall be deemed to be a Revolving Loan constituting a Base Rate Loan and
following the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender with a commitment to make Revolving Loans (other than the
Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
available funds in an amount equal to such Lender's Percentage of such Revolving
Loan. Each conversion of Disbursement amounts into Revolving Loans shall
constitute a representation and warranty by WWI that on the date of the making
of such Revolving Loan all of the statements set forth in SECTION 5.2.1 are true
and correct.
SECTION 2.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT
OBLIGATION") of WWI under SECTION 2.6.2 to reimburse the Issuer with respect to
each Disbursement (including interest thereon) not converted into a Base Rate
Loan pursuant to SECTION 2.6.2, and, upon the failure of WWI to reimburse the
Issuer and the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender's (to the extent it has a Revolving Loan Commitment)
obligation under SECTION 2.6.1 to reimburse the Issuer or fund its Percentage of
any Disbursement converted into a Base Rate Loan, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which WWI or such Lender, as the case may be,
may have or have had against the Issuer or any such Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
PROVIDED, HOWEVER, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of WWI or such
Lender, as the case may be, to commence any proceeding against the Issuer for
any wrongful Disbursement made by the Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of the Issuer.
SECTION 2.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in SECTION 9.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
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(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to WWI or any other Person, be deemed to
have been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Administrative Agent to WWI of
its obligations under this Section, WWI shall be immediately obligated
to reimburse the Issuer for the amount deemed to have been so paid or
disbursed by the Issuer.
Any amounts so payable by WWI pursuant to this Section shall be deposited in
cash with the Administrative Agent and held as collateral security for the
Obligations in connection with the Letters of Credit issued by the Issuer. At
such time when the Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall return
to WWI all amounts then on deposit with the Administrative Agent pursuant to
this Section, together with accrued interest at the Federal Funds Rate, which
have not been applied to the satisfaction of such Obligations.
SECTION 2.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. WWI and, to the
extent set forth in SECTION 2.6.1, each Lender with a Revolving Loan Commitment,
shall assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or
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willful misconduct) shall be binding upon WWI, each Obligor and each such
Lender, and shall not put the Issuer under any resulting liability to WWI, any
Obligor or any such Lender, as the case may be.
SECTION 2.7. NOTES. Each Lender's Loans under a Commitment for a Loan
shall be evidenced, if such Lender shall request, by a Note payable to the order
of such Lender in a maximum principal amount equal to such Lender's Percentage
of the original applicable Commitment Amount. All Swing Line Loans made by the
Swing Line Lender shall be evidenced by a Swing Line Note payable to the order
of the Swing Line Lender in a maximum principal amount equal to the Swing Line
Loan Commitment Amount. WWI hereby irrevocably authorizes each Lender to make
(or cause to be made) appropriate notations on the grid attached to such
Lender's Notes (or on any continuation of such grid), which notations, if made,
shall evidence, INTER ALIA, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on WWI absent manifest error;
PROVIDED, HOWEVER, that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of WWI or any other Obligor.
SECTION 2.8. REGISTERED NOTES. (a) Any Non-U.S. Lender that could
become completely exempt from withholding of any taxes in respect of payment of
any interest due to such Non-U.S. Lender under this Agreement if the Notes held
by such Lender were in registered form for U.S. Federal income tax purposes may
request WWI (through the Administrative Agent), and WWI agrees (i) to exchange
for any Notes held by such Lender, or (ii) to issue to such Lender on the date
it becomes a Lender, promissory notes(s) registered as provided in CLAUSE (B) of
this SECTION 2.8 (each a Registered Note). Registered Notes may not be exchanged
for Notes that are not Registered Notes.
(b) The Administrative Agent shall enter, in the Register, the
name of the registered owner of the Non-U.S. Lender Obligation(s)
evidenced by a Registered Note.
(c) The Register shall be available for inspection by WWI and
any Lender at any reasonable time upon reasonable prior notice.
SECTION 2.9. ADDITIONAL TLC FACILITY. Each Additional TLC Lender shall
purchase, on the Effective Date, Additional TLCs from the SP1 Borrower (with the
commitment of each such Additional TLC Lender to purchase Additional TLCs being,
its "ADDITIONAL TLC COMMITMENT") equal to such Additional TLC Lender's
Percentage of the Additional TLC Commitment Amount. No amounts paid or prepaid
with respect to Additional TLCs may be reborrowed.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS; APPLICATION.
SECTION 3.1.1. REPAYMENTS AND PREPAYMENTS. The SP1 Borrower and WWI
shall repay in full the unpaid principal amount of each Loan and Additional TLC,
as applicable, upon the Stated Maturity Date therefor. Prior thereto,
(a) any Borrower may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any
(i) Loan (other than Swing Line Loans) or Additional
TLC, PROVIDED, HOWEVER, that
(A) any such prepayment of the Term Loans,
Designated New Term Loans or Additional TLCs shall be
made PRO RATA among such Loans, or Designated New
Term Loans or Additional TLCs of the same type and if
applicable, having the same Interest Period as all
Lenders that have made such Term Loans, or Designated
New Term Loans or Additional TLCs, and any such
prepayment of Revolving Loans shall be made PRO RATA
among the Revolving Loans of the same type and, if
applicable, having the same Interest Period as all
Lenders that have made such Revolving Loans;
(B) the Borrowers shall comply with SECTION
4.4 in the event that any LIBO Rate Loan is prepaid
on any day other than the last day of the Interest
Period for such Loan;
(C) all such voluntary prepayments shall
require at least three but no more than five Business
Days' prior written notice to the Administrative
Agent; and
(D) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans or
Additional TLCs bearing interest with reference to
the LIBO Rate, in an aggregate minimum amount of
$2,000,000 and an integral multiple of $500,000 and,
in the case of Base Rate Loans or Additional TLCs
bearing interest with reference to the Base Rate, in
an aggregate minimum amount of $500,000 and an
integral multiple thereof; or
(ii) Swing Line Loans, PROVIDED that all such
voluntary prepayments shall require prior telephonic notice to
the Swing Line Lender on or before 1:00 p.m., New York time,
on the day of such prepayment (such notice to be confirmed in
writing within 24 hours thereafter);
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(b) the SP1 Borrower and WWI, as the case may be, shall no
later than one Business Day following the receipt by WWI or any of its
Subsidiaries of any Net Disposition Proceeds, deliver to the
Administrative Agent a calculation of the amount of such Net
Disposition Proceeds and, subject to the following PROVISO, make a
mandatory prepayment of the Term Loans and Additional TLCs in an amount
equal to 100% of such Net Disposition Proceeds, to be applied as set
forth in SECTION 3.1.2; PROVIDED, HOWEVER, that, at the option of WWI
and so long as no Default shall have occurred and be continuing, WWI
may use or cause the appropriate Subsidiary to use the Net Disposition
Proceeds to purchase assets useful in the business of WWI and its
Subsidiaries or to purchase a majority controlling interest in a Person
owning such assets or to increase any such controlling interest already
maintained by it; PROVIDED, THAT if such Net Disposition Proceeds arise
from or are related to a Disposition of assets of a Guarantor then any
such reinvestment must either be made by or in a Guarantor or a Person
which upon the making of such reinvestment becomes a Guarantor (with
such assets or interests collectively referred to as "QUALIFIED
ASSETS") within 365 days after the consummation (and with the Net
Disposition Proceeds) of such sale, conveyance or disposition, and in
the event WWI elects to exercise its right to purchase Qualified Assets
with the Net Disposition Proceeds pursuant to this clause, WWI shall
deliver a certificate of an Authorized Officer of WWI to the
Administrative Agent within 30 days following the receipt of Net
Disposition Proceeds setting forth the amount of the Net Disposition
Proceeds which WWI expects to use to purchase Qualified Assets during
such 365 day period; PROVIDED FURTHER, that WWI and its Subsidiaries
shall only be permitted to reinvest Net Disposition Proceeds in
Qualified Assets to the extent permitted by SECTION 7.2.5 over the term
of this Agreement. If and to the extent that WWI has elected to
reinvest Net Disposition Proceeds as permitted above, then on the date
which is 365 days (in the case of CLAUSE (B)(I) below) and 370 days (in
the case of CLAUSE (B)(II) below) after the relevant sale, conveyance
or disposition, WWI shall (i) deliver a certificate of an Authorized
Officer of WWI to the Administrative Agent certifying as to the amount
and use of such Net Disposition Proceeds actually used to purchase
Qualified Assets and (ii) deliver to the Administrative Agent, for
application in accordance with this clause and SECTION 3.1.2, an amount
equal to the remaining unused Net Disposition Proceeds;
(c) [INTENTIONALLY OMMITTED];
(d) [INTENTIONALLY OMMITTED];
(e) WWI shall, on each date when any reduction in the
Revolving Loan Commitment Amount shall become effective, including
pursuant to SECTION 2.2 or SECTION 3.1.2, make a mandatory prepayment
of Revolving Loans and (if necessary) Swing Line Loans, and (if
necessary) deposit with the Administrative Agent cash collateral for
Letter of Credit Outstandings) in an aggregate amount equal to the
excess, if any, of the aggregate outstanding principal amount of all
Revolving Loans, Swing Line Loans and Letters of Credit Outstanding
over the Revolving Loan Commitment Amount as so reduced;
(f) WWI shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring on or during any period set forth
below, make a scheduled repayment of
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the aggregate outstanding principal amount, if any, of all Term A Loans
in an amount equal to the amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment Date (as such amounts may have
otherwise been reduced pursuant to this Agreement), as applicable:
12/31/01 through (and including)
09/30/04 $3,602,173.07
10/01/04 through (and including)
Stated Maturity Date $5,103,078.51, or the
then outstanding
principal amount of all
Term A Loans, if
different;
PROVIDED, THAT each remaining amortization amount of Term A Loans
occurring after the date of the making of a Designated Additional Term A Loan
will be increased pro rata by the aggregate principal amount of any Designated
Additional Term A Loan.
(g) WWI shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring on or during any period set forth
below, make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Additional Term B Loans in an amount
equal to the amount set forth below opposite the Stated Maturity Date
or such Quarterly Payment Date (as such amounts may have otherwise been
reduced pursuant to this Agreement), as applicable:
03/31/02 through (and including)
12/31/06 $270,000
01/01/07 through (and including)
Stated Maturity Date $25,650,000, or the then
outstanding principal
amount of all Term B
Loans, if different;
PROVIDED, THAT each remaining amortization amount of Term B Loans
occurring after the date of the making of a Designated Additional Term B Loan
will be increased pro rata by the aggregate principal amount of any Designated
Additional Term B Loan.
(h) the SP1 Borrower shall, on the Stated Maturity Date and on
each Quarterly Payment Date occurring on or during any period set forth
below, make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Additional TLCs in an amount equal to
the amount set forth below opposite the Stated Maturity Date or such
Quarterly Payment Date, as applicable (as such amounts may have
otherwise been reduced pursuant to this Agreement):
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03/31/02 through (and including)
12/31/06 $160,000.00
01/01/07 through (and including)
Stated Maturity Date $15,200,000, or the then
outstanding principal
amount of all Additional
TLCs, if different;
(i) the SP1 Borrower and WWI, as the case may be, shall,
immediately upon any acceleration of the Stated Maturity Date of any
Loans or Obligations pursuant to SECTION 9.2 or SECTION 9.3, repay all
Loans and Additional TLCs and provide the Administrative Agent with
cash collateral in an amount equal to the Letter of Credit
Outstandings, unless, pursuant to SECTION 9.3, only a portion of all
Loans and Additional TLCs and Obligations are so accelerated (in which
case the portion so accelerated shall be so prepaid or cash
collateralized with the Administrative Agent); and
(j) the SP1 Borrower shall, immediately upon receipt of
proceeds in connection with the repayment of any intercompany loan
payable to the SP1 Borrower, make a mandatory prepayment of the
Additional TLCs, to be applied as set forth in SECTION 3.1.2, in an
amount equal to the sum of such proceeds, other than (x) scheduled
amortization payments thereof and (y) any other payment to the ▇▇▇
▇▇▇▇▇▇▇▇ which would otherwise result in a mandatory prepayment under
this SECTION 3.1.1.
(k) WWI shall pay the principal amount of the Designated New
Term Loans at such times and in such amounts as determined pursuant to
SECTION 2.1.6.
Each prepayment of any Loans or Additional TLCs made pursuant to this
Section shall be without premium or penalty, except as may be required by
SECTION 4.4. No prepayment of principal of any Revolving Loans or Swing Line
Loans pursuant to CLAUSES (A) of SECTION 3.1.1 shall cause a reduction in the
Revolving Loan Commitment Amount or the Swing Line Loan Commitment Amount, as
the case may be.
SECTION 3.1.2. APPLICATION.
(a) Subject to CLAUSE (b), each prepayment or repayment of the
principal of the Loans or Additional TLCs shall be applied, to the
extent of such prepayment or repayment, FIRST, to the principal amount
thereof being maintained as Base Rate Loans or bearing interest with
reference to the Base Rate, as the case may be, and SECOND, to the
principal amount thereof being maintained as LIBO Rate Loans or bearing
interest with reference to the LIBO Rate, as the case may be.
(b) Each voluntary prepayment of Term Loans or Additional TLCs
and each prepayment of Term Loans and Additional TLCs made pursuant to
CLAUSE (b) of SECTION 3.1.1 shall be applied PRO RATA to a mandatory
prepayment of the outstanding principal amount of all Term Loans and
Additional TLCs (with the amount of such prepayment of the Term Loans
or Additional TLCs being applied to the remaining Term Loan and
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Additional TLC amortization payments, as the case may be, required
pursuant to CLAUSES (f), (g), and (h) of SECTION 3.1.1, in each case
PRO RATA in accordance with the amount of each such remaining
amortization payment), until all such Term Loans and Additional TLCs
have been paid in full; PROVIDED, HOWEVER, that in the case of each
prepayment of Term Loans and Additional TLCs required pursuant to
CLAUSE (b) of SECTION 3.1.1, any Lender that has Additional Term B
Loans and Additional TLCs outstanding (at a time when any Term A Loans
remain outstanding) may, by delivering a notice to the Administrative
Agent at least one Business Day prior to the date that such prepayment
is to be made, elect not to have its PRO RATA share of Additional Term
B Loans or Additional TLCs, as the case may be, prepaid, and upon any
such election the Administrative Agent shall (x) apply 50% of the
amount that otherwise would have prepaid such Lender's Additional Term
B Loans or Additional TLCs, as the case may be, to a mandatory
prepayment of the Term A Loans (until repaid in full), then to the
prepayment of such Lender's Additional Term B Loans or Additional TLCs,
as the case may be (with no right to decline such prepayment) and then
to a reduction of the outstanding Revolving Loans (without any
reduction in the Revolving Loan Commitment Amount) and (y) permit the
remaining 50% of such amount to be retained by the applicable Borrower.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1. RATES. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, WWI may elect that Loans comprising a
Borrowing accrue interest at a rate per annum:
(i) with respect to Revolving Loans and Term A Loans:
(A) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate
from time to time in effect plus the Applicable Margin; and
(B) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin.
(ii) with respect to Additional Term B Loans and Designated
New Term Loans:
(A) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate
from time to time in effect plus the Applicable Margin for
such Loans; and
(B) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin for such Loans; and
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(iii) with respect to Swing Line Loans, equal to the sum of
the Alternate Base Rate from time to time in effect plus the Applicable
Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. POST-MATURITY RATES. After the date any principal amount
of any Loan shall have become due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or any other monetary Obligation (other
than overdue Reimbursement Obligations which shall bear interest as provided in
SECTION 2.6.2) of WWI shall have become due and payable, WWI shall pay, but only
to the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to:
(a) in the case of any overdue principal amount of Loans,
overdue interest thereon, overdue commitment fees or other overdue
amounts owing in respect of Loans or other obligations (or the related
Commitments) under a particular Tranche, the rate that would otherwise
be applicable to Base Rate Loans under such Tranche pursuant to SECTION
3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than as
described in CLAUSE (a)), the Alternate Base Rate plus 4%.
SECTION 3.2.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, in arrears on each
Quarterly Payment Date occurring after the date of the initial
Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the third month anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable
pursuant to CLAUSE (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to SECTION 9.2 or SECTION 9.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations (other than Additional TLCs) arising under this Agreement or any
other Loan Document after the date such
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amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. FEES. The Borrowers agree to pay the fees set forth in
this SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. COMMITMENT FEE. WWI agrees to pay to the Administrative
Agent for the account of each Lender that has a Revolving Loan Commitment, for
the period (including any portion thereof when any of the Lender's Commitments
are suspended by reason of any Borrower's inability to satisfy any condition of
ARTICLE V) commencing on September 29, 1999 and continuing through the Revolving
Loan Commitment Termination Date, a commitment fee at the rate of .50% per annum
of the average daily unused portion of the Revolving Loan Commitment Amount.
Such commitment fees shall be payable by WWI in arrears on each Quarterly
Payment Date, and on the Revolving Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender shall constitute the usage of the
Revolving Loan Commitment with respect to the Swing Line Lender only and the
commitment fees to be paid by WWI to the Lenders (other than the Swing Line
Lender) shall be calculated and paid accordingly.
SECTION 3.3.2. ADMINISTRATIVE AGENT'S FEE. Each of the Borrowers agrees
to pay to the Administrative Agent, for its own account, the non-refundable fees
in the amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. LETTER OF CREDIT FEE. WWI agrees to pay to the
Administrative Agent, for the PRO RATA account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to the Applicable Margin per annum for Revolving Loans that are maintained
as LIBO Rate Loans, multiplied by the aggregate Stated Amount of all outstanding
Letters of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date. WWI further agrees to pay to the Issuer for its own
account an issuance fee in an amount as agreed to by WWI and the Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to WWI and the Lenders, be
conclusive and binding on WWI) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender to make,
continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan,
the obligations of such Lender to make, continue, maintain or convert any Loans
as LIBO Rate Loans shall, upon such determination, forthwith be suspended until
such Lender shall notify the Administrative Agent that the circumstances causing
such suspension no longer exist (with the date of such notice being the
"REINSTATEMENT DATE"), and (i) all LIBO Rate Loans previously made by such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion and
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(ii) all Loans thereafter made by such Lender and outstanding prior to the
Reinstatement Date shall be made as Base Rate Loans, with interest thereon being
payable on the same date that interest is payable with respect to corresponding
Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall
have determined that
(a) U.S. Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to WWI and the Lenders, the
obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to make or continue
any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify WWI and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. WWI agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
taxes, referred to in SECTION 4.6) arising after the date of any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority that results in such increase in cost or
reduction in amounts receivable, except for such changes with respect to
increased capital costs and taxes which are governed by SECTIONS 4.5 and 4.6,
respectively. Such Lender shall promptly notify the Administrative Agent and WWI
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by WWI directly to such Lender within five
days of its receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
SECTION 3.1 or otherwise;
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(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to WWI (with a copy to the
Administrative Agent), WWI shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written notice
(which shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made or continued by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from time to time by
such Lender to WWI shall immediately pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
WWI. In determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
SECTION 4.6. TAXES. The Borrowers covenant and agree as follows with
respect to taxes:
(a) Unless required by law, any and all payments made by the
Borrowers under this Agreement and each other Loan Document shall be
made without setoff, counterclaim or other defense, and free and clear
of, and without deduction or withholding for or on account of, any
taxes. In the event that any taxes are required by law to be deducted
or withheld from any payment required to be made by any Borrower to or
on behalf of any Secured Party under any Loan Document, then:
(i) subject to CLAUSE (F) below, if such taxes are
Non-Excluded Taxes, the relevant Borrower shall together with
such payment pay an additional amount so that each Secured
Party receives free and clear of any Non-Excluded Taxes, the
full amount which it would have received if no such deduction
or withholding of such Non-Excluded Taxes had been required;
and
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(ii) the relevant Borrower shall pay to the relevant
Governmental Authority imposing such taxes the full amount of
the deduction or withholding made by it.
(b) In addition, the Borrowers shall pay any and all Other
Taxes imposed to the relevant Governmental Authority imposing such
Other Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of any taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the applicable Borrower shall furnish to the Administrative
Agent a copy of an official receipt (or a certified copy thereof),
evidencing the payment of such taxes or Other Taxes. The Administrative
Agent shall make copies thereof available to any Lender upon request
therefor.
(d) Subject to CLAUSE (f) below, the Borrowers shall indemnify
each Secured Party for any Non-Excluded Taxes and Other Taxes levied,
imposed or assessed on (and whether or not paid directly by) such
Secured Party that have not been paid previously by the Borrowers
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have
been levied, imposed or assessed, and promptly upon notice thereof by
any Secured Party, the applicable Borrower shall pay such Non-Excluded
Taxes or Other Taxes directly to the relevant Governmental Authority
(PROVIDED, HOWEVER, that no Secured Party shall be under any obligation
to provide any such notice to any Borrower). In addition, PROVIDED that
the Borrowers have been notified promptly by a relevant Secured Party
which has determined in its sole discretion that a Non-Excluded Tax or
Other Tax has been levied, imposed or assessed against such Secured
Party, each Borrower shall indemnify each Secured Party for any
incremental taxes that may become payable by such Secured Party as a
result of any failure of any Borrower to pay any taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to CLAUSE (c) above, documentation evidencing the
payment of taxes or Other Taxes. With respect to indemnification for
Non-Excluded Taxes and Other Taxes actually paid by any Secured Party
or the indemnification provided in the immediately preceding sentence,
such indemnification shall be made within 30 days after the date such
Secured Party makes written demand therefor. Each Borrower acknowledges
that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the
Borrowers provided in this clause shall constitute a payment in respect
of which the provisions of CLAUSE (a) above and this clause shall
apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such Non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of any Borrower or the Administrative
Agent, but only for so long as such Non-U.S. Lender is legally entitled
to do so), shall deliver to such Borrower and the Administrative Agent
either
(i) (x) two duly completed copies of either (A)
Internal Revenue Service Form W-8BEN or (B) Internal Revenue
Service Form W-8EC1, or in
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either case an applicable successor form, establishing, in
either case, a complete exemption from United States federal
withholding taxes, and (y) for periods prior to January 1,
2001, a duly completed copy of Internal Revenue Service Form
W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in CLAUSE
(e)(i)(x) above, (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 WWI 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 duly completed copies of Internal
Revenue Service Form W-8 or applicable successor form.
(f) None of the Borrowers shall be obligated to gross up any
payments to any Lender pursuant to CLAUSE (a) above, or to indemnify
any Lender pursuant to CLAUSE (D) above, in respect of United States
federal withholding taxes to the extent imposed as a result of (i) the
failure of such Lender to deliver to the applicable Borrower the form
or forms and/or an Exemption Certificate, as applicable to such Lender,
pursuant to CLAUSE (e), (ii) 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 (iii) the Lender designating a successor lending
office 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 a
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to CLAUSE (a) above, and to indemnify any such Lender pursuant
to CLAUSE (D) above, in respect of United States federal withholding
taxes if (i) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office
was made at the request of any of the Borrowers or (iii) the obligation
to gross up payments to any such Lender pursuant to CLAUSE (a) above or
to indemnify any such Lender pursuant to CLAUSE (d) is with respect to
an Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of any Borrower.
(g) If a Secured Party determines in its sole discretion that
it has received a refund in respect of Non-Excluded Taxes that were
paid by the Borrowers, it shall pay the amount of such refund, together
with any other amounts paid by the Borrowers in connection with such
refunded Non-Excluded Taxes, to the Borrowers, net of any out-of-
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pocket expenses incurred by such Secured Party in obtaining such
refund, PROVIDED, HOWEVER, that the Borrowers agree to promptly return
the amount of such refund to such Secured Party to the extent that such
Secured Party is required to repay such refund to the IRS or any other
tax authority.
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by or on behalf of any Borrower pursuant to this
Agreement, the Notes, each Letter of Credit, the Additional TLCs or any other
Loan Document shall be made by such Borrower to the Administrative Agent for the
PRO RATA account of the Lenders entitled to receive such payment. All such
payments required to be made to the Administrative Agent shall be made, without
setoff, deduction or counterclaim, not later than 12:00 noon, New York time, on
the date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the applicable
Borrower. Funds received after that time shall be deemed to have been received
by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by CLAUSE (C) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan, Additional TLC or Reimbursement
Obligation (other than pursuant to the terms of SECTIONS 4.3, 4.4 and 4.5) in
excess of its PRO rata share of payments then or therewith obtained by all
Lenders entitled thereto, such Lender shall purchase from the other Lenders such
participation in Credit Extensions made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
TO
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from
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another Lender pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to SECTION 4.9) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of any
Default described in CLAUSES (A) through (D) of SECTION 9.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) each Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of such
Borrower then or thereafter maintained with or otherwise held by such Lender;
PROVIDED, HOWEVER, that any such appropriation and application shall be subject
to the provisions of SECTION 4.8. Each Lender agrees promptly to notify the
applicable Borrower and the Administrative Agent after any such setoff and
application made by such Lender; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which such Lender may have.
SECTION 4.10. MITIGATION. Each Lender agrees that if it makes any
demand for payment under SECTIONS 4.3, 4.4, 4.5, or 4.6, or if any adoption or
change of the type described in SECTION 4.1 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for
WWI to make payments under SECTIONS 4.3, 4.4, 4.5, or 4.6, or would eliminate or
reduce the effect of any adoption or change described in SECTION 4.1.
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS
SECTION 5.1. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT AND MAKING OF CREDIT EXTENSIONS. The conditions to effectiveness of
this Agreement and the obligations of the Lenders to continue Existing Loans as
Loans under this Agreement, to continue Existing Letters of Credit as Letters of
Credit under this Agreement and to make the Additional Term B Loans and
Additional TLCs were satisfied in full on December 21, 2001.
SECTION 5.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and
the Issuer to make any Credit Extension (but subject to CLAUSES (B) and (C) of
SECTION 2.3.2) shall be subject to the satisfaction of each of the conditions
precedent set forth in this SECTION 5.2.
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SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in ARTICLE VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) no material adverse development shall have occurred in any
litigation, action, proceeding, labor controversy, arbitration or
governmental investigation disclosed pursuant to SECTION 6.7;
(c) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.2.2. CREDIT EXTENSION REQUEST. The Administrative Agent shall
have received a Borrowing Request, if Loans (other than Swing Line Loans) are
being requested, or an Issuance Request, if a Letter of Credit is being issued
or extended or an Additional TLC Purchase Request if Additional TLCs are to be
issued. Each of the delivery of a Borrowing Request, Issuance Request or
Additional TLC Purchase Request and the acceptance by any Borrower of the
proceeds of such Credit Extension shall constitute a representation and warranty
by the applicable Borrower that on the date of such Credit Extension (both
immediately before and after giving effect to such Credit Extension and the
application of the proceeds thereof) the statements made in SECTION 5.2.1 are
true and correct.
SECTION 5.2.3. SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of WWI or any of its Subsidiaries or
any other Obligors shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel; the Administrative Agent and its counsel
shall have received all information, as the Administrative Agent or its counsel
may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent
to enter into this Agreement, continue the Existing Loans as Loans hereunder and
the Existing Letters of Credit as Letters of Credit hereunder and to make Credit
Extensions hereunder, each of the Borrowers, jointly and severally, represents
and warrants unto the Administrative Agent, the Issuer and each Lender as set
forth in this ARTICLE VI.
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SECTION 6.1. ORGANIZATION, ETC. WWI and each of its Subsidiaries (a) is
a corporation validly organized and existing and in good standing under the laws
of the jurisdiction of its incorporation (other than as listed in ITEM 6.1
("Good Standing") on SCHEDULE I hereto), is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction where the nature
of its business requires such qualification, except to the extent that the
failure to qualify would not reasonably be expected to result in a Material
Adverse Effect, and (b) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to (x) enter into and perform
its Obligations under this Agreement, the Notes and each other Loan Document to
which it is a party and (y) own and hold under lease its property and to conduct
its business substantially as currently conducted by it except, in the case of
this CLAUSE (B)(Y), where the failure could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each Borrower of this Agreement, the Notes, the
Additional TLCs and each other Loan Document executed or to be executed by it,
and the execution, delivery and performance by each other Obligor of each Loan
Document executed or to be executed by it and the Borrowers and, where
applicable, are within each such Obligor's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(a) contravene any such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting any such Obligor, where such contravention, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Obligor's properties, except pursuant to the terms
of a Loan Document.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any Obligor of this Agreement, the Notes, the
Additional TLCs or any other Loan Document to which it is a party, except as
have been duly obtained or made and are in full force and effect or those which
the failure to obtain or make could not reasonably be expected to have a
Material Adverse Effect. Neither WWI nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and the Notes
and Additional TLCs and each other Loan Document executed by any Obligor will,
on the due execution and delivery thereof, constitute, the legal, valid and
binding obligations of such Obligor enforceable in accordance with their
respective terms; in each case with respect to this SECTION 6.4 subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles
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(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
SECTION 6.5. FINANCIAL INFORMATION. The
(a) audited combined balance sheets and the related combined
statements of income, comprehensive income and parent company's
investment and cash flows of WWI and its Subsidiaries as at December
30, 2000, April 29, 2000 and April 24, 1999 and the related
consolidated statements of earnings and cash flow of WWI; and
(b) unaudited interim condensed financial information of WWI
as of the period ended September 29, 2001;
copies of which have been furnished to the Administrative Agent and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied
(in the case of CLAUSE (A)) and, in the case of CLAUSE (B), on a basis
substantially comparable to the basis used to prepare the financial statements
referred to in CLAUSE (A), and present fairly the consolidated financial
condition of the corporations covered thereby as at the dates thereof and the
results of their operations for the periods then ended, subject, in the case of
CLAUSE (B), to normal year end audit adjustments.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Since April 29, 2000, there
has been no material adverse change in the financial condition, operations,
assets, business or properties of WWI and its Subsidiaries, taken as a whole.
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. There is no pending
or, to the knowledge of any Borrower, threatened litigation, action, proceeding,
labor controversy arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which (a) could reasonably be expected to result in a Material Adverse Effect,
or (b) purports to affect the legality, validity or enforceability of the
issuance of the Senior Subordinated Notes, this Agreement, the Notes or any
other Loan Document, except as disclosed in ITEM 6.7 ("Litigation") of the
Disclosure Schedule.
SECTION 6.8. SUBSIDIARIES. WWI has no Subsidiaries, except those
Subsidiaries
(a) which are identified in ITEM 6.8 ("Existing Subsidiaries")
of the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance
with SECTION 7.2.5 or 7.2.8.
SECTION 6.9. OWNERSHIP OF PROPERTIES. WWI and each of its Subsidiaries
own good title to all of their properties and assets (other than insignificant
properties and assets), real and personal, tangible and intangible, of any
nature whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens or material claims (including material
infringement claims with respect to patents, trademarks, copyrights and the
like) except as permitted pursuant to SECTION 7.2.3.
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SECTION 6.10. TAXES. WWI and each of its Subsidiaries has filed all
Federal, State, foreign and other material tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 6.11. PENSION AND WELFARE PLANS. No Pension Plan has been
terminated that has resulted in a liability to any Borrower of more than
$5,000,000, and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA in excess
of $5,000,000. No condition exists or event or transaction has occurred with
respect to any Pension Plan which could reasonably be expected to result in the
incurrence by any Borrower of any material liability, fine or penalty other than
such condition, event or transaction which would not reasonably be expected to
have a Material Adverse Effect. Except as disclosed in ITEM 6.11 ("EMPLOYEE
BENEFIT PLANS") of the Disclosure Schedule, since the date of the last financial
statement of WWI, WWI has not materially increased any contingent liability with
respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA.
SECTION 6.12. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM
6.12 ("ENVIRONMENTAL MATTERS") of the Disclosure Schedule or as, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by WWI or any of its Subsidiaries have
been, and continue to be, owned or leased by WWI and its Subsidiaries
in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened
(i) written claims, complaints, notices or requests
for information received by WWI or any of its Subsidiaries
with respect to any alleged violation of any Environmental
Law, or
(ii) written complaints, notices or inquiries to WWI
or any of its Subsidiaries regarding potential liability under
any Environmental Law;
(c) to the best knowledge of WWI, there have been no Releases
of Hazardous Materials at, on or under any property now or previously
owned or leased by WWI or any of its Subsidiaries;
(d) WWI and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by WWI or
any of its Subsidiaries is listed or, to the knowledge of WWI or any of
its Subsidiaries, proposed for listing (with respect to owned property
only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation
or clean-up;
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(f) to the best knowledge of WWI, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks,
on or under any property now or previously owned or leased by WWI or
any of its Subsidiaries;
(g) WWI and its Subsidiaries have not directly transported or
directly arranged for the transportation of any Hazardous Material to
any location (i) which is listed or to the knowledge of WWI or any of
its Subsidiaries, proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list, or
(ii) which is the subject of federal, state or local enforcement
actions or other investigations;
(h) to the best knowledge of WWI, there are no polychlorinated
biphenyls or friable asbestos present in a manner or condition at any
property now or previously owned or leased by WWI or any of its
Subsidiaries; and
(i) to the best knowledge of WWI, no conditions exist at, on
or under any property now or previously owned or leased by WWI or any
of its Subsidiaries which, with the passage of time, or the giving of
notice or both, would give rise to liability under any Environmental
Law.
SECTION 6.13. REGULATIONS U AND X. No Obligor is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Credit Extensions will be used to purchase or
carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which
meanings are provided in F.R.S. Board Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. ACCURACY OF INFORMATION. All material factual information
concerning the financial condition, operations or prospects of WWI and its
Subsidiaries heretofore or contemporaneously furnished by or on behalf of the
Borrowers in writing to the Administrative Agent, the Issuer or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby or with respect to the Refinancing is, and all other such factual
information hereafter furnished by or on behalf of the Borrowers to the
Administrative Agent, the Issuer or any Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Any term or provision of this Section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made herein
with respect thereto; PROVIDED, HOWEVER, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
each of the Borrowers has reviewed such factual matters and nothing has come to
its attention in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any
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material fact necessary to make such assumptions, estimates, projections or
opinions not misleading in any material respect.
SECTION 6.15. SENIORITY OF OBLIGATIONS, ETC. WWI has the power and
authority to incur the Indebtedness evidenced by the Senior Subordinated Notes
as provided for under the Senior Subordinated Note Indenture and has duly
authorized, executed and delivered the Senior Subordinated Note Indenture. WWI
has issued, pursuant to due authorization, the Senior Subordinated Notes under
the Senior Subordinated Note Indenture. The Senior Subordinated Note Indenture
constitutes the legal, valid and binding obligation of WWI enforceable against
WWI in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The subordination provisions of
the Senior Subordinated Notes and contained in the Senior Subordinated Note
Indenture are enforceable against the holders of the Senior Subordinated Notes
by the holder of any Senior Debt (or similar term referring to the Obligations,
as applicable) in the Senior Subordinated Note Indenture, which has not
effectively waived the benefits thereof. All monetary Obligations, including
those to pay principal of and interest (including post-petition interest,
whether or not permitted as a claim) on the Loans and Reimbursement Obligations,
and fees and expenses in connection therewith, constitute Senior Debt (or
similar term referring to the Obligations, as applicable) in the Senior
Subordinated Note Indenture, and all such Obligations are entitled to the
benefits of the subordination created by the Senior Subordinated Note Indenture.
WWI acknowledges that the Administrative Agent and each Lender is entering into
this Agreement, and is extending its Commitments, in reliance upon the
subordination provisions of (or to be contained in) the Senior Subordinated Note
Indenture, the Senior Subordinated Notes and this Section.
SECTION 6.16. SOLVENCY. The incurrence of the related Credit Extensions
hereunder, the incurrence by the Borrowers of the Indebtedness represented by
the Notes and the execution and delivery by the Guaranties by the Obligors
parties thereto, will not involve or result in any fraudulent transfer or
fraudulent conveyance under the provisions of Section 548 of the Bankruptcy Code
(11 U.S.C. ss.101 ET SEQ., as from time to time hereafter amended, and any
successor or similar statute) or any applicable state law respecting fraudulent
transfers or fraudulent conveyances. After giving effect to the effectiveness of
this Agreement, WWI and each of its Subsidiaries is Solvent.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. Each of the Borrowers, jointly and
severally, agrees with the Administrative Agent, the Issuer and each Lender
that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each Borrower will perform its obligations set forth below.
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SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. WWI will
furnish to each Lender, the Issuer and the Administrative Agent copies of the
following financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter of each Fiscal Year of WWI (or, if WWI
is required to file such information on a Form 10-Q with the Securities
and Exchange Commission, promptly following such filing), a
consolidated balance sheet of WWI and its Subsidiaries as of the end of
such Fiscal Quarter, together with the related consolidated statement
of earnings and cash flow for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter (it being understood that the foregoing
requirement may be satisfied by delivery of WWI's report to the
Securities and Exchange Commission on Form 10-Q), certified by the
chief financial Authorized Officer of WWI;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year of WWI (or, if WWI is required to
file such information on a Form 10-K with the Securities and Exchange
Commission, promptly following such filing), a copy of the annual audit
report for such Fiscal Year for WWI and its Subsidiaries, including
therein a consolidated balance sheet for WWI and its Subsidiaries as of
the end of such Fiscal Year, together with the related consolidated
statement of earnings and cash flow of WWI and its Subsidiaries for
such Fiscal Year (it being understood that the foregoing requirement
may be satisfied by delivery of WWI's report to the Securities and
Exchange Commission on Form 10-K), in each case certified (without any
Impermissible Qualification) by PricewaterhouseCoopers LLP or another
"Big Five" firm, together with a certificate from such accountants to
the effect that, in making the examination necessary for the signing of
such annual report by such accountants, they have not become aware of
any Default that has occurred and is continuing, or, if they have
become aware of such Default, describing such Default and the steps, if
any, being taken to cure it;
(c) together with the delivery of the financial information
required pursuant to CLAUSES (A) and (B), a Compliance Certificate, in
substantially the form of EXHIBIT E, executed by the chief financial
Authorized Officer of WWI, showing (in reasonable detail and with
appropriate calculations and computations in all respects satisfactory
to the Administrative Agent) compliance with the financial covenants
set forth in SECTION 7.2.4;
(d) as soon as possible and in any event within three Business
Days after obtaining knowledge of the occurrence of each Default, a
statement of the chief financial Authorized Officer of WWI setting
forth details of such Default and the action which WWI has taken and
proposes to take with respect thereto;
(e) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, or labor controversy
described in SECTION 6.7 and the action which WWI has taken and
proposes to take with respect thereto or (y) the commencement of any
labor controversy, litigation, action, proceeding of the type described
in SECTION 6.7,
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notice thereof and of the action which WWI has taken and proposes to
take with respect thereto;
(f) promptly after the sending or filing thereof, copies of
all reports and registration statements which WWI or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange or any foreign equivalent;
(g) as soon as practicable after the chief financial officer
or the chief executive officer of WWI or a member of WWI's Controlled
Group becomes aware of (i) formal steps in writing to terminate any
Pension Plan or (ii) the occurrence of any event with respect to a
Pension Plan which, in the case of (i) or (ii), could reasonably be
expected to result in a contribution to such Pension Plan by (or a
liability to) WWI or a member of WWI's Controlled Group in excess of
$5,000,000, (iii) the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a Lien under
section 302(f) of ERISA, (iv) the taking of any action with respect to
a Pension Plan which could reasonably be expected to result in the
requirement that WWI furnish a bond to the PBGC or such Pension Plan or
(v) any material increase in the contingent liability of WWI with
respect to any post-retirement Welfare Plan benefit, notice thereof and
copies of all documentation relating thereto;
(h) promptly following the delivery or receipt, as the case
may be, of any material written notice or communication pursuant to or
in connection with the Senior Subordinated Note Indenture or any of the
Senior Subordinated Notes, a copy of such notice or communication; and
(i) such other information respecting the condition or
operations, financial or otherwise, of WWI or any of its Subsidiaries
as any Lender or the Issuer may from time to time reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. WWI will, and will cause each
of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include:
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation, except where the
failure to so qualify could not reasonably be expected to have a
Material Adverse Effect; and
(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES. WWI will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep its properties
(other than insignificant properties) in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless WWI determines in good
faith that the continued maintenance of any of its properties is no longer
economically desirable.
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SECTION 7.1.4. INSURANCE. WWI will, and will cause each of its
Subsidiaries to,
(a) maintain insurance on its property with financially sound
and reputable insurance companies against loss and damage in at least
the amounts (and with only those deductibles) customarily maintained,
and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or
similar business as WWI and its Subsidiaries; and
(b) maintain all worker's compensation, employer's liability
insurance or similar insurance as may be required under the laws of any
state or jurisdiction in which it may be engaged in business.
Without limiting the foregoing, all insurance policies required pursuant to this
Section shall (i) name the Administrative Agent on behalf of Secured Parties as
mortgagee (in the case of property insurance) or additional insured (in the case
of liability insurance), as applicable, and provide that no cancellation or
modification of the policies will be made without thirty days' prior written
notice to the Administrative Agent and (ii) be in addition to any requirements
to maintain specific types of insurance contained in the other Loan Documents.
SECTION 7.1.5. BOOKS AND RECORDS. WWI will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect in all material
respects all of its business affairs and transactions and permit the
Administrative Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and WWI hereby authorizes such independent
public accountant to discuss the Borrowers' financial matters with the Issuer
and each Lender or its representatives whether or not any representative of WWI
is present) and to examine, and photocopy extracts from, any of its books or
other corporate records.
SECTION 7.1.6. ENVIRONMENTAL COVENANT. WWI will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide
copies of all written claims, complaints, notices or inquiries relating
to the condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would
have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly cure and have dismissed with prejudice any
material actions and proceedings relating to compliance with
Environmental Laws, except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP have been set aside on their books; and
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(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this SECTION 7.1.6.
SECTION 7.1.7. FUTURE SUBSIDIARIES. Upon any Person becoming a
Subsidiary of WWI, or upon WWI or any of its Subsidiaries acquiring additional
Capital Securities of any existing Subsidiary, WWI shall notify the
Administrative Agent of such acquisition, and
(a) WWI shall promptly cause such Subsidiary to execute and
deliver to the Administrative Agent, with counterparts for each Lender,
(i) if such Subsidiary is a U.S. Subsidiary or a U.K. Subsidiary, a
supplement to the Subsidiary Guaranty or, if such Subsidiary is an
Australian Subsidiary, a supplement to the Australian Guaranty, (ii) if
such a Subsidiary is a U.S. Subsidiary, a supplement to the WWI
Security Agreement or, if such Subsidiary is an Australian Subsidiary,
a supplement to the Australian Security Agreement or if such Subsidiary
is a U.K. Subsidiary, a security agreement substantially in the form of
the U.K. Security Agreement and (iii) if such Subsidiary is a U.S.
Subsidiary, a U.K. Subsidiary or an Australian Subsidiary and owns any
real property having a value as determined in good faith by the
Administrative Agent in excess of $2,000,000, a Mortgage, together with
acknowledgment copies of Uniform Commercial Code financing statements
(form UCC-1) executed and delivered by the Subsidiary naming the
Subsidiary as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, filed under the
Uniform Commercial Code and any other applicable recording statutes, in
the case of real property, of all jurisdictions as may be necessary or,
in the opinion of the Administrative Agent, desirable to perfect the
security interest of the Administrative Agent pursuant to the
applicable Security Agreement or a Mortgage, as the case may be; and
(b) WWI shall promptly deliver, or cause to be delivered, to
the Administrative Agent under a supplement to the WWI Pledge Agreement
(or, if such Subsidiary is an Australian Subsidiary, a supplement to
the Australian Pledge Agreement or if such Subsidiary is a U.K.
Subsidiary, a pledge agreement substantially in the form of the U.K.
Pledge Agreement), certificates (if any) representing all of the issued
and outstanding shares of Capital Securities of such Subsidiary (to the
extent required to be delivered pursuant to the applicable Pledge
Agreement) owned by WWI or any of its Subsidiaries, as the case may be,
along with undated stock powers for such certificates, executed in
blank, or, if any securities subject thereto are uncertificated
securities, confirmation and evidence satisfactory to the
Administrative Agent that appropriate book entries have been made in
the relevant books or records of a financial intermediary or the issuer
of such securities, as the case may be, under applicable law resulting
in the perfection of the security interest granted in favor of the
Administrative Agent pursuant to the terms of the applicable Pledge
Agreement; PROVIDED, that notwithstanding anything to the --------
contrary herein or in any Loan Document, in no event shall more than
65% of the Capital Securities of any non-Guarantor be required to be
pledged and in no event shall non-Guarantors (other than the ▇▇▇
▇▇▇▇▇▇▇▇) be required to pledge Capital Securities of their
Subsidiaries, together, in each case, with such opinions, in form and
substance and from counsel satisfactory to the Administrative Agent, as
the Administrative Agent may reasonably require.
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SECTION 7.1.8. FUTURE LEASED PROPERTY AND FUTURE ACQUISITIONS OF REAL
PROPERTY.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property, WWI shall, and shall
cause each of its U.S. Subsidiaries and each of the other Guarantor's
to, use its (and their) best efforts (which shall not require the
expenditure of cash or the making of any material concessions under the
relevant lease) to deliver to the Administrative Agent a Waiver
executed by the lessor of any real property that is to be leased by WWI
or any of its U.S. Subsidiaries or any of the other Guarantors for a
term in excess of one year in any state which by statute grants such
lessor a "landlord's" (or similar) Lien which is superior to the
Administrative Agent's, to the extent the value of any personal
property of WWI or its U.S. Subsidiaries or any of the other Guarantors
to be held at such leased property exceeds (or it is anticipated that
the value of such personal property will, at any point in time during
the term of such leasehold term, exceed) $5,000,000.
(b) In the event that WWI or any of its U.S. Subsidiaries or
any of the other Guarantors shall acquire any real property having a
value as determined in good faith by the Administrative Agent in excess
of $2,000,000, WWI or the applicable Subsidiary shall, promptly after
such acquisition, execute a Mortgage and provide the Administrative
Agent with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings
of such Mortgage as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable effectively to
create a valid, perfected first priority Lien, subject to
Liens permitted by SECTION 7.2.3, against the properties
purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of
the Administrative Agent and the Lenders in amounts and in
form and substance and issued by insurers, reasonably
satisfactory to the Administrative Agent, with respect to the
property purported to be covered by such Mortgage, insuring
that title to such property is marketable and that the
interests created by the Mortgage constitute valid first Liens
thereon free and clear of all defects and encumbrances other
than as approved by the Administrative Agent, and such
policies shall also include a revolving credit endorsement and
such other endorsements as the Administrative Agent shall
request and shall be accompanied by evidence of the payment in
full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Administrative Agent may reasonably request.
SECTION 7.1.9. USE OF PROCEEDS, ETC. The proceeds of the Credit
Extensions shall be applied by the Borrowers as follows:
(a) the proceeds of the Additional Term B Loans and Additional
TLCs shall be applied by WWI (i) to fund the Refinancing and (ii) to
finance the payment of the fees and expenses related to the
Refinancing; and
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(b) the proceeds of all Revolving Loans, Swing Line Loans and
any Term Loans incurred pursuant to SECTION 2.1.6, and the issuance of
Letters of Credit from time to time, shall be used for working capital
and general corporate purposes of WWI and its U.S. Subsidiaries.
SECTION 7.2. NEGATIVE COVENANTS. Each of the Borrowers agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, each of the Borrowers will
perform the obligations set forth in this SECTION 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, engage in any business
activity, except business activities of the type in which WWI and its
Subsidiaries are engaged on September 29, 1999 and such activities as may be
incidental, similar or related thereto. The SP1 Borrower shall not engage in any
business other than as permitted under SECTION 7.3.
SECTION 7.2.2. INDEBTEDNESS. Each of the Borrowers will not, and will
not permit any of its respective Subsidiaries to, create, incur, assume or
suffer to exist or otherwise become or be liable in respect of any Indebtedness,
other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) [INTENTIONALLY OMITTED];
(c) Indebtedness identified in ITEM 7.2.2(c) ("Ongoing
Indebtedness") of the Disclosure Schedule, and any Refinancing
Indebtedness;
(d) to the extent not prohibited in whole or in part by the
terms of the Senior Subordinated Note Indenture, Indebtedness incurred
by WWI or any of its Subsidiaries (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) (i) (x)
to any Person providing financing for the acquisition of any assets
permitted to be acquired pursuant to SECTION 7.2.8 to finance its
acquisition of such assets and (y) in respect of Capitalized Lease
Liabilities (but only to the extent otherwise permitted by SECTION
7.2.7) in an aggregate amount for CLAUSES (x) and (y) not to exceed
$5,000,000 at any time and (ii) from time to time for general corporate
purposes in a maximum aggregate amount of all Indebtedness incurred
pursuant to this CLAUSE (ii) not at any time to exceed $15,000,000 LESS
the then aggregate outstanding Indebtedness of Subsidiaries which are
not Guarantors permitted under CLAUSE (f)(iii) below;
(e) Hedging Obligations of WWI or any of its Subsidiaries;
(f) intercompany Indebtedness of WWI owing to any of its
Subsidiaries or any Subsidiary of WWI (other than the SP1 Borrower or
the Designated Subsidiary) owing to WWI or any other Subsidiary of WWI
or of WWI to any Subsidiary of WWI, which Indebtedness
(i) if between Guarantors shall be evidenced by one
or more promissory notes in form and substance satisfactory to
the Administrative Agent
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which have been duly executed and delivered to (and endorsed
to the order of) the Administrative Agent in pledge pursuant
to a supplement to the applicable Pledge Agreement;
(ii) if between Guarantors (other than Indebtedness
incurred by WWI) shall, except in the case of Indebtedness of
WWI owing to any of its Subsidiaries, not be forgiven or
otherwise discharged for any consideration other than payment
in cash in the currency in which such Indebtedness was loaned
or advanced unless the Administrative Agent otherwise
consents; and
(iii) owing by Subsidiaries which are not Guarantors
to Guarantors shall not exceed $15,000,000 in the aggregate at
any time outstanding;
(g) unsecured Subordinated Debt of WWI owing to the Senior
Subordinated Noteholders in an initial aggregate outstanding principal
amount not to exceed the sum of $150,000,000 and Euro 100,000,000;
(h) Indebtedness of Non-Guarantor Subsidiaries to Guarantors
to the extent permitted as Investments under CLAUSE (h) of SECTION
7.2.5;
(i) the Subordinated Guaranty;
(j) (i) guarantees by WWI or any Guarantor of any Indebtedness
of WWI or any Guarantor and (ii) guarantees by any Subsidiary that is
not a Guarantor of any Indebtedness of any other Subsidiary that is not
a Guarantor and (iii) guarantees by WWI or any Guarantor of any
unsecured Indebtedness of any Subsidiary that is not a Guarantor
incurred pursuant to CLAUSE (d)(ii) of this Section; PROVIDED, that in
each case, the Indebtedness being guaranteed is otherwise permitted by
this Section; and
(k) Indebtedness incurred or assumed in connection with a
Franchise Acquisition in an amount not to exceed $30,000,000 per
Franchise Acquisition;
PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSE (D) or (F)
(as such clause relates to Loans made by WWI to its Subsidiaries) may be
incurred if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.
SECTION 7.2.3. LIENS. Each of the Borrowers will not, and will not
permit any of its respective Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its property, revenues or assets, whether now owned
or hereafter acquired, except:
(a) Liens securing payment of the Obligations, granted
pursuant to any Loan Document;
(b) [INTENTIONALLY OMITTED];
(c) Liens to secure payment of Indebtedness of the type
permitted and described in CLAUSE (c) of SECTION 7.2.2;
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(d) Liens granted by WWI or any of its Subsidiaries (other
than the ▇▇▇ ▇▇▇▇▇▇▇▇) to secure payment of Indebtedness of the type
permitted and described in (x) CLAUSE (D)(I) of SECTION 7.2.2;
PROVIDED, that the obligations secured thereby do not exceed in the
aggregate $5,000,000 at any time outstanding and (y) CLAUSE (D)(II) of
SECTION 7.2.2 owed by Subsidiaries which are not Guarantors to
non-Affiliates; PROVIDED that the obligations secured thereby do not
exceed $7,500,000 in the aggregate at any one time outstanding;
(e) Liens for taxes, assessments or other governmental charges
or levies, including Liens pursuant to Section 107(l) of CERCLA or
other similar law, not at the time delinquent or thereafter payable
without penalty or being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(f) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred by WWI or any of
its Subsidiaries (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) in the ordinary course
of business for sums not overdue for a period of more than 30 days or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred by WWI or any of its Subsidiaries (other
than the ▇▇▇ ▇▇▇▇▇▇▇▇) in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, insurance obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full by a bond or (subject to a
customary deductible) by insurance maintained with responsible
insurance companies;
(i) Liens with respect to recorded minor imperfections of
title and easements, rights-of-way, restrictions, reservations,
permits, servitudes and other similar encumbrances on real property and
fixtures which do not materially detract from the value or materially
impair the use by WWI or any such Subsidiary in the ordinary course of
their business of the property subject thereto;
(j) leases or subleases granted by WWI or any of its
Subsidiaries (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) to any other Person in the
ordinary course of business; and
(k) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by SECTION 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof.
SECTION 7.2.4. FINANCIAL CONDITION.
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(a) FIXED CHARGE COVERAGE RATIO. WWI will not permit the Fixed
Charge Coverage Ratio, during any Fiscal Quarter, to be less than 1.50
to 1.00.:
(b) NET DEBT TO EBITDA RATIO. WWI will not permit the Net Debt
to EBITDA Ratio as of the end of any Fiscal Quarter to be greater than
3.50 to 1.00.
(c) INTEREST COVERAGE RATIO. WWI will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter to be less than 2.50
to 1.00.
SECTION 7.2.5. INVESTMENTS. Each of the Borrowers will not, and will
not permit any of its respective Subsidiaries to, make, incur, assume or suffer
to exist any Investment in any other Person, except:
(a) Investments existing on the date hereof and identified in
ITEM 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to SECTION 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to SECTION 7.2.7;
(e) Investments by WWI in any of its Subsidiaries which have
executed Guaranties, or by any such Subsidiary (other than the ▇▇▇
▇▇▇▇▇▇▇▇) in any of its Subsidiaries, by way of contributions to
capital;
(f) Investments made by WWI or any of its Subsidiaries (other
than the ▇▇▇ ▇▇▇▇▇▇▇▇), solely with proceeds which have been
contributed, directly or indirectly, to such Subsidiary as cash equity
from holders of WWI's common stock for the purpose of making an
Investment identified in a notice to the Administrative Agent on or
prior to the date that such capital contribution is made;
(g) Investments by WWI or any of its Subsidiaries (other than
the ▇▇▇ ▇▇▇▇▇▇▇▇) to the extent the consideration received pursuant to
CLAUSE (b)(i) of SECTION 7.2.9 is not all cash;
(h) Investments by WWI or any of its Subsidiaries in Weight
Watchers Sweden AB Vikt-Vaktarna and Weight Watchers Suomi Oy to the
extent that such Investments are for the purpose of acquiring any
Capital Securities of such Subsidiaries not owned by WWI and its
Subsidiaries on September 29, 1999, in an aggregate amount not to
exceed $10,000,000;
(i) other Investments (not constituting Capital Expenditures
attributable to the expenditure of Base Amounts) made by WWI or any of
the Guarantors (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) in an aggregate amount,
not to exceed $30,000,000;
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(j) other Investments made by any Non-Guarantor Subsidiary in
another Non-Guarantor Subsidiary;
(k) other Investments made by WWI or any Subsidiary in
Qualified Assets, to the extent permitted under CLAUSE (b) of SECTION
3.1.1;
(l) Investments made by WWI in the Designated Subsidiary in an
aggregate amount not to exceed $1,500,000;
(m) Investments permitted under SECTION 7.2.6); and
(n) Investments by WWI or any Subsidiary constituting
Permitted Acquisitions;
PROVIDED, HOWEVER, that
(i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such
requirements;
(ii) the Investments permitted above shall only be
permitted to be made to the extent not prohibited in whole or
in part by the terms of the Senior Subordinated Note
Indenture;
(iii) no Investment otherwise permitted by CLAUSE
(e), (f), (g) or (i) shall be permitted to be made if,
immediately before or after giving effect thereto, any Default
shall have occurred and be continuing ; and
(iv) except as permitted under CLAUSE (a) above, no
more than $2,000,000 of Investments may be made in the
Designated Subsidiary unless the Designated Subsidiary shall
have taken the actions set forth in SECTION 7.1.7.
SECTION 7.2.6. RESTRICTED PAYMENTS, ETC. On and at all times after
September 29, 1999.
(a) Subject to CLAUSE (b)(ii), WWI will not declare, pay or
make any dividend or distribution (in cash, property or obligations) on
any shares of any class of Capital Securities (now or hereafter
outstanding) of WWI or on any warrants, options or other rights with
respect to any shares of any class of Capital Securities (now or
hereafter outstanding) of WWI (other than dividends or distributions
payable in its common stock or warrants to purchase its common stock or
splits or reclassifications of its stock into additional or other
shares of its common stock) or apply, or permit any of its Subsidiaries
to apply, any of its funds, property or assets to the purchase,
redemption, sinking fund or other retirement of, or agree or permit any
of its Subsidiaries to purchase or redeem, any shares of any class of
Capital Securities (now or hereafter outstanding) of WWI, or warrants,
options or other rights with respect to any shares of any class of
Capital Securities (now or hereafter outstanding, including but not
limited to the WWI Preferred Shares) of WWI (collectively, "RESTRICTED
PAYMENTS"); PROVIDED, that (w) WWI may
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make Restricted Payments of dividends on WWI's Capital Securities or to
repurchase WWI's Capital Securities in an amount up to $20,000,000 plus
50% of Net Income from the Effective Date, so long as (i) both before
and after giving effect to such Restricted Payment no Default has
occurred and is continuing, (ii) WWI's Senior Debt to EBITDA ratio on a
pro forma basis after giving effect to such Restricted Payment is less
than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused
Revolving Loan Commitments (x) WWI may make dividend payments under the
WWI Preferred Shares so long as no Default has occurred, no default has
occurred under or the Senior Subordinated Note Indenture or, in either
case, would result therefrom, (y) WWI may repurchase its stock held by
employees constituting management, in an amount not to exceed
$5,000,000 in any Fiscal Year and an aggregate amount of $20,000,000
(amounts unused in any Fiscal Year may be used in the immediately
succeeding Fiscal Year) and (z) WWI may make Restricted Payments to
redeem, in whole or in part, WWI Preferred Shares, so long as before
and after giving effect to such Restricted Payment, (i) no Default has
occurred and is continuing, (ii) WWI's Senior Debt to EBITDA ratio on a
pro forma basis after giving effect to such Restricted Payment is less
than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused
Revolving Loan Commitments;
(b) WWI will not, and will not permit any of its Subsidiaries
to
(i) make any payment or prepayment of principal of,
or interest on, any Senior Subordinated Notes (A) on any day
other than, in the case of interest only, the stated,
scheduled date for such payment of interest set forth in the
applicable Senior Subordinated Notes or in the Senior
Subordinated Note Indenture, or (B) which would violate the
terms of this Agreement or the subordination provisions of the
Senior Subordinated Note Indenture; or
(ii) redeem, purchase or defease, any Senior
Subordinated Notes, unless, so long as, both before and after
giving effect to any such redemption, purchase or defeasance,
(x) WWI's Senior Debt to EBITDA ratio on a pro forma basis
after giving effect to such Restricted Payment is less than
2.0 to 1.0 and (y) WWI shall at the time of any such
redemption, purchase or defeasance (have at least $30,000,000
of unused Revolving Loan Commitments; and
(c) WWI will not, and will not permit any Subsidiary to, make
any deposit for any of the foregoing purposes (except in connection
with any permitted expenditure described in CLAUSES (A) and (B) above).
SECTION 7.2.7. CAPITAL EXPENDITURES, ETC. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, make or commit
to make Capital Expenditures (other than (w) Permitted Acquisitions, (x)
investments under (1) CLAUSE (j) of SECTION 7.2.5 and (2) CLAUSE (i) of SECTION
7.2.5 to the extent, in the case of this CLAUSE (2), that the aggregate amount
of such investments does not exceed $30,000,000 (it being understood that
Capital Expenditures may be made pursuant to this CLAUSE (x) whether or not
constituting "Investments", but shall be treated as such for the purposes of
said Sections), (y) nonrecurring restructuring costs and Weighco Acquistion
related expenses and (z) proceeds of capital contributions used for Capital
Expenditures in any Fiscal Year by WWI and its Subsidiaries (other than the ▇▇▇
▇▇▇▇▇▇▇▇),
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except, to the extent not prohibited in whole or in part by the terms of the
Senior Subordinated Note Indenture, Capital Expenditures which do not aggregate
in excess of the amount set forth below opposite such Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
----------- ------------
2001 $ 9,000,000
2002 $ 9,600,000
2003 $10,200,000
2004 $10,800,000
2005 and thereafter $11,400,000
PROVIDED, HOWEVER, that (i) to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to the table set forth above
without giving effect to this CLAUSE (I) (the "BASE AMOUNT") exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by WWI to the Administrative Agent
in the Compliance Certificate delivered for the last Fiscal Quarter of such
Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year
shall be deemed to be used prior to WWI and its Subsidiaries using the Base
Amount for such succeeding Fiscal Year, without giving effect to such
carry-forward).
SECTION 7.2.8. CONSOLIDATION, MERGER, ETC. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all of the assets of any
Person (or of any division thereof) except
(a) any such Subsidiary (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) may
liquidate or dissolve voluntarily into, and may merge with and into,
WWI (so long as WWI is the surviving corporation of such combination or
merger) or any other Subsidiary (other than the ▇▇▇ ▇▇▇▇▇▇▇▇), and the
assets or stock of any Subsidiary may be purchased or otherwise
acquired by WWI or any other Subsidiary (other than the ▇▇▇ ▇▇▇▇▇▇▇▇);
PROVIDED, that notwithstanding the above, (i) a Subsidiary may only
liquidate or dissolve into, or merge with and into, another Subsidiary
of WWI (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) if, after giving effect to such
combination or merger, WWI continues to own (directly or indirectly),
and the Administrative Agent continues to have pledged to it pursuant
to a supplement to the WWI Pledge Agreement, a percentage of the issued
and outstanding shares of Capital Securities (on a fully diluted basis)
of the Subsidiary surviving such combination or merger that is equal to
or in excess of the percentage of the issued and outstanding shares of
Capital Securities (on a fully diluted basis) of the Subsidiary that
does not survive such combination or merger that was (immediately prior
to the combination or merger) owned by WWI or pledged to the
Administrative Agent and (ii) if such Subsidiary is a Guarantor the
surviving corporation must be a Guarantor;
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(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, WWI or any of their
Subsidiaries (other than the ▇▇▇ ▇▇▇▇▇▇▇▇) may make Investments
permitted under SECTION 7.2.5 (including any Permitted Acquisition);
and
(c) a Subsidiary may merge with another Person in a
transaction permitted by CLAUSE (b) of SECTION 7.2.9.
SECTION 7.2.9. ASSET DISPOSITIONS, ETC. Subject to the definition of
Change of Control, each of the Borrowers will not, and will not permit any of
its respective Subsidiaries to, Dispose of all or any part of its assets,
whether now owned or hereafter acquired (including accounts receivable and
Capital Securities of Subsidiaries) to any Person, unless
(a) such Disposition is made by WWI or any of its Subsidiaries
(other than the ▇▇▇ ▇▇▇▇▇▇▇▇) and is (i) in the ordinary course of its
business (and does not constitute a Disposition of all or a substantial
part of WWI or such Subsidiary's assets) or is of obsolete or worn out
property or (ii) permitted by CLAUSE (a) or (b) of SECTION 7.2.8;
(b) (i) such Disposition (other than of Capital Securities) is
made by WWI or any of its Subsidiaries (other than the ▇▇▇ ▇▇▇▇▇▇▇▇)
and is for fair market value and the consideration consists of no less
than 75% in cash, (ii) the Net Disposition Proceeds received from such
Disposition, together with the Net Disposition Proceeds of all other
assets sold, transferred, leased, contributed or conveyed pursuant to
this CLAUSE (b) since September 29, 1999, does not exceed (individually
or in the aggregate) $20,000,000 over the term of this Agreement and
(iii) the Net Disposition Proceeds generated from such Disposition not
theretofore reinvested in Qualified Assets in accordance with CLAUSE
(b) of SECTION 3.1.1 (with the amount permitted to be so reinvested in
Qualified Assets in any event not to exceed $7,500,000 over the term of
this Agreement) is applied as Net Disposition Proceeds to prepay the
Loans pursuant to the terms of CLAUSE (b) of SECTION 3.1.1 and SECTION
3.1.2; or
(c) such Disposition is made pursuant to a Local Management
Plan.
SECTION 7.2.10. MODIFICATION OF CERTAIN AGREEMENTS.
(a) Each of the Borrowers will not, and will not permit any of
its respective Subsidiaries to, consent to any amendment, supplement,
amendment and restatement, waiver or other modification of any of the
terms or provisions contained in, or applicable to, the
Recapitalization Agreement or any schedules, exhibits or agreements
related thereto, in each case which would adversely affect the rights
or remedies of the Lenders, or WWI's or any Subsidiary's ability to
perform hereunder or under any Loan Document.
(b) Except as otherwise permitted pursuant to the terms of
this Agreement, without the prior written consent of the Required
Lenders, WWI will not consent to any amendment, supplement or other
modification of any of the terms or provisions contained in, or
applicable to, any Subordinated Debt (including the Senior Subordinated
Note Indenture or any of the Senior Subordinated Notes), or any
guarantees delivered in connection with any Subordinated Debt
(including any Subordinated Guaranty)
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(collectively, the "RESTRICTED AGREEMENTS"), or make any
payment in order to obtain an amendment thereof or change thereto, if
the effect of such amendment, supplement, modification or change is to
(i) increase the principal amount of, or increase the interest rate on,
or add or increase any fee with respect to such Subordinated Debt or
any such Restricted Agreement, advance any dates upon which payments of
principal or interest are due thereon or change any of the covenants
with respect thereto in a manner which is more restrictive to WWI or
any of its Subsidiaries or (ii) change any event of default or
condition to an event of default with respect thereto, change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions thereof, or change any collateral therefor
(other than to release such collateral), if (in the case of this CLAUSE
(b)(ii)), the effect of such amendment or change, individually or
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional
rights on the holders of such Subordinated Debt, or any such Restricted
Agreement (or a trustee or other representative on their behalf).
SECTION 7.2.11. TRANSACTIONS WITH AFFILIATES. Each of the Borrowers
will not, and will not permit any of its respective Subsidiaries to, enter into,
or cause, suffer or permit to exist any arrangement or contract with any of
their other Affiliates (other than any Obligor)
(a) unless (i) such arrangement or contract is fair and
equitable to WWI or such Subsidiary and is an arrangement or contract
of the kind which would be entered into by a prudent Person in the
position of the Borrowers or such Subsidiary with a Person which is not
one of their Affiliates; (ii) if such arrangement or contract involves
an amount in excess of $5,000,000, the terms of such arrangement or
contract are set forth in writing and a majority of directors of WWI
have determined in good faith that the criteria set forth in CLAUSE (i)
are satisfied and have approved such arrangement or contract as
evidenced by appropriate resolutions of the board of directors of WWI
or the relevant Subsidiary; (iii) if such arrangement or contract
involves an amount in excess of $25,000,000 for each such arrangement
or contract, the board of directors shall also have received a written
opinion from an investment banking, accounting or appraisal firm of
national prominence that is not an Affiliate of WWI to the effect that
such arrangement or contract is fair, from a financial standpoint, to
WWI and its Subsidiaries or (iv) such arrangement is set forth on ITEM
7.2.11 of the Disclosure Schedule; and
(b) except that, so long as no Default or Event of Default has
occurred and is continuing or would be caused thereby, WWI and its
Subsidiaries may pay (i) annual management, consulting, monitoring and
advisory fees to The Invus Group, Ltd. in an aggregate total amount in
any Fiscal Year not to exceed the greater of (x) $1,000,000 and (y)
1.0% of EBITDA for the relevant period, and any related out-of-pocket
expenses and (ii) fees to The Invus Group, Ltd. and its Affiliates in
connection with any acquisition or divestiture transaction entered into
by WWI or any Subsidiary; PROVIDED, HOWEVER, that the aggregate amount
of fees paid to The Invus Group, Ltd. and its Affiliates in respect of
any acquisition or divestiture transaction shall not exceed 1% of the
total amount of such transaction.
SECTION 7.2.12. NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. Each of
the Borrowers will not, and will not permit any of its respective Subsidiaries
to, enter into any
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agreement (excluding (i) any restrictions existing under the Loan Documents or,
in the case of CLAUSES (a)(i) and (b), any other agreements in effect on the
date hereof, (ii) in the case of CLAUSES (a)(i) and (b), any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into in connection with the sale or disposition of all or substantially all of
the Capital Securities or assets of such Subsidiary pursuant to a transaction
otherwise permitted hereby, (iii) in the case of CLAUSE (a), restrictions in
respect of Indebtedness secured by Liens permitted by SECTION 7.2.3, but only to
the extent such restrictions apply to the assets encumbered thereby, (iv) in the
case of CLAUSE (a), restrictions under the Senior Subordinated Note Indenture or
(v) any restrictions existing under any agreement that amends, refinances or
replaces any agreement containing the restrictions referred to in CLAUSE (i),
(ii) or (iii) above; PROVIDED, that the terms and conditions of any such
agreement referred to in CLAUSE (i), (ii) or (iii) are not materially less
favorable to the Lenders or materially more restrictive to any Obligor a party
thereto than those under the agreement so amended, refinanced or replaced)
prohibiting
(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or (ii) ability of WWI or any other Obligor to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrowers by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrowers.
SECTION 7.2.13. STOCK OF SUBSIDIARIES. Each of the Borrowers will not
(other than WWI in connection with a Permitted Acquisition or an Investment),
and will not permit any of its respective Subsidiaries to issue any Capital
Securities (whether for value or otherwise) to any Person other than WWI or
another Wholly-owned Subsidiary of WWI except in connection with a Local
Management Plan; PROVIDED, that, WW Australia shall at all times be the record
and beneficial direct owner of all of the issued and outstanding Capital
Securities of the SP1 Borrower.
SECTION 7.2.14. SALE AND LEASEBACK. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, enter into any agreement
or arrangement with any other Person providing for the leasing by WWI or any of
its Subsidiaries of real or personal property which has been or is to be sold or
transferred by WWI or any of its Subsidiaries to such other Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of WWI or any of its
Subsidiaries.
SECTION 7.2.15. FISCAL YEAR. Each of the Borrowers will not and will
not permit any of its respective Subsidiaries to change its Fiscal Year.
SECTION 7.2.16. DESIGNATION OF SENIOR INDEBTEDNESS. WWI will not
designate any Indebtedness as "Designated Senior Indebtedness" pursuant to
clause (1) of the definition of such term in the Senior Subordinated Note
Indenture, without the consent of the Required Lenders.
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SECTION 7.3. MAINTENANCE OF SEPARATE EXISTENCE. The SP1 Borrower
covenants and agrees with the Administrative Agent, the Issuer and each Lender
as follows:
(a) OTHER BUSINESS. It will not engage in any business or
enterprise or enter into any transaction other than the borrowing of
Loans under the Agreement, and the incurrence and payment of ordinary
course operating expenses, and as otherwise contemplated by the Loan
Documents.
(b) MAINTENANCE OF SEPARATE EXISTENCE. In order to maintain
its corporate existence separate and apart from that of WWI, any
Subsidiary of WWI and any Affiliates thereof and any other Person, it
will perform all necessary acts to maintain such separation, including,
(i) practicing and adhering to corporate formalities,
such as maintaining appropriate corporate books and records;
(ii) complying with Article Sixth of its certificate
of incorporation;
(iii) owning or leasing (including through shared
arrangements with Affiliates) all office furniture and
equipment necessary to operate its business;
(iv) refraining from (A) guaranteeing or otherwise
becoming liable for any obligations of any of its Affiliates
or any other Person, (B) having its Obligations guaranteed by
its Affiliates or any other Person (except as otherwise
contemplated by the Loan Documents), (C) holding itself out as
responsible for debts of any of its Affiliates or any other
Person or for decisions or actions with respect to the affairs
of any of its Affiliates or any other Person, and (D) being
directly or indirectly named as a direct or contingent
beneficiary or loss payee on any insurance policy of any
Affiliate;
(v) maintaining its deposit and other bank accounts
and all of its assets separate from those of any other Person;
(vi) maintaining its financial records separate and
apart from those of any other Person;
(vii) compensating all its employees, officers,
consultants and agents for services provided to it by such
Persons, or reimbursing any of its Affiliates in respect of
services provided to it by employees, officers, consultants
and agents of such Affiliate, out of its own funds;
(viii) maintaining any owned or leased office space
separate and apart from that of any of its Affiliates (even if
such office space is subleased from or is on or near premises
occupied by any of its Affiliates);
(ix) accounting for and managing all of its
liabilities separately from those of any of its Affiliates and
any other Person, including payment directly by
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the SP1 Borrower of all payroll, accounting and other
administrative expenses and taxes;
(x) allocating, on an arm's-length basis, all shared
corporate operating services, leases and expenses, including
those associated with the services of shared consultants and
agents and shared computer and other office equipment and
software;
(xi) refraining from filing or otherwise initiating
or supporting the filing of a motion in any bankruptcy or
other insolvency proceeding involving it, WWI, any Subsidiary
of WWI, any Affiliate thereof or any other Person to
substantively consolidate it with WWI, any Subsidiary of WWI,
any Affiliate thereof or any other Person;
(xii) remaining solvent;
(xiii) conducting all of its business (whether
written or oral) solely in its own name;
(xiv) refraining from commingling its assets with
those of any of its Affiliates or any other Person;
(xv) maintaining an arm's-length relationship with
all of its Affiliates;
(xvi) refraining from acquiring obligations or
securities of WWI, any Subsidiary of WWI or any Affiliate
thereof;
(xvii) refraining from pledging its assets for the
benefit of any of its Affiliates or any other Person or making
any loans or advances to any of its Affiliates or any other
Person (in each case, except as otherwise permitted pursuant
to the Loan Documents); and
(xviii) correcting any known misunderstanding
regarding its separate identity.
(c) INDEPENDENT DIRECTORS. It will not cause or allow its
board of directors to take any action requiring the unanimous
affirmative vote of 100% of the members of its board of directors
unless the Independent Director(s) (as defined in the certificate of
incorporation of the ▇▇▇ ▇▇▇▇▇▇▇▇) shall have participated in such
vote, and it shall comply in all respects with Article Seventh of its
certificate of incorporation.
(d) UNANIMOUS CONSENT REQUIRED FOR CERTAIN ACTIONS. It shall
not, without the unanimous consent of all of the members of its board
of directors, including its independent director(s), (i) file, or
authorize or consent to the filing of, a bankruptcy or insolvency
petition or otherwise institute insolvency proceedings with respect to
itself or to any other entity in which it has a direct or indirect
legal or beneficial ownership interest, (ii) dissolve, liquidate,
consolidate, merge, or sell all or substantially all of its assets or
any other entity in which it has a direct or indirect legal or
beneficial ownership
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interest, (iii) engage in any other business activity or (iv) amend
Articles Third, Sixth and Seventh of its Certificate of Incorporation.
(e) NO POWERS OF ATTORNEY. The SP1 Borrower shall not grant
any powers of attorney to any Person for any purposes except (i) for
the purpose of permitting any Person to perform any ministerial or
administrative functions on behalf of the ▇▇▇ ▇▇▇▇▇▇▇▇ which are not
inconsistent with the terms of the Loan Documents, (ii) to the
Administrative Agent for the purposes of the Security Agreements,
Pledge Agreements and Guaranties, or (iii) where otherwise provided or
permitted by the Loan Documents.
ARTICLE VIII
GUARANTY
SECTION 8.1. THE GUARANTY. WWI hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise (including all amounts which would have become due but
for the operation of the automatic stay under Section 362(a) of the Federal
Bankruptcy Code, 11 U.S.C. 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
of the following (collectively, the "GUARANTEED OBLIGATIONS"),
(a) all Obligations of the SP1 Borrower and each other Obligor
to the Administrative Agent and each of the Lenders now or hereafter
existing under this Agreement and each other Loan Document, whether for
principal, interest, fees, expenses or otherwise; and
(b) all other Obligations to the Administrative Agent and each
of the Lenders now or hereafter existing under any of the Loan
Documents, whether for principal, interest, fees, expenses or
otherwise.
The obligations of WWI under this ARTICLE VIII constitute a guaranty of payment
when due and not of collection, and WWI specifically agrees that it shall not be
necessary or required that the Administrative Agent, any Lender or any holder of
any Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the SP1 Borrower or any other Obligor (or any other Person)
before or as a condition to the obligations of WWI under this ARTICLE VIII.
SECTION 8.2. GUARANTY UNCONDITIONAL. The obligations of WWI under this
ARTICLE VIII shall be construed as a continuing, absolute, unconditional and
irrevocable guaranty of payment and shall remain in full force and effect until
the Final Termination Date. WWI guarantees that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the agreement, instrument or
document under which they arise, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any of the Lenders with respect thereto.
The liability of WWI hereunder shall be absolute and unconditional irrespective
of:
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(a) any lack of validity, legality or enforceability of this
Agreement, the Notes, the Additional TLCs, any Rate Protection
Agreement with a Lender or any other Loan Document or any other
agreement or instrument relating to any thereof;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
compromise, renewal, extension, acceleration or release with respect
thereto, or any other amendment or waiver of or any consent to
departure from this Agreement, the Notes, the Additional TLCs, any Rate
Protection Agreement with a Lender or any other Loan Document;
(c) any addition, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) the failure of the Administrative Agent or any Lender
(i) to assert any claim or demand or to enforce any
right or remedy against the SP1 Borrower, any other Obligor or
any other Person (including any other guarantor) under the
provisions of this Agreement, any Note, any Additional TLC,
any Rate Protection Agreement with a Lender or any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any of the
Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note, any Additional TLC, any Rate Protection
Agreement with a Lender or any other Loan Document;
(f) any defense, setoff or counterclaim which may at any time
be available to or be asserted by any Obligor against the
Administrative Agent or any Lender;
(g) any reduction, limitation, impairment or termination of
the Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and WWI hereby waives any right to or claim of) any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, the Guaranteed Obligations or otherwise; or
(h) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, WWI, any
other Obligor or any surety or guarantor.
SECTION 8.3. REINSTATEMENT IN CERTAIN CIRCUMSTANCES. If at any time any
payment in whole or in part of any of the Guaranteed Obligations is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of WWI, any other Obligor or
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otherwise, WWI's obligations under this ARTICLE VIII with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 8.4. WAIVER. WWI irrevocably waives promptness, diligence,
notice of acceptance hereof, presentment, demand, protest and any other notice
with respect to any of the Guaranteed Obligations, as well as any requirement
that at any time any action be taken by any Person against the SP1 Borrower or
any other Person.
SECTION 8.5. POSTPONEMENT OF SUBROGATION, ETC. WWI will not exercise
any rights which it may acquire by way of rights of subrogation by any payment
made hereunder or otherwise, prior to the Final Termination Date. Any amount
paid to WWI on account of any such subrogation rights prior to Final Termination
Date shall be held in trust for the benefit of the Lenders and each holder of a
Note and/or Additional TLC and shall immediately be paid to the Administrative
Agent and credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of this Agreement; PROVIDED,
HOWEVER, that if
(a) WWI has made payment to the Lenders and each holder of a
Note of all or any part of the Guaranteed Obligations, and
(b) the Final Termination Date has occurred,
each Lender and each holder of a Note agrees that, at WWI's request, the
Administrative Agent, on behalf of the Lenders and the holders of the Notes,
will execute and deliver to WWI appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to WWI of an interest in the Guaranteed Obligations resulting from
such payment by WWI. In furtherance of the foregoing, at all times prior to the
Final Termination Date, WWI shall refrain from taking any action or commencing
any proceeding against the SP1 Borrower (or its successors or assigns, whether
in connection with a bankruptcy proceeding or otherwise) to recover any amounts
in the respect of payments to any Lender or any holder of a Note and/or
Additional TLC; PROVIDED, HOWEVER, that WWI may make any necessary filings
solely to preserve its claims against the SP1 Borrower.
SECTION 8.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by the SP1 Borrower under this Agreement or any
Note or Additional TLC is stayed upon the occurrence of any event referred to in
SECTION 9.1.9 with respect to the SP1 Borrower, all such amounts otherwise
subject to acceleration under the terms of this Agreement shall nonetheless be
payable by WWI hereunder forthwith.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. LISTING OF EVENTS OF DEFAULT. Each of the following events
or occurrences described in this SECTION 9.1 shall constitute an "EVENT OF
DEFAULT".
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SECTION 9.1.1. NON-PAYMENT OF OBLIGATIONS. Any Borrower shall default
in the payment or prepayment of any Reimbursement Obligation (including pursuant
to SECTIONS 2.6 and 2.6.2) on the applicable Disbursement Due Date or any
deposit of cash for collateral purposes on the date required pursuant to SECTION
2.6.4 or any principal of any Loan when due, or any Obligor (including WWI and
the ▇▇▇ ▇▇▇▇▇▇▇▇) shall default (and such default shall continue unremedied for
a period of three Business Days) in the payment when due of any interest or
commitment fee or of any other monetary Obligation.
SECTION 9.1.2. BREACH OF WARRANTY. Any representation or warranty of
any Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrowers or any other Obligor to the Administrative
Agent, the Issuer or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates delivered
pursuant to ARTICLE V) is or shall be incorrect when made in any material
respect.
SECTION 9.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
Any Borrower shall default in the due performance and observance of any of its
obligations under SECTION 7.1.9 or SECTION 7.2.
SECTION 9.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to WWI by the Administrative Agent at the
direction of the Required Lenders.
SECTION 9.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in SECTION 9.1.1, of WWI or any of its Subsidiaries or any other
Obligor having a principal amount, individually or in the aggregate, in excess
of $1,000,000, or (ii) a default shall occur in the performance or observance of
any obligation or condition with respect to such Indebtedness having a principal
amount, individually or in the aggregate, in excess of $5,000,000 if the effect
of such default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION 9.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of $1,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against WWI or any of its Subsidiaries or any other Obligor and
remain unpaid and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
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(b) there shall be any period of 60 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 9.1.7. PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan:
(a) the termination of any Pension Plan if, as a result of
such termination, WWI or any Subsidiary would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur
a liability or obligation to such Pension Plan, in excess of
$5,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA in
an amount in excess of $5,000,000.
SECTION 9.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 9.1.9. BANKRUPTCY, INSOLVENCY, ETC. WWI or any of its
Subsidiaries (other than any Immaterial Subsidiary or the Designated Subsidiary)
or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for WWI or any of
its Subsidiaries or any other Obligor or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for WWI or any of its
Subsidiaries or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, PROVIDED that
WWI or each Subsidiary and each other Obligor hereby expressly
authorizes the Administrative Agent, the Issuer and each Lender to
appear in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of WWI or any of its
Subsidiaries or any other Obligor, and, if any such case or proceeding
is not commenced by WWI or such Subsidiary or such other Obligor, such
case or proceeding shall be consented to or acquiesced in by WWI or
such Subsidiary or such other Obligor or shall result in the entry of
an order for relief or shall remain for 60 days undismissed, PROVIDED
that WWI, each Subsidiary and each other Obligor hereby expressly
authorizes the Administrative Agent, the Issuer and each Lender to
appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents; or
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(e) take any action (corporate or otherwise) authorizing, or
in furtherance of, any of the foregoing.
SECTION 9.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
any Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document, except to the extent any event referred to
above (a) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under the WWI Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (b) is covered by a lender's title insurance
policy and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance policy.
SECTION 9.1.11. SENIOR SUBORDINATED NOTES. The subordination provisions
relating to the Senior Subordinated Note Indenture (the "SUBORDINATION
PROVISIONS") shall fail to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Loan, Reimbursement Obligation or other
monetary Obligations shall fail to constitute Senior Debt, or the same (or any
other similar term) used to define the monetary Obligations.
SECTION 9.1.12. REDEMPTION. Any Senior Subordinated Noteholder of any
Subordinated Debt shall file an action seeking the rescission thereof or damages
or injunctive relief relating thereto; or any event shall occur which, under the
terms of any agreement or indenture relating to Subordinated Debt, shall require
WWI or any of its Subsidiaries to purchase, redeem or otherwise acquire or offer
to purchase, redeem or otherwise acquire all or any portion of the principal
amount of the Subordinated Debt (other than as provided under SECTION 7.2.6); or
WWI or any of its Subsidiaries shall for any other reason purchase, redeem or
otherwise acquire or offer to purchase, redeem or otherwise acquire, or make any
other payments in respect of the principal amount of any such Subordinated Debt
(other than as provided under SECTION 7.2.6).
SECTION 9.2. ACTION IF BANKRUPTCY, ETC. If any Event of Default
described in CLAUSES (A) through (D) of SECTION 9.1.9 shall occur with respect
to WWI, any Subsidiary or any other Obligor, the Commitments (if not theretofore
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
SECTION 9.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in CLAUSES (A) through (D) of SECTION
9.1.9 with respect to WWI or any Subsidiary or any other Obligor) shall occur
for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to WWI declare all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable, require the Borrowers to
provide cash
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collateral to be deposited with the Administrative Agent in an amount equal to
the Stated Amount of all issued Letters of Credit and/or declare the Commitments
(if not theretofore terminated) to be terminated, whereupon the full unpaid
amount of such Loans and other Obligations which shall be so declared due and
payable shall be and become immediately due and payable, without further notice,
demand or presentment, the Borrowers shall deposit with the Administrative Agent
cash collateral in an amount equal to the Stated Amount of all issued Letters of
Credit and/or, as the case may be, the Commitments shall terminate.
ARTICLE X
THE AGENTS
SECTION 10.1. ACTIONS. Each Lender hereby appoints Scotiabank as its
Administrative Agent and as a Lead Agent and Book Manager under and for purposes
of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under this
Agreement, the Notes, the Additional TLCs, and each other Loan Document and, in
the absence of other written instructions from the Required Lenders received
from time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers
as may be reasonably incidental thereto. Each Lender hereby appoints CSFB as the
Syndication Agent and as a Lead Agent and Book Manager. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
each Agent, ratably in accordance with their respective Term Loans and
Additional TLCs outstanding and Commitments (or, if no Term Loans, Additional
TLCs or Commitments are at the time outstanding and in effect, then ratably in
accordance with the principal amount of Term Loans or, as the case may be,
Additional TLCs held by such Lender, and their respective Commitments as in
effect in each case on the date of the termination of this Agreement), from and
against any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Agents in any way relating to or arising
out of this Agreement, the Notes, the Additional TLCs and any other Loan
Document, including reasonable attorneys' fees, and as to which any Agent is not
reimbursed by the Borrowers or any other Obligor (and without limiting the
obligation of the Borrowers or any other Obligor to do so); PROVIDED, HOWEVER,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from an Agent's gross negligence or willful misconduct. The
Agents shall not be required to take any action hereunder, under the Notes, the
Additional TLCs or under any other Loan Document, or to prosecute or defend any
suit in respect of this Agreement, the Notes, the Additional TLCs or any other
Loan Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of the Agents shall be or become, in any Agent's
determination, inadequate, any Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
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Notwithstanding the foregoing, the Lead Arrangers and Book Managers shall have
no duties, obligations or liabilities under any Loan Document.
SECTION 10.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender severally agrees
and the Borrowers jointly and severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Administrative Agent made such amount available
to the applicable Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of any Borrower) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which
such amount has not been repaid, and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
SECTION 10.3. EXCULPATION. Neither any Agent nor any of their
respective directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrowers of their obligations hereunder or
under any other Loan Document. Any such inquiry which may be made by any Agent
shall not obligate it to make any further inquiry or to take any action. The
Agents shall be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing which the Agents
believe to be genuine and to have been presented by a proper Person.
SECTION 10.4. SUCCESSOR. The Syndication Agent may resign as such upon
one Business Day's notice to WWI and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days prior
notice to WWI and all Lenders. If the Administrative Agent at any time shall
resign, the Required Lenders may, with the prior consent of WWI (which consent
shall not be unreasonably withheld), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $250,000,000; PROVIDED, HOWEVER, that if, such
retiring
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Administrative Agent is unable to find a commercial banking institution which is
willing to accept such appointment and which meets the qualifications set forth
in above, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall be entitled to
receive from the retiring Administrative Agent such documents of transfer and
assignment as such successor Administrative Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as the
Administrative Agent, the provisions of
(a) this ARTICLE X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) SECTION 11.3 and SECTION 11.4 shall continue to inure to
its benefit.
SECTION 10.5. CREDIT EXTENSIONS BY EACH AGENT. Each Agent shall have
the same rights and powers with respect to (x) the Credit Extensions made by it
or any of its Affiliates, and (y) the Notes or Additional TLCs held by it or any
of its Affiliates as any other Lender and may exercise the same as if it were
not an Agent. Each Agent and its respective Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with any Borrower or
any Subsidiary or Affiliate of WWI, as if such Agent were not an Agent
hereunder.
SECTION 10.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 10.7. COPIES, ETC. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 10.8. RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof
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by telephone, telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Required Lenders or all of the Lenders as is required in such
circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders. For
purposes of applying amounts in accordance with this Section, the Administrative
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with any Obligor for a determination (which such
Secured Party agrees to provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Secured Obligations owed to such
Secured Party under any Rate Protection Agreement. Unless it has actual
knowledge evidenced by way of written notice from any such Secured Party and any
Borrower to the contrary, the Administrative Agent, in acting hereunder and
under each other Loan Document, shall be entitled to assume that no Rate
Protection Agreements or Obligations in respect thereof are in existence or
outstanding between any Secured Party and any Obligor.
SECTION 10.9. DEFAULTS. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or any Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to SECTION 11.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; PROVIDED, THAT unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Required Lenders; PROVIDED, HOWEVER, that
no such amendment, modification or waiver shall:
(a) modify this SECTION 11.1 without the consent of all
Lenders;
(b) increase the aggregate amount of any Lender's Percentage
of any Commitment Amount, increase the aggregate amount of any Loans or
Additional TLCs required to be made or purchased by a Lender pursuant
to its Commitments, extend the
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final Commitment Termination Date of Credit Extensions made (or
participated in) by a Lender or reduce any fees described in ARTICLE
III payable to any Lender without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's
Loan or Additional TLC, or reduce the principal amount of or rate of
interest on any Lender's Loan or Additional TLC or extend the date on
which scheduled payments of principal, or payments of interest or fees
are payable in respect of any Lender's Loans or Additional TLCs, in
each case, without the consent of such Lender (it being understood and
agreed, however, that any vote to rescind any acceleration made
pursuant to SECTION 9.2 and SECTION 9.3 of amounts owing with respect
to the Loans, Additional TLCs and other Obligations shall only require
the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit or
extend the Stated Expiry Date of any Letter of Credit to a date which
is subsequent to the Revolving Loan Commitment Termination Date, in
each case, unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement
or another Loan Document, release (i) any Guarantor from its
obligations under a Guaranty other than in connection with a
Disposition of all or substantially all of the Capital Securities of
such Guarantor in a transaction permitted by SECTION 7.2.9 as in effect
from time to time or (ii) all or substantially all of the collateral
under the Loan Documents, in either case without the consent of all
Lenders;
(g) change any of the terms of CLAUSE (c) of SECTION 2.1.4 or
SECTION 2.3.2 without the consent of the Swing Line Lender; or
(h) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as the Administrative Agent),
the Syndication Agent (in its capacity as the Syndication Agent) or any
Issuer (in its capacity as Issuer), unless consented to by the
Administrative Agent, the Syndication Agent or such Issuer, as the case
may be.
No failure or delay on the part of the Administrative Agent, the Syndication
Agent, any Issuer or any Lender in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on any Borrower or any other Obligor in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent, the Syndication Agent, any Issuer or
any Lender under this Agreement or any other Loan Document shall, except as may
be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 11.2. NOTICES. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on SCHEDULE III hereto or set forth in
the Lender Assignment Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(telephonic confirmation in the case of facsimile).
SECTION 11.3. PAYMENT OF COSTS AND EXPENSES. The Borrowers jointly and
severally agree to pay on demand all reasonable expenses of the Administrative
Agent (including the reasonable fees and out-of-pocket expenses of ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇, special New York counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with:
(a) the syndication by the Agents of the Loans, the Additional
TLCs, the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements or other instruments
relating thereto and all amendments, supplements and modifications to
any thereof and any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or of such Mortgage, Pledge Agreement or Security
Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save each
Agent, the Issuer and the Lenders harmless from all liability for, any stamp or
other similar taxes which may be payable in connection with the execution or
delivery of this Agreement, the Credit Extensions made hereunder, or the
issuance of the Notes, the Additional TLCs and Letters of Credit or any other
Loan Documents. The Borrowers also agree to reimburse the Administrative Agent,
the Issuer and each Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) incurred by the Administrative
Agent, the Issuer or such Lender in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
SECTION 11.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby jointly and severally indemnify, exonerate and hold the
Administrative Agent, the Syndication Agent, the Issuer and each Lender and each
of their respective Affiliates, and each of their respective
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partners, officers, directors, employees and agents, and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended (collectively, the "INDEMNIFIED Parties"), free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses actually incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "INDEMNIFIED LIABILITIES"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to ARTICLE V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by WWI or any of its Subsidiaries
of all or any portion of the stock or assets of any Person, whether or
not the Administrative Agent, the Syndication Agent, the Issuer or such
Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by WWI or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by WWI or any Subsidiary thereof of any
Hazardous Material present on or under such property in a manner giving
rise to liability at or prior to the time WWI or such Subsidiary owned
or operated such property (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, WWI or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Notes and the Additional TLCs and
any transfer of the property of WWI or any of its Subsidiaries by
foreclosure or by a deed in lieu of foreclosure for any Lender's
Environmental Liability, regardless of whether caused by, or within the
control of, WWI or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. WWI, the Borrowers and their permitted
successors and assigns hereby waive, release and agree not to make any claim, or
bring any cost recovery action against, the Administrative Agent, the
Syndication Agent, the Issuer or any Lender under CERCLA or any state
equivalent, or any similar law now existing or hereafter enacted, except to the
extent arising out of the gross
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negligence or willful misconduct of any Indemnified Party. It is expressly
understood and agreed that to the extent that any of such Persons is strictly
liable under any Environmental Laws, any Borrower's obligation to such Person
under this indemnity shall likewise be without regard to fault on the part of
such Borrower with respect to the violation or condition which results in
liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, each of the Borrowers hereby jointly and
severally agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 11.5. SURVIVAL. The obligations of the Borrowers under SECTIONS
4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders under
SECTIONS 4.8 and 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations, the termination or expiration
of all Letters of Credit and the termination of all Commitments. The
representations and warranties made by the Borrowers and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed
by the parties hereto in several counterparts each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 11.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE
NOTES, THE Additional TLCS AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE LETTERS
OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN A LOAN DOCUMENT), INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN
CHARGES AND COMMITMENT FEES, SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO
LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES
(ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP
RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF
THE STATE OF NEW YORK. This Agreement and the other Loan
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Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and thereof and supersede any prior
agreements, written or oral, with respect thereto. SECTION 11.10. SUCCESSORS AND
ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns; PROVIDED,
HOWEVER, that:
(a) none of the Borrowers may assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to SECTION 11.11.
SECTION 11.11. SALE AND TRANSFER OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS, NOTES AND ADDITIONAL TLCS. Each Lender may assign, or sell participations
in, its Loans, its Additional TLCs, Letters of Credit and Commitments to one or
more other Persons, on a non PRO RATA basis, in accordance with this SECTION
11.11.
SECTION 11.11.1. ASSIGNMENTS. Any Lender,
(a) with the written consents of WWI and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld and
which consent, in the case of WWI, shall be deemed to have been given
in the absence of a written notice delivered by WWI to the
Administrative Agent, on or before the fifth Business Day after receipt
by WWI of such Lender's request for such consent), may at any time
assign and delegate to one or more commercial banks or other financial
institutions; and
(b) with notice to WWI and the Administrative Agent, but
without the consent of any Borrower or the Administrative Agent, may
assign and delegate to any of its Affiliates, Related Fund or to any
other Lender,
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's total Loans,
Additional TLCs, participations in Letters of Credit and Letter of Credit
Outstandings with respect thereto and Commitments in a minimum aggregate amount
of $1,000,000 or the then remaining amount of a Lender's type of Loan or
Commitment; PROVIDED, HOWEVER, that (i) with respect to assignments of Revolving
Loans, the assigning Lender must assign a PRO RATA portion of each of its
Revolving Loan Commitments, Revolving Loans and interest in Letters of Credit
Outstandings and (ii) the Administrative Agent, in its own discretion, or by
instruction from the Issuer, may refuse acceptance of an assignment of Revolving
Loans and Revolving Loan Commitments to a Person not satisfying long-term
certificate of deposit ratings published by S&P or ▇▇▇▇▇'▇, of at least BBB- or
Baa3, respectively, or (unless otherwise agreed to by the Issuer), if such
assignment would, pursuant to any applicable laws, rules or regulations, be
binding on the Issuer, result in a reduced rate of return to the Issuer or
require the Issuer to set aside capital in an amount that is greater than that
which is required to be set aside for other Lenders participating in the Letters
of Credit;
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PROVIDED, FURTHER, that any such Assignee Lender will comply, if applicable,
with the provisions contained in SECTION 4.6 and the Borrowers, each other
Obligor and the Administrative Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have
been given to the Borrowers and the Administrative Agent by
such Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and
delivered to the Borrowers and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative
Agent; and
(iii) the processing fees described below shall have
been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
applicable Borrower shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Lender) new Notes or Additional TLCs, as the
case may be, evidencing such Assignee Lender's assigned Loans, Additional TLCs,
Additional TLC Commitments and Commitments and, if the assignor Lender has
retained Loans, Additional TLCs, Additional TLC Commitments and Commitments
hereunder, replacement Notes or Additional TLCs, as the case may be, in the
principal amount of the Loans or Additional TLCs, as the case may be, and
Additional TLC Commitments or Commitments, as the case may be, retained by the
assignor Lender hereunder (such Notes or Additional TLCs, as the case may be, to
be in exchange for, but not in payment of, those Notes or Additional TLCs, as
the case may be, then held by such assignor Lender). Each such Note or
Additional TLC, as the case may be, shall be dated the date of the predecessor
Notes or Additional TLCs, as the case may be. The assignor Lender shall ▇▇▇▇ the
predecessor Notes or Additional TLCs, as the case may be, "exchanged" and
deliver them to the applicable Borrower. Accrued interest on that part of the
predecessor Notes or Additional TLCs, as the case may be, evidenced by the new
Notes or Additional TLCs, as the case may be, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on that part of
the predecessor Notes or Additional TLCs, as the case may be, evidenced by the
replacement Notes or Additional TLCs, as the case may be, shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes or Additional TLCs, as the case
may be, and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Administrative Agent upon delivery of any
Lender Assignment Agreement, in the amount of $3,500, unless such assignment and
delegation is by a Lender to its Affiliate or
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if such assignment and delegation is by a Lender to the Federal Reserve Bank, as
provided below. Any attempted assignment and delegation not made in accordance
with this SECTION 11.11.1 shall be null and void.
Notwithstanding any other term of this SECTION 11.11.1, the agreement of the
Swing Line Lender to provide the Swing Line Loan Commitment shall not impair or
otherwise restrict in any manner the ability of the Swing Line Lender to make
any assignment of its Loans or Commitments, it being understood and agreed that
the Swing Line Lender may terminate its Swing Line Loan Commitment, to the
extent such Swing Line Commitment would exceed its Revolving Loan Commitment
after giving effect to such assignment, in connection with the making of any
assignment. Nothing contained in this SECTION 11.11.1 shall prevent or prohibit
any Lender from pledging its rights (but not its obligations to make Loans)
under this Agreement and/or its Loans and/or its Notes hereunder to a Federal
Reserve Bank (or in the case of a Lender which is a fund, to the trustee of, or
other Eligible Institution affiliated with, such fund for the benefit of its
investors) in support of borrowings made by such Lender from such Federal
Reserve Bank.
In the event that S&P or ▇▇▇▇▇'▇ shall, after the date that any Lender with a
Commitment to make Revolving Loans or participate in Letters of Credit or Swing
Line Loans becomes a Lender, downgrade the long-term certificate of deposit
rating or long-term senior unsecured debt rating of such Lender, and the
resulting rating shall be below BBB- or Baa3, then each of the Issuer and (if
different) the Swing Line Lender shall have the right, but not the obligation,
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an Assignee Lender in accordance with and subject to the restrictions
contained in this Section, and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in this Section) all its interests, rights and obligations in respect of its
Revolving Loan Commitment under this Agreement to such Assignee Lender;
PROVIDED, HOWEVER, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such Assignee
Lender shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest and fees (if any) accrued to the
date of payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 11.11.2. PARTICIPATIONS.
(a) Any Lender may at any time sell to one or more commercial
banks or other Persons (each of such commercial banks and other Persons
being herein called a "PARTICIPANT") participating interests in any of
the Loans, Additional TLCs, Commitments, or other interests of such
Lender hereunder; PROVIDED, HOWEVER, that
(i) no participation contemplated in this Section
shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for
the performance of its Commitments and such other obligations;
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(iii) each Borrower and each other Obligor and the
Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the
other Loan Documents;
(iv) no Participant, unless such Participant is an
Affiliate of such Lender, or Related Fund or is itself a
Lender, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other
Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such
Participant's consent, take any action of the type described
in CLAUSE (a), (b), (f) or, to the extent requiring the
consent of each Lender, CLAUSE (c) of SECTION 11.1; and
(v) the Borrowers shall not be required to pay any
amount under this Agreement that is greater than the amount
which it would have been required to pay had no participating
interest been sold.
The Borrowers acknowledge and agree, subject to CLAUSE (V) above, that each
Participant, for purposes of SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and
11.4, shall be considered a Lender. Each Participant shall only be indemnified
for increased costs pursuant to SECTION 4.3, 4.5 or 4.6 if and to the extent
that the Lender which sold such participating interest to such Participant
concurrently is entitled to make, and does make, a claim on any Borrower for
such increased costs. Any Lender that sells a participating interest in any
Loan, Additional TLC, Commitment or other interest to a Participant under this
Section shall indemnify and hold harmless each Borrower and the Administrative
Agent from and against any taxes, penalties, interest or other costs or losses
(including reasonable attorneys' fees and expenses) incurred or payable by any
Borrower or the Administrative Agent as a result of the failure of such Borrower
or the Administrative Agent to comply with its obligations to deduct or withhold
any taxes from any payments made pursuant to this Agreement to such Lender or
the Administrative Agent, as the case may be, which taxes would not have been
incurred or payable if such Participant had been a Non-U.S. Lender that was
entitled to deliver to such Borrower, the Administrative Agent or such Lender,
and did in fact so deliver, a duly completed and valid Form 1001 or 4224 (or
applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal
taxes.
(b) Each Lender agrees and represents with and for the benefit
of the SP1 Borrower and WW Australia that it:
(i) has not (directly or indirectly) offered by
subscription or purchase or issued invitations to subscribe
for or buy nor has it sold the Additional TLCs;
(ii) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for
or buy nor will it sell the Additional TLCs; and
(iii) has not distributed and will not distribute any
draft, preliminary or definitive offering memorandum,
advertisements or other offering material relating to the
Additional TLCs,
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in the Commonwealth of Australia, its territories or possessions, unless (x) the
consideration is payable by each offeree or invitee in a minimum amount of
A$500,000 or the offer or invitation is otherwise an EXCLUDED OFFER OR EXCLUDED
INVITATION for the purposes of the Australian Corporations Law and the
Corporations Regulations made under the Australian Corporations Law, and (y) the
offer, invitation or distribution complies with all applicable laws, regulations
and directives and does not require any document to be lodged with, or
registered by, the ASIC.
(c) Each Lender agrees and represents with and for the benefit
of the SP1 Borrower and WW Australia that it has not sold and will not
sell the Additional TLCs to any person if, at the time of such sale,
the employees of the Lender aware of, or involved in, the sale knew or
had reasonable grounds to suspect that, as a result of such sale, any
Additional TLCs or an interest in any Additional TLCs were being, or
would later be, acquired (directly or indirectly) by an associate of
the SP1 Borrower or WW Australia for the purposes of section 128F(5) of
the Income Tax Assessment ▇▇▇ ▇▇▇▇ of Australia.
(d) The SP1 Borrower holds the benefit of the agreements and
representations in paragraphs (b) and (c) in trust for WW Australia.
SECTION 11.11.3. REGISTER. The Borrowers hereby designate the
Administrative Agent to serve as the Borrowers' agent, solely for the purpose of
this Section, to maintain a register (the "REGISTER") on which the
Administrative Agent will record each Lender's Commitment, the Loans made by
each Lender and the Notes evidencing such Loans and the Additional TLCs, and
each repayment in respect of the principal amount of the Loans and the
Additional TLCs of each Lender and annexed to which the Administrative Agent
shall retain a copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to this Section. Failure to make any recordation,
or any error in such recordation, shall not affect any Borrower's or any other
Obligor's Obligations in respect of such Loans or Notes or Additional TLCs. The
entries in the Register shall be conclusive, in the absence of manifest error,
and WWI, the Borrowers, the Administrative Agent and the Lenders shall treat
each Person in whose name a Loan and related Note or Additional TLC is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's
Commitment and the Loans made pursuant thereto and the Notes evidencing such
Loans or Additional TLCs may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer in the Register. Any
assignment or transfer of a Lender's Commitment or the Loans or the Notes
evidencing such Loans or Additional TLCs made pursuant thereto shall be
registered in the Register only upon delivery to the Administrative Agent of a
Lender Assignment Agreement duly executed by the assignor thereof. No assignment
or transfer of a Lender's Commitment or the Loans made pursuant thereto or the
Notes evidencing such Loans or Additional TLCs shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section. No Assignment and Assumption
Agreement shall be effective until recorded in the Register.
SECTION 11.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude the Administrative Agent, the Issuer or any other Lender from engaging
in any transaction, in addition to those contemplated by this Agreement or any
other Loan Document, the Borrowers
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or any of their Affiliates in which any Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 11.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENT, THE LENDERS, ANY ISSUER OR THE BORROWERS IN
CONNECTION HEREWITH OR THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE BORROWERS IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 11.2. EACH OF THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY OF
WWI OR THE BORROWERS HAVE OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OF WWI AND THE BORROWERS
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, EACH LENDER, EACH ISSUER AND EACH BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT,
SUCH LENDER, SUCH ISSUER OR ANY BORROWER IN CONNECTION HEREWITH OR THEREWITH.
EACH OF THE BORROWERS ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE
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SYNDICATION AGENT, EACH LENDER AND EACH ISSUER ENTERING INTO THIS AGREEMENT AND
EACH SUCH OTHER LOAN DOCUMENT.
SECTION 11.15. CONFIDENTIALITY. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of WWI or any
of its Subsidiaries in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure to any of their
examiners, Affiliates, outside auditors, counsel and other professional advisors
or to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section) in connection with this Agreement or
as reasonably required by any potential BONA FIDE transferee, participant or
assignee, or in connection with the exercise of remedies under a Loan Document,
or as requested by any governmental agency or representative thereof or pursuant
to legal process or to any quasi-regulatory authority (including the National
Association of Insurance Commissioners); PROVIDED, HOWEVER, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify WWI of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this SECTION
11.15, each Lender shall require any such BONA fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this SECTION 11.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this SECTION 11.15; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by WWI
or any Subsidiary.
SECTION 11.16. JUDGMENT CURRENCY. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder, under any
Note, Additional TLC or under any other Loan Document in another currency into
U.S. Dollars or into a Foreign Currency, as the case may be, 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 applicable Secured Party could purchase such other currency with
U.S. Dollars or with such Foreign Currency, as the case may be, in New York
City, at the close of business on the Business Day immediately preceding the day
on which final judgment is given, together with any premiums and costs of
exchange payable in connection with such purchase.
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SECTION 11.17. RELEASE OF SECURITY INTERESTS.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, the Administrative Agent is hereby
irrevocably authorized by each Lender (without requirement of notice to
or consent of any Lender except as expressly required by SECTION 11.1)
to take any action requested by the Borrowers having the effect of
releasing any collateral or guarantee obligations (i) to the extent
necessary to permit consummation of any transaction expressly permitted
by any Loan Document or that has been consented to in accordance with
SECTION 11.1 or (ii) under the circumstances described in paragraph (b)
below.
(b) At such time as the Loans, the Reimbursement Obligations
and the other obligations under the Loan Documents shall have been paid
in full, the Commitments have been terminated and no letters of Credit
shall be outstanding, the collateral shall be released from the Liens
created by the Security Agreements, and the Security Agreements and all
obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Obligor under the
Security Agreements shall terminate, all without delivery of any
instrument or performance of any act by any Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWERS
WEIGHT WATCHERS INTERNATIONAL, INC.
By:
---------------------------------------
Name:
Title:
WW FUNDING CORP.
By:
---------------------------------------
Name:
Title:
AGENTS
CREDIT SUISSE FIRST BOSTON
as the Syndication Agent
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
as the Administrative Agent
By:
--------------------------------------
Name:
Title:
ISSUER
THE BANK OF NOVA SCOTIA
as the Issuer
By:
--------------------------------------
Name:
Title:
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 5.1.9 LIEN SEARCH JURISDICTIONS
ITEM 6.1 GOOD STANDING.
ITEM 6.7 LITIGATION.
DESCRIPTION OF PROCEEDING ACTION OR CLAIM SOUGHT
ITEM 6.8 EXISTING SUBSIDIARIES.
ITEM 6.11 EMPLOYEE BENEFIT PLANS.
ITEM 6.12 ENVIRONMENTAL MATTERS.
ITEM 7.2.2(c) ONGOING INDEBTEDNESS.
CREDITOR OUTSTANDING PRINCIPAL AMOUNT
ITEM 7.2.5(a) ONGOING INVESTMENTS.
I-1
SCHEDULE II
COMMITMENTS AND PERCENTAGES
II-1
SCHEDULE III
NOTICE INFORMATION,
DOMESTIC OFFICES AND LIBOR OFFICES
III-1
