1
Exhibit 3
================================================================================
CREDIT AGREEMENT
among
WANG LABORATORIES, INC.,
VARIOUS SUBSIDIARY BORROWERS,
VARIOUS LENDING INSTITUTIONS,
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT AND ARRANGER
and
NATIONAL WESTMINSTER BANK PLC,
AS SYNDICATION AGENT AND ARRANGER
and
XXXXXX COMMERCIAL PAPER INC.,
AS DOCUMENTATION AGENT AND CO-ARRANGER
------------------------------------
Dated as of March 13, 1998
------------------------------------
$500,000,000
================================================================================
2
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. Amount and Terms of Credit................................. 1
1.01 Commitment................................................. 1
1.02 Minimum Borrowing Amounts, etc............................. 4
1.03 Notice of Borrowing........................................ 4
1.04 Disbursement of Funds...................................... 5
1.05 Notes ..................................................... 6
1.06 Conversions................................................ 6
1.07 Pro Rata Borrowings, etc................................... 7
1.08 Interest................................................... 7
1.09 Interest Periods........................................... 8
1.10 Increased Costs, Illegality, etc........................... 10
1.11 Compensation............................................... 12
1.12 Change of Lending Office................................... 13
1.13 Replacement of Lenders..................................... 13
SECTION 2. Letters of Credit.......................................... 14
2.01 Letters of Credit.......................................... 14
2.02 Lender Default............................................. 15
2.03 Letter of Credit Requests; Notices of Issuance............. 15
2.04 Agreement to Repay Letter of Credit Drawings............... 16
2.05 Letter of Credit Participations............................ 16
2.06 Increased Costs............................................ 19
SECTION 3. Fees; Commitments.......................................... 20
3.01 Fees ..................................................... 20
3.02 Voluntary Reduction of Commitments......................... 21
3.03 Mandatory Adjustments of Commitments, etc.................. 21
SECTION 4. Payments................................................... 22
4.01 Voluntary Prepayments...................................... 22
4.02 Mandatory Prepayments...................................... 23
4.03 Method and Place of Payment................................ 24
4.04 Net Payments............................................... 25
SECTION 5. Conditions Precedent....................................... 28
5.01 Conditions Precedent to Closing Date....................... 28
5.02 Conditions Precedent to the Full Utilization Date.......... 32
5.03 Conditions Precedent to All Credit Events.................. 34
SECTION 6. Representations, Warranties and Agreements................. 34
6.01 Corporate Status........................................... 34
6.02 Corporate Power and Authority.............................. 35
3
Page
----
6.03 No Violation............................................... 35
6.04 Litigation................................................. 35
6.05 Use of Proceeds; Margin Regulations........................ 35
6.06 Governmental Approvals..................................... 36
6.07 Investment Company Act..................................... 36
6.08 Public Utility Holding Company Act......................... 36
6.09 True and Complete Disclosure............................... 36
6.10 Financial Condition; Financial Statements.................. 37
6.11 Security Interests......................................... 38
6.12 Representations and Warranties in Documents................ 38
6.13 Tax Returns and Payments................................... 39
6.14 Compliance with ERISA...................................... 39
6.15 Subsidiaries............................................... 40
6.16 Intellectual Property...................................... 40
6.17 Environmental Matters...................................... 41
6.18 Labor Relations............................................ 42
6.19 Existing Indebtedness...................................... 42
6.20 Compliance with Statutes, etc.............................. 42
6.21 Acquisition................................................ 42
SECTION 7. Affirmative Covenants...................................... 42
7.01 Information Covenants...................................... 43
7.02 Books, Records and Inspections............................. 45
7.03 Insurance.................................................. 45
7.04 Payment of Taxes........................................... 45
7.05 Corporate Franchises....................................... 46
7.06 Compliance with Statutes, etc.............................. 46
7.07 ERISA ..................................................... 46
7.08 Good Working Order......................................... 47
7.09 End of Fiscal Years; Fiscal Quarters....................... 47
7.10 Additional Security; Further Assurances.................... 48
7.11 Compliance with Environmental Laws......................... 48
7.12 Material Subsidiaries...................................... 48
SECTION 8. Negative Covenants......................................... 49
8.01 Changes in Business........................................ 49
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc..... 49
8.03 Liens ..................................................... 51
8.04 Indebtedness............................................... 53
8.05 Capital Expenditures....................................... 55
8.06 Advances, Investments and Loans............................ 55
8.07 Prepayments of Indebtedness, etc........................... 56
8.08 Dividends, etc............................................. 57
(ii)
4
Page
----
8.09 Transactions with Affiliates............................... 58
8.10 Current Ratio.............................................. 58
8.11 Leverage Ratio............................................. 59
8.12 Minimum Consolidated EBITDA................................ 59
8.13 Minimum Interest Coverage.................................. 59
8.14 Minimum Consolidated Net Worth............................. 60
8.15 Limitation On Issuance of Stock............................ 60
8.16 Creation of Subsidiaries................................... 60
SECTION 9. Events of Default.......................................... 60
9.01 Payments................................................... 60
9.02 Representations, etc....................................... 60
9.03 Covenants.................................................. 60
9.04 Default Under Other Agreements............................. 61
9.05 Bankruptcy, etc............................................ 61
9.06 ERISA ..................................................... 62
9.07 Security Documents......................................... 62
9.08 Guaranties................................................. 62
9.09 Judgments.................................................. 63
9.10 Full Utilization Date...................................... 63
SECTION 10. Definitions............................................... 64
SECTION 11. Agents, etc............................................... 98
11.01 Appointment............................................... 98
11.02 Nature of Duties.......................................... 98
11.03 Lack of Reliance on the Agents............................ 98
11.04 Certain Rights of the Agents.............................. 99
11.05 Reliance.................................................. 99
11.06 Indemnification........................................... 99
11.07 The Agents in Their Individual Capacities.................100
11.08 Holders...................................................100
11.09 Resignation by an Agent...................................100
SECTION 12. Miscellaneous.............................................101
12.01 Payment of Expenses, etc..................................101
12.02 Right of Setoff...........................................102
12.03 Notices...................................................102
12.04 Benefit of Agreement......................................102
12.05 No Waiver; Remedies Cumulative............................104
12.06 Payments Pro Rata.........................................105
(iii)
5
Page
----
12.07 Calculations; Computations................................105
12.08 Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial...................................106
12.09 Counterparts..............................................107
12.10 Effectiveness.............................................107
12.11 Headings Descriptive......................................108
12.12 Amendment or Waiver.......................................108
12.13 Survival..................................................108
12.14 Domicile of Loans.........................................108
12.15 Confidentiality...........................................108
12.16 Lender Register...........................................109
12.17 Judgment Currency.........................................109
12.18 Euro .....................................................110
12.19 Covenant to Pay...........................................110
12.20 Sharing...................................................111
SECTION 13. Guaranty..................................................111
13.01 The Guaranty..............................................111
13.02 Bankruptcy................................................112
13.03 Nature of Liability.......................................112
13.04 Independent Obligation....................................112
13.05 Authorization.............................................113
13.06 Reliance..................................................114
13.07 Subordination.............................................114
13.08 Waiver....................................................114
13.09 Enforcement...............................................115
ANNEX I -- Commitments
ANNEX II -- Lenders Addresses
ANNEX III -- Plans
ANNEX IV -- Subsidiaries
ANNEX V -- Proposed Dispositions
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Existing Liens
ANNEX VIII -- Existing Investments
ANNEX IX -- Affiliate Transactions
ANNEX X -- Limits on Foreign Subsidiary Investments
EXHIBIT A -- Form of Notice of Borrowing
(iv)
6
EXHIBIT B-1 -- Form of USF Note
EXHIBIT B-2 -- Form of MCF Note
EXHIBIT B-3 -- Form of Lira Note
EXHIBIT B-4 -- Form of Swingline Note
EXHIBIT C -- Form of Letter of Credit Request
EXHIBIT D -- Form of Section 4.04 Certificate
EXHIBIT E-1 -- Form of Opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
and Xxxx Xxxxxxx, Esq.
EXHIBIT E-2 -- Form of Opinion of White & Case LLP
EXHIBIT F-1 -- Form of Officers' Certificate - Closing Date
EXHIBIT F-2 -- Form of Officers' Certificate - Full Utilization Date
EXHIBIT G -- Form of US Guaranty
EXHIBIT H -- Form of US Pledge Agreement
EXHIBIT I -- Form of US Security Agreement
EXHIBIT J -- Form of Consent Letter
EXHIBIT K -- Form of Solvency Certificate
EXHIBIT L -- Form of Assignment Agreement
(v)
7
CREDIT AGREEMENT, dated as of March 13, 1998, among WANG
LABORATORIES, INC., a Delaware corporation, WANG NEDERLAND B.V., a Dutch company
and upon its becoming party hereto as contemplated by Section 5.02(a) OLIVETTI
SOLUTIONS SPA, the lenders from time to time party hereto (each, a "Lender" and,
collectively, the "Lenders"), BANKERS TRUST COMPANY as Administrative Agent and
Arranger, NATIONAL WESTMINSTER BANK PLC, as Syndication Agent and Arranger and
XXXXXX COMMERCIAL PAPER INC. as Documentation Agent and Co-Arranger. Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
W I T N E S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make available to the Borrowers the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENT. (A) Subject to and upon the terms and
conditions herein set forth, each USF Lender severally agrees, at any time and
from time to time on and after the Closing Date and prior to the Final Maturity
Date, to make a loan or loans (each, a "USF Loan" and, collectively, the "USF
Loans") to WLI, which USF Loans (i) shall be made and maintained in Dollars;
(ii) except as hereinafter provided, may, at the option of WLI, be incurred and
maintained, and/or converted into Base Rate Loans or Eurodollar Loans, provided
that all USF Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of USF Loans of the same Type; (iii) may
be repaid and reborrowed in accordance with the provisions hereof; and (iv)
shall not exceed for any USF Lender at the time of the making of any such USF
Loan, and after giving effect thereto, that aggregate Principal Amount which,
when added to the sum of (I) the aggregate Principal Amount of all other USF
Loans made by such USF Lenders then outstanding and (II) such USF Lender's
Percentage of (x) the USF Letter of Credit Outstandings at such time and (y) the
outstanding principal amount of Swingline Loans at such time, equals the USF
Commitment of such USF Lender at such time.
(B) Subject to and upon the terms and conditions herein set
forth, each MCF Lender severally agrees, at any time and from time to time on
and after the Closing Date and prior to the Final Maturity Date, to make a loan
or loans (each, a "MCF Loan" and, collect-
8
ively, the "MCF Loans") to one or more of the MCF Borrowers (on a several
basis), which MCF Loans (i) may be made and maintained in such Approved Currency
as is requested by the applicable MCF Borrower; (ii) may be repaid and
reborrowed in accordance with the provisions hereof; (iii) shall not (w) be
made to the Italian Borrower prior to the Full Utilization Date, (x) exceed
$150,000,000 in Principal Amount at any time outstanding prior to the Full
Utilization Date, (y) in the case of MCF Loans made to WLI, exceed $150,000,000
in Principal Amount at any time outstanding or (z) in the case of MCF Loans
denominated in Spanish Pesetas, Danish Krone, Belgian Francs and Dutch Guilders,
exceed $50,000,000 in Principal Amount for any one such currency at any time
outstanding; and (iv) shall not exceed for any MCF Lender at the time of the
making of any such MCF Loan, and after giving effect thereto, that aggregate
Principal Amount which, when added to (I) the aggregate Principal Amount of all
other MCF Loans made by such MCF Lender then outstanding and (II) such MCF
Lender's Percentage of the MCF Letter of Credit Outstandings at such time,
equals the MCF Commitment of such MCF Lender at such time, PROVIDED that all
then outstanding MCF Loans denominated in Italian Lira shall be repaid on the
Full Utilization Date and then and thereafter the Lira Lender shall alone make
all Lira Loans.
(C) The Lira Lender shall not be required to make any Lira
Loan while a Lender Default exists with respect to a MCF Lender unless the Lira
Lender has entered into arrangements satisfactory to it and the Italian Borrower
to eliminate its risk with respect to the participation of the Defaulting Lender
or Lenders in any such Lira Loan (including by way of example cash
collateralization of each such Defaulting Lender's MCF Percentage of such
requested Lira Loan). The Lira Lender will not make any Lira Loan after it has
received a written notice (not subsequently withdrawn) from WLI or the Required
Lenders that one or more of the applicable conditions to the Credit Events
specified in Section 5.02 are not then satisfied.
(D) At any time when an Acceleration Event has occurred and/or
a default in the payment of principal or interest on the Lira Loans exists, the
Lira Lender may, on any Business Day and in its sole discretion, give notice
(which notice shall be deemed to be given upon the occurrence of any
Acceleration Event or any other bankruptcy, insolvency or similar proceedings in
respect of any Designated Party if the Lira Lender is prohibited from giving
such notice under applicable law) to each MCF Lender that each such MCF Lender
is required to purchase, and each such MCF Lender (other than the Lira Lender)
hereby irrevocably agrees to promptly purchase from the Lira Lender (without
recourse or warranty), an assignment of the outstanding Lira Loans as shall be
necessary to cause each such MCF Lender, to share in the outstanding Lira Loans
ratably based on its respective MCF Percentage, PROVIDED that all interest
payable on each outstanding Lira Loan shall, not withstanding any other
provision of this Agreement, be for the account of the Lira Lender from the date
of any such notice until the date the respective participation or assignment is
purchased by such Lender. Each purchase of a participation or assignment by a
MCF Lender under this Section 1.01(D) shall
-2-
9
be effected in Italian Lira. The Lira Lender shall not make any Lira Loan on and
after the date on which it gives any notice contemplated by this Section
1.01(D).
(E) Subject to and upon the terms and conditions herein set
forth, the Swingline Lender agrees to make at any time and from time to time
after the Closing Date and prior to the Swingline Expiry Date, a loan or loans
to WLI (each, a "Swingline Loan" and, collectively, the "Swingline Loans"),
which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii)
may be repaid and reborrowed in accordance with the provisions hereof, (iii)
shall not exceed (giving effect to any incurrence thereof and the use of the
proceeds of such incurrence) in aggregate principal amount at any time
outstanding that amount which, when combined with the aggregate principal amount
of all USF Loans made by Non-Defaulting Lenders then outstanding and the USF
Letter of Credit Outstandings at such time, equals the Adjusted Total USF
Commitment then in effect (after giving effect to any changes thereto on such
date) and (iv) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount. The Swingline Lender will not make a
Swingline Loan after it has received written notice from the Required Lenders
that one or more of the applicable conditions to Credit Events specified in
Section 5.02 are not then satisfied until such conditions are satisfied.
(F) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the USF Lenders that its outstanding Swingline Loans
shall be funded with a Borrowing of USF Loans (PROVIDED that each such notice
shall be deemed to have been automatically given upon the occurrence of an Event
of Default under Section 9.05 with respect to WLI or upon the exercise of any of
the remedies provided in the last paragraph of Section 9), in which case a
Borrowing of USF Loans constituting Base Rate Loans (each such Borrowing, a
"Mandatory Borrowing") shall be made on the immediately succeeding Business Day
by all USF Lenders that are Non-Defaulting Lenders PRO RATA based on each such
USF Lender's Percentage, and the proceeds thereof shall be applied directly to
repay the Swingline Lender for such outstanding Swingline Loans. Each USF Lender
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Lender notwithstanding: (i) that the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder, (ii)
whether any conditions specified in Section 5.02 are then satisfied, (iii)
whether a Default or an Event of Default has occurred and is continuing, (iv)
the date of such Mandatory Borrowing and (v) the amount of the Total USF
Commitment at such time. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code in respect of the Borrower), each USF Lender that is a Non-Defaulting
Lender (other than BTCo) hereby agrees that it shall forthwith purchase from the
Swingline Lender (without recourse or warranty) such assignment of the
outstanding
-3-
10
Swingline Loans as shall be necessary to cause such USF Lenders to share in such
Swingline Loans ratably based upon their respective Percentages, PROVIDED that
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date the respective assignment is purchased and, to
the extent attributable to the purchased assignment, shall be payable to the USF
Lender purchasing same from and after such date of purchase.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing Amount.
More than one Borrowing may be incurred on any day, PROVIDED that at no time
shall there be outstanding more than 10 Borrowings of Eurodollar Loans under the
US Facility and no more than 20 Borrowings under the MC Facility.
1.03 NOTICE OF BORROWING. (a) Whenever (I) WLI desires to
incur USF Loans, it shall give the Administrative Agent at its Notice Office,
(x) prior to 12:00 Noon (New York time) at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and (y) prior to 12:00 Noon (New York time) at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Base Rate Loans and (II) a Borrower
desires to incur MCF Loans, it shall give the Administrative Agent at its Notice
Office prior to 12:00 Noon (London time) at least three Business Days' (one
Business Day in the case of Pound Sterling-denominated Loans) prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
such MCF Loans, provided that Lira Loans will be made upon such written notice
(or telephonic notice promptly confirmed in writing) being given to the Lira
Lender (with a copy to the Administrative Agent) by the Italian Borrower as
agreed by such parties. Each such notice (each, a "Notice of Borrowing") shall
be in the form of Exhibit A and shall be irrevocable and shall specify (i) the
identity of the Borrower, (ii) the Facility pursuant to which such Borrowing is
being made and, in the case of MCF Loans, the Approved Currency for such Loans,
(iii) the aggregate principal amount of the Loans to be made pursuant to such
Borrowing (stated in the applicable Approved Currency), (iv) the date of
Borrowing (which shall be a Business Day), (v) in the case of USF Loans, whether
the respective Borrowing shall consist of Base Rate Loans or Eurodollar Loans
and (vi) if MCF Loans or Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of the portion, if any, thereof to be funded by such Lender
and of the other matters covered by the Notice of Borrowing.
(b) (i) Whenever WLI desires to incur Swingline Loans, it
shall give the Swingline Lender, prior to 2:00 P.M. (New York time) on the day
such Swingline Loan is to be made, written notice (or telephonic notice promptly
confirmed in writing) of each Swingline Loan to be made hereunder. Each such
notice shall be irrevocable and shall specify in each case (x) the date of such
Borrowing (which shall be a Business Day) and (y) the aggregate principal amount
of the Swingline Loans to be made pursuant to such Borrowing.
-4-
11
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(F), with WLI irrevocably agreeing, by its incurrence
of any Swingline Loan, to the making of Mandatory Borrowings as set forth in
such Section 1.01(F).
(c) Without in any way limiting the obligation of any Borrower
to confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the Lira Lender (in the case of Lira Loans) may prior to
receipt of written confirmation act without liability upon the basis of such
telephonic notice, believed by it in good faith to be from an Authorized Officer
of such Borrower. In each such case, each Borrower hereby waives the right to
dispute the Administrative Agent's or Lira Lender's record of the terms of such
telephonic notice absent manifest error.
1.04 DISBURSEMENT OF FUNDS. (a) No later than (i) 12:00 Noon
(Local time) on the date specified in each Notice of Borrowing, each Lender
required to participate in a Syndicated Borrowing will make available its PRO
RATA share of such Borrowing requested to be made on such date and (ii) 2:00
P.M. (New York time) on each date for the making of Swingline Loans, the
Swingline Lender will make available the amount of such Swingline Loans, in each
case in the manner provided below. All such amounts shall be made available to
the Administrative Agent in the relevant Approved Currency and immediately
available funds at the Payment Office and the Administrative Agent promptly will
make available to the applicable Borrower by depositing to its account at the
Payment Office the aggregate of the amounts so made available in the type of
funds received. Lira Loans shall be made available by the Lira Lender to the
Italian Borrower no later than 12:00 Noon (Milan time) in such manner as is
agreed by such parties. Unless the Administrative Agent shall have been notified
by any Lender required to participate in a Syndicated Borrowing prior to the
date of Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Syndicated Borrowing or Borrowings to be
made on such date, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on such date of Borrowing, and
the Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the applicable
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available same to the applicable Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount from such Lender.
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the applicable Borrower, and such Borrower shall pay such corresponding
amount to the Administrative Agent within three Business Days of receipt of such
notice unless previously paid by such Lender. The Administrative Agent shall
also be entitled to recover on demand from such Lender or such Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to such Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by
-5-
12
such Lender, the overnight Federal Funds Effective Rate or (y) if paid by such
Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which any Borrower may have against any Lender as a result of any default by
such Lender hereunder.
1.05 NOTES. (a) A Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Lender shall be evidenced (i)
if USF Loans, by a promissory note substantially in the form of Exhibit B-1 with
blanks appropriately completed (each, a "USF Note" and, collectively, the "USF
Notes"), (ii) if MCF Loans other than Lira Loans and if requested by the
respective MCF Lender, by a promissory note substantially in the form of Exhibit
B-2 with blanks appropriately completed (each, a "MCF Note" and, collectively,
the "MCF Notes"), (iii) if Lira Loans, by a promissory note substantially in the
form of Exhibit B-3, with blanks appropriately completed (the "Lira Note") and
(iv) if Swingline Loans, by a promissory note substantially in the form of
Exhibit B-4 with the blanks appropriately completed (the "Swingline Note").
(b) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding Principal Amount of Loans evidenced thereby. Failure to make any
such notation shall not affect a Borrower's obligations in respect of such
Loans.
1.06 CONVERSIONS. WLI shall have the option to convert on any
Business Day all or a portion at least equal to the applicable Minimum Borrowing
Amount of its USF Loans of one Type into a Borrowing or Borrowings of USF Loans
of the other Type, provided that (i) no partial conversion shall reduce the
outstanding principal amount of the available to the applicable Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the applicable Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the applicable
Borrower, and such Borrower shall pay such corresponding amount to the
Administrative Agent within three Business Days of receipt of such notice unless
previously paid by such Lender. The Administrative Agent shall also be entitled
to recover on demand from such Lender or such Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to such
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by Eurodollar
Loans made pursuant to a Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii) Base Rate Loans may not be converted into Eurodollar
Loans (x) when a Default under Section 9.01 or Event of Default is then in
existence if the Administrative Agent or the Required Lenders shall have
determined in its or their sole discretion not to permit such conversion or (y)
prior to the Syndication Date except for a conversion into Eurodollar Loans with
a PSD Interest Period and (iii) Borrowings of Eurodollar Loans resulting from
this Section 1.06 shall be limited in number as provided in Section 1.02. Each
such conversion shall be effected by WLI giving the Administrative Agent at the
Notice Office, prior to 12:00 Noon (New York time), at least three Business
Days' (or one Business Day in the case of a conversion into Base Rate Loans)
prior written notice (or telephonic notice promptly confirmed in writing) (each,
a "Notice of Conversion") specifying the Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall
-6-
13
give each USF Lender prompt notice of any such proposed conversion affecting any
of its USF Loans.
1.07 PRO RATA BORROWINGS, ETC. All Loans incurred pursuant to
a Syndicated Borrowing shall be made by the Lenders required to participate
therein PRO RATA on the basis of their respective USF Commitments or MCF
Commitments, as the case may be. It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder.
1.08 INTEREST. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) or conversion at a rate per
annum which shall at all times be the Applicable Margin plus the Base Rate
applicable to such Loan in effect from time to time.
(b) The unpaid principal amount of each Loan (other than Base
Rate Loans) shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) or conversion at a rate per
annum which shall at all times during each Interest Period applicable thereto be
the Applicable Margin plus the relevant LIBOR for such Interest Period.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of any Loans shall bear interest at the Base Rate in
effect from time to time PLUS the sum of (i) 2% and (ii) the Applicable Margin
then in effect for Base Rate Loans, provided that principal in respect of
Eurodollar Loans and MCF Loans shall bear interest from the date same becomes
due (whether by acceleration or otherwise) until (x) in the case of Eurodollar
Loans, the end of the Interest Period applicable to such Eurodollar Loans at
such maturity or (y) in the case of MCF Loans, until paid in full, at a rate per
annum equal to 2% in excess of the rate of interest applicable thereto at such
maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan and each MCF Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three month intervals after the first day of
such Interest Period and (iii) in respect of each Loan, on any prepayment or
conversion (other than the prepayment or conversion of any Base Rate Loan) (on
the amount prepaid or converted), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
-7-
14
(e) Subject to the provisions of Section 1.01(D), the Lira
Lender shall (x) retain for itself the LL Portion of all interest payments it
receives on Lira Loans in respect of all periods prior to the purchase of
assignments thereof by the MCF Lenders pursuant to Section 1.01(D) (subject to
the rights of MCF Lenders who purchased participations therein to their PRO RATA
share of such interest under such participations) and (y) pay over to the
Administrative Agent for prompt payment to all MCF Lenders that are
Non-Defaulting Lenders (for application, PRO RATA among them on the basis of
their MCF Percentages) the remaining portion of such interest payments (with the
Lira Lender to be paid all such interest otherwise payable to Defaulting
Lenders).
(f) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(g) The Administrative Agent, upon determining the interest
rate for any Borrowing for any Interest Period, shall promptly notify the
applicable Borrower and the Lenders thereof.
1.09 INTEREST PERIODS. (a) At the time a Borrower gives a
Notice of Borrowing (or WLI gives a Notice of Conversion) in respect of the
making of, or conversion into, a Borrowing of Eurodollar Loans or MCF Loans (in
the case of the initial Interest Period applicable thereto) or prior to 12:00
Noon (Local Time) on the third Business Day prior to the expiration of an
Interest Period applicable to a Borrowing of Eurodollar Loans or MCF Loans, it
shall have the right to elect by giving the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of the Interest Period
applicable to such Borrowing, which Interest Period shall, at the option of such
Borrower, be a one, two, three or six month period (or if prior to the
Syndication Date and to the extent then available in the relevant currency in
the opinion of the Administrative Agent, a 7, 14 or 21 day period or such other
period less than one month as is agreed by the respective Borrower and the
Administrative Agent). Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing shall
commence on the date of such Borrowing (including, where relevant, the
date of any conversion from a Borrowing of Base Rate Loans) and each
Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period begins on (x) the last Business Day
of a month, it shall end on the last Business Day of the month in which
it is to end and (y) a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such
calendar month;
-8-
15
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) subject to the foregoing clauses (i) through (iii),
inclusive, all Interest Periods selected prior to the Syndication Date
must end (I) if selected prior thereto, on the date one month after the
Closing Date, (II) if selected on or after such one month date and
prior to the date two months after the Closing Date, on the date two
months after the Closing Date, (III) if selected on or after such two
month date and on or prior to the date three months after the Closing
Date, on the date three months after the Closing Date and (IV) if
selected on or after such three month date, on the date four months
after the Closing Date;
(v) no Interest Period may be elected that would extend beyond
the Final Maturity Date;
(vi) no Interest Period may be elected at any time when a
Default under Section 9.01 or an Event of Default is then in existence
if the Administrative Agent or the Required Lenders shall have
determined in its or their sole discretion not to permit such election;
(vii) all Eurodollar Loans or MCF Loans comprising a Borrowing
shall at all times have the same Interest Period.
(b) If upon the expiration of any Interest Period, the
applicable Borrower has failed to (or may not) elect a new Interest Period to be
applicable to the Loans subject to the expiring Interest Period as provided
above, such Borrower shall be deemed to have elected, in the case of Eurodollar
Loans, to convert such Borrowing into a Borrowing of Base Rate Loans effective
as of the expiration date of such current Interest Period and, in the case of
all MCF Loans, to continue such Loans pursuant to a one-month Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
(x) in the case of clause (i) or (iv) below, the Administrative Agent or (y) in
the case of clauses (ii) and (iii) below, any Lender shall have determined
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) on any date for determining any LIBOR for any Interest
Period that, by reason of any changes arising after the date of this
Agreement affecting the relevant interbank market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of the respective LIBOR; or
-9-
16
(ii) at any time, that such Lender shall actually incur
increased costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Loans or MCF Loans (other than
any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or
similar charges) because of (x) any change since the Effective Date in
any applicable law, governmental rule, regulation, guideline or order
(or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline
or order) (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
payable pursuant to Section 1.10(c) and those included in determining
any Associated Costs Rate) and/or (y) other circumstances occurring
since the Effective Date affecting the relevant interbank market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loans or MCF Loans has become unlawful by compliance by such
Lender in good faith with any law, governmental rule, regulation,
guideline, or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely
affects the relevant interbank market; or
(iv) at any time that any Alternate Currency is not available
in sufficient amounts, as determined in good faith by the
Administrative Agent, to fund any Borrowing of Loans denominated in
such Alternate Currency;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) or (iv) above) shall (x) on such date and (y) within ten
Business Days of the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the respective Borrower and, except in the
case of clause (i) or (iv) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter and for so long as the applicable
circumstance continues to exist (w) in the case of clause (i) above, Loans
priced in respect of the affected LIBOR shall no longer be available until such
time as the Administrative Agent notifies the respective Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist in accordance with clause (y) of the preceding sentence,
and any Notice of Borrowing or Notice of Conversion given by a Borrower with
respect to such Loans which have not yet been incurred shall be deemed rescinded
by the relevant Borrower, (x) in the case of clause (ii) above, the applicable
Borrower shall pay to such Lender, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Lender, showing the basis for the calculation
thereof in reasonable detail, submitted to the applicable Borrower by such
Lender shall, absent manifest error, be
-10-
17
final and conclusive and binding upon all parties hereto), (y) in the case of
clause (iii) above, the applicable Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law and (z) in the case of clause (iv) above, Loans
in the affected Alternate Currency shall no longer be available until such time
as the Administrative Agent notifies the respective Borrower and the Lenders
that the circumstances giving rise to such notice by the Administrative Agent no
longer exist in accordance with clause (y) of the preceding sentence, and any
Notice of Borrowing given by a Borrower with respect to such Alternate Currency
Loans which have not yet been incurred shall be deemed rescinded by such
Borrower.
(b) At any time when any Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the applicable Borrower may (and in
the case of a Loan affected pursuant to Section 1.10(a)(iii), the applicable
Borrower shall) either (i) if the affected Loan is then being made pursuant to a
Borrowing, cancel said Borrowing (or, in the case of clause (iii) at a time when
no Default under Section 9.01 or Event of Default exists, the proposed MCF Loan
of the affected MCF Lender) by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the respective
Borrower was notified by a Lender pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Loan is then outstanding, upon at least three Business
Days' notice to the Administrative Agent, (A) in the case of a Eurodollar Loan,
require the affected Lender to convert each such Eurodollar Loan into a Base
Rate Loan, and (B) in the case of any other Loan, repay all such Loans in full
(or, in the case of clause (iii) at a time when no Default under Section 9.01 or
Event of Default exists, the affected Loans of the affected MCF Lender),
provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that after the
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or such corporation's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender or
such other corporation could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Lender's or such other
corporation's policies with respect to capital adequacy), then from time to
time, within 15 days after written demand by such Lender (with a copy to the
Administrative Agent), WLI will pay to such Lender such additional amount or
amounts as will compensate such Lender or such other corporation for such
reduction. In determining such additional amounts, each Lender will act
reasonably and in good faith and will use averaging and attribution methods that
are
-11-
18
reasonable. Each Lender, upon so determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to WLI, which notice shall set forth in reasonable detail the basis of
the calculation of such additional amounts, although the failure to give any
such notice shall not, subject to Section 1.11(b), release or diminish any
Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 COMPENSATION. (a) Each Borrower shall compensate each
Lender, upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund any Eurodollar Loans or MCF Loans made, or to be
made, by it to such Borrower but excluding in any event the loss of anticipated
profits) which such Lender may actually sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent) a Borrowing of
Eurodollar Loans or MCF Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion, given by such Borrower (whether or
not withdrawn by such Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any prepayment, repayment or conversion of any such Eurodollar Loans or
MCF Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any such Eurodollar Loans or MCF
Loans is not made on any date specified in a notice of prepayment given by such
Borrower; or (iv) as a consequence of (x) any other default by such Borrower to
repay its Eurodollar Loans or MCF Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b).
(b) Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by Section 1.10, 1.11, 2.06 or 4.04
is given by any Lender more than 90 days after such Lender obtained, or
reasonably should have obtained, knowledge of the occurrence of the event giving
rise to the additional costs of the type described in such Section, such Lender
shall not be entitled to compensation under Section 1.10, 1.11, 2.06 or 4.04 for
any amounts incurred or accruing prior to the giving of such notice to the
respective Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), 1.10(c), 2.06 or 4.04 with respect to such Lender, it will, if
requested by the applicable Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans or Commitments affected by such event, PROVIDED that such designation
is made on such terms that such Lender and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding or
materially mitigating the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of any Borrower or the right of any Lender provided in
Section 1.10, 2.06 or 4.04.
-12-
19
1.13 REPLACEMENT OF LENDERS. (x) Upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.06 or Section 4.04 with respect to any Lender which results
in such Lender charging to any Borrower in creased costs in excess of those
being generally charged by the other Lenders, (y) if a Lender becomes a
Defaulting Lender and/or (z) in the case of a refusal by a Lender to consent to
a proposed change, waiver, discharge or termination with respect to this
Agreement which has been approved by the Required Lenders, WLI shall have the
right, if no Default under Section 9.01 or Event of Default then exists, to
replace such Lender (the "Replaced Lender"), upon prior written notice to the
Administrative Agent and such Replaced Lender, with one or more other Eligible
Transferee or Transferees, none of whom shall constitute a Defaulting Lender at
the time of such replacement (collectively, the "Replacement Lender") reasonably
acceptable to the Administrative Agent, the Letter of Credit Issuers, to the
extent assuming any USF Commitment, the Swingline Lender, and, to extent
assuming any MCF Commitment, the Lira Lender PROVIDED that (i) at the time of
any replacement pursuant to this Section 1.13, the Replacement Lender and the
Replaced Lender shall enter into one or more Assignment Agreements pursuant to
Section 12.04(b) (and with all fees payable pursuant to said Section 12.04(b) to
be paid by the Replacement Lender) pursuant to which the Replacement Lender
shall acquire all of the Commitments and outstanding Loans of, and in each case
participations in Letters of Credit and Swingline Loans (if any) by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (A) an amount equal to
the Principal Amount of, and all accrued but unpaid interest on, all outstanding
Loans of the Replaced Lender and the Principal Amount of all participations in
Lira Loans funded by the Replaced Lender (and not reimbursed), (B) an amount
equal to the Principal Amount of all Unpaid Drawings that have been funded by
(and not reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (C) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to
Section 3.01 and (y) the Letter of Credit Issuer an amount equal to such
Replaced Lender's Percentage of the principal amount of any Unpaid Drawing
(which at such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender, in each case in the applicable
currency, and (ii) all obligations of the Borrowers owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by the relevant Borrowers, the Replacement Lender shall become
a Lender hereunder and the Replaced Lender shall cease to constitute a Lender
here under, except with respect to indemnification provisions applicable to the
Replaced Lender under this Agreement, which shall survive as to such Replaced
Lender. In connection with any replacement of Lenders pursuant to, and as
contemplated by, this Section 1.13, each of the Borrowers (other than WLI)
hereby irrevocably authorizes WLI to take all necessary action, in the name of
such Borrowers, as described above in this Section
-13-
20
1.13 in order to effect the replacement of the respective Lender or Lenders in
accordance with the preceding provisions of this Section 1.13.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, (x) WLI, in the case of USF Letters of Credit and
(y) WLI (to the extent issued in support of obligations of or relating to Other
Foreign Subsidiaries), EU Holdco and the Italian Borrower, in the case of MCF
Letters of Credit, may request that a Letter of Credit Issuer at any time and
from time to time on or after the Closing Date and prior to the tenth Business
Day preceding the Final Maturity Date issue, for the account of such Borrower
denominated in Dollars (in the case of USF Letters of Credit) or an Approved
Currency (in the case of MCF Letters of Credit) and in support of (x)
obligations arising in the ordinary course of business of such Borrower and its
Subsidiaries, (y) such other obligations of such Borrower and its Subsidiaries
as could be financed through the incurrence by such Borrower of Loans and (z)
such other obligations that are acceptable to the respective Letter of Credit
Issuer and, subject to and upon the terms and conditions herein set forth, each
Letter of Credit Issuer agrees to issue from time to time, irrevocable standby
letters of credit and/or bank guaranties (to the extent issued outside the
United States) in such form as may be approved by such Letter of Credit Issuer.
The term "Letter of Credit" shall include each such letter of credit and bank
guaranty and all Existing Letters of Credit (each of which Existing Letters of
Credit shall be deemed issued for all purposes of this Agreement on the Closing
Date) (each such letter of credit and bank guaranty, a "Letter of Credit" and,
collectively, the "Letters of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued if after giving effect thereto, (A) the USF Letter of Credit
Outstandings would exceed either (x) $100 million in Principal Amount or (y)
when added to the aggregate outstanding Principal Amount of all USF Loans and
Swingline Loans, the Total USF Commitment at such time or (B) the MCF Letter of
Credit Outstandings would exceed either (x) $100 million in Principal Amount or
(y) when added to the aggregate outstanding Principal Amount of all MCF Loans,
the Total MCF Commitment at such time and (ii) each Letter of Credit shall have
an expiry date occurring not later than one year after such Letter of Credit's
date of issuance, provided that any standby Letter of Credit may be extendable
for successive periods of up to 12 months on terms acceptable to the Letter of
Credit Issuer and in no event shall any Letter of Credit have an expiry date
occurring later than the fifth Business Day preceding the Final Maturity Date
provided that a Letter of Credit may be issued with an expiry date extending
past the Final Maturity Date if arrangements are entered into at such time,
satisfactory to the Administrative Agent and the respective Letter of Credit
Issuer, for cash collateralizing the respective Borrower's obligations under
such Letter of Credit on the Final Maturity Date (at 103% of the Stated Amount
of such Letter of Credit), it being agreed that all participations of the
Lenders in such Letter of Credit will terminate on the Final Maturity Date.
-14-
21
2.02 LENDER DEFAULT. In the event a Lender Default exists,
each Letter of Credit Issuer shall not be required to issue any Letter of Credit
in which the Defaulting Lender is required to participate unless such Letter of
Credit Issuer has entered into arrangements satisfactory to it with the
respective Borrower or Borrowers to eliminate the Letter of Credit Issuer's risk
with respect to the participation in Letters of Credit of the Defaulting Lender
or Lenders (including by way of example, cash collateralization of such
Defaulting Lender's or Lenders' Percentage of the USF Letter of Credit
Outstandings and/or MCF Letters of Credit Outstandings).
2.03 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a)
Whenever it desires that a Letter of Credit be issued as provided in Section
2.01, the respective Borrower shall give the Administrative Agent and the Letter
of Credit Issuer written notice thereof (including by way of facsimile
transmission) in the form of Exhibit C prior to 1:00 P.M. (Local Time) at least
three Business Days (or such shorter period as may be acceptable to the Letter
of Credit Issuer) prior to the proposed date of issuance (which shall be a
Business Day) (each, a "Letter of Credit Request"), which Letter of Credit
Request shall include any other documents that the Letter of Credit Issuer
customarily requires in connection therewith.
(b) The Letter of Credit Issuer shall, promptly after each
issuance of or amendment to a Letter of Credit by it, give the Administrative
Agent (who will in turn give written notice to each USF Lender and/or MCF Lender
(depending on the Facility being utilized)) and WLI written notice of such
issuance or amendment, accompanied by a copy to the Administrative Agent of such
Letter of Credit or amendment.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) Each
Borrower hereby agrees, to reimburse each Letter of Credit Issuer for any
payment or disbursement made by such Letter of Credit Issuer under any Letter of
Credit issued for the account of such Borrower (each such amount so paid or
disbursed until reimbursed, an "Unpaid Drawing") by making payment to the
Administrative Agent at the Payment Office and in the relevant Approved
Currency, immediately after, and in any event on the date on which such Borrower
is notified by such Letter of Credit Issuer of such payment or disbursement,
with interest on the amount so paid or disbursed by such Letter of Credit
Issuer, to the extent not reimbursed prior to 1:00 P.M. (Local Time) on the date
of such payment or disbursement, from and including the date paid or disbursed
to but not including the date the Letter of Credit Issuer is reimbursed therefor
at a rate per annum which shall be the Base Rate as in effect from time to time
plus the Applicable Margin (plus, in each case, an additional 2% per annum if
not reimbursed by the third Business Day after the date of such notice of
payment or disbursement), such interest also to be payable on demand.
(b) Each Borrower's obligation under this Section 2.04 to
reimburse each Letter of Credit Issuer with respect to Unpaid Drawings under
Letters of Credit issued by such Letter of Credit Issuer for such Borrower's
account (including, in each case, interest thereon)
-15-
22
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which such
Borrower may have or have had against any Letter of Credit Issuer, the
Administrative Agent or any Lender, including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit to conform
substantially to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; PROVIDED,
HOWEVER, that such Borrower shall not be obligated to reimburse a Letter of
Credit Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Letter of Credit Issuer as
determined by a court of competent jurisdiction.
2.05 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance of any Letter of Credit under a Facility, the Letter of Credit Issuer
issuing same shall be deemed to have sold and transferred to each other Lender
under such Facility, and each such Lender (each, a "Participant") shall be
deemed irrevocably and unconditionally to have purchased and received from such
Letter of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Percentage for such Facility,
in such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the respective Borrower under this Agreement
with respect thereto (although the Letter of Credit Fee shall be payable
directly to the Administrative Agent for the account of the Lenders as provided
in Section 3.01(c) and the Participants shall have no right to receive any
portion of any Facing Fees) and any security therefor or guaranty pertaining
thereto. Upon any change in the USF Commitments or MCF Commitments, as the case
may be, pursuant to Section 1.13 and/or 12.04(b), it is hereby agreed that, with
respect to all out standing Letters of Credit and Unpaid Drawings affected
thereby, there shall be an automatic adjustment to the participations pursuant
to this Section 2.05 to reflect the new Percentages of the assigning and
assignee Lender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
issued by it, a Letter of Credit Issuer shall not have any obligation relative
to the Participants other than to determine that any documents required to be
delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by a Letter of Credit Issuer
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct as determined by a court of
competent jurisdiction, shall not create for such Letter of Credit Issuer any
resulting liability.
(c) In the event that a Letter of Credit Issuer makes any
payment under any Letter of Credit and the respective Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant under the respective Facility of such failure, and each such
Participant shall
-16-
23
promptly and unconditionally pay to the Administrative Agent for the account of
such Letter of Credit Issuer, the amount of such Participant's Percentage of
such payment in the applicable currency and in same day funds, PROVIDED that no
Participant shall be obligated to pay to the Administrative Agent its
applicable Percentage of such unreimbursed amount for any wrongful payment made
by a Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer as determined by a court of competent
jurisdiction. If the Administrative Agent so notifies any Participant required
to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (Local
Time) on any Business Day, such Participant shall make available to the
Administrative Agent for the account of the respective Letter of Credit Issuer
such Participant's Percentage of the Principal Amount of such Unpaid Drawing on
such Business Day in the applicable currency and in same day funds. If and to
the extent such Participant shall not have so made its Percentage of the
Principal Amount of such Unpaid Drawing available to the Administrative Agent
for the account of the respective Letter of Credit Issuer, such Participant
agrees to pay to the Administrative Agent for the account of the respective
Letter of Credit Issuer, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is
paid to the Administrative Agent for the account of the respective Letter of
Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of
the respective Letter of Credit Issuer its Percentage of the Principal Amounts
of any Unpaid Drawing under any Letter of Credit on which it is a Participant
shall not relieve any other Participant of its obligation hereunder to make
avail able to the Administrative Agent for the account of the respective Letter
of Credit Issuer its Percentage of such Unpaid Drawing on the date required, as
specified above, but no Participant shall be responsible for the failure of
any other Participant to make available to the Administrative Agent for the
account of a Letter of Credit Issuer such other Participant's Percentage of any
such Unpaid Drawing.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the respective
Participants pursuant to clause (c) above, such Letter of Credit Issuer shall
pay to the Administrative Agent and the Administrative Agent shall promptly pay
to each such Participant which has paid its Percentage thereof, in the
applicable currency and in same day funds, an amount equal to such Participant's
Percentage of the principal amount of such payment and interest thereon accruing
at the overnight Federal Funds Effective Rate after the purchase of the
respective participations.
(e) The obligations of the Participants hereunder to make
payments to the Administrative Agent for the account of the Letter of Credit
Issuers with respect to Letters of Credit shall be irrevocable and not subject
to counterclaim, set-off or other defense or any other qualification or
exception whatsoever (provided that no Participant shall be required to make
payments resulting from a Letter of Credit Issuer's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction) and shall be
made in
-17-
24
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which WLI or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), any Agent, any Letter of Credit Issuer, any Lender or other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between a Designated
Party or any Subsidiary and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent a Letter of Credit Issuer is not indemnified
by a Borrower as provided above, each Participant will reimburse and indemnify
such Letter of Credit Issuer, in proportion to its aggregate Percentages, for
and against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by such Letter
of Credit Issuer in performing its respective duties in any way relating to or
arising out of its issuance of Letters of Credit; PROVIDED that no Participant
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from a Letter of Credit Issuer's gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
2.06 INCREASED COSTS. If at any time after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by a Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar
-18-
25
requirement against Letters of Credit issued by such Letter of Credit Issuer or
such Participant's participation therein, or (ii) shall impose on such Letter of
Credit Issuer or any Participant any other conditions affecting this Agreement,
any Letter of Credit or such Participant's participation therein; and the result
of any of the foregoing is to increase the cost to such Letter of Credit Issuer
or such Participant of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Letter
of Credit Issuer or such Participant hereunder (other than any increased cost or
reduction in the amount received or receivable resulting from the imposition of
or a change in the rate of taxes or similar charges), then, upon demand to WLI
by such Letter of Credit Issuer or such Participant (a copy of which notice
shall be sent by the Letter of Credit Issuer or such Participant to the
Administrative Agent), the Borrowers, jointly and severally, shall pay to such
Letter of Credit Issuer or such Participant such additional amount or amounts as
will compensate such Letter of Credit Issuer or such Participant for such
increased cost or reduction. A certificate submitted to WLI by a Letter of
Credit Issuer or such Participant, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Participant to
the Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate such
Letter of Credit Issuer or such Participant as aforesaid shall be conclusive and
binding on the Borrowers absent manifest error, although the failure to deliver
any such certificate shall not, subject to Section 1.11(b), release or diminish
any of the Borrowers, obligations to pay additional amounts pursuant to this
Section 2.06 upon the subsequent receipt thereof.
SECTION 3. FEES; COMMITMENTS.
3.01 FEES. (a) WLI agrees to pay to the Administrative Agent a
commitment fee (the "USF Commitment Fee") for the account of each USF Lender
that is a Non- Defaulting Lender for the period from and including the Closing
Date to, but not including, the day upon which the Total USF Commitment has been
terminated, computed for each day at a per annum rate equal to the Applicable CF
Percentage on an amount equal to such USF Lender's Unutilized USF Commitment on
such date. Such USF Commitment Fees shall be due and payable in arrears on the
last Business Day of each March, June, September and December and on the date
upon which the Total USF Commitment is terminated.
(b) The MCF Borrowers jointly and severally agree to pay to
the Administrative Agent a commitment fee (the "MCF Commitment Fee") for the
account of each MCF Lender that is a Non-Defaulting Lender for the period from
and including the Closing Date to, but not including, the day upon which the
Total MCF Commitment has been terminated, computed for each day at a per annum
rate equal to the Applicable CF Percentage on an amount equal to such MCF
Lender's Unutilized MCF Commitment on such date. Such MCF Commitment Fees shall
be due and payable in arrears on the last Business Day of each March, June,
September and December and on the date upon which the Total MCF Commitment is
terminated.
-19-
26
(c) Each Borrower agrees to pay to the Administrative Agent,
for the account of each Lender that is a Non-Defaulting Lender that is
participating in a Letter of Credit issued for the account of such Borrower, PRO
RATA on the basis of its respective applicable Percentage, a fee in respect of
each Letter of Credit (the "Letter of Credit Fee") issued for the account of
such Borrower, computed for each day at a per annum rate equal to the Applicable
Margin for Eurodollar Loans for such day multiplied by the then daily Stated
Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December of each year and on the date upon which the Total
Commitment is terminated.
(d) Each Borrower agrees to pay to each Letter of Credit
Issuer a fee in respect of each Letter of Credit (the "Facing Fee") issued by
such Letter of Credit Issuer for the account of such Borrower, computed for each
day at the rate of .25% per annum on the then Stated Amount of such Letter of
Credit (but in any event not less than $500 per year). Accrued Facing Fees shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December of each year and on the date upon which the Total
Commitment is terminated.
(e) Each Borrower agrees to pay directly to each Letter of
Credit Issuer upon each issuance of, payment under, and/or amendment of, a
Letter of Credit issued by such Letter of Credit Issuer for the account of such
Borrower, such amount as shall at the time of such issuance, payment or
amendment be the administrative charge which the Letter of Credit Issuer is
customarily charging for issuances of, drawings under or amendments of, letters
of credit issued by it.
(f) The Italian Borrower agrees to pay the Lira Lender until
such time, if any, as assignments of the Lira Loans are made to the MCF Lenders
pursuant to Section 1.01(D) a fee (the "LL Fee"), computed for each day at the
rate of .25% per annum on the then aggregate outstanding Principal Amount of all
Lira Loans. Accrued LL Fees shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December of each year and
on the Final Maturity Date.
(g) WLI shall pay to (x) each Agent on the Closing Date, for
its own account and/or for distribution to the Lenders, such fees as heretofore
agreed by WLI and the Agents and (y) the Administrative Agent, for its own
account, such other fees as agreed to between WLI and the Administrative Agent,
when and as due.
(h) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent
-20-
27
at the Notice Office (which notice shall be deemed to be given on a certain day
only if given before 12:00 Noon (New York time) on such day and shall be
promptly transmitted by the Administrative Agent to each of the Lenders), WLI
shall have the right, without premium or penalty, to terminate or partially
reduce the Total Unutilized USF Commitment and/or the Total Unutilized MCF
Commitment, PROVIDED that (x) any such termination shall apply to
proportionately and permanently reduce the USF Commitment or the MCF Commitment,
as the case may be, of each Lender and (y) any partial reduction pursuant to
this Section 3.02 shall be in the amount of at least $5,000,000.
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Commitment (and the USF Commitment and MCF Commitment of each Lender) shall
terminate in its entirety on April 30, 1998 unless the Closing Date has occurred
on or before such date.
(b) The Total USF Commitment and the Total MCF Commitment
shall terminate in its entirety on the Final Maturity Date.
(c) On the third Business Day following the date of receipt
thereof by WLI and/or any of its Subsidiaries of any Net Cash Proceeds from any
Excluded Asset Sale, the Total Commitment shall be reduced in an amount equal to
100% of such Net Cash Proceeds.
(d) On the date specified in a written notice given by the
Administrative Agent (at the direction of the Required Lenders) to WLI after a
Change of Control has occurred, the Total Commitment shall terminate.
(e) Each mandatory reduction of the Total Commitment required
to be made pursuant to Section 3.03(c) shall be applied to reduce the Total USF
Commitment, if any, in an amount equal to the USF Percentage of such reduction
and to reduce the Total MCF Commitment, if any, in an amount equal to the MCF
Percentage of such reduction.
(f) Each partial reduction of the Total USF Commitment and/or
the Total MCF Commitment pursuant to this Section 3.03 shall apply
proportionately to the USF Commitment or the MCF Commitment, as the case may be,
of each USF Lender or MCF Lender, as the case may be.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. Each of WLI and EU Holdco shall
have the right to prepay Loans made to it in whole or in part, without premium
or penalty, from time to time on the following terms and conditions: (i) such
Borrower shall give the Administrative Agent at the Payment Office written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay the Loans, whether such Loans are USF Loans or MCF Loans, the amount of
such prepayment, the currency in which such Loans are denominated and (in the
case of
-21-
28
LIBOR Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by such Borrower at least one Business Day (six Business Days in
the case of MCF Loans) prior to the date of such prepayment and which notice
shall promptly be transmitted by the Administrative Agent to each of the
Lenders; (ii) each partial prepayment of any Borrowing shall be in an aggregate
principal amount of at least $1,000,000 (or the Dollar Equivalent thereof)
($100,000 in the case of Swingline Loans), provided that no partial prepayment
of Eurodollar Loans or MCF Loans made pursuant to a Borrowing shall reduce the
aggregate principal amount of the Loans outstanding pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto; and
(iii) each prepayment in respect of any Loans made pursuant to a Borrowing shall
be applied PRO RATA among such Loans. The Italian Borrower may prepay Lira Loans
upon such notice and in such amounts as may be agreed from time to time by the
Italian Borrower and the Lira Lender.
4.02 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) (i) If on any date the sum of (A) the aggregate
outstanding Principal Amount of (x) Swingline Loans and (y) USF Loans made by
Non-Defaulting Lenders and (B) the USF Letter of Credit Outstandings exceeds the
Adjusted Total USF Commitment as then in effect, WLI shall repay no later than
the next following Business Day the principal amount of Swingline Loans and,
once all outstanding Swingline Loans are paid in full, USF Loans made by
Non-Defaulting Lenders (and after all such USF Loans have been repaid in full,
Unpaid Drawings in respect of Letters of Credit issued under the US Facility),
in an aggregate Principal Amount equal to such excess. If, after giving effect
to the repayment of all such outstanding Swingline Loans, and USF Loans and all
such Unpaid Drawings, the aggregate USF Letter of Credit Outstandings exceeds
the Total USF Commitment then in effect, WLI shall pay to the Administrative
Agent an amount in cash and/or Cash Equivalents equal to such excess and the
Administrative Agent shall hold such payment as security for the obligations of
WLI hereunder pursuant to a cash collateral agreement to be entered into in form
and substance satisfactory to the Administrative Agent (which shall permit
certain investments in Cash Equivalents satisfactory to the Administrative Agent
until the proceeds are applied to the secured obligations pursuant to this
Agreement).
(ii) If on any date on which Dollar Equivalents are
determined, pursuant to Section 12.07(c), the sum of the aggregate outstanding
Principal Amount of MCF Loans made by Non-Defaulting Lenders and the MCF Letter
of Credit Outstandings exceeds the Total MCF Commitment as then in effect, the
MCF Borrowers, jointly and severally, shall repay no later than the next
following Business Day the principal amount of MCF Loans made by Non-Defaulting
Lenders (and after all such MCF Loans have been repaid in full, Unpaid Drawings
in respect of Letters of Credit issued under the MC Facility), in an aggregate
Principal Amount equal to such excess. If, after giving effect to the repayment
of all such outstanding MCF
-22-
29
Loans and all such Unpaid Drawings, the aggregate MCF Letter of Credit
Outstandings exceeds the Total MCF Commitment then in effect, the MCF Borrowers,
jointly and severally, shall pay to the Administrative Agent an amount in cash
and/or Cash Equivalents equal to such excess and the Administrative Agent shall
hold such payment as security for the obligations of the respective MCF
Borrowers hereunder pursuant to a cash collateral agreement to be entered into
in form and substance satisfactory to the Administrative Agent (which shall
permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent until the proceeds are applied to the secured obligations
pursuant to this Agreement).
(b) Following (x) the consummation of any Asset Sale and (y)
any date on which the cash purchase price of the Acquisition is reduced as a
result of a post-closing adjustment (effected through repayment to WLI, release
from escrow of funds contained therein or otherwise), the Loans shall be repaid
in an amount equal to the Net Cash Proceeds of such Asset Sale or to such
reduction, as the case may be, with such repayment (x) to be made as promptly as
possible after receipt of such Net Cash Proceeds or reduction amount provided
that such repayments may be delayed to the extent necessary to avoid breakage
costs under Section 1.11(a), (y) subject to the preceding clause (x), to be
applied among the Loans as elected by WLI and (z) not to reduce the Total
Commitment.
(c) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all outstanding USF Loans and MCF Revolving Loans
shall be repaid in full on the Final Maturity Date.
(B) APPLICATION:
(a) With respect to each prepayment of Loans required by
Section 4.02(A), the applicable Borrower may designate the Types of Loans which
are to be prepaid and the specific Borrowing(s) under the affected Facility
pursuant to which made, provided that (i) if any prepayment of Eurodollar Loans
or MCF Loans made pursuant to a single Borrowing shall reduce the outstanding
Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for such Borrowing, then all Loans outstanding pursuant to such
Borrowing shall be immediately converted into Base Rate Loans (or repaid if
outstanding in any Alternate Currency) and (ii) each prepayment of any Loans
made pursuant to a Borrowing shall be applied PRO RATA among such Loans. In the
absence of a designation by a Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs
owing under Section 1.11.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made
to the Administrative Agent for the ratable (based on its PRO RATA share)
account of the Lenders entitled thereto (provided that until such time, if any,
that the Lira Lender's obligation to make Lira Loans terminates, payments
-23-
30
in respect of the Lira Loans will be made by the Italian Borrower to the Lira
Lender at such times and in such manner as agreed between them), not later than
12:00 Noon (Local Time) on the date when due and shall be made in immediately
available funds at the Payment Office in: (x) Dollars, if such payment is made
in respect of any obligation of the Borrowers under this Agreement except as
otherwise provided in the immediately succeeding clause (y); and (y) the
appropriate Alternate Currency, if such payment is made in respect of principal
of or interest on Alternate Currency Loans or on any Unpaid Drawing arising
under a MCF Letter of Credit denominated in an Alternate Currency, it being
understood that written notice by a Borrower to the Administrative Agent to make
a payment from the funds in such Borrower's account at the Payment Office shall
constitute the making of such payment to the extent of such funds held in such
account. Except as may otherwise be agreed upon by the Italian Borrower and the
Lira Lender, any payments under this Agreement which are made later than 12:00
Noon (Local Time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension. The Administrative Agent will make
available to each Lender its pro rata share of each payment so received by the
Administrative Agent in the funds and currency so received.
4.04 NET PAYMENTS. () All payments made by each Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction (or by any
political subdivision or taxing authority thereof or therein) with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax levy, impost, duty, fee, assessment or other governmental
charge imposed on or measured by the net income or net profits of a Lender
(including, without limitation, any franchise tax imposed on or measured by net
income or net profits and any branch profits taxes) pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in which the principal
office or applicable lending office of such Lender is located (or any
subdivision or taxing authority thereof or therein)) and all interest, penalties
or similar liabilities with respect to such non-excluded taxes, levies, imposts,
duties, fees, assessments or other governmental charges (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other governmental charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the relevant Borrower shall pay the full amount of such Taxes to the
relevant taxing authority in accordance with applicable law and shall pay to the
relevant Lender such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the relevant Borrower
agrees to reimburse each Lender lending to
-24-
31
such Borrower, upon the written request of such Lender, for taxes imposed on or
measured by the net income or net profits of such Lender (including, without
limitation, any franchise tax imposed on or measured by net income or net
profits and any branch profits taxes imposed by the United States of America or
similar taxes imposed by any political subdivision thereof) pursuant to the laws
of the jurisdiction in which such Lender is organized or in which the principal
office or applicable lending office of such Lender is located (or of any
subdivision or taxing authority therein or thereof) and for any withholding of
taxes as such Lender shall determine are payable by, or withheld from, such
Lender in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or on
behalf of such Lender pursuant to this sentence. Each Borrower will furnish to
the Administrative Agent within 45 days after the date the payment of any Taxes
is due pursuant to applicable law certified copies of tax receipts, if any,
issued by such taxing authority or other evidence reasonably acceptable to the
Administrative Agent evidencing such payment by such Borrower (or, if such
Borrower has not received such certified copies of tax receipts within such time
period, then such Borrower shall furnish such certified copies of tax receipts
to the Administrative Agent within 15 days after such Borrower has received such
certified copies of tax receipts). Each Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Lender, other then
penalties, additions to tax, interest and expenses arising as a result of the
willful misconduct or gross negligence of such Lender. Such indemnification
shall be made within 30 days after the date upon which such Lender makes written
demand therefor, which demand shall identify the nature and the amount of Taxes
for which indemnification is sought and shall include a copy of any written
assessment thereof.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes agrees to deliver to WLI and the Administrative Agent on or prior to
the Effective Date, or in the case of a Lender that is an assignee or transferee
of an interest under this Agreement pursuant to Section 1.13 or 12.04 (unless
the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made by WLI under this Agreement and under any Note or
(ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04 Certificate") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made by WLI under this Agreement and under any Note. In addition,
each such Lender agrees that, from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or
-25-
32
inaccurate in any material respect, it will deliver to WLI and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section 4.04
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments made by WLI under this Agreement and any Note, or, if legally unable to
deliver such forms, it shall immediately notify WLI and the Administrative Agent
of its inability to deliver any such Form or Certificate in which case such
Lender shall not be required to deliver any such Form or Certificate pursuant to
this Section 4.04(b). Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) WLI shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the United States
(or any political subdivision or taxing authority hereof or therein) from
interest, fees or other amounts payable hereunder by WLI for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes to the extent that such
Lender has not provided to WLI Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) WLI shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to
any such Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to WLI the Internal Revenue Service
Forms required to be provided to WLI pursuant to this Section 4.04(b) or (II) in
the case of a payment, other than interest, to a Lender described in clause (ii)
of the last sentence of this Section 4.04(b) above, to the extent that such
Forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 12.04(b), WLI
agrees to pay additional amounts and to indemnify each Lender in the manner set
forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of such Taxes.
(c) If a Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrower an amount that such Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit. Such amount shall be
paid as soon as practicable after receipt or realization by such Lender of such
refund, reduction or credit. Nothing in this Section 4.04(c) shall require any
Lender to disclose or detail the basis of its
-26-
33
calculation of the amount of any refund or reduction of, or credit against, its
tax liabilities or any other information to any Borrower or any other Person.
(d) Each Lender shall use reasonable efforts (consistent with
legal and xxxxxx xxxx restrictions and subject to overall policy considerations
of such Lender) to file any certificate or document or to furnish any
information as reasonably requested by a Borrower pursuant to any applicable
treaty, law or regulation, if the making of such filing or the furnishing of
such information would avoid the need for or reduce the amount of any amounts
payable by a Borrower under Section 4.04(a) and would not, in the reasonable
judgment of such Lender, be disadvantageous to such Lender.
SECTION 5. CONDITIONS PRECEDENT.
5.01 CONDITIONS PRECEDENT TO CLOSING DATE. The obligation of
the Lenders to make Loans, and of the Letter of Credit Issuer to issue Letters
of Credit, on the Closing Date is subject to the satisfaction of each of the
following conditions at such time:
(a) EFFECTIVENESS; NOTES. On or prior to the Closing Date, (i)
the Effective Date shall have occurred and (ii) there shall have been delivered
to the Administrative Agent for the account of each Lender the appropriate Note
or Notes executed by WLI and EU Holdco, in each case, in the amount, maturity
and as otherwise provided herein.
(b) OPINIONS OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received opinions, addressed to each Agent and
each of the Lenders and dated the Closing Date, from (i) Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to WLI and Xxxx X. Xxxxxxx, Esq., Corporate
Counsel of WLI, which opinions shall cover the matters contained in Exhibit E-1
hereto, (ii) White & Case LLP, special counsel to the Administrative Agent,
which opinion shall cover the matters contained in Exhibit E-2 hereto and (iii)
such counsel in the Netherlands as is satisfactory to the Agents, which opinion
shall cover certain matters relating to the Credit Documents executed by EU
Holdco and such other matters incident to the transactions contemplated herein
as the Agents may reasonably request and shall be in form and substance
satisfactory to the Agents.
(c) CORPORATE PROCEEDINGS. (I) On the Closing Date, the
Administrative Agent shall have received from WLI a certificate, dated the
Closing Date, signed by its President, any Vice-President or its Secretary in
the form of Exhibit F-1 with appropriate insertions and deletions, together with
(x) copies of the certificate of incorporation, by-laws or other organizational
documents of each Domestic Credit Party and EU Holdco, (y) the resolutions of
each Domestic Credit Party and EU Holdco relating to the Credit Documents and,
to the extent relevant, the Transaction, which shall be satisfactory to the
Agents, and (z) a statement that all of the applicable conditions set forth in
Sections 5.01(h) and (i) and 5.03 exist as of such date.
-27-
34
(II) On the Closing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Transaction Documents shall be
satisfactory in form and substance to the Agents, and the Administrative Agent
shall have received all information and copies of all certificates, documents
and papers, including good standing certificates and any other records of
corporate proceedings and governmental approvals, if any, which the Agents may
have requested in connection therewith, such documents and papers, where
appropriate, to be certified by proper corporate or governmental authorities.
(d) PLANS; ETC. On or prior to the Closing Date, there shall
have been made available to the Administrative Agent:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial valuation
therefor), Foreign Pension Plans (and all actuarial evaluations
prepared therefor), Multiemployer Plans and any other "employee benefit
plans," as defined in Section 3(3) of ERISA, and any other material
agreements, plans or arrangements, with or for the benefit of current
or former employees of any Designated Party or any ERISA Affiliate
(provided that the foregoing shall apply in the case of any
Multiemployer Plan, only to the extent that any document described
therein is in the possession of a Designated Party or any ERISA
Affiliate or reasonably available thereto from the sponsor or trustee
of any such plan);
(ii) any material collective bargaining agreements or any
other similar agreement or arrangements covering the
employees of any Designated Party;
(iii) all agreements evidencing or relating to the Existing
Indebtedness listed on Annex VI;
(iv) all agreements entered into by any Designated Party
governing the terms and relative rights of its
capital stock;
(v) any agreement with respect to the management of any
Designated Party;
(vi) any material employment agreements entered into by
any Designated Party; and
-28-
35
(vii) any tax sharing, tax allocation and other similar
agreements entered into by any Designated Party;
all of which shall be in form and substance satisfactory to the Agents and shall
be in full force and effect on the Closing Date.
(e) ADVERSE CHANGE, ETC. Since September 30, 1997,
nothing shall have occurred (and neither any Lender nor any Agent shall have
become aware of any facts or conditions not previously known) which either Agent
or the Required Lenders shall deter mine has had, or is reasonably likely to
have, a Material Adverse Effect.
(f) CONSENT LETTER. On the Closing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
substantially in the form of Exhibit J hereto, indicating its consent to its
present or future appointment by each Designated Party as its agent to receive
service of process.
(g) APPROVALS. On the Closing Date, all material
necessary govern mental and third party approvals in connection with the
Acquisition shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains or prevents the Acquisition or imposes, in
the judgment of the Required Lenders or either Agent, materially adverse
conditions upon the consummation of the Acquisition.
(h) CONSUMMATION OF THE ACQUISITION, ETC. (I) On
or prior to the Closing Date, (i) all conditions precedent set forth in the
Acquisition Documents shall have been satisfied and not waived (unless waived
with the consent of the Agents), (ii) WLI shall have effected the Equity
Issuance and (iii) the Acquisition shall have been consummated in accordance
with the Acquisition Documents and all applicable laws.
(II) On or prior to the Closing Date, the
Administrative Agent shall have received true and correct copies of each of the
Transaction Documents certified as such by an Authorized Officer of WLI, each of
which shall have been duly authorized, executed and delivered by the parties
thereto and shall be in full force and effect and in form and sub stance
(including all terms and conditions thereof) reasonably satisfactory to the
Agents (including, without limitation, the percentage of the Equity Issuance
comprised of SARs and the timing of any required payment in respect of the SARs
so issued).
(i) INDEBTEDNESS. On the Closing Date and after
giving effect to the Acquisition and the refinancing of existing Indebtedness of
WLI and its Subsidiaries on such date, WLI and its Subsidiaries shall have no
outstanding Indebtedness other than (x) the Loans hereunder and (y) the Existing
Indebtedness.
-29-
36
(j) GUARANTIES. On the Closing Date, each Domestic
Subsidiary shall have duly authorized, executed and delivered a guaranty of all
the Obligations in the form of Exhibit G hereto (as modified, amended or
supplemented from time to time in accordance with the terms hereof and thereof,
the "US Guaranty"), and the US Guaranty shall be in full force and effect.
(k) SECURITY DOCUMENTS. (I) On the Closing Date,
each Domestic Credit Party shall have each duly authorized, executed and
delivered a pledge agreement in the form of Exhibit H (as modified, amended or
supplemented from time to time in accordance with the terms thereof and hereof,
the "US Pledge Agreement") and (except as provided therein) shall have delivered
to the Collateral Agent, as pledgee thereunder, certificates representing all
the Pledged Securities referred to therein and then existing, endorsed in blank
or accompanied by executed and undated stock powers, and the US Pledge Agreement
shall be in full force and effect.
(II) On the Closing Date, each Domestic Credit Party shall
have each duly authorized, executed and delivered a security agreement
substantially in the form of Exhibit I (as modified, supplemented or amended
from time to time, the "US Security Agreement") covering all the Collateral
described therein, in each case together with:
(i) executed copies of Financing Statements (Form UCC-1)
in appropriate form for filing under the UCC of each jurisdiction as
may be necessary to perfect the security interests purported to be
created by the U.S. Security Agreement;
(ii) copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of recent date listing all
effective financing statements that name any Domestic Credit Party as
debtor and that are filed in the jurisdictions referred to in clause
(i), together with copies of such financing statements (none of which
shall cover the Collateral except (x) those with respect to which
appropriate termination statements executed by the secured lender
thereunder have been filed or delivered to the Administrative Agent
and (y) to the extent evidencing Permitted Liens);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the US Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created by
the US Security Agreement (or arrangements satisfactory to the
Administrative Agent providing for the subsequent completion thereof);
and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported
-30-
37
to be created by the US Security Agreement have been taken or provided
for in a manner satisfactory to the Administrative Agent;
and the US Security Agreement shall be in full force and effect.
(III) On the Closing Date, EU Holdco shall have duly
authorized, executed and delivered a pledge agreement and/or security agreement
in form and substance, and purporting to cover collateral (which will in any
event include the pledge of all EU Intercompany Notes), satisfactory to the
Agents (as modified, supplemented or amended from time to time, the "EU Holdco
Security Documents") securing EU Holdco's obligations hereunder and under its
Foreign Guaranty (once executed).
(l) SOLVENCY. On the Closing Date, the Administrative Agent
shall receive from the vice president and treasurer of WLI, a certificate in the
form of Exhibit K hereto.
(m) FEES. On the Closing Date, the Borrowers shall have paid
to the Agents and the Lenders all Fees and expenses agreed upon by such parties
to be paid on or prior to such date.
(n) LITIGATION. There shall be no actions, suits or
proceedings pending or threatened with respect to the Acquisition, this
Agreement or any other Credit Document or which the Agents or Required Lenders
shall determine has had or is reasonably likely to have a Material Adverse
Effect.
5.02 CONDITIONS PRECEDENT TO THE FULL UTILIZATION DATE. The
occurrence of the Full Utilization Date is subject to the satisfaction of each
of the following conditions at such time:
(a) EXECUTION; NOTES. On or prior to the Full Utilization
Date, (i) the Italian Borrower shall have become party to this Agreement by
authorizing, executing and delivering to the Agents a counterpart of this
Agreement (executed on the signature line provided for the Italian Borrower) and
(ii) there shall have been delivered to the Lira Lender the Lira Note executed
by the Italian Borrower in the amount, maturity and as otherwise provided
herein.
(b) OPINIONS OF COUNSEL. On the Full Utilization Date, the
Administrative Agent shall have received opinions, addressed to each Agent and
each of the Lenders and dated the Full Utilization Date, from such counsel in
the United Kingdom, France, Germany, Denmark, the Netherlands, Spain and Italy
as are satisfactory to the Agents, which opinions shall cover certain matters
relating to the Credit Documents executed by the Designated Parties located in
such countries and/or security interests granted pursuant to such Credit
Documents and such other matters incident to the transactions contemplated
herein as the Agents may reasonably request and shall be in form and substance
satisfactory to the Agents.
-31-
38
(c) CORPORATE PROCEEDINGS. (I) On the Full Utilization Date,
the Administrative Agent shall have received from WLI a certificate, dated the
Full Utilization Date, signed by its President, any Vice-President or its
Secretary in the form of Exhibit F-2 with appropriate insertions and deletions,
together with (x) copies of the certificate of incorporation, by-laws or other
organizational documents of each Designated Party not delivered pursuant to
Section 5.01(c) and required by the Agents and (y) the resolutions of each such
Designated Party relating to the Credit Documents, which shall be satisfactory
to the Agents.
(II) On the Full Utilization Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Agents, and the Administrative Agent shall have received all
information and copies of all certificates, documents and papers, including good
standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Agents may have requested and required
in connection therewith, such documents and papers, where appropriate, to be
certified by proper corporate or governmental authorities.
(d) GUARANTIES. (I) On or prior to the Full Utilization Date,
each Foreign Subsidiary that is listed on Annex IV, Part II shall have duly
authorized, executed and delivered a guaranty in respect of all Obligations
owing by the Foreign Borrowers in form and substance satisfactory to the Agents
to achieve substantially the same result as the US Guaranty but subject to the
requirements of local law (as modified, amended or supplemented from time to
time in accordance with the terms hereof and thereof, the "Foreign Guaranties"),
and the Foreign Guaranties shall be in full force and effect.
(II) On or prior to the Full Utilization Date, each Subsidiary
of EU Holdco that (x) is a Material Subsidiary or (y) has outstanding
intercompany loans and or advances owing to EU Holdco shall have duly
authorized, executed and delivered to EU Holdco a EU Intercompany Note, each of
which shall be in full force and effect.
(e) SECURITY DOCUMENTS. On or prior to the Full Utilization
Date, each Foreign Subsidiary listed on Annex IV, Part III shall have duly
authorized, executed and delivered a pledge agreement and/or security agreement
in form and substance, and purporting to cover collateral, satisfactory to the
Agents (together with the EU Holdco Security Documents and any of such
agreements executed in compliance with Section 7.12, and as modified,
supplemented or amended from time to time, the "EU Holdco Security Documents")
securing such Foreign Subsidiary's obligations hereunder, under its Foreign
Guaranty (if any) and/or its EU Intercompany Note (if any) and, in each case
together with evidence of the completion of all deliveries under, and recordings
and filings of, or with respect to, the Foreign Security Documents as may be
necessary or, in the reasonable opinion of the Collateral Agent, desirable to
perfect the security interest intended to be created by the Foreign Security
Documents.
-32-
39
5.03 CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation
of each Lender to make Loans and the obligation of the Letter of Credit Issuer
to issue any Letter of Credit (including in each case Loans made, and Letters of
Credit issued, on the Closing Date) is subject, at the time of each such Credit
Event, to the satisfaction of the following conditions:
(a) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. The
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.02 with respect to the incurrence of Loans or a Letter
of Credit Request meeting the requirements of Section 2.03 with respect to the
issuance of a Letter of Credit.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties made by
any Designated Party contained herein or in the other Credit Documents shall be
true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the respective Borrower to the
Agents and each of the Lenders that all of the applicable conditions specified
in Section 5.01 (in the case of the Credit Events occurring on the Closing
Date), 5.02 (in the case of the occurrence of the Full Utilization Date) and/or
5.03, as the case may be, exist as of that time. All of the certificates, legal
opinions and other documents and papers referred to in Section 5.01, 5.02 or
5.03, unless otherwise specified, shall be delivered to the Administrative Agent
at its Notice Office for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts for each of the Lenders and shall be
satisfactory in form and substance to the Agents.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Lenders to enter into this Agreement and to make the Loans
and issue and/or participate in Letters of Credit provided for herein, WLI
makes the following representations and warranties to, and agreements with, the
Lenders, all of which shall survive the execution and delivery of this Agreement
and the making of the Loans:
6.01 CORPORATE STATUS. Each of WLI and each of its Material
Subsidiaries (i) is a duly organized and validly existing Company in good
standing under the laws of the juris diction of its organization and has the
Company power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (ii) has
duly qualified and is authorized to do business and is in good standing in all
juris dictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
-33-
40
6.02 CORPORATE POWER AND AUTHORITY. Each Designated Party has
the Company power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary Company action to authorize the execution, delivery and performance of
the Credit Documents to which it is a party. Each Designated Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Person enforceable in accordance with its terms except to the extent the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
6.03 NO VIOLATION. Neither the execution, delivery and
performance by any Designated Party of the Credit Documents to which it is a
party nor compliance with the terms and provisions thereof, nor the consummation
of the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets
of WLI or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other instrument to which WLI or any of
its Subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation, by-laws or equivalent organizational documents of
WLI or any of its Subsidiaries.
6.04 LITIGATION. There are no actions, suits or proceedings
pending or to WLI's knowledge threatened with respect to WLI or any of its
Subsidiaries that have had or are reasonably likely to have (i) a Material
Adverse Effect or (ii) a material adverse effect on the rights or remedies of
the Lenders or on the ability of the Designated Parties to perform their
obligations to them hereunder and under the other Credit Documents.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
all Loans may be used (x) on the Closing Date to finance the Net Cash Payment
owing on the Closing Date under the Acquisition Agreement, to refinance
Indebtedness of WLI and its Subsidiaries outstanding on the Closing Date and to
pay fees and expenses incurred in connection with the Acquisition, provided that
(x) only Loans incurred by WLI may be used to finance the Acquisition (including
payments pursuant to the Deferred Payment Agreement) and (y) no more than $100
million in Principal Amount of Loans may be incurred for such purposes plus
Loans incurred to finance any cash payment obligation of WLI under the Deferred
Payment Agreement and (y) after the Closing Date, (i) in the case of borrowings
by WLI for the general corporate and working capital purposes of WLI and the
Domestic Subsidiaries, to make advances to Other Foreign Subsidiaries to finance
their respective general corporate and
-34-
41
working capital requirements to the extent such advances are permitted by
Section 8.04(b) and, on and after the Full Utilization Date, are evidenced by
WLI Intercompany Notes and to make investments to the extent permitted by
Section 8.06(l), (ii) in the case of borrowings by EU Holdco, to make advances
to its Subsidiaries to finance their respective general corporate and working
capital requirements (but excluding increases of capital to the Italian Borrower
and its Subsidiaries) to the extent such advances are permitted by Section
8.04(b) and, on and after the Full Utilization Date, are evidenced by EU
Intercompany Notes and (z) in the case of the Italian Borrower, to finance its
and its Subsidiaries' general corporate and working capital needs.
(b) Neither the making of any Loan hereunder, nor the use of
the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan will be used to purchase or carry any
Margin Stock or to extend credit for the purpose of purchasing or carrying any
Margin Stock.
6.06 GOVERNMENTAL APPROVALS. Except for filings and recordings
in connection with the Security Documents, no order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to authorize or is required
in connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of any
Credit Document.
6.07 INVESTMENT COMPANY ACT. Neither WLI nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
6.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither WLI nor any
of its Subsidiaries is 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.
6.09 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
(at the direction or with the knowledge of) WLI or any of its Subsidiaries
(giving effect to the Acquisition) in writing to the Agents for purposes of or
in connection with this Agreement or any transaction contemplated herein is, and
all other such factual information (taken as a whole) hereafter furnished by or
on behalf of any such Person in writing to the Agents will be, true and accurate
in all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time in light of
the circumstances under which such information was provided. The projections and
PRO FORMA financial information contained in
-35-
42
such materials are based on good faith estimates and assumptions believed by WLI
to be reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts or an assurance of
performance and that actual results during the period or periods covered by any
such projections may differ from the projected results. There is no fact known
to WLI which is reasonably likely to have a Material Adverse Effect, which has
not been disclosed herein or in such other documents, certificates and
statements furnished to the Lenders for use in connection with the transactions
contemplated hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as
of the Closing Date, on a PRO FORMA basis after giving effect to the Transaction
and all Indebtedness incurred, and to be incurred (including, without
limitation, the Loans), and Liens created, and to be created, by each Designated
Party in connection therewith, (x) the sum of the assets, at a fair valuation,
of WLI and its Subsidiaries taken as a whole will exceed their debts, (y) WLI
and its Subsidiaries taken as a whole will not have incurred or intended to, or
believe that they will, incur debts beyond their ability to pay such debts as
such debts mature and (z) WLI and its Subsidiaries taken as a whole would not
have unreasonably small capital with which to conduct their business. For
purposes of this Section 6.10, "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) (i) The audited consolidated balance sheets of WLI as at
June 30, 1996 and June 30, 1997, and the related consolidated statements of
operations and cash flows of WLI for the periods ended as of said dates, which
have been examined by Ernst & Young LLP, independent certified public
accountants, (ii) the unaudited consolidated and consolidating balance sheet of
WLI as at December 31, 1997, and the related consolidated and consolidating
statements of operations and cash flows of WLI for the six-month period ended as
of such date, (iii) the audited combined consolidated balance sheets of the
Acquired Businesses as at December 31, 1996 and September 30, 1997, and the
related combined consolidated statements of operations and cash flows of the
Acquired Businesses for the periods ended as of said dates, which have been
examined by Coopers & Xxxxxxx, independent certified public accountants, (iv) an
unaudited combined profit and loss statement for Olivetti Solutions S.p.A. and
the Subsidiaries and Olivetti Corporation of Japan and a report on the combined
net financial position of Olivetti Solutions S.p.A. and the Subsidiaries,
Olivetti Corporation of Japan and Olsy do Brasil Ltda for the twelve month
period ended December 31, 1997, in each case, reflecting the best estimate of
the senior management of Ing. C. Olivetti & C.S.p.A., Olivetti Solutions S.p.A.,
Olivetti Corporation of Japan, Olsy do Brasil Ltda and their Subsidiaries as of
the date thereof, and (v) the PRO FORMA projected consolidated balance sheet of
WLI dated
-36-
43
as of December 31, 1997 after giving effect to the Transaction, copies of which
have heretofore been furnished to each Lender, present fairly the consolidated
financial position of such entities at the dates of said statements and the
consolidated results for the periods covered thereby (or, in the case of the PRO
FORMA balance sheet, presents a good faith estimate of the consolidated PRO
FORMA consolidated financial position of WLI (after giving effect to the
Transaction) at the date thereof) in conformity with GAAP, except to the extent
provided in the notes to said financial statements and, with respect to such
interim financial statements, subject to changes resulting from audit and normal
year-end audit adjustments. All such financial statements (other than the
aforesaid PRO FORMA balance sheet) have been prepared in conformity with GAAP
consistently applied except to the extent provided in the notes to said
financial statements and, with respect to interim financial statements, subject
to changes resulting from audit and normal year-end audit adjustments. Since
December 31, 1997 nothing has occurred that has had or is reasonably likely to
have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the
notes thereto described in Section 6.10(b), there were as of the Closing Date
(and after giving effect to the Transaction) no liabilities or obligations with
respect to WLI or any of its Subsidiaries of a nature (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to WLI and its Subsidiaries
taken as a whole, except as incurred in the ordinary course of business
consistent with past practices subsequent to December 31, 1997.
6.11 SECURITY INTERESTS. Once executed and delivered as
required by the terms of this Agreement or the other Credit Documents and all
filings, recordings and deliveries required thereunder have been accomplished,
each of the Security Documents creates, as security for the Obligations
purported to be secured thereby, a valid and enforce able perfected security
interest in and Lien on all of the Collateral subject thereto, superior to and
prior to the rights of all third Persons and subject to no other Liens (except
Permitted Liens relating thereto), in favor of the Collateral Agent for the
benefit of the Lenders.
6.12 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. All
representations and warranties of WLI and EU Holdco, and to WLI's knowledge, of
Sellers, set forth in the Acquisition Documents were true and correct in all
material respects as of the time such representations and warranties were made
and shall be true and correct in all material respects as of the Closing Date as
if such representations and warranties were made on and as of such date, unless
stated to relate to a specific earlier date.
6.13 TAX RETURNS AND PAYMENTS. Each of WLI and each of its
Subsidiaries has filed all income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
(x) those contested in good faith and adequately disclosed and fully provided
for on the financial statements of WLI and its Subsidiaries in accordance with
-37-
44
generally accepted accounting principles and (y) those of Foreign Subsidiaries
acquired pursuant to the Acquisition to the extent (i) occurring or arising
prior to the Closing Date and (ii) the aggregate tax liabilities (not
indemnified by the Sellers) for all such Foreign Subsidiaries do not exceed
$5,000,000 (or the equivalent thereof).
6.14 COMPLIANCE WITH ERISA. (a) Annex III sets forth each Plan
and Multiemployer Plan; each Plan (and each related trust, insurance contract or
fund) is in substantial compliance with its terms and with all applicable laws,
including, without limitation, ERISA and the Code; each Plan which is intended
to be qualified under Section 401(a) of the Code has received a determination
letter from the Internal Revenue Service to the effect that it meets the
requirements of Sections 401(a) and its related trust, if any, meets the
requirements of Section 501(a) of the Code; no Reportable Event has occurred; to
the knowledge of WLI, any Subsidiary or any ERISA Affiliate, Multiemployer Plan
is insolvent or in reorganization; no Plan has an Unfunded Current Liability
which, when added to the aggregate amount of Unfunded Current Liabilities with
respect to all other Plans, is reasonably likely to have a Material Adverse
Effect; no Plan which is subject to Section 412 of the Code or Section 302 of
ERISA has an accumulated funding deficiency, within the meaning of such sections
of the Code or ERISA, or has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortization period, within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all
contributions required to be made by WLI, any Subsidiary or any ERISA Affiliate
with respect to a Plan or Multiemployer Plan have been timely made; neither WLI
nor any of its Subsidiaries nor any ERISA Affiliate has incurred any material
liability (including any indirect, contingent or secondary liability) to or on
account of a Plan or Multiemployer Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971 or 4975 of the Code or expects to incur any such material liability under
any of the foregoing sections with respect to any Plan or Multiemployer Plan; no
condition exists which presents a material risk to WLI or any of its
Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of
a Plan or Multiemployer Plan pursuant to the foregoing provisions of ERISA and
the Code; no proceedings have been instituted to terminate or appoint a trustee
to administer any Plan which is subject to Title IV of ERISA; no action, suit,
proceeding, hearing, audit or investigation with respect to the administration,
operation or the investment of assets of any Plan (other than routine claims for
benefits) is pending, expected or threatened; using actuarial assumptions and
compilation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of WLI and its Subsidiaries and its ERISA Affiliates
to all Multiemployer Plans in the event of a complete withdrawal therefrom, as
of the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, would not be reasonably likely to have a
Material Adverse Effect; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of WLI, any Subsidiary or any ERISA Affiliate has at all
times been operated in substantial compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and Section 4980B of the Code and any failure to
so comply would not
-38-
45
result in a material liability; no lien that can be imposed under the Code or
ERISA on the assets of WLI or any Subsidiary or any ERISA Affiliate exists or is
likely to arise on account of any Plan; and WLI and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any liability that would have a Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities, except in each case where the failure to so maintain any such
Foreign Pension Plan is not reasonably likely to have a Material Adverse Effect.
Neither WLI nor any of its Subsidiaries has incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan, determined as of the end of WLI's most recently
ended fiscal year on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities to an extent which is
reasonably likely to have a Material Adverse Effect.
6.15 SUBSIDIARIES. On and as of the Closing Date and after
giving effect to the consummation of the Transaction, WLI has no Material
Subsidiaries other than those Subsidiaries listed on Annex IV, Part I. Annex IV,
Part I correctly sets forth, as of the Closing Date and after giving effect to
the Transaction, the percentage ownership (direct and indirect) of WLI in each
class of equity securities of each of its Material Subsidiaries and also
identifies the direct owner thereof. All outstanding shares of equity securities
of each Material Subsidiary of WLI have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. As of
the Closing Date, WLI and the Material Subsidiaries then in existence accounted
for at least 85% of the combined revenues of WLI and its Subsidiaries (prior to
the Acquisition) and the Acquired Business for the 12 months ending on December
31, 1997.
6.16 INTELLECTUAL PROPERTY. WLI and each of its Subsidiaries
have obtained all patents, trademarks, service marks, trade names, copyrights,
licenses and other rights that are necessary for the operation of their
businesses taken as a whole as presently conducted and as proposed to be
conducted without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, has had or is reasonably likely to
have a Material Adverse Effect.
6.17 ENVIRONMENTAL MATTERS. (a) Each of WLI and each of its
Subsidiaries is in compliance with all applicable Environmental Laws governing
its business for which failure to comply has had or is reasonably likely to have
a Material Adverse Effect, and neither WLI nor any of its Subsidiaries is liable
for any penalties, fines or forfeitures for failure to comply
-39-
46
with any of the foregoing which has had or is reasonably likely to have a
Material Adverse Effect. All licenses, permits, registrations or approvals
required for the business of WLI and each of its Subsidiaries, as conducted as
of the Closing Date, under any Environmental Law have been secured and WLI and
each of its Subsidiaries is in substantial compliance therewith, except such
licenses, permits, registrations or approvals the failure to secure which or to
comply with which is not reasonably likely to have a Material Adverse Effect.
Neither WLI nor any of its Subsidiaries is in any respect in noncompliance with,
breach of or default under any applicable writ, order, judgment, injunction, or
decree to which WLI or such Subsidiary is a party or which would affect the
ability of WLI or such Subsidiary to operate any real property and no event has
occurred and is continuing which, with the passage of time or the giving of
notice or both, would constitute noncompliance, breach of or default thereunder,
except in each such case, such noncompliance, breaches or defaults as have not
had and are not reasonably likely to, in the aggregate, have a Material Adverse
Effect. There are as of the Closing Date no Environmental Claims pending or, to
the knowledge of WLI, threatened which is reasonably likely to have a Material
Adverse Effect. There are no facts, circumstances, conditions or occurrences on
any real property at any time owned or operated by WLI or any of its
Subsidiaries or, to the knowledge of WLI, on any property adjacent to any such
real property that are reasonably likely to (i) to form the basis of an
Environmental Claim against WLI, any of its Subsidiaries or any currently owned
or operated real property of WLI or any of its Subsidiaries, or (ii) to cause
such currently owned or operated real property to be subject to any restrictions
on the ownership, occupancy, use or transferability of such Real Property under
any Environmental Law, except in each such case, such Environmental Claims or
restrictions that individually, or in the aggregate, have not had and are not
reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not been (to the knowledge of WLI
with respect to any time prior to WLI's or any of its Subsidiaries' ownership or
operation of any such real property) (i) generated, used, treated or stored on,
or transported to or from, any real property owned or operated by WLI or any of
its Subsidiaries or (ii) released on or from any real property, in each case
where such occurrence or event individually or in the aggregate has had and is
reasonably likely to have a Material Adverse Effect.
6.18 LABOR RELATIONS. No Designated Party is engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (i) no unfair labor practice complaint pending against
any Designated Party or threatened against any of them, before any governmental
authority or regulatory body, and no grievance or arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against any
Designated Party or threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against any Designated Party or threatened
against any Designated Party and (iii) no union representation question existing
with respect to the employees of any Designated Party and no union organizing
activities are taking place, except with respect to
-40-
47
any matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate, such as has not had and is not reasonably likely to have a
Material Adverse Effect.
6.19 EXISTING INDEBTEDNESS. Annex VI sets forth a true and
complete list of all Indebtedness of WLI and each of its Subsidiaries as of the
Closing Date in excess of $1,000,000 (or the equivalent) individually and which
is to remain outstanding after giving effect to the Transaction (excluding the
Loans, the Letters of Credit and intercompany Indebtedness permitted by 8.04(b),
the "Existing Indebtedness"), in each case showing the aggregate principal
amount thereof and the name of the respective borrower (or issuer) and any other
entity which directly or indirectly guaranteed such debt.
6.20 COMPLIANCE WITH STATUTES, ETC. Each of WLI and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such non-compliance as has not had and is not reasonably
likely to, individually or in the aggregate, have a Material Adverse Effect.
6.21 ACQUISITION. On and as of the Closing Date, (i) all
material consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or
instrumentalities required to be obtained, given, filed or taken in order to
make or consummate the Acquisition will have been obtained, given, filed or
taken and are or will be in full force and effect (or effective judicial relief
with respect thereto will have been obtained) and (ii) the Acquisition shall
have been consummated in accordance, in all material respects, with the
applicable Acquisition Documents and in compliance, in all material respects,
with all applicable laws.
SECTION 7. AFFIRMATIVE COVENANTS. WLI hereby covenants and
agrees that on the Closing Date and thereafter until the Commitments have
terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations (other
than any indemnities described in Section 12.13 which are not then owing)
incurred hereunder, are paid in full:
7.01 INFORMATION COVENANTS. WLI will furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of WLI, the consolidated balance sheet of WLI and its
Subsidiaries, as at the end of such fiscal year and the related consolidated
statements of income, changes in stockholders equity and cash flows for such
fiscal year, in each case setting forth comparative figures for the preceding
fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit and as to the status of WLI and its Subsidiaries as a going
concern, together with a certificate of such
-41-
48
accounting firm stating that in the course of its regular audit of the business
of WLI and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no
knowledge of any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of WLI
and its Subsidiaries, as at the end of such quarterly period and the related
consolidated statements of income, changes in stockholders equity and cash flows
for such quarterly period and for the elapsed portion of the fiscal year ended
with the last day of such quarterly period, and in each case setting forth
comparative figures for the related periods in the prior fiscal year, all of
which shall be certified by the chief financial officer, controller or treasurer
of WLI, subject to changes resulting from audit and normal year-end audit
adjustments.
(c) BUDGETS; ETC. Not more than 90 days after the commencement
of each fiscal year of WLI, a consolidated budget of WLI and its Subsidiaries in
reasonable detail for each quarter of such fiscal year. Together with each
delivery of consolidated financial statements pursuant to Sections 7.01(a) and
(b), a comparison of the current year-to-date quarterly financial results
against the budgets required to be submitted pursuant to this clause (d) shall
be presented.
(d) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 7.01(a) and (b) a certificate of
the chief financial officer, controller, treasurer or other Authorized Officer
of WLI to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth the calculations required to
establish (I) the Leverage Ratio for the Test Period ending on the last day of
the fiscal year or quarter covered by such financial statements and (II) whether
WLI and its Subsidiaries were in compliance with the provisions of Sections 8.10
through 8.14 as at the end of such fiscal year or quarter, as the case may be.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within five Business Days after any executive officer of WLI obtains
knowledge thereof, notice of (x) the occurrence of any event which constitutes a
Default or Event of Default and (y) the commencement of or any significant
development in any litigation or governmental proceeding pending against WLI or
any of its Subsidiaries which is likely to have a Material Adverse Effect or is
likely to have a material adverse effect on the ability of WLI or any of its
Subsidiaries to perform its obligations hereunder or under any other Credit
Document.
-42-
49
(f) ENVIRONMENTAL MATTERS. Promptly after obtaining knowledge
of any of the following (but only to the extent that any of the following could
reasonably be expected to (x) have a Material Adverse Effect, either
individually or in the aggregate, or (y) result in a remedial cost to WLI or any
of its Subsidiaries in excess of $5,000,000, written notice of:
(i) any pending or threatened Environmental Claim against
WLI or any of its Subsidiaries or any Real Property owned or operated
by WLI or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned
or operated by WLI or any of its Subsidiaries that (x) results in
noncompliance by WLI or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the
basis of an Environmental Claim against WLI or any of its Subsidiaries
or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by WLI or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by WLI
or its Subsidiary, as the case may be, of its interest in such Real
Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by WLI or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
respective Borrower's response or proposed response thereto. In addition, WLI
agrees to provide the Lenders with copies of all material communications by WLI
or any of its Subsidiaries with any Person, government or governmental agency
relating to any of the matters set forth in clauses (i)-(iv) above, and such
detailed reports relating to any of the matters set forth in clauses (i)-(iv)
above (subject to clauses (x) and (y) above) as may reasonably be requested by
the Administrative Agent or the Required Lenders.
(g) OTHER INFORMATION. Promptly upon transmission thereof, (i)
copies of any filings and registrations with, and reports to, the U.S.
Securities and Exchange Commission (the "SEC") by WLI or any of its
Subsidiaries, (ii) copies of all financial statements, proxy statements, notices
and reports as WLI or any of its Subsidiaries shall send generally to analysts
and the holders of their capital stock in their capacity as such holders (to the
extent not theretofore delivered to the Lenders pursuant to this Agreement) and
with reasonable promptness, such other information or documents (financial or
otherwise) as either Agent on its own behalf or on behalf of the Required
Lenders may reasonably request from time to time.
-43-
50
7.02 BOOKS, RECORDS AND INSPECTIONS. WLI will, and will cause
its Subsidiaries to, permit, upon reasonable notice to, and coordination with,
the chief financial officer, controller or any other Authorized Officer of WLI,
officers and designated representatives of the Agents or the Required Lenders to
visit and inspect any of the properties or assets of WLI and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
WLI and any of its Subsidiaries and discuss the affairs, finances and accounts
of WLI and of any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants, all at such reasonable times
and intervals and to such reasonable extent as the Agents or the Required
Lenders may desire, PROVIDED that no such visits, meetings or discussions with
the independent accountants will be held without WLI and/or its Subsidiaries
being given any opportunity to participate therein through their senior
officers.
7.03 INSURANCE. WLI will at all times maintain in full force
and effect insurance in respect of itself and its Subsidiaries in such amounts,
covering such risks and liabilities and with such deductibles or self-insured
retentions as are in accordance with normal industry practice.
7.04 PAYMENT OF TAXES. WLI will pay and discharge, and will
cause each of its Material Subsidiaries to pay and discharge, all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, prior to the date
on which material penalties attach thereto, and all material lawful claims for
sums that have become due and payable which, if unpaid, might become a Lien or
charge upon any properties of WLI or any of its Material Subsidiaries, PROVIDED
that neither WLI nor any Material Subsidiary shall be required to pay any such
material tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of the management of WLI) with respect thereto in conformity
with GAAP.
7.05 CORPORATE FRANCHISES. Except as may be waived by the
Agents, WLI will do, and will cause each Material Subsidiary to do, or cause to
be done, all things necessary to preserve and keep in full force and effect its
existence, material rights, franchises and authority, PROVIDED that (x) any
transaction permitted by Section 8.02 will not constitute a breach of this
Section 7.05 and (y) any Material Subsidiary may withdraw from doing business in
any jurisdiction not the situs of its principal operations to the extent any
such withdrawal, individually or in the aggregate, is not reasonably likely to
have a Material Adverse Effect.
7.06 COMPLIANCE WITH STATUTES, ETC. WLI will, and will cause
each Subsidiary to, comply with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the con duct of its business and the
ownership of its property (including in all events Environmental Laws) other
than those the non-compliance with which would not have a Material Adverse
Effect or would not
-44-
51
have a material adverse effect on the ability of the Designated Parties as a
whole to perform their obligations under any Credit Document.
7.07 ERISA. As soon as possible and, in any event, within fifteen
(15) days after WLI, any Subsidiary or any ERISA Affiliate knows or has reason
to know of the occurrence of any of the following, WLI will deliver to each of
the Lenders a certificate of the chief financial officer of WLI setting forth
the full details as to such occurrence and the action, if any, that WLI, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given to or filed with or by WLI,
the Subsidiary, the ERISA Affiliate, the PBGC, a Plan or Multiemployer Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred (except to the extent that WLI has previously delivered to
the Lenders a certificate and notices (if any) concerning such event pursuant to
the next clause hereof); that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirements of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b) (1) thereof), and an event described in subsection
.62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days; that an accumulated funding deficiency, within the meaning of Section 412
of the Code or Section 302 of ERISA, has been incurred or an application may be
or has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA
with respect to a Plan or Multiemployer Plan; that any contribution required to
be made with respect to a Plan or a Multiemployer Plan has not been timely made;
that a Plan or Multiemployer Plan has been or may be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability which, when added to aggregate amount of Unfunded
Current Liabilities with respect to all other Plans could reasonably be expected
to have a Material Adverse Effect; that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted against WLI,
any Subsidiary or any ERISA Affiliate pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan or Multiemployer Plan; that WLI, any
Subsidiary or any ERISA Affiliate will or may incur any material liability
(including any indirect, contingent, or secondary liability) to or on account of
the termination of or withdrawal from a Plan or Multiemployer Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan or
Multiemployer Plans under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that WLI or any Subsidiary may incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan or
Multiemployer Plans or any Foreign Pension Plan. WLI will deliver to each of the
Lenders (i) a complete copy of the annual report (on Internal
-45-
52
Revenue Service Form 5500-series) of each Plan (including, to the extent
required, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service and (ii) copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. In addition to any certificates
or notices delivered to the Lenders pursuant to the first sentence hereof,
copies of annual reports and any records, documents or other information
required to be furnished to the PBGC, and any material notices received by WLI,
any Subsidiary or any ERISA Affiliate from any government agency with respect to
any Plan or Multiemployer Plans or any Foreign Pension Plan shall be delivered
to the Lenders no later than fifteen (15) days after the date such annual report
has been filed with the Internal Revenue Service or such records, documents
and/or information has been furnished to the PBGC or such notice has been
received by WLI, such Subsidiary or such ERISA Affiliate, as applicable.
7.08 GOOD WORKING ORDER. WLI will, and will cause each of its
Material Subsidiaries to, ensure that its material properties and equipment
required in the conduct of its business in whomsoever's possession they may be,
are kept in good working order and condition, normal wear and tear excepted.
7.09 END OF FISCAL YEARS; FISCAL QUARTERS. WLI will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' (except as disclosed to the Agents on or prior to the Closing
Date and with such other exceptions as are acceptable to the Administrative
Agent) fiscal years to end on June 30 of each year (provided that upon prior
written notice from WLI to the Administrative Agent such fiscal year end may be
changed to December 31) and (ii) each of its, and each of its Subsidiaries'
(except as disclosed to the Agents on or prior to the Closing Date and with
such other exceptions as are acceptable to the Administrative Agent) fiscal
quarters to end on March 31, June 30, September 30 and December 31 of each
year.
7.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) WLI will, and
will cause its Material Subsidiaries to, at the expense of such Person make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to the collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require. Furthermore, WLI shall cause to be
delivered to the Collateral Agent such opinions of counsel and other related
documents as may be reasonably requested by the Administrative Agent to assure
itself that this Section 7.10 has been complied with.
(b) Each action required above by this Section 7.10 shall be
completed as soon as possible, but in no event later than 90 days after such
action is requested in writing to be
-46-
53
taken by the Administrative Agent or the Collateral Agent, PROVIDED that
in no event shall any Borrower be required to take any action, other than using
its reasonable commercial efforts without any material expenditure, to obtain
consents from third parties with respect to its compliance with this Section
7.10.
7.11 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) WLI will comply, and
will cause each of its Subsidiaries to comply, with all Environmental Laws
applicable to the ownership, lease or use of all real property now or hereafter
owned, leased or operated by WLI or any of its Subsidiaries, will promptly pay
or cause to be paid all costs and expenses incurred in connection with such
compliance, and will keep or cause to be kept all such real property free and
clear of any Liens imposed pursuant to such Environmental Laws and (ii) neither
WLI nor any of its Subsidiaries will generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release or
disposal of Hazardous Materials on any real property now or hereafter owned,
leased or operated by WLI or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such real property, except
in accordance with, in all material respects, applicable Environmental Laws or
otherwise to the extent that the failure to comply with the requirements
specified in clause (i) or (ii) above, either individually or in the aggregate,
has not had and is not reasonably likely to have a Material Adverse Effect.
7.12 MATERIAL SUBSIDIARIES. (a) WLI will cause (i) each Material
Subsidiary acquired or first established after the Closing Date and (ii) each
existing Subsidiary that first becomes a Material Subsidiary after the Closing
Date pursuant to clauses (iv) and (v) of the definitions of Material Subsidiary
(the "Relevant Clauses") to execute a Guaranty (except in the case of a Foreign
Subsidiary to the extent it is not permitted to execute a Guaranty under local
law), an EU Intercompany Note (if a Subsidiary of EU Holdco), and/or a WLI
Intercompany Note (if an Other Foreign Subsidiary) and all related U.S. Security
Documents or (unless and to the extent waived by the Agents) all related Foreign
Security Documents, and to execute and deliver, or cause to be delivered, all
other certificates and opinions in each case as would have had to have been
delivered on the Closing Date (if a Domestic Subsidiary) or the Full Utilization
Date (if a Foreign Subsidiary) if such new Material Subsidiary were in existence
at such date, with all of the foregoing to be effected (I) if such new Material
Subsidiary is a Domestic Subsidiary, within 15 Business Days after the
acquisition or creation thereof, or of the date it became a Material Subsidiary
pursuant to the Relevant Clauses and (II) if such new Material Subsidiary is a
Foreign Subsidiary, within 45 days after the acquisition or creation thereof, or
of the date it became a Material Subsidiary pursuant to the Relevant Clauses.
(b) WLI will make a Material Subsidiary Determination within 90
days after the end of each calendar year (commencing with the calendar year
ended December 31, 1998) and promptly convey in writing the results of such
determination to the Administrative Agent.
-47-
54
(c) WLI will cause the aggregate revenues of WLI and all Material
Subsidiaries for each fiscal year of WLI to account for at least 85% of the
aggregate revenues of WLI and all of its Subsidiaries for such fiscal year.
SECTION 8. NEGATIVE COVENANTS. WLI hereby covenants and agrees
that on the Closing Date and thereafter until the Commitments have terminated,
no Letters of Credit or Notes are outstanding and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 12.13 which are not then owing) incurred
hereunder, are paid in full:
8.01 CHANGES IN BUSINESS. WLI will not, and will not permit any
of its Subsidiaries to, materially alter the character of the business of WLI
and its Subsidiaries from the business conducted and presently proposed to be
conducted by WLI and its Subsidiaries on the Closing Date (giving effect to the
Acquisition).
8.02 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. WLI
will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve
its affairs, or enter into any transaction of merger or consolidation, or sell
or otherwise dispose of all or any part of its property or assets or purchase,
lease or otherwise acquire all or any part of the property or assets of any
Person (other than purchases or other acquisitions of inventory, leases,
materials and equipment in the ordinary course of business) or agree to do any
of the foregoing at any future time (without a contingency relating to obtaining
any required approval hereunder or the prior or contemporaneous satisfaction of
the Obligations), except that the following shall be permitted:
(a) (I) any Domestic Credit Party may be merged or
consolidated with or into, or be liquidated into, or transfer all or
any part of its business, properties and assets to another Domestic
Credit Party that is a Material Subsidiary (provided that in any such
transaction involving (x) WLI, WLI shall be the surviving party or (y)
a Material Subsidiary (where WLI is not a party), a Material
Subsidiary shall be the surviving party), (II) any Foreign Subsidiary
that is a Guarantor may be merged or consolidated with or into, or be
liquidated into, another Foreign Subsidiary that is a Guarantor, (III)
any Foreign Subsidiary that is not a Guarantor may be merged or
consolidated with or into, or be liquidated into, another Foreign
Subsidiary (provided that in any such transaction involving a
Guarantor, such Guarantor is the surviving party), (IV) all or any
part of the business, properties and assets of a Foreign Subsidiary
that is not a Guarantor may be conveyed or otherwise transferred to
another Foreign Subsidiary, (V) any Foreign Subsidiary that is not a
Material Subsidiary (or, if not a Guarantor, whose liquidation is
consented to by the Agents) may be liquidated and (VI) assets of WLI,
any Domestic Credit Party and/or any Foreign Subsidiary that is a
Guarantor may be conveyed or otherwise transferred to Foreign
Subsidiaries that are not
-48-
55
Guarantors provided that after giving effect thereto the NFG
Investments shall not exceed $30,000,000;
(b) capital expenditures to the extent not prohibited by
Section 8.05 hereof;
(c) the investments, acquisitions and transfers or
dispositions of properties permitted pursuant to Section 8.06;
(d) WLI and each Subsidiary may lease (as lessee) real or
personal property in the ordinary course of business (so long as such
lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d) or would not violate Section 8.07);
(e) licenses or sublicenses by WLI or any Subsidiary of
intellectual property in the ordinary course of business;
(f) the Acquisition (including all intercompany loans,
advances and investments made on the Closing Date to effectuate same);
(g) any Borrower or Guarantor may acquire (other than through
an unsolicited public offer) assets constituting all or substantially
all of a business, business unit, division or product line of any
Person not already a Subsidiary of such Person or capital stock of any
such Person (including any such acquisition by way of merger or
consolidation) to the extent (x) if such acquired Person or the
surviving entity of such merger or consolidation will be a Material
Subsidiary, such Person or surviving entity becomes a Guarantor
(unless not permitted to do so under local law) and executes
appropriate Security Documents to secure its Guaranty with its assets
(unless waived by the Administrative Agent) and (y) the capital stock
of such Person or surviving entity is pledged pursuant to a Pledge
Agreement (any such acquisition permitted by this clause (g), a
"Permitted Acquisition"), so long as (i) after giving effect to such
Permitted Acquisition WLI is in compliance with Section 8.01, (ii) no
Default under Section 9.01 or Event of Default then exists, (iii) PRO
FORMA compliance is established to the Agents' satisfaction with the
covenants contained in Sections 8.10 through 8.13 after giving effect
to such Permitted Acquisition as if such Permitted Acquisition were
consummated on the first day of the Test Period then last ending, (iv)
the Agents have received financial projections for the acquired
business or Person, (v) the Required Lenders' consent shall have been
obtained if the total cash consideration paid for (I) any such
acquisition or related series of acquisitions exceeds $100 million or
(II) all Permitted Acquisitions after the Closing Date exceeds $250
million and (vi) after giving effect to such Permitted Acquisition and
the Loans, if any, incurred to finance same the Total Unutilized
Commitment is at least $150 million;
-49-
56
(h) acquisitions (other than through an unsolicited public
offer) not otherwise permitted pursuant to the foregoing provisions of
this Section 8.02 to the extent that the aggregate amount of cash
consideration paid for all such acquisitions does not exceed $50
million (or the equivalent) provided that at the time of each such
acquisition PRO FORMA compliance is established to the Agents'
satisfaction with the covenants contained in Sections 8.10 through 8.13
after giving effect to such acquisition as if such acquisition were
consummated on the first day of the Test Period then last ended; and
(i) other sales or dispositions of assets PROVIDED that (w)
the provisions of Sections 3.03(c) and/or 4.02(A)(b)(x) are complied
with in connection therewith (to the extent applicable), (x) each such
sale shall be in an amount at least equal to the fair market value
thereof and, in the case of sales for Net Proceeds in excess of $10
million, for proceeds consisting of at least 75% cash, (y) other than
in the case of any such sale or disposition listed on Annex V hereto,
the Agents shall have consented thereto to the extent the Net Proceeds
of any such sale or disposition, or related series of sales or
disposition, exceed $100 million (or the equivalent) and (z) the sale
or disposition of the capital stock of (i) any Borrower shall be
prohibited and (ii) any other Subsidiary shall be prohibited unless it
is for all of the outstanding capital stock of such Subsidiary owned by
WLI and its other Subsidiaries.
8.03 LIENS. WLI will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of WLI or any such Subsidiary whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable or notes with recourse to WLI or any of
its Subsidi aries) or assign any right to receive income, or file or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute, except:
(a) Liens for taxes, assessments or other governmental charges
not yet due or Liens for taxes, assessment or other governmental
charges being contested in good faith and by appropriate proceedings
for which adequate reserves (in the good faith judgment of the
management of the applicable Designated Party) have been established;
(b) Liens in respect of property or assets imposed by law
which were incurred in the ordinary course of business, such as
carriers', materialmen's, warehousemen's and mechanics' Liens,
statutory and common law landlord's Liens, and other similar Liens
arising in the ordinary course of business, and (x) which do not in the
aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business
of any such Subsidiary and (y) which are being
-50-
57
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property
or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the
other Credit Documents;
(d) Liens to the extent existing on the Closing Date and
listed on Annex VII hereto (specifically or generally) without giving
effect to any subsequent extensions or renewals thereof not consented
to by the Agents;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(f) Liens (i) (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money) and (ii) on
assets of Subsidiaries that are not Material Subsidiaries provided that
the Indebtedness secured by all Liens permitted by this clause (ii)
shall be permitted by Section 8.04(j);
(g) leases or subleases granted to others not interfering in
any material respect with the business of WLI or any Subsidiary;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title, encroachments and other similar charges or
encumbrances and minor title deficiencies, in each case not interfering
in any material respect with the ordinary conduct of the business of
WLI or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases, consignments and similar arrangements
entered into in the ordinary course of business and not otherwise
prohibited by this Agreement;
(j) purchase money Liens securing payables arising from the
purchase of any equipment or goods in the normal course of business
provided that such payables shall not constitute Indebtedness;
(k) any interest or title of a lessor under any lease
permitted by this Agreement;
-51-
58
(l) Liens arising pursuant to purchase money mortgages or
security interests securing Indebtedness representing the purchase
price of assets acquired after the Closing Date (which purchase price
shall not exceed the fair market value of the purchased assets),
provided that any such Liens attach only to the assets so acquired and
are created contemporaneously with, or within 90 days following, such
acquisition, and the Indebtedness secured by Liens created pursuant to
this clause (l) so permitted pursuant to Section 8.04(c);
(m) Liens created pursuant to Capital Leases permitted
pursuant to Section 8.04(c) or pursuant to Customer Associated Leases;
and
(n) Liens on property or assets acquired pursuant to a
Permitted Acquisition or other acquisition permitted by Section 8.02(h)
or on property or assets of a Person in existence at the time such
Person is acquired pursuant to a Permitted Acquisition or any such
other acquisition, in each case securing Permitted Acquired Debt,
PROVIDED that such Liens existed prior to, and were not incurred in
contemplation of, such Permitted Acquisition or any such other
acquisition, and do not attach to any other asset of WLI or any of its
Subsidiaries.
8.04 INDEBTEDNESS. WLI will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
Credit Documents;
(b) Indebtedness owing by (i) any Domestic Credit Party to
another Domestic Credit Party (in each case to the extent a Material
Subsidiary); (ii) a Foreign Subsidiary (other than, on and after the
Full Utilization Date, Italian Borrower) to EU Holdco (or if an Other
Foreign Subsidiary, to WLI) to the extent (x) evidenced on and after
the Full Utilization Date by an EU Intercompany Note (or WLI
Intercompany Note if owed to WLI) and (y) in the case of each such
Foreign Subsidiary, within the limits, if any, for intercompany
Indebtedness owing by such Foreign Subsidiary as set forth on Annex X,
Part I; and (iii) a Foreign Subsidiary that is not a Guarantor to
another Foreign Subsidiary that is not a Guarantor;
(c) Capitalized Lease Obligations of WLI and its Subsidiaries
and Indebtedness incurred pursuant to purchase money mortgages or
security interests permitted by Section 8.03(l) to the extent that the
sum thereof does not exceed $30 million (or the equivalent) at any time
outstanding;
(d) Existing Indebtedness, without giving effect to any
subsequent extension, renewal or refinancing thereof not consented to
by the Agents;
-52-
59
(e) Contingent Obligations constituting (x) the guaranty by a
Guarantor of the obligations (not otherwise in violation of this
Agreement) of other Guarantors and (y) the guaranty by a Subsidiary
that is not a Guarantor of the obligations (not otherwise in violation
of this Agreement) of other Subsidiaries;
(f) Indebtedness under Interest Rate Agreements to the extent
satisfactory in amount and in substance to the Agents;
(g) Permitted Subordinated Debt;
(h) Permitted Training Advances;
(i) Permitted Acquired Debt in an amount not to exceed
$50,000,000 provided that (x) all the terms and conditions of such
Permitted Acquired Debt are satisfactory to the Agents and (y) the
principal amount of any Permitted Acquired Debt incurred pursuant to
this clause (i) shall reduce the amount of cash consideration that may
otherwise be paid under Section 8.02(g) or (h) as appropriate to the
acquisition in connection with which such Permitted Acquired Debt was
incurred; and
(j) Indebtedness not otherwise permitted by the foregoing
provisions of this Section 8.04 in an aggregate outstanding principal
amount not to exceed $50 million (or the equivalent).
8.05 CAPITAL EXPENDITURES. (a) WLI will not, and will not
permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that WLI and its Subsidiaries may make Consolidated Capital
Expenditures in any fiscal year in an aggregate amount of up to the Permitted
CAPEX Amount for such fiscal year.
(b) In the event that the Consolidated Capital Expenditures
equal to the Permitted CAPEX Amount for a fiscal year (without giving effect to
this clause (b)) are not expended during such fiscal year, the maximum amount of
Consolidated Capital Expenditures which may be expended during the immediately
succeeding fiscal year pursuant to Section 8.05(a) shall be increased by such
unutilized amount.
8.06 ADVANCES, INVESTMENTS AND LOANS. WLI will not, and will
not permit any of its Subsidiaries to, lend money or credit or make advances to
any Person, or purchase or acquire any stock, obligations or securities of, or
any other interest in, or make any capital contribution to any Person, except:
(a) WLI and any of its Subsidiaries may invest in cash and
Cash Equivalents;
-53-
60
(b) WLI and any Subsidiary may acquire and hold receivables
owing to them, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms;
(c) the intercompany Indebtedness described in Section 8.04
(b) shall be permitted;
(d) loans and advances to officers, directors and employees
(x) in the ordinary course of business for business, travel,
entertainment and relocation purposes and/or representing the deferred
purchase price of the capital stock of WLI purchased by such persons
from WLI and (y) otherwise in an aggregate principal amount not to
exceed $5 million (or the equivalent) at any time outstanding shall be
permitted;
(e) WLI or any Subsidiary may acquire and own investments
(including debt obligations) received (x) in connection with the
bankruptcy or reorganization of suppliers and customers and (y) in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(f) (i) any Domestic Credit Party may make investments in any
Domestic Credit Party that is a Material Subsidiary, (ii) WLI and/or EU
Holdco may make investments (other than intercompany Indebtedness) in
Foreign Subsidiaries that are Material Subsidiaries within the
limitations, if any, specified in Annex X, Part I, (iii) WLI, any
Domestic Credit Party and/or any Foreign Subsidiary that is a Guarantor
may make investments in Foreign Subsidiaries that are not Guarantors
provided that after giving effect thereto the NFG Investments shall not
exceed $30,000,000 and (iv) any Foreign Subsidiary that is not a
Guarantor may make investments in a Foreign Subsidiary that is a
Guarantor;
(g) investments outstanding on the Closing Date and listed on
Annex VIII, without giving effect to any extension or renewal thereof;
(h) promissory notes and other securities received as
proceeds of asset dispositions permitted by Section 8.02(i);
(i) Permitted Acquisitions and/or acquisitions permitted by
Section 8.02(h);
(j) issuances of WLI common stock pursuant to the Convertible
Instruments;
(k) investments to the extent made with WLI common stock;
(l) at any time prior to the Full Utilization Date,
investments in the Italian Borrower not exceeding in aggregate amount
$20 million (or the equivalent); and
-54-
61
(m) other investments not permitted by the foregoing
provisions of this Section 8.06 not exceeding in aggregate amount $30
million (or the equivalent).
8.07 PREPAYMENTS OF INDEBTEDNESS, ETC. WLI will not, and
will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary
or optional payment or prepayment or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto money or securities before due for the
purpose of paying when due) or exchange of any Permitted Subordinated
Debt (once issued);
(b) amend or modify, or permit the amendment or modification
in any manner adverse to the Lenders of, any provisions of any
Permitted Subordinated Debt (once issued); and/or
(c) amend, modify or change in any manner adverse to the
interests of the Lenders the certificate of incorporation (including
the certificate of description for the WLI Preferred and, without
limitation, in each case, by the filing of any certificate of
designation), by-laws or equivalent organizational documents of any
Designated Party or any of the Acquisition Documents.
8.08 DIVIDENDS, ETC. (a) WLI will not, and will not permit any
of its Subsidiaries to, make any cash payments on or in respect of the SARs
("SAR Cash Payments"), make Excess Deferred Payments and/or declare or pay any
dividends (other than dividends payable solely in capital stock of such Person)
or return any capital to, its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any warrants for or options or stock appreciation
rights in respect of any of such shares), or set aside any funds for any of the
foregoing purposes, or permit any of its Subsidiaries to purchase or otherwise
acquire for consideration any shares of any class of the capital stock of WLI or
any other Subsidiary, as the case may be, now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued by such Person with
respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary that is not a Material Subsidiary and Japan
Subsidiary may pay dividends to its shareholders, provided that the
amounts paid to any shareholder that is WLI or a Subsidiary of WLI
shall not be less than such shareholder's PRO RATA share of the
dividends being paid based on ownership interests in such Subsidiary;
-55-
62
(ii) any Subsidiary that is a Material Subsidiary may pay
dividends to any Guarantor;
(iii) issuances of WLI common stock pursuant to the
Convertible Instruments;
(iv) provided that no Default under Section 9.01 or Event of
Default is then in existence or would arise therefrom (determined for
the purposes of Sections 8.10 through 8.14 on a PRO FORMA basis as if
the Dividends and Repurchases referred to below were effected on the
last day of the Test Period last ended) WLI may (A) pay dividends in
cash on the WLI Preferred when due and payable in accordance with its
terms, (B) make Excess Deferred Payments, (C) make SAR Cash Payments
and/or (D) purchase, redeem, retire or otherwise acquire
("Repurchases") capital stock of WLI now or hereafter outstanding (or
any warrants for or stock appreciation rights (other than SARs) in
respect of any such shares), provided that (w) WLI may not expend more
than $50 million during the first two years following the Closing Date
or $150 million in the aggregate after the Closing Date to make
Repurchases and Excess Deferred Payments, (x) after giving effect to
any Repurchase or Excess Deferred Payment, the Total Unutilized
Commitment shall equal at least $150 million, (y) no more than $10
million may be expended in connection with Repurchases of WLI stock
held by officers and directors and (z) after giving effect to any SAR
Cash Payment, the Total Unutilized Commitment shall equal at least $100
million.
(b) WLI will not, and will not permit any of its Material
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to any Designated Party, (b) make loans or advances to any
Designated Party or (c) transfer any of its properties or assets to any
Designated Party or (B) the ability of any Designated Party to create, incur,
assume or suffer to exist any Lien upon its property or assets to secure the
Obligations, other than prohibitions or restrictions existing under or by reason
of (i) this Agreement and the other Credit Documents; (ii) applicable law;
(iii) customary provisions restricting subletting or assignments of leases
and/or non-assignment provisions entered into in the ordinary course of business
and consistent with past practices; (iv) any restriction or encumbrance with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of the capital
stock or assets of such Subsidiary, so long as such sale or disposition is
permitted under this Agreement; and (v) Liens permitted under Section 8.03 and
any documents or instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
-56-
63
8.09 TRANSACTIONS WITH AFFILIATES. WLI will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
after the Closing Date whether or not in the ordinary course of business, with
any Affiliate other than on terms and conditions substantially as favorable to
WLI or such Subsidiary as would be obtainable by WLI or such Subsidiary at the
time in a comparable arm's-length transaction with a Person other than an
Affiliate, except that: (i) each such Person may pay reasonable fees and
compensation to and indemnity provided on behalf of, their respective officers,
directors and employees as determined in good faith by such Person's Board of
Directors or senior management to the extent not otherwise prohibited by the
terms of this Agreement; (ii) transactions among WLI and its Wholly-Owned
Subsidiaries; and (iii) the transaction listed on Annex IX.
8.10 CURRENT RATIO. WLI will not permit the ratio of (i)
Consolidated Current Assets to (ii) Consolidated Current Liabilities as at the
end of any fiscal quarter to be less than 1.00 to 1.0.
8.11 LEVERAGE RATIO. WLI will not permit the Leverage Ratio as at
the end of any fiscal quarter set forth below to exceed the ratio set forth
opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1998 through
December 31, 1999 2.75 to 1.0
March 31, 2000 and
June 30, 2000 2.70 to 1.0
September 30, 2000 2.60 to 1.0
Thereafter 2.50 to 1.0
8.12 MINIMUM CONSOLIDATED EBITDA. WLI will not permit
Consolidated EBITDA for any Test Period ending on the last day of any fiscal
quarter set forth below to be less than the amount set forth opposite such
fiscal quarter:
Fiscal Quarter Ending Amount
--------------------- ------
June 30, 1998 $125.0 million
September 30, 1998 150.0 million
December 31, 1998 175.0 million
March 31, 1999 200.0 million
June 30, 1999 200.0 million
September 30, 1999 210.0 million
December 31, 1999 210.0 million
March 31, 2000 220.0 million
June 30, 2000 230.0 million
-57-
64
September 30, 2000 240.0 million
Thereafter 250.0 million
8.13 MINIMUM INTEREST COVERAGE. WLI will not permit the ratio
of (x) Consolidated EBITA to (y) Consolidated Adjusted Interest Expense for any
Test Period ending on the last day of any fiscal quarter set forth below to be
less than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1998 and March 31, 1999 3.5 to 1.0
June 30, 1999 and September 30, 1999 4.0 to 1.0
December 31, 1999 and March 31, 2000 4.5 to 1.0
June 30, 2000 to March 31, 2001 5.0 to 1.0
Thereafter 6.0 to 1.0
8.14 MINIMUM CONSOLIDATED NET WORTH. WLI will not permit
Consolidated Net Worth at any time to be less than the Minimum Net Worth Amount.
8.15 LIMITATION ON ISSUANCE OF STOCK. WLI will not permit any
Subsidiary, directly or indirectly, to issue any shares of its capital stock or
other equity securities (or warrants, rights or options to acquire shares or
other equity securities), except, to the extent permitted by Section 8.06, to
any Designated Party or to qualify directors if required by applicable law.
8.16 CREATION OF SUBSIDIARIES. WLI will not permit (i) any
Material Subsidiary to be created or acquired after the Closing Date unless such
Person is a Wholly- Owned Subsidiary and (ii) any Subsidiary that is not a
Material Subsidiary to have gross revenues in any fiscal year of WLI of $50
million (or the equivalent) or more unless such Subsidiary becomes a
Wholly-Owned Subsidiary by the date of the relevant Material Subsidiary
Determination.
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each, an "Event of Default"):
9.01 PAYMENTS. Any Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
-58-
65
9.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Designated Party herein or in any other Credit Document or
in any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
9.03 COVENANTS. Any Designated Party shall (a) default in the
due performance or observance by it of any term, covenant or agreement contained
in Section 7.10, 7.12 or 8, or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
Section 9.01, 9.02 or clause (a) of this Section 9.03) contained in this
Agreement and such default shall continue unremedied for a period of at least 30
days after written notice to the defaulting party by the Administrative Agent or
the Required Lenders; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) WLI or any of its
Material Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond any originally applicable
period of grace, if any, applicable thereto or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause any such Indebtedness to become due prior to its stated
maturity; or (b) any such Indebtedness of WLI or any of its Material
Subsidiaries shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, PROVIDED that it shall not constitute an Event of Default
pursuant to this Section 9.04 unless the aggregate amount of all Indebtedness
referred to in clauses (a) and (b) above exceeds $5 million (or the equivalent
thereof) at any one time; or
9.05 BANKRUPTCY, ETC. WLI or any of its Material Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy", as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against WLI or any of its Material Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
WLI or any of its Material Subsidiaries; or WLI or any of its Material
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to WLI or any of its Subsidiaries; or there is commenced against
WLI or any of its Material Subsidiaries any such proceeding which remains
undismissed for a period of 60 days; or WLI or any of its Material Subsidiaries
is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; WLI or any of its Material
-59-
66
Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or WLI or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by WLI
or any of its Material Subsidiaries for the purpose of effecting any of the
foregoing (provided that none of the foregoing, as they affect a Material
Subsidiary that is a Foreign Subsidiary but not a Guarantor, shall constitute an
Event of Default to the extent waived by the Agents); or any event similar to
any of the foregoing shall occur under the law of any other jurisdiction
relating to WLI or any of its Material Subsidiaries; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412
of the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) or ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirements of PBGC Regulation 4043.61 (without regard to subparagraph (b)(1)
thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or
.68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with
respect to such Plan within the following 30 days, any Plan which is subject to
Title IV of ERISA shall have had or is likely to have a trustee appointed to
administer such Plan, any Plan which is subject to Title IV of ERISA is, shall
have been or is likely to be terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made by WLI, any Subsidiary or any ERISA Affiliate
with respect to a Plan, a Multiemployer Plan or a Foreign Pension Plan has not
been timely made, WLI or any Subsidiary of WLI or any ERISA Affiliate has
incurred or is likely to incur any liability to or on account of a Plan or
Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or WLI or
any Subsidiary of WLI has incurred or is likely to incur liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA)
that provide benefits to retired employees or other former employees (other than
as required by Section 601 of ERISA) or Plans or Multiemployer Plans or Foreign
Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, in the reasonable opinion of
the Required Lenders, has had, or is reasonably likely to have, a Material
Adverse Effect; or
9.07 SECURITY DOCUMENTS. (a) Any Security Document shall cease
to be in full force and effect, or shall cease to give the Collateral Agent the
material Liens, rights, powers and privileges purported to be created thereby in
favor of the Collateral Agent, or (b) any Designated Party shall default in the
due performance or observance of any term, covenant or
-60-
67
agreement on its part to be performed or observed pursuant to any such Security
Document and such default shall continue unremedied for a period of at least 30
days after written notice to the defaulting party by the Collateral Agent; or
9.08 GUARANTIES. The Guaranties or any provision thereof shall
cease to be in full force and effect, or any Guarantor or any Person acting by
or on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
9.09 JUDGMENTS. One or more judgments or decrees shall be
entered against WLI or any of its Material Subsidiaries involving a liability of
$5 million (or the equivalent thereof) or more in the aggregate for all such
judgments and decrees for WLI and its Material Subsidiaries (not paid or to the
extent not covered by insurance) and any such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60 days
from the entry thereof; or
9.10 FULL UTILIZATION DATE. The Full Utilization Date shall
not have occurred on or prior to the date 45 days after the Closing Date and the
Administrative Agent shall, upon the written request of the Required Lenders,
have delivered to WLI written notice that same shall constitute an Event of
Default;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to WLI, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent or any Lender to enforce its claims against any Guarantor or WLI, except
as otherwise specifically provided for in this Agreement (provided that, if an
Event of Default specified in Section 9.05 shall occur with respect to WLI, the
result which would occur upon the giving of written notice by the Administrative
Agent as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon the Commitment of each Lender shall forthwith terminate
immediately and any Commitment Fees shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Loans and all obligations owing hereunder
(including Unpaid Drawings) and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower; (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the Security
Documents; (iv) terminate any Letter of Credit which may be terminated in
accordance with its terms; and (v) direct each Borrower to pay (and each
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 9.05 in respect of such Borrower, it
will pay) to the Collateral Agent at the appropriate Payment Office such
-61-
68
additional amounts of cash, to be held as security for such Borrower's
reimbursement obligations in respect of Letters of Credit then outstanding equal
to the aggregate Stated Amount of all Letters of Credit of such Borrower then
outstanding.
SECTION 10. DEFINITIONS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acceleration Event" shall have the meaning provided in
Section 12.20.
"Acquired Businesses" shall mean the information technology
solutions and services businesses of Olivetti Solutions S.p.A. and its
subsidiaries, Olivetti Corporation of Japan and Olsy do Brasil Ltda. being
acquired pursuant to the Acquisition Agreement.
"Acquisition" shall mean the acquisition by WLI and its
Subsidiaries of the Acquired Businesses in accordance with the Acquisition
Documents.
"Acquisition Agreement" shall mean the Stock Purchase
Agreement dated as of February 28, 1998 among the Sellers, WLI and EU Holdco.
"Acquisition Documents" shall mean the Acquisition Agreement
and all other material agreements relating to the Acquisition (including the
Deferred Payment Agreement and the SARs) as in effect on the Closing Date and as
the same may be supplemented, amended or modified from time to time in
accordance with the terms hereof and thereof.
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the
-62-
69
Administrative Agent to the Federal Deposit Insurance Corporation for insuring
three-month certificates of deposit.
"Adjusted Total MCF Commitment" shall mean at any time the
Total MCF Commitment less the aggregate MCF Commitments of all Defaulting
Lenders.
"Adjusted Total USF Commitment" shall mean at any time the
Total USF Commitment less the aggregate USF Commitments of all Defaulting
Lenders.
"Administrative Agent" shall mean Bankers Trust Company and
shall include any successor to the Administrative Agent appointed pursuant to
Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent, the Syndication
Agent and the Documentation Agent.
"Agreement" shall mean this Credit Agreement, as the same may
be from time to time further modified, amended and/or supplemented.
"Alternate Currency" shall mean each Approved Currency other
than Dollars.
"Alternate Currency Loan" shall mean any Loan denominated in
an Alternate Currency.
"Applicable CF Percentage" shall mean .50%, provided that at
any time the Applicable Margin then in effect for Eurodollar Loans is 0.75%, the
Applicable CF Percentage shall instead be .375%.
"Applicable Margin" shall mean the applicable percentage set
forth below based upon the Level then in effect:
-00-
00
Xxxxx XXXXX Base Rate
----- ----- ---------
Level I 1.50% 0.50%
Level II 1.25% 0.25%
Level III 1.00% 0.00%
Level IV 0.75% 0.00%
The Leverage Ratio utilized in connection with any determination of the
foregoing Levels and the related Applicable Margins shall be determined for each
Relevant Test Period by delivery of an officer's certificate of WLI to the
Lenders pursuant to Section 7.01(e), which certificate shall set forth the
calculation of the Leverage Ratio. The Level and Applicable Margin so determined
shall apply, except as set forth below, from the date on which such officer's
certificate is delivered to the Administrative Agent to the earlier of (x) the
date on which the next certificate is delivered to the Administrative Agent
pursuant to Section 7.01(e) and (y) the 45th day following the end of the fiscal
quarter in which such first certificate was delivered to the Administrative
Agent (or 90 days if such fiscal quarter was the last fiscal quarter of a fiscal
year). Notwithstanding anything to the contrary contained above, the Applicable
Margins in effect, (w) until an officer's certificate is delivered under Section
7.01(e) in respect of the fiscal quarter ending September 30, 1998, shall be
based on Level I pricing, (x) shall be based upon Level I pricing if no
officer's certificate which sets forth the Leverage Ratio for the Relevant Test
Period has been delivered to the Lenders pursuant to Section 7.01(e) within the
time period specified therein or the financial statements upon which any such
calculations are based have not been delivered, until such a certificate and/or
financial statements are delivered and (y) shall be based upon Level I pricing
at all times when there shall exist a Default under Section 9.01 or an Event of
Default.
"Approved Currency" shall mean each of Dollars, Deutsche
Marks, Euros, Pounds Sterling, French Francs, Italian Lira, Japanese Yen,
Spanish Pesetas, Danish Krone, Belgian Francs, Dutch Guilder and any other
freely transferable currency requested by WLI and acceptable to the MCF Lenders
and the Administrative Agent.
"Approved Currency Equivalent" shall mean the Dollar
Equivalent, the Deutsche Xxxx Equivalent, the Euro Equivalent, the Sterling
Equivalent, French Franc Equivalent, the Italian Lira Equivalent, Japanese Yen
Equivalent, Spanish Pesetas Equivalent, Danish Krone Equivalent or Dutch Guilder
Equivalent or the comparable equivalent of any other Alternate Currency, as the
case may be.
"Asset Sale" shall mean and include (x) the sale, transfer or
other disposition by WLI or any Subsidiary of any of their assets (including,
without limitation, in the case of any Subsidiary of WLI, any issuance of equity
by each Subsidiary) to any Person other than any Designated Party (other than
(i) sales, transfers or other dispositions in the ordinary course of business of
inventory or worn-out, unuseful, obsolete or excess equipment and (ii) other
-64-
71
sales that generate in the aggregate less than $1,000,000 (or the equivalent) of
proceeds in any calendar year) and (y) the receipt of casualty insurance and/or
condemnation proceeds, in each case in excess of $5,000,000 (or the equivalent)
and not utilized to repair or replace the asset damaged or condemned.
"Assignment Agreement" shall mean the Assignment Agreement in
the form of Exhibit L (appropriately completed).
"Associated Cost Rate" shall mean, with respect to each
Interest Period for Pounds Sterling-denominated MCF Loans, the costs (expressed
as a percentage rounded up to the nearest four decimal places and as determined
on the first day of such Interest Period and any three month anniversary thereof
by the Administrative Agent) of compliance with then existing requirements of
the Bank of England in respect of MCF Loans denominated in Pounds Sterling.
"Authorized Officer" shall mean any senior officer of any
Borrower designated as such in writing to the Administrative Agent by such
Borrower.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" shall mean, at any time, the highest of (i) the
rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate, (ii) the
Prime Lending Rate and (iii) 1/2 of 1% in excess of the Adjusted Certificate of
Deposit Rate.
"Base Rate Loan" shall mean (x) each USF Loan that is not a
Eurodollar Loan and (y) each Swingline Loan.
"Belgian Franc Equivalent" shall mean, at any time for the
determination thereof, the amount of Belgian Francs which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Belgian Franc LIBOR" shall mean, for each Interest Period
applicable to any MCF Loan denominated in Belgian Francs, the rate per annum
that appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor
page) for Belgian Franc deposits with maturities comparable to such Interest
Period as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period or, if such a rate does not
appear on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page),
the average of the offered quotations to first-class banks in the London
interbank market by each Reference Bank that reports same to the Administrative
Agent for Belgian Franc deposits of amounts in same day funds comparable to the
outstanding principal amount of such MCF
-65-
72
Loan with maturities comparable to such Interest Period determined as of 11:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period.
"Belgian Francs" shall mean freely transferable lawful money
of Belgium.
"Borrowers" shall mean and include WLI, EU Holdco and Italian
Borrower.
"Borrowing" shall mean the incurrence of (i) Lira Loans from
the Lira Lender, (ii) USF Loans that are Base Rate Loans on a PRO RATA basis
from all of the USF Lenders, (iii) Eurodollar Loans on a PRO RATA basis from all
USF Lenders and (iv) MCF Loans of a single Approved Currency by a Borrower on a
PRO RATA basis from all of MCF Lenders, in each case on a given date (or
resulting from conversions on a given date), having in the case of Eurodollar
Loans or MCF Loans the same Interest Period provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day excluding Saturday, Sunday and
any day which shall be in the City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to
close, (ii) (except as provided in clause (iii) below) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Loans, MCF Loans and/or MCF Letters of Credit (and
Unpaid Drawings thereunder), any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks in the London
interbank Eurodollar market and, with respect to any notices or determinations
in respect of Euros, which is customarily a "Business Day" for such notices or
determinations and (iii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, any Lira Loan and/or
a MCF Letter of Credit issued for the account of the Italian Borrower (and
Unpaid Drawings thereunder), any day which is a Business Day described in clause
(i) and (ii) above and which shall not be a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close in Milan, Italy.
"Capital Lease" as applied to any Person shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrowers or any of their respective Subsidiaries in
each case taken at the
-66-
73
amount thereof accounted for as liabilities in conformity with GAAP provided
that Customer Associated Leases shall not constitute Capitalized Lease
Obligations.
"Cash Equivalents" shall mean (i) securities (I) issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) and (II) issued by
such non-U.S. governmental entities as are acceptable to the Agents and WLI, in
each case having maturities of not more than one year from the date of
acquisition, (ii) time deposits, certificates of deposit and bankers'
acceptances denominated in Dollars, and such other Approved Currencies as are
acceptable to the Agents and WLI of (x) any Lender or (y) any bank (or the
parent company of such bank) whose short-term commercial paper rating from
Standard & Poor's Ratings Services, a division of XxXxxx- Xxxx, Inc. ("S&P") is
at least A-1 or the equivalent thereof or from Xxxxx'x Investors Service, Inc.
("Xxxxx'x") is at least P-1 or the equivalent thereof (any such bank, an
"Approved Bank"), in each case with maturities of not more than one year from
the date of acquisition, (iii) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper issued by any Lender or Approved Bank or by
the parent company of any Lender or Approved Bank and commercial paper issued
by, or guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Moody's (any such company, an "Approved
Company"), or guaranteed by any industrial company with a long term unsecured
debt rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing within one year after the
date of acquisition, (v) investments in money market funds substantially all of
whose assets are comprised of securities of the type described in clauses (i)
through (iv) above and (vi) overnight and/or demand deposits in the respective
local currencies maintained by a Foreign Subsidiary.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset Sale,
other than the portion of such deferred payment constituting interest, but only
as and when so received) received by the WLI and/or any Subsidiary from such
Asset Sale.
"Change of Control" shall mean an occurrence whereby (i) any
person or group (as such terms are used in sections 13(d) and 14(d) of the
Exchange Act) becomes the "beneficial owner" (as defined in rule 13d-3 of the
Exchange Act), directly or indirectly, of securities of WLI representing 40% or
more of the combined voting power of WLI's then outstanding securities; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors, and any new director whose
election by WLI's Board of Directors or nomination for election by WLI's
shareholders was
-67-
74
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, (iii) the shareholders of WLI approve a plan of
complete liquidation of WLI or an agreement for the sale or disposition by WLI
of all of substantially all of the WLI's assets or (iv) any "Change of Control"
or similar term as defined in any other agreement evidencing or governing
Indebtedness of WLI or any Subsidiary in an amount of $20 million or more (or
the equivalent).
"Closing Date" shall mean the date upon which the Acquisition
is consummated (or if the Acquired Businesses are to be acquired on more than
one date, upon which the Italian Acquired Business is consummated)
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in,
and/or all the properties subject to the Lien created under, each of the
Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Lenders.
"Commitment" shall mean, with respect to each Lender, such
Lender's USF Commitment and MCF Commitment.
"Commitment Fees" shall mean and include the USF Commitment
Fee and the MCF Commitment Fee.
"Company" shall mean any corporation, limited liability
company, partner ship or other business entity (or the adjectival form thereof,
where appropriate).
"Consolidated Adjusted Interest Expense" shall mean, for any
period, the sum of (i) Consolidated Interest Expense for such period plus (ii)
cash dividends payable on the WLI Preferred during such period.
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases but excluding any amount representing capitalized interest
or payable under Customer Associated Leases) by WLI and its Subsidiaries during
that period that, in conformity with GAAP, are or are required to be
-68-
75
included in the property, plant or equipment reflected in the consolidated
balance sheet of WLI and its Subsidiaries, including in any event for spare
parts, provided that Consolidated Capital Expenditures shall in any event (x)
exclude the purchase price paid in cash in connection with any Permitted
Acquisition including any portion thereof allocable to property, plant and
equipment, (y) only include the amount thereof actually paid in cash during such
period and (z) exclude amounts expended with casualty insurance or condemnation
proceeds.
"Consolidated Current Assets" shall mean, as to any Person at
any time, the current assets (other than, to the extent otherwise included
therein, cash, Cash Equivalents and receivables relating to Customer Associated
Leases) of such Person and its Subsidiaries determined on a consolidated basis
in conformity with GAAP.
"Consolidated Current Liabilities" shall mean, as to any
Person at any time, the current liabilities of such Person and its Subsidiaries
determined on a consolidated basis in conformity with GAAP, but excluding, to
the extent otherwise included therein, all Loans, all restructuring and
integration costs and the short-term portion of Customer Associated Leases.
"Consolidated Debt" shall mean, as of any date of
determination (I) the aggregate stated balance sheet amount of all Indebtedness
(excluding any amounts owing under Customer Associated Leases and Permitted
Training Advances) of WLI and its Subsidiaries on a consolidated basis as
determined in conformity with GAAP plus any Indebtedness for borrowed money of
any other Person as to which WLI and/or any of its Subsidiaries has created a
guarantee or other Contingent Obligation, with the then Dollar Equivalent of all
such indebtedness denominated other than in Dollars to be used in any
determination of Consolidated Debt less (if a positive number) (II) the excess
of the aggregate of all cash on such consolidated balance sheet over $100
million.
"Consolidated EBIT" shall mean, for any period, (A) the sum of
the amounts for such period of (i) Consolidated Net Income, (ii) provisions for
taxes based on income, (iii) Consolidated Interest Expense, (iv) amortization or
write-off of deferred financing costs to the extent deducted in determining
Consolidated Net Income and (v) losses on sales of assets (excluding sales in
the ordinary course of business) and other extraordinary losses LESS (B) the
amount for such period of gains on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary gains, all as determined on
a consolidated basis in conformity with GAAP.
"Consolidated EBITA" shall mean, for any period, the sum of
the amounts for such period of (i) Consolidated EBIT and (ii) amortization
expense, all as determined on a consolidated basis in conformity with GAAP.
-69-
76
"Consolidated EBITDA" shall mean, for any period, the sum of
the amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense
and (iii) amortization expense, all as determined on a consolidated basis in
conformity with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases in
conformity with GAAP) of WLI and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of WLI and its Subsidiaries, including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and net
costs under Interest Rate Agreements and Other Hedging Arrangements, but
excluding (x) amortization of deferred financing costs incurred in connection
with this Agreement, (y) interest expense on Customer Associated Leases and (z)
imputed noncash interest on Permitted Training Advances.
"Consolidated Net Income" shall mean for any period, the net
income (or loss) of WLI and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP,
PROVIDED that there shall be excluded (i) the income (or loss) of any Person
(other than Material Subsidiaries) in which any other Person (other than WLI or
any of its Material Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to WLI or any of
its Material Subsidiaries by such Person during such period, (ii) except for
determinations of Consolidated Net Income to be made on a PRO FORMA basis in
connection with a Permitted Acquisition pursuant to Section 8.02(g), the income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of WLI
or is merged into or consolidated with WLI or any of its Subsidiaries or that
Person's assets are acquired by WLI or any of its Subsidiaries, (iii) the income
of any Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary, (iv) one time costs and expenses relating to the Transaction
and (v) all restructuring and integration related costs and expenses resulting
from the Transaction.
"Consolidated Net Worth" shall mean, at any time for the
determination thereof, all amounts which, in conformity with GAAP, would be
included under the caption "Total Shareholders' Equity" (or any like caption) on
a consolidated balance sheet of WLI and its Subsidiaries as of such date
provided that the WLI Preferred shall be included in Consolidated Net Worth
whether or not otherwise included pursuant to the foregoing.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contin-
-70-
77
gent, (a) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof,
provided that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if such primary obligation is not stated
or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Convertible Instruments" shall mean the Intercompany
Convertible Instruments outstanding on the Closing Date and without any
amendment or modification thereof, or transfer by any Subsidiary holding same,
not consented to by the Agents.
"Credit Documents" shall mean this Agreement, the Notes, the
Security Documents, the Guaranties, the EU Intercompany Notes and the WLI
Intercompany Notes.
"Credit Event" shall mean and include the making of a Loan or
the issuance of a Letter of Credit.
"Customer Associated Leases" shall mean leases entered into by
WLI and its Subsidiaries of equipment or other tangible or intangible assets to
be made available to customers to the extent that the lease costs thereunder are
reimbursed to WLI and its Subsidiaries by such customers (pursuant to a single
transaction or series of transactions), with such leases to be treated for all
purposes of this Agreement as if they were operating leases.
"Danish Krone Equivalent" shall mean, at any time for the
determination thereof, the amount of Danish Krone which could be purchased with
the amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Danish Krone LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Danish Krones, the average of the
offered quotations to first-class banks in the London interbank market by each
Reference Bank that reports same to the Administrative Agent for Danish Krone
deposits of amounts in same day funds comparable to the outstanding principal
amount of such MCF Loan with maturities comparable to such
-71-
78
Interest Period determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period.
"Danish Krone" shall mean freely transferable lawful money of
Denmark.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Deferred Payment Agreement" shall mean the agreement
deferring a portion of the purchase price of the Acquisition equal to 1,500,000
shares of WLI until December 25, 1998, at which time, if such shares are not
paid to the Sellers, the cash value of such shares must be paid by WLI to the
Sellers, as in effect on the Closing Date and as the same may be subsequently
amended, modified or supplemented in accordance with the terms thereof and
hereof.
"Designated Party" shall mean each Guarantor and each other
Material Subsidiary.
"Deutsche Xxxx Equivalent" shall mean, at any time for the
determination thereof, the amount of Deutsche Marks which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Deutsche Xxxx LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Deutsche Marks, the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for Deutsche Xxxx deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
each Reference Bank that reports same to the Administrative Agent for Deutsche
Xxxx deposits of amounts in same day funds comparable to the outstanding
principal amount of such MCF Loan with maturities comparable to such Interest
Period determined as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period.
"Deutsche Marks" shall mean freely transferable lawful money
of Germany.
-72-
79
"Dividends" shall have the meaning provided in Section 8.08.
"Documentation Agent" shall mean Xxxxxx Commercial Paper Inc.
"Dollar Equivalent" shall mean, at any time for the
determination thereof, the amount of Dollars which could be purchased with the
amount of the relevant Alternate Currency involved in such computation at the
spot exchange rate therefor as quoted by the Administrative Agent as of 11:00
A.M. (London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Credit Party" shall mean WLI and each Domestic
Subsidiary party to the U.S. Guaranty.
"Domestic Subsidiary" shall mean each Subsidiary of WLI that
is incorporated or formed under the laws of the United States of America or any
state thereof or the District of Columbia.
"Dutch Guilder Equivalent" shall mean, at any time for the
determination thereof, the amount of Dutch Guilders which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Dutch Guilder LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Dutch Guilders, the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for Dutch Guilder deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
each Reference Bank that reports same to the Administrative Agent for Dutch
Guilder deposits of amounts in same day funds comparable to the outstanding
principal amount of such MCF Loan with maturities comparable to such Interest
Period determined as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period.
"Dutch Guilders" shall mean freely transferable lawful money
of the Netherlands.
-73-
80
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other institutional "accredited investor" as
defined in Regulation D of the Securities Act.
"EMU Legislation" shall mean the legislative measures of the
European Council for the introduction of, changeover to or operation of a single
or unified European currency.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by WLI or any of its Subsidiaries solely in the ordinary course
of such Person's business and not in response to any third party action or
request of any kind) or proceedings relating in any way to any Environmental Law
or any permit issued, or any approval given, under any such Environmental Law
(hereafter, "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with alleged injury or threat of injury to
health, safety or the environment due to the presence of Hazardous Materials.
"Environmental Law" means any applicable U.S. Federal, state
or local or any foreign statute, law, rule, regulation, ordinance, code and rule
of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative decision, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials.
"Equity Issuance" shall mean WLI's issuance of its common
equity, and granting of stock appreciation rights (the "SARs") in respect of its
common equity, as part of the aggregate purchase price for the Acquisition.
"Equity Issuance Documents" shall mean all of the agreements
governing, or relating to, the Equity Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued there under. Section references to ERISA are to ERISA, as in
effect as of the Effective Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
-74-
81
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with WLI or a Subsidiary would be deemed
to be a "single employer" (i) within the meaning of Sections 414(b), (c), (m)
and (o) of the Code or (ii) as a result of WLI or a Subsidiary being or having
been a general partner of such person.
"EU Holdco" shall mean Wang Nederland B.V., a Dutch company.
"EU Holdco Security Documents" shall have the meaning provided
in Section 5.01(k)(III).
"EU Intercompany Notes" shall mean the promissory notes in
form and substance satisfactory to the Agents evidencing intercompany advances
made by EU Holdco to its various Subsidiaries provided that, in the case of any
such note issued by a Material Subsidiary after the Full Utilization Date (x)
the Administrative Agent shall have received an opinion in form and substance,
and from counsel, satisfactory to the Administrative Agent as to the due
authorization, execution and enforceability thereof and (y) such note shall be
secured pursuant to appropriate Foreign Security Documents, unless waived by the
Agents.
"Euro" shall mean the single currency of participating member
states of the European Union.
"Euro Equivalent" shall mean, at any time for the
determination thereof, the amount of Euros which could be purchased with the
amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Euro LIBOR" shall mean, for each Interest Period applicable
to an MCF Loan denominated in Euros, the rate per annum that appears on the
appropriate page of the Dow Xxxxx Telerate Screen (or any successor page) for
Euro deposits with maturities comparable to such Interest Period as of 11:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on the
Dow Xxxxx Telerate Screen (or any successor page), the average of the offered
quotations to first-class banks in the London interbank market by each Reference
Bank that reports same to the Administrative Agent for Euro deposits of amounts
in same day funds comparable to the outstanding principal amount of such MCF
Loan with maturities comparable to such Interest Period determined as of 11:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Loan" shall mean each USF Loan that at the
election of WLI is bearing interest by reference to US LIBOR.
-75-
82
"Event of Default" shall have the meaning provided in Section
9.
"Excess Deferred Payment" shall mean the aggregate cash
payments made by WLI in excess of $50 million pursuant to the Deferred Payment
Agreement.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
"Excluded Asset Sale" shall mean each Asset Sale consummated
after the Closing Date other than (i) the proposed asset dispositions listed on
Annex V hereto, (ii) Asset Sales in any fiscal year to the extent that the
aggregate Net Proceeds resulting therefrom do not exceed $50 million (or the
equivalent) (plus the amount, if any, by which the Net Proceeds of all Asset
Sales during the previous fiscal year were less than $50 million (or the
equivalent)) provided that the Net Proceeds of all Asset Sales provided for in
this clause (ii) shall not exceed $150 million in the aggregate and (iii) any
Asset Sale, in whole or in part, to the extent that after giving effect thereto
the ratio of the Total Commitment to Consolidated EBITDA for the four quarters
then last ended (determined on a PRO FORMA basis as if such Asset Sale had been
consummated on the first day of such four quarter period) is less than 2.0 to
1.0 (provided that if the application of only a portion of the Net Proceeds of
any such Asset Sale to reduce the Total Commitment would result in such ratio
being 2.0 to 1.0 or less then the portion of such Asset Sale generating the
remaining Net Proceeds shall not constitute an Excluded Asset Sale).
"Existing Indebtedness" shall have the meaning provided in
Section 6.19.
"Existing Letters of Credit" shall mean each letter of credit
outstanding on the Closing Date that is (x) issued by BTCo, (y) to remain
outstanding after the Closing Date and (z) listed on Annex VI, Part II.
"Facility" shall mean any of the credit facilities established
under this Agreement, I.E., the US Facility or the MC Facility.
"Facing Fee" shall have the meaning provided in Section
3.01(d).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to 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, 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 the Administrative Agent.
-76-
83
"Fees" shall mean all amounts payable pursuant to, or referred
to in, Section 3.01.
"Final Maturity Date" shall mean the fifth anniversary of the
Closing Date.
"Foreign Borrower" shall mean EU Holdco and the Italian
Borrower.
"Foreign Guaranties" shall have the meaning provided in
Section 5.02(d).
"Foreign Security Documents" shall have the meaning provided
in Section 5.02(e).
"Foreign Subsidiary" shall mean each Subsidiary of WLI that is
not a Domestic Subsidiary.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by WLI or any one
or more of its Subsidiaries primarily for the benefit of employees of WLI or
such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"French Franc Equivalent" shall mean, at any time for the
determination thereof, the amount of French Francs which could be purchased with
the amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"French Franc LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in French Francs, the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for French Franc deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
such Reference Bank that reports same to the Administrative Agent for French
Franc deposits of amounts in same day funds comparable to the outstanding
principal amount of such MCF Loan with maturities comparable to such Interest
Period as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period.
"French Francs" shall mean freely transferable lawful money of
France.
-77-
84
"Full Utilization Date" shall mean the date on which all the
conditions specified in Section 5.02 are first satisfied.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the date of this Agreement; it
being understood and agreed that determinations in conformity with GAAP for
purposes of Section 8, including defined terms as used therein, are subject (to
the extent provided therein) to Section 12.07(a).
"Guaranteed Creditors" shall mean and include each of the
Agents, the Collateral Agent and the Lenders.
"Guaranteed Obligations" shall mean the principal and interest
on each Note issued by each Foreign Borrower, and Loans made to each Foreign
Borrower, under this Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit issued for the account of a Foreign
Borrower, together with all the other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities (including, without limitation, indemnities, fees
and interest thereon) of each Foreign Borrower to any Lender or any Agent and/or
the Collateral Agent now existing or hereafter incurred under, arising out of or
in connection with this Agreement or any other Credit Document and the due
performance and compliance with all the terms, conditions and agreements
contained in the Credit Documents by each Foreign Borrower.
"Guarantor" shall mean, at any time, each Designated Party
that has executed, or is then executing a Guaranty.
"Guaranty" shall mean and include the guaranty of WLI set
forth in Section 13, the US Guaranty, each Foreign Guaranty and any counterpart
of the foregoing guaranties executed and delivered after the Closing Date.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radio active materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or sub stances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants" or "pollutants"
under any applicable Environmental Law.
"Immaterial Subsidiary" shall mean any Domestic Subsidiary
that has annual revenues of less than $100,000 and a book value for all its
assets of less than $100,000.
-78-
85
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebted ness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services which in conformity with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a
second Person secured by any Lien on any property owned by such first Person,
whether or not such indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vii) all net obligations
of such Person under Interest Rate Agreements and Other Hedging Arrangements and
(viii) all Contingent Obligations of such Person (other than Contingent
Obligations arising from the guaranty by such Person of the obligations of WLI
and/or its Subsidiaries to the extent such guaranteed obligations do not
constitute Indebtedness and are otherwise not prohibited hereunder), provided
that Indebtedness shall not include trade payables and accrued expenses, in each
case arising in the ordinary course of business and all lease obligations under
Customer Associated Leases.
"Interest Period" with respect to any Eurodollar Loan or MCF
Loan shall mean the interest period applicable thereto, as determined pursuant
to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to protect any Person against
fluctuations in interest rates.
"Italian Borrower" shall mean Olivetti Solutions SpA, an
Italian company.
"Italian Lira Equivalent" shall mean, at any time for the
determination thereof, the amount of Italian Liras which could be purchased with
the amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Italian Lira LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Italian Liras, the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for Italian Lira deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
Reference Banks that report same to the Administrative Agent for Italian Lira
deposits of amounts in same day funds comparable to the outstanding principal
amount of such MCF Loan with
-79-
86
maturities comparable to such Interest Period determined as of 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period.
"Italian Liras" shall mean freely transferable lawful money of
Italy.
"Japan Subsidiary" shall mean Olivetti Corp. Japan.
"Japanese Yen" shall mean freely transferable lawful money of
Japan.
"Japanese Yen Equivalent" shall mean, at any time for the
determination thereof, the amount of Japanese Yen which could be purchased with
the amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Japanese Yen LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Japanese Yen, the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for Japanese Yen deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
Reference Banks that report same to the Administrative Agent for Japanese Yen
deposits of amounts in same day funds comparable to the outstanding principal
amount of such MCF Loan with maturities comparable to such Interest Period
determined as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period.
"Judgment Currency" shall have the meaning provided in Section
12.17(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 12.17(a).
"L/C Allocation Basis" shall have the meaning provided in
Section 12.20.
"Xxxxxx" shall mean Xxxxxx Commercial Paper Inc.
"Lender" shall have the meaning provided in the first
paragraph of this Agreement.
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any incurrence of
Loans or to fund its portion of any unreimbursed payment under Section 2.05(c)
or (ii) a Lender having notified the
-80-
87
Administrative Agent and/or any Borrower that it does not intend to comply with
its obligations under Section 1.01 or under Section 2.05(c), in the case of
either clause (i) or (ii) as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"Lender Register" shall have the meaning provided in Section
12.16.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Issuer" shall mean BTCo or NatWest (MCF
Letters of Credit only), as requested by WLI with respect to any particular
Letter of Credit.
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (x) the USF Letter of Credit Outstandings and (ii) the MCF Letter of
Credit Outstandings, in each case at such time.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Level" shall mean and include Level I, Level II, Level III or
Level IV, whichever is then in effect.
"Level I" shall exist at any time that the Leverage Ratio for
the Relevant Test Period is equal to or greater than 2.00:1.0.
"Level II" shall exist at any time that the Leverage Ratio for
the Relevant Test Period is less than 2.00:1.0 and greater than or equal to
1.50:1.0.
"Level III" shall exist at any time that the Total Leverage
Ratio for the Relevant Test Period is less than 1.50:1.0 and greater than or
equal to 1.00:1.0.
"Level IV" shall exist at any time the Total Leverage Ratio
for the Relevant Test Period is less than 1.00:1.0.
"Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Debt on such date to Consolidated EBITDA for the Test
Period ending on such date (or most recently ended).
"LIBOR" shall mean (i) any Borrowing of Eurodollar Loans, the
US LIBOR Rate determined with respect thereto and (ii) any Borrowing of MCF
Loans of an Approved Currency, the relevant interest rate, I.E., U.S. LIBOR,
Deutsche Xxxx LIBOR, Euro LIBOR,
-81-
88
Sterling LIBOR, French Franc LIBOR, Italian Lira LIBOR, Japanese Yen LIBOR,
Spanish Peseta LIBOR, Danish Krone LIBOR, Belgian Franc LIBOR, Dutch Guilder
LIBOR and such rate per annum as may be agreed upon by the respective Borrower
and the MCF Lenders, as the case may be, for any other Approved Currency.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Lira Lender" shall mean Bankers Trust International Plc
(which shall become party to this Agreement by executing a counterpart hereof in
the space provided below on or prior to the Full Utilization Date) or such other
Lender acceptable to the Agents that agrees with WLI to become the Lira Lender
hereunder, it being understood that the Lira Lender shall be a Lender for all
purposes of this Agreement.
"Lira Loan" shall mean each MCF Loan denominated in Italian
Lira that is made on and after the Full Utilization Date, all of which MCF Loans
may only be made to the Italian Borrower, provided that the aggregate Principal
Amount of outstanding Lira Loans shall not exceed at any time $100 million (or
such greater amount not in excess of $200 million as is agreed to by the Lira
Lender).
"Lira Note" shall have the meaning provided in Section
1.05(a).
"LL Fee" shall have the meaning provided in Section 3.01(f).
"LL Portion" of any interest payment made in respect of a Lira
Loan shall mean the portion of such interest payment that would have been
payable had the interest rate for such Lira Loan been equal to the relevant
Italian Lira LIBOR.
"Loan" shall mean each MCF Loan, each USF Loan and each
Swingline Loan.
"Loan Allocation Basis" shall mean have the meaning provided
in Section 12.20.
"Local Time" shall mean the local time in effect at (x) the
applicable Notice Office (in the case of Notices of Borrowings, Notices of
Conversions and Letter of Credit Requests) and (y) the applicable Payment Office
in the case of all payments and disbursements of Loans or Letters of Credit.
"Margin Stock" shall have the meaning provided in
Regulation U.
-82-
89
"Material Adverse Effect" shall mean a material adverse effect
on the business, assets, liabilities, operations or condition (financial or
otherwise) of WLI and its Subsidiaries taken as a whole after giving effect to
the Acquisition.
"Material Subsidiary" shall mean (i) each Subsidiary listed on
Annex IV, Part I (which will include all Domestic Subsidiaries (other than
Immaterial Subsidiaries) in existence on the Closing Date), (ii) each newly
created Domestic Subsidiary, (iii) each Foreign Subsidiary first acquired after
the Closing Date to the extent that it had gross revenues for the last full 12
months prior to such acquisition of at least $50 million (or the equivalent),
(iv) each existing Subsidiary that becomes a Material Subsidiary as a result of
a Material Subsidiary Determination and (v) each other existing Wholly-Owned
Subsidiary that has been designated in writing by WLI to the Administrative
Agent as a Material Subsidiary.
"Material Subsidiary Determination" shall mean a
determination, made by WLI within the time parameters provided for in Section
7.12(b) and promptly conveyed in writing to the Administrative Agent, as to
whether any existing Subsidiary that was not theretofore a Material Subsidiary
had gross revenues for the 12 months ended as of the last day of the calendar
year last ended aggregating at least $50 million (or the equivalent), with any
Subsidiary having such revenues of at least $50 million (or the equivalent) to
become a Material Subsidiary on the date of such determination.
"Maximum Swingline Amount" shall mean the lesser of
$25,000,000 and the amount of the Total USF Commitment.
"MC Facility" shall mean the Facility evidenced by the Total
MC Commitment.
"MCF Borrowers" shall mean and include WLI, EU Holdco and
Italian Borrower.
"MCF Commitment" shall mean, with respect to each MCF Lender,
the amount set forth opposite such MCF Lender's name in Annex I hereto directly
below the column entitled "MCF Commitment," as the same may be reduced or
terminated from time to time pursuant to Section 3.02, 3.03 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 and/or 12.04.
"MCF Commitment Fee" shall have the meaning provided in
Section 3.01(b).
"MCF Lender" shall mean each Lender with a MCF Commitment or
that has outstanding MCF Loans.
-83-
90
"MCF Letter of Credit Outstandings" shall mean, at any time,
the sum of, without duplication, (i) the Dollar Equivalent of the Stated Amount
of all outstanding MCF Letters of Credit and (ii) the Dollar Equivalent of the
aggregate principal amount of all Unpaid Drawings in respect of all such MCF
Letters of Credit.
"MCF Letters of Credit" shall mean Letters of Credit issued
pursuant to the MC Facility.
"MCF Loan" shall have the meaning provided in Section 1.01(B).
"MCF Note" shall have the meaning provided in Section 1.05(a).
"MCF Obligations" shall mean any and all of the Obligations to
the extent arising under, or relating solely to, the MC Facility.
"MCF Percentage" shall mean, at any time, the percentage
obtained by dividing the Total MCF Commitment at such time by the Total
Commitment at such time.
"Minimum Borrowing Amount" shall mean for (i) Swingline Loans
$250,000, (ii) USF Loans that are (x) Base Rate Loans, $1,000,000 and (y)
Eurodollar Loans, $5,000,000, (iii) MCF Loans that are Dollar denominated,
$5,000,000 and (iv) Alternate Currency Loans, an amount in the respective
Alternate Currency having a Dollar Equivalent (determined at the time a Notice
of Borrowing is received or a prepayment made) of $5,000,000.
"Minimum Net Worth Amount" shall mean, at any time, the sum of
(x) $630,000,000 (as adjusted for purchase accounting adjustments after the
Closing Date and restructuring and integration related charges, in each case
related to the Acquisition, all as approved by the Agents in their reasonable
discretion) plus (y) (to the extent zero or positive) (i) 50% of an amount equal
to Consolidated Net Income less the aggregate amount of all cash dividends paid
in respect of WLI Preferred for the period (taken as one accounting period)
commencing on the first day of the fiscal quarter after which the Closing Date
occurs and ending on the last day of the fiscal quarter then last ended plus
(ii) 100% of the proceeds received by WLI from issuances of equity after the
Closing Date and (without duplication) any other increases in Consolidated Net
Worth after the Closing Date, not resulting from Consolidated Net Income.
"Multiemployer Plan" shall mean a plan within the meaning of
Section 4001(a)(3) of ERISA to which WLI, a Subsidiary or an ERISA Affiliate is
required to contribute.
"NatWest" shall mean National Westminster Bank Plc.
-84-
91
"Net Cash Payment" shall mean the portion of the total
purchase price to be paid in cash by WLI and its Subsidiaries in respect of the
Acquisition net of the free cash on hand of the Acquired Businesses on the
Closing Date and after giving effect to the Acquisition, which Net Cash Payment
shall not exceed 97 billion Italian Liras.
"Net Cash Proceeds" shall mean, with respect to any Asset
Sale, (x) the Cash Proceeds resulting therefrom net of (y) reasonable
transaction costs, the amount of such proceeds required to be used (and used) to
repay any Indebtedness (other than the Obligations) which is secured by the
respective assets which were sold, the amount of such proceeds that are in good
faith reserved for post-closing adjustments (it being understood and agreed that
on the day that all such post-closing adjustments have been determined
definitively, the amount (if any) by which the reserved amount in respect of
such asset sale exceeds the actual post-closing adjustments payable, shall
constitute proceeds on such date), and the estimated incremental taxes paid or
payable by WLI or any of its Subsidiaries as a result thereof (all the foregoing
costs and expenses in this clause (y), "Net Proceeds Deductions").
"Net Proceeds" shall mean, with respect to any Asset Sale, (x)
the proceeds resulting therefrom net of (y) the Net Proceeds Deductions for such
Asset Sale.
"Net Proceeds Deductions" shall have the meaning provided in
the definition of Net Cash Proceeds.
"NFG Investments" shall mean at any time the then aggregate
net amount of all investments in Foreign Subsidiaries that are not Guarantors
pursuant to Section 8.02(a)(VI) and 8.06 (f)(ii) determined for the purposes of
Section 8.02(a)(vi) by subtracting from the value of assets transferred
thereunder the amount of liabilities of the transferring party transferred with
such assets to the extent such liabilities cease under law to be liabilities of
the transferring party.
"Non-Defaulting Lender" shall mean each Lender other than a
Defaulting Lender.
"Note" shall mean and include each USF Note, each MCF Note,
the Lira Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean for all matters arising under (x)
the US Facility, the office of the Administrative Agent at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx and, (y) the MCF Facility, the office of the Administrative
Agent at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx
-85-
92
EC1A 2HE (Fax: 000-00000-000-0000) provided that with respect to Lira Loans, the
Notice Office shall be the offices of the Lira Lender in Milan, Italy as
specified by the Lira Lender to the Italian Borrower, or in any such case, such
other office as the Administrative Agent may designate to WLI from time to time.
"Obligation Currency" shall have the meaning provided in
Section 12.17(a).
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent, the Collateral Agent or any Lender pursuant
to the terms of this Agreement or any other Credit Document.
"Other Foreign Subsidiary" shall mean each Foreign Subsidiary
other than EU Holdco and each Subsidiary of EU Holdco.
"Other Hedging Arrangements" shall mean agreements or
arrangements designed to protect any Person against fluctuations in currency
rates or commodity prices other than any such agreement or arrangement entered
into in the ordinary course of business and not for speculative purposes.
"Participant" shall have the meaning provided in Section
2.05(a).
"Payment Office" shall mean (i) for all purposes other than as
specified in clause (ii) below, the office of the Administrative Agent at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and (ii) in the case of all payments on MCF
Loans the office of the Administrative Agent at 0 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxx XX0X 0XX (Fax: 000-00000-000-0000) provided that the Payment Office for
Lira Loans shall be the offices of the Italian Lender in Milan, Italy as
specified by the Lira Lender to the Italian Borrower, or in each case such other
office as the Administrative Agent may designate to WLI from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean for any Lender at any time (x) with
respect to the US Facility, the percentage obtained by dividing such Lender's
USF Commitment, if any, by the Total USF Commitment or if the Total USF
Commitment has been terminated, by dividing such Lender's USF Commitment, if
any, immediately prior to such termination by the Total USF Commitment
immediately prior to such termination and (y) with respect to the MC Facility,
the percentage obtained by dividing such Lender's MCF Commitment, if any, by the
Total MCF Commitment or if the Total MCF Commitment has been terminated, by
dividing such Lender's MCF Commitment, if any, immediately prior to such
termination by the Total MCF Commitment immediately prior to such termination.
-86-
93
"Permitted Acquired Debt" shall mean Indebtedness of a
Subsidiary acquired after the Closing Date pursuant to a Permitted Acquisition
or other acquisition permitted by Section 8.02(h), to the extent such
Indebtedness was outstanding prior to the consummation of such Permitted
Acquisition or other acquisition and remains outstanding as Indebtedness of the
respective Subsidiary after giving effect thereto, provided that (i) such
Indebtedness was not incurred in connection with or in anticipation of such
Permitted Acquisition or other acquisition or the respective Person becoming a
Subsidiary, (ii) such Indebtedness does not constitute Indebtedness of WLI or
any of its Subsidiaries other than the respective Subsidiary acquired pursuant
to the respective Permitted Acquisition or other acquisition and shall not be
secured by any assets of any Person other than assets of the Subsidiary so
acquired serving as security therefor at the time of the respective Permitted
Acquisition or other acquisition, (iii) no Person other than the respective
Subsidiary shall have any liability (contingent or otherwise) with respect to
any Permitted Acquired Debt and (iv) all such Indebtedness shall be permitted by
Section 8.04(i) or 8.04(j).
"Permitted Acquisition" shall have the meaning provided in
Section 8.02(g).
"Permitted CAPEX Amount" shall mean (i) for the period from
January 1, 1998 to and including December 31, 1998, $150 million, and (ii) for
each fiscal year thereafter, $150 million, in each case increased by an amount
satisfactory to the Agents to give effect to each Permitted Acquisition and
acquisition pursuant to Section 8.02(h) effected during such fiscal year or, in
the case of clause (ii), prior thereto but after the Closing Date.
"Permitted Liens" shall mean Liens permitted by Section 8.03.
"Permitted Subordinated Debt" shall mean unsecured
Indebtedness of WLI not exceeding $100 million in aggregate outstanding
principal amount on terms and conditions (including subordination provisions)
acceptable to the Agents provided that after giving effect to the incurrence
thereof and the use of the proceeds thereof (in each case as if effected on the
last day of the Test Period then last ended) Section 8.11 would have been
complied with on the last day of the Test Period then last ended.
"Permitted Training Advances" shall mean unsecured
Indebtedness of WLI or its Subsidiaries resulting from the obligation to make
payments owing for training services rendered to WLI or such Subsidiary, with
all such Indebtedness on terms and conditions satisfactory to the Agents.
"Person" shall mean any individual, partnership, limited
liability company, joint venture, firm, corporation, association, trust or other
enterprise or business entity or any government or political subdivision or any
agency, department or instrumentality thereof.
-87-
94
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) WLI, a Subsidiary or an ERISA Affiliate, and each
such plan for the five year period immediately following the latest date on
which WLI, a Subsidiary, or an ERISA Affiliate maintained, contributed to or had
an obligation to contribute to such plan but excluding all Foreign Pension Plans
and Multiemployer Plans.
"Pledge Agreement" shall mean the US Pledge Agreement and any
pledge agreement constituting a Foreign Security Document.
"Pledged Securities" shall mean all the Pledged Securities as
defined in the relevant Pledge Agreement.
"Pounds Sterling" shall mean freely transferable lawful money
of the United Kingdom.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Principal Amount" shall mean (i) the stated principal amount
of each Loan denominated in Dollars, (ii) the aggregate amount of all Unpaid
Drawings under each Letter of Credit denominated in Dollars, (iii) the Dollar
Equivalent of the stated principal amount of each Alternate Currency Loan,
and/or (iv) the Dollar Equivalent of the aggregate amount of all Unpaid Drawings
under Letters of Credit denominated in any Alternate Currency, as the context
may require.
"PSD Interest Period" shall mean an Interest Period commenced
prior to the Syndication Date, each of which Interest Periods must satisfy the
requirements of Section 1.09(iv).
"Reference Banks" shall mean BTCo, NatWest and Xxxxxx.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
-88-
95
"Relevant Test Period" shall mean, at any time, the Test
Period ending on the last day of the then most recently ended fiscal quarter of
WLI with respect to which an officer's certificate has been delivered to the
Lenders pursuant to Section 7.01(d).
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV or ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Repurchases" shall have the meaning provided in Section 8.08.
"Required Lenders" shall mean Non-Defaulting Lenders whose USF
Commitments (or, if after the Total USF Commitment has been terminated,
outstanding Principal Amount of USF Loans and Swingline Loans plus an amount
equal to their Percentages times the USF Letter of Credit Outstandings) and MCF
Commitments (or, if after the Total MCF Commitment has been terminated,
outstanding Principal Amount of MCF Loans plus an amount equal to their
Percentages times the MCF Letter of Credit Outstandings) constitute greater than
66-2/3% of the sum of (i) the Adjusted Total USF Commitment (or, if after the
Total USF Commitment has been terminated, the total outstanding Principal Amount
of USF Loans of Non-Defaulting Lenders and of Swingline Loans and the USF Letter
of Credit Outstandings) and (ii) the Adjusted Total MCF Commitment (or, if after
the Total MCF Commitment has been terminated, the total outstanding Principal
Amount of MCF Loans of Non-Defaulting Lenders and the MCF Letter of Credit
Outstandings).
"Required MCF Lenders" shall mean (i) Non-Defaulting Lenders
whose MCF Commitments (or, if after the Total MCF Commitment has been
terminated, outstanding Principal Amount of MCF Loans plus an amount equal to
their Percentages times the MCF Letter of Credit Outstandings) represents an
amount greater than 66-2/3% of the sum of all MCF Commitments of Non-Defaulting
Lenders (or, it after the Total MCF Commitment has been terminated, the total
outstanding Principal Amount of MCF Loans of Non-Defaulting Lenders and the MCF
Letter of Credit Outstandings).
"Required USF Lenders" shall mean (i) Non-Defaulting Lenders
whose USF Commitments (or, if after the Total USF Commitment has been
terminated, outstanding Principal Amount of USF Loans and Swingline Loans plus
an amount equal to their Percentage times the USF Letter of Credit Outstandings)
represents an amount greater than 66-2/3% of the sum of all USF Commitments of
Non-Defaulting Lenders (or, it after the Total USF
-89-
96
Commitment has been terminated, the total outstanding Principal Amount of USF
Loans of Non-Defaulting Lenders and of Swingline Loans and the USF Letter of
Credit Outstandings).
"SAR Cash Payment" shall have the meaning provided in Section
8.08(a).
"SARs" shall have the meaning set forth in the definition of
Equity Issuance.
"SEC" shall have the meaning provided in Section 7.01(g).
"SEC Regulation D" shall mean Regulation D as promulgated
under the Securities Act of 1933, as amended, as the same may be in effect from
time to time.
"Section 4.04 Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Security Documents" shall mean and include the US Security
Documents and the Foreign Security Documents.
"Sellers" shall mean ING. C. Olivetti & C. S.P.A., Olivetti
Sistemas e Servicios Limitada and Olivetti do Brasil S.A.
"Spanish Peseta Equivalent" shall mean, at any time for the
determination thereof, the amount of Spanish Pesetas which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Spanish Peseta LIBOR" shall mean, for each Interest Period
applicable to an MCF Loan denominated in Spanish Pesetas, the rate per annum
that appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor
page) for Spanish Peseta deposits with maturities comparable to such Interest
Period as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period or, if such a rate does not
appear on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page),
the average of the offered quotations to first-class banks in the London
interbank market by each Reference Bank that reports same to the Administrative
Agent for Spanish Peseta deposits of amounts in same day funds comparable to the
outstanding principal amount of such MCF Loan with maturities comparable to such
Interest Period determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period.
"Spanish Pesetas" shall mean freely transferable lawful money
of Spain.
-90-
97
"Stated Amount" of each Letter of Credit shall mean the
maximum available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met), or the Dollar Equivalent thereof if such Letter
of Credit is denominated in an Alternate Currency.
"Sterling Equivalent" shall mean, at any time for the
determination thereof, the amount of Pounds Sterling which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by BTCo as of 11:00 A.M. (London time) on the date two
Business Days prior to the date of any determination thereof for purchase on
such date.
"Sterling LIBOR" shall mean, with respect to each Interest
Period for MCF Loans denominated in Pounds Sterling, (I) the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successive page)
with maturities comparable to such Interest Period as of 11:00 A.M. (London
time) on the date which is the commencement date of such Interest Period or, if
such a rate does not appear on page 3750 of the Dow Xxxxx Telerate Screen (or
any successor page) the average of the offered quotations to first-class banks
in the London interbank Eurodollar market by each Reference Bank that reports
same to the Administrative Agent for Pounds Sterling deposits of amounts in same
day funds comparable to the outstanding principal amount of such MCF Loans with
maturities comparable to such Interest Period determined as of 11:00 A.M.
(London time) on the date which is the commencement of such Interest Period plus
(II) the Associated Cost Rate for such Loans for such Interest Period.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of WLI.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Final Maturity Date.
"Swingline Lender" shall mean BTCo or, in the event BTCo
ceases to be Swingline Lender upon agreement with WLI, any Lender which at the
request of WLI and the consent of the Administrative Agent agrees in such
Lender's sole discretion to become the Swingline Lender.
-91-
98
"Swingline Loan" shall have the meaning provided in Section
1.01(E).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndicated Borrowing" shall mean the incurrence of Loans
(other than Lira Loans) under a Facility from all Lenders with a Commitment
under such Facility.
"Syndication Agent" shall mean National Westminster Bank Plc.
"Syndication Date" shall mean the earlier of (x) the date
which is 120 days after the Closing Date and (y) the date upon which the
Arrangers determine in their sole discretion (and notify WLI) that the primary
syndication (and the resulting addition of Lenders pursuant to Section 12.04)
has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean (x) in the case of any determination
under Section 8.13 made as of the end of any fiscal quarter ending on or prior
to December 31, 1998, a period (taken as one accounting period) commencing on
the Closing Date and ending at the end of such fiscal quarter of WLI, and (y)
for all other determinations, the four consecutive fiscal quarters of WLI (taken
as one accounting period) ending on the last day of the last fiscal quarter of
WLI then or theretofore ended.
"Total Commitment" shall mean the sum of the Total USF
Commitment and the Total MCF Commitment.
"Total MCF Commitment" shall mean the sum of the MCF
Commitments of each of the MCF Lenders.
"Total Unutilized Commitment" shall mean, at any time, (i) the
Total Commitment at such time less (ii) the sum of the aggregate Principal
Amount of all outstanding Loans at such time plus the Letter of Credit
Outstandings at such time.
"Total Unutilized MCF Commitment" shall mean, at any time, (i)
the Total MCF Commitment at such time less (ii) sum of the aggregate Principal
Amount of all outstanding MCF Loans at such time plus the MCF Letter of Credit
Outstandings at such time.
"Total Unutilized USF Commitment" shall mean, at any time, (i)
the Total USF Commitment at such time LESS (ii) the sum of the aggregate
Principal Amount of all outstanding USF Loans and Swingline Loans at such time
PLUS the USF Letter of Credit Outstandings at such time.
-92-
99
"Total USF Commitment" shall mean the sum of the USF
Commitments of each of the USF Lenders.
"Transaction" shall mean (i) the Acquisition, (ii) the
consummation of the Equity Issuance, (iii) the refinancing on the Closing Date
of existing Indebtedness of WLI and its Subsidiaries and (iv) the incurrence of
Loans and issuance of Letters of Credit, on the Closing Date.
"Transaction Documents" shall mean and include the Credit
Documents, the Acquisition Documents, the Equity Issuance Documents and all
other documents entered into to effectuate with the Transaction.
"Type" shall mean any type of Loan determined with respect to
currency and the interest option applicable thereto.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year exceeds the
fair market value of the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized MCF Commitment" shall mean, at any time for any
MCF Lender, (i) its MCF Commitment at such time less (ii) the sum of (x) the
aggregate Principal Amount of all outstanding MCF Loans (other than Lira Loans)
made by it and (y) its Percentage of (i) MCF Letter of Credit Outstandings at
such time and (ii) the aggregate outstanding principal amount of Lira Loans at
such time.
"Unutilized USF Commitment" shall mean, at any time for any
USF Lender, (i) its USF Commitment at such time less (ii) the sum of (x) the
aggregate Principal Amount of all outstanding USF Loans and Swingline Loans made
by it and (y) its Percentage of USF Letter of Credit Outstandings at such time.
"US Facility" shall mean the Facility evidenced by the Total
USF Commitment.
"US Guaranty" shall have the meaning provided in Section
5.01(j)(I).
-93-
100
"US LIBOR" shall mean for each Interest Period applicable to a
Loan denominated in Dollars (other than a Base Rate Loan), the rate per annum
that appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor
page) for Dollar deposits with maturities comparable to such Interest Period as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the average of
the offered quotations to first-class banks in the London interbank market by
each Reference Bank that reports same to the Administrative Agent for Dollar
deposits of amounts in same day funds comparable to the outstanding principal
amount of such Dollar denominated Loan with maturities comparable to such
Interest Period determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period.
"US Pledge Agreement" shall have the meaning provided in
Section 5.01(k)(I).
"US Security Agreement" shall have the meaning provided in
Section 5.01(k)(II).
"US Security Documents" shall mean the US Pledge Agreement and
the US Security Agreement.
"USF Commitment" shall mean, with respect to each USF Lender,
the amount set forth opposite such USF Lender's name in Annex I hereto directly
below the column entitled "USF Commitment," as the same may be reduced or
terminated from time to time pursuant to Section 3.02, 3.03 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 and/or 12.04.
"USF Commitment Fee" shall have the meaning provided in
Section 3.01(a).
"USF Lender" shall mean each Lender with USF Commitment or
that has outstanding USF Loans.
"USF Letter of Credit Outstandings" shall mean at any time,
the sum of, without duplication, (i) the aggregate Stated Amount of all
outstanding USF Letters of Credit and (ii) the aggregate principal amount of all
Unpaid Drawings in respect of all such USF Letters of Credit.
"USF Letters of Credit" shall mean Letters of Credit issued
pursuant to the US Facility.
"USF Loan" shall have the meaning provided in Section 1.01(A).
"USF Note" shall have the meaning provided in Section 1.05(a).
-94-
101
"USF Obligations" shall mean any and all Obligations to the
extent arising under, or relating solely to, the US Facility.
"USF Percentage" shall mean, at any time, 100% minus the MCF
Percentage at such time.
"Wholly-Owned Subsidiary" of any Person shall mean any other
Person to the extent all of the capital stock or other ownership interests in
such other Person, other than directors' qualifying shares, is owned directly or
indirectly by such first Person.
"WLI" shall mean Wang Laboratories, Inc., a Delaware
corporation.
"WLI Intercompany Note" shall mean the promissory notes in
form and substance satisfactory to the Agents evidencing intercompany advances
by WLI to Other Foreign Subsidiaries provided that, in the case of any such note
issued by a Material Subsidiary, the Administrative Agent shall have received an
opinion in form and substance, and from counsel, satisfactory to the
Administrative Agent as to the due authorization, execution and enforceability
thereof.
"WLI Preferred" shall mean WLI's Series A Preferred Stock and
Series B Preferred Stock outstanding on the Closing Date and as subsequently
amended or modified pursuant to the terms thereof and hereof.
"Working Capital" shall mean the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
SECTION 11. AGENTS, ETC.
11.01 APPOINTMENT. The Lenders hereby designate BTCo as
Administrative Agent (for purposes of this Section 11, the terms "Administrative
Agent" shall include BTCo in its capacity as Collateral Agent pursuant to the
Security Documents) NatWest as Syndication Agent and Xxxxxx as Documentation
Agent to act as specified herein and in the other Credit Documents. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, each Agent to take such
action on its behalf under the provisions of this Agreement, the other Credit
Documents and any other instruments and agreements referred to herein or therein
and to exercise such powers and to perform such duties hereunder and thereunder
as are specifically delegated to or required of such Agent by the terms hereof
and thereof and such other powers
-95-
102
as are reasonably incidental thereto. The Agents may perform any of their duties
hereunder by or through their respective officers, directors, agents, employees
or affiliates.
11.02 NATURE OF DUTIES. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and the
Other Credit Documents. No Agent or any of its respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by them hereunder or under any other Credit Document or in connection herewith
or therewith, unless caused by their gross negligence or willful misconduct. The
duties of each Agent shall be mechanical and administrative in nature; no Agent
shall have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon either Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set
forth herein or therein with respect to such Agent.
11.03 LACK OF RELIANCE ON THE AGENTS. Independently and
without reliance upon either Agent, each Lender and the holder of each Note, to
the extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition and affairs of WLI and
its Subsidiaries in connection with the making and the continuance of the Loans
and the taking or not taking of any action in connection herewith and (ii) its
own appraisal of the creditworthiness of WLI and its Subsidiaries and, except as
expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. No Agent shall be responsible to any Lender or the
holder of any Note for any recitals, statements, information, representations
or warranties herein or in any document, certificate or other writing delivered
in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of
this Agreement or any other Credit Document or the financial condition of WLI
and its Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of WLI and
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
11.04 CERTAIN RIGHTS OF THE AGENTS. If any Agent shall request
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and no Agent shall incur liability to any Person by reason of
so refraining. Without limiting the foregoing, neither any Lender nor the holder
of any Note shall have any right of action whatsoever against an Agent as a
result of such Agent acting or
-96-
103
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders.
11.05 RELIANCE. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, tele type, facsimile or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that such Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by such Agent.
11.06 INDEMNIFICATION. To the extent an Agent is not
reimbursed and indemnified by the Borrowers, the Lenders will reimburse and
indemnify such Agent, in proportion to their respective "percentages" as used in
determining the Required Lenders, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judg ments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by such Agent in performing its respective duties
hereunder or under any other Credit Document, in any way relating to or arising
out of this Agreement or any other Credit Document provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of such Agent.
11.07 THE AGENTS IN THEIR INDIVIDUAL CAPACITIES. With respect
to its obligation to make Loans under this Agreement, each Agent shall have the
rights and powers specified herein for a "Lender" and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term "Lenders," "Required Lenders," "holders of Notes" or any similar
terms shall, unless the context clearly otherwise indicates, include the Agents
in their individual capacities. Each Agent may accept deposits from, lend money
to, and generally engage in any kind of banking, trust or other business with
any Designated Party or any Affiliate of any Designated Party as if they were
not performing the duties specified herein, and may accept fees and other
consideration from any Borrower or any other Designated Party for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
11.08 HOLDERS. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
-97-
104
11.09 RESIGNATION BY AN AGENT. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days' prior
written notice to the Borrowers and the Lenders. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who shall
be a Lender, commercial bank or trust company reasonably acceptable to the
Borrowers.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrowers, shall then appoint a successor Administrative Agent
who shall serve as Administrative Agent hereunder or thereunder until such time,
if any, as the Lenders appoint a successor Administrative Agent as provided
above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Lenders appoint
a successor Administrative Agent as provided above.
(e) The Syndication Agent and the Documentation Agent may each
resign from the performance of all of its functions and duties hereunder and/or
under the other Credit Documents in such capacity at any time by giving 5
Business Days' prior written notice to the Lenders. Such resignation shall take
effect at the end of such 5 Business Days.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrowers jointly and
severally agree to: (i) whether or not the transactions herein contemplated are
consummated, pay all reason able out-of-pocket costs and expenses of the Agents
in connection with the negotiation, syndication, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred to
therein and any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees and disbursements of White & Case LLP)
and of the Agents and each of the Lenders in connection with the enforcement of
the Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and disbursements of
counsel for each Agent and for each of the Lenders); (ii) pay and hold each of
the Agents and Lenders harmless from and against any and all present and future
stamp, VAT and other similar taxes with respect to the foregoing matters and/or
fees and save each of the Lenders harmless from and against any and all
liabilities with respect
-98-
105
to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iii) indemnify each Lender
(including in its capacity as Agent or Letter of Credit Issuer), its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, (a) an investigation, litigation or other proceeding
(whether or not an Agent or any Lender is a party thereto and whether or not any
such investigation, litigation or other proceeding is between or among an Agent,
any Lender, any Designated Party or any third Person or otherwise) related to
the entering into and/or performance of any Transaction Document or the use of
the proceeds of any Loans hereunder or the Transaction or the consummation of
any transactions contemplated in any Credit Document, and (b) any such
investigation, litigation or other proceeding relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of WLI, any of its Subsidiaries or any real property owned or
operated by them, or the actual or alleged presence or release of Hazardous
Materials on, under or from any real property at any time owned or operated by
WLI or any of its Subsidiaries, and in each case including, without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
12.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if an Event of Default then exists, each Lender
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Lender wherever located) to or for
the credit or the account of such Borrower against and on account of the
Obligations (regardless of the currency thereof) and liabilities of such
Borrower to such Lender under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations of such
Borrower purchased by such Lender pursuant to Section 12.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
12.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telecopier or facsimile) and mailed, telecopied, faxed or delivered,
if to a Borrower, at the address specified opposite its signature below or in
the other relevant Credit Documents, as the case may be; if to any Lender or
Agent, at its address specified for such Lender or Agent on Annex II hereto;
-99-
106
or, at such other address as shall be designated by any party in a written
notice to the other parties hereto. All such notices and communications shall be
mailed, telecopied or sent by overnight courier, and shall be effective when
received.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that no Borrower may
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Lenders. Each Lender may at any time grant participations
in any of its rights hereunder or under any of the Notes to an Eligible
Transferee, provided that (x) in the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrowers hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 1.10, 2.06 and 4.04 of this Agreement to the extent that such Lender
would be entitled to such benefits if the participation had not been entered
into or sold and (y) no Lender shall transfer, grant or assign any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan or
Note in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of the applicability of any post-default increase in interest rates), or
reduce the principal amount thereof, or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment, or a mandatory prepayment, shall
not constitute a change in the terms of any Commitment), (ii) release all or
substantially all of the Collateral or (iii) consent to the assignment or
transfer by any Designated Party of any of its rights and obligations under this
Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Lender may assign
all or a portion of its USF Commitment and/or MCF Commitment and its rights and
obligations hereunder to another Lender (or an Affiliate of such assigning
Lender), and (y) with the consent of (I) the Administrative Agent, the Lira
Lender (in the case of assignments of MCF Commitments), the Swingline Lender (in
the case of assignments of USF Commitments) and each Letter of Credit Issuer and
(II) so long as no Default under Section 9.01 or 9.05 or Event of Default
exists, WLI (which consent shall not be unreasonably withheld), any Lender may
assign all or a portion of its USF Commitment and/or MCF Commitment and its
rights and obligations hereunder to one or more Eligible Transferees. No
assignment pursuant to the immediately preceding sentence by a Lender (or by
Lenders which are Affiliates of each other) shall to the extent such assignment
represents an assignment to an institution other than one or more Lenders
hereunder (or to an Affiliate of an assigning Lender), be in an aggregate amount
less than
-100-
107
$10,000,000 unless the entire Commitment of the assigning Lender (or group of
Lenders which are Affiliates) is so assigned. If any Lender so sells or assigns
all or a part of its rights hereunder or under the Notes, any reference in this
Agreement or the Notes to such assigning Lender shall thereafter refer to such
Lender and to the respective assignee to the extent of their respective
interests and the respective assignee shall have, to the extent of such
assignment (unless otherwise provided therein), the same rights and benefits as
it would if it were such assigning Lender. Each assignment pursuant to this
Section 12.04(b) shall be effected by the assigning Lender and the assignee
Lender executing an Assignment Agreement (appropriately completed). At the time
of any such assignment, (i) either the assigning or the assignee Lender shall
pay to the Administrative Agent a nonrefundable assignment fee of $3,500, (ii)
Annex I shall be deemed to be amended to reflect the Commitment of the
respective assignee (which shall result in a direct reduction to the Commitment
of the assigning Lender) and of the other Lenders, and (iii) the relevant
Borrower or Borrowers will issue new Notes to the respective assignee and to the
assigning Lender in conformity with the requirements of Section 1.05. To the
extent any assignment pursuant to this Section 12.04(b) is to a Person which is
not already a Lender hereunder and which is not a United States Person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to WLI and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 4.04 Certificate) described in Section 4.04(b). To the
extent that an assignment of all or any portion of a Lender's Commitments and
related outstanding Obligations pursuant to this Section 12.04(b) would, at the
time of such assignment, result in increased costs under Section 1.10, 2.06 or
4.04 from those being charged by the respective assigning bank prior to such
assignment, then the Borrowers shall not be obligated to pay such increased
costs (although the Borrowers shall be obligated to pay any other increased
costs of the type described above resulting from changes specified in said
Section 1.10, 2.06 or 4.04 occurring after the date of the respective
assignment). Each Lender and the Borrowers agree to execute such documents
(including without limitation amendments to this Agreement and the other Credit
Documents) as shall be necessary to effect the foregoing. Nothing in this clause
(b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section
12.04, no transfer or assignment of the interests or obligations of any Lender
hereunder or any grant of participation therein shall be permitted if such
transfer, assignment or grant would require any Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any
State.
(d) Each Lender initially party to this Agreement hereby
represents, and each Person that became a Lender pursuant to an assignment
permitted by this Section 12 will, upon its becoming party to this Agreement,
represent that it is an Eligible Transferee which makes loans in the ordinary
course of its business and that it will make or acquire Loans for its own
account in the ordinary course of such business, PROVIDED that subject to the
preceding clauses
-101-
108
(a) and (b), the disposition of any promissory notes or other evidences of or
interests in Indebtedness held by such Lender shall at all times be within its
exclusive control.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of any Agent or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Designated Party and either Agent or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any Agent or any
Lender would otherwise have. No notice to or demand on any Designated Party in
any case shall entitle any Designated Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agents or the Lenders to any other or further action in any circumstances
without notice or demand.
12.06 PAYMENTS PRO RATA. (a) Subject to the provisions of
Sections 1.01(D) and 1.08(e), the Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of any Designated Party in
respect of any Obligations of such Designated Party hereunder, it shall
distribute such payment to the Lenders (other than any Lender that has expressly
waived its right to receive its pro rata share thereof) PRO RATA based upon
their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount here under (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Designated Party to such Lenders in such amount as
shall result in a proportional participation by all of the Lenders in such
amount, PROVIDED that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
-102-
109
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Lenders pursuant hereto shall be made and prepared in
conformity with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by WLI to the Lenders and with respect to any interim financial statements,
subject to changes resulting from audit and normal year-end audit adjustments,
provided that (x) except as otherwise specifically provided herein, all
computations determining compliance with Section 8, including definitions used
therein, shall utilize accounting principles and policies in effect at the time
of the preparation of, and in conformity with those used to prepare, the
December 31, 1997 financial statements delivered to the Lenders pursuant to
Section 6.10(b), (y) that if at any time the computations determining compliance
with Section 8 utilize accounting principles different from those utilized in
the financial statements furnished to the Lenders, such financial statements
shall be accompanied by reconciliation work-sheets and (z) for purposes of
determining compliance with any tests set forth in Sections 8 and/or 9
(excluding Sections 8.10 through 8.13), any amounts so incurred or expended (to
the extent incurred or expended in a currency other than Dollars) should be
converted into Dollars on the basis of the Dollar Equivalent of the respective
such amounts as in effect on the date of such incurrence or expenditure under
any provision of any such Section that has an aggregate Dollar limitation
provided for therein (and to the extent the respective incurrence test regulates
the aggregate amount outstanding at any time as expressed in terms of Dollars,
all outstanding amounts originally incurred or spent in currencies other than
Dollars shall be converted into Dollars on the basis of the Dollar Equivalent of
the respective such amounts as in effect on the date any new incurrence or
expenditures made under any provision of any such Section that regulates the
Dollar Amount outstanding at any time).
(b) All computations of interest and Fees hereunder shall be
made on the actual number of days elapsed over a year of 360 days (365-366 days
for interest on Base Rate Loans and 365 days for interest on Pounds Sterling and
Belgian Francs denominated MCF Loans).
(c) For purposes of this Agreement, the Dollar Equivalent of
(x) each MCF Loan that is an Alternate Currency Loan shall be calculated on the
date when any such MCF Loan is made or repaid, each MCF Letter of Credit issued
in an Alternate Currency shall be calculated on the date when any such Letter of
Credit is issued, on any date drawn on and on any date on which such drawing is
repaid and (y) all outstanding Loans denominated in Alternate Currencies and all
MCF Letter of Credit Outstandings denominated in Alternate Currencies, on the
second Business Day of each month and at such other times as designated by the
Administrative Agent at any time when a Default under Section 9.01 or an Event
of Default exists. Such Dollar Equivalent shall remain in effect until the same
is recalculated by the Administrative Agent as provided above and notice of such
recalculation is received by WLI, it being understood that until such notice is
received, the Dollar Equivalent shall be that Dollar Equivalent as last reported
to WLI by the Administrative Agent. The Administrative
-103-
110
Agent shall promptly notify WLI and the Banks of each such determination of the
Dollar Equivalent.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) This Agreement and the other Credit Documents (other than the
EU Intercompany Notes to the extent set forth therein) and the rights and
obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it, to the extent located outside New York City, or by hand, to the extent
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. Each
Borrower hereby irrevocably designates appoints and empowers CT Corporation
System, with offices on the date hereof located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its agent for service of process in respect of any such action or
proceeding. Nothing herein shall affect the right of any Agent or any Lender to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any Borrower in any other jurisdiction.
(b) Each Borrower each hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
12.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with each
Borrower and the Administrative Agent.
12.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Effective Date") on which WLI, EU Holdco, each Agent and each of
the Lenders other than
-104-
111
the Lira Lender shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Administrative Agent at its
Notice Office or, in the case of the Lenders and the Agents, shall have given to
the Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
12.12 AMENDMENT OR WAIVER. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrowers and the Required Lenders, provided that no
such change, waiver, discharge or termination shall, without the consent of each
Lender (other than a Defaulting Lender) directly affected thereby, (i) extend
the Final Maturity Date, or extend the stated maturity of any Letter of Credit
beyond the Final Maturity Date (except as contemplated by Section 2.01(b)), or
reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest
rates) or Fees or other amounts payable hereunder, or reduce the principal
amount thereof, or increase the Commitment of any Lender over the amount thereof
then in effect (it being understood that a waiver of any Default or Event of
Default or of a mandatory reduction in the Total Commitment shall not constitute
a change in the terms of any Commitment of any Lender), (ii) amend, modify or
waive any provision of this Section 12.12, (iii) reduce the percentage specified
in, or (except to give effect to any additional facilities hereunder) otherwise
modify, the definition of Required Lenders, (iv) consent to the assignment or
transfer by any Borrower of any of its rights and obligations under this
Agreement or (v) release all or substantially all of the Collateral, PROVIDED
FURTHER, that no such change, waiver, discharge or termination shall, without
the consent of the Required USF Lenders and the Required MCF Lenders, amend the
definition of Required USF Lender or Required MCF Lenders (as applicable) or
amend in a manner adverse to the respective Facility the allocation between the
USF Facility and the MCF Facility of mandatory commitment reductions. No
provision of Section 1.01(B), 1.01(D) and (E), 2 or 11 may be amended without
the consent of the Lira Lender, the Swingline Lender, any Letter of Credit
Issuer affected thereby or any Agent affected thereby, respectively.
12.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall
survive the execution and delivery of this Agreement and the making and
repayment of the Loans.
12.14 DOMICILE OF LOANS. Each Lender may transfer and carry
its Loans at, to or for the account of any branch office, subsidiary or
affiliate of such Lender, provided that the Borrowers shall not be responsible
for costs arising under Section 1.10, 2.06 or 4.04
-105-
112
resulting from any such transfer (other than a transfer pursuant to Section 1.12
or 1.13) to the extent not otherwise applicable to such Lender prior to such
transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Lenders
shall hold all non-public information obtained pursuant to the requirements of
this Agreement in accordance with its customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices and in any event may make disclosure to its Affiliates,
employees, auditors, advisors or counsel or as reasonably required by any BONA
FIDE transferee or participant in connection with the contemplated transfer of
any Loans or participation therein (so long as such transferee or participant
agrees to be bound by the provisions of this Section 12.15) or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process, provided that, unless specifically prohibited by applicable law
or court order, each Lender shall notify WLI 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, and provided further that in no event shall any Lender be
obligated or required to return any materials furnished by WLI or any
Subsidiary.
12.16 LENDER REGISTER. Each Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
12.16, to maintain a register (the "Lender Register") on which it will record
the Commitments from time to time of each of the Lenders, the Loans made by each
of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Lender Register maintained by the Administrative Agent with
respect to ownership of such Commitments and Loans and prior to such recordation
all amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. The registration of assignment or transfer
of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Lender Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment Agreement
pursuant to Section 12.04(b). The Borrowers jointly and severally agree to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 12.16 other than those resulting from the Administrative Agent's
willful misconduct or gross negligence.
12.17 JUDGMENT CURRENCY. (a) The Designated Parties'
obligations hereunder and under the other Credit Documents to make payments in
the applicable Approved Currency
-106-
113
(the "Obligation Currency") shall not be discharged or satisfied by any tender
or recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent, the
Collateral Agent or the respective Lender of the full amount of the Obligation
Currency expressed to be payable to the Administrative Agent, the Collateral
Agent or such Lender under this Agreement or the other Credit Documents. If, for
the purpose of obtaining or enforcing judgment against any Designated Party in
any court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made at the Approved Currency
Equivalent, and, in the case of other currencies, the rate of exchange (as
quoted by the Administrative Agent or if the Administrative Agent does not quote
a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent determined, in each case, as of the
Business Day immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency Conversion
Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Borrowers covenant and agree to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Approved Currency
Equivalent or any other rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
12.18 EURO. If at any time that an Alternate Currency Loan is
outstanding, the relevant Alternative Currency is fully replaced as the lawful
currency of the country that issued such Alternate Currency (the "Issuing
Country") by the Euro so that all payments are to be made in the Issuing Country
in Euros and not in the Alternate Currency previously the lawful currency of
such country then such Alternate Currency Loan shall be automatically converted
into a Loan denominated in Euros in a principal amount equal to the amount of
Euros into which the principal amount of such Alternate Currency Loan would be
converted pursuant to the EMU Legislation and thereafter no further Loans will
be available in such Alternate Currency, with the basis of accrual of interest,
notices requirements and payment offices with respect to such converted Loans to
be that consistent with the convention and practices in the London interbank
market for Euro denominated Loans.
-107-
114
12.19 COVENANT TO PAY. Each Borrower, as a separate and
independent obligation, hereby irrevocably undertakes to pay to BTCo at the
first request of BTCo and at any time, an amount equal to the aggregate amount
which has theretofore become due and payable by such Borrower to the Lenders
under the Credit Agreement and the other Credit Documents, it being understood
that (i) the right of BTCo to claim payment from such Borrower hereunder shall
be an independent right of BTCo in its individual capacity and (ii) BTCo shall
apply the amount so paid as if such amounts were received by BTCo in its
capacity as Collateral Agent.
12.20 SHARING. At the time, if any, that the Loans are
accelerated pursuant to Section 9, including any automatic acceleration provided
therein (an "Acceleration Event"), each USF Lender shall purchase assignments of
MCF Commitments (if still in existence) and in any event assignments of MCF
Loans and participations in MCF Letter of Credit Outstandings from MCF Lenders,
and each MCF Lender shall purchase assignments of USF Commitments (if still in
existence) and in any event assignments of USF Loans and participations in USF
Letter of Credit Outstandings from USF Lenders so that after giving effect
thereto (I) each USF Lender shall have outstanding USF Loans and MCF Loans in an
aggregate Principal Amount equal to the Principal Amount of its USF Loans
immediately prior to the Acceleration Event, divided between the USF Loans and
MCF Loans on the basis of the respective aggregate Principal Amount of the USF
Loans and the MCF Loans out standing immediately prior to the Acceleration Event
(the "Loan Allocation Basis"), (II) each MCF Lender shall have outstanding USF
Loans and MCF Loans in an aggregate Principal Amount equal to the Principal
Amount of its MCF Loans immediately prior to the Acceleration Event, divided
between the USF Loans and MCF Loans on the Loan Allocation Basis, (III) each USF
Lender shall have outstanding participations in the USF Letter of Credit
Outstandings and the MCF Letter of Credit Outstandings in an aggregate Principal
Amount equal to the aggregate Principal Amount of its participations in the USF
Letter of Credit Outstandings immediately prior to the Acceleration Event,
divided among each Letter of Credit and each Unpaid Drawing on the basis of the
respective Principal Amount of each Letter of Credit and each Unpaid Drawing
outstanding immediately prior to the Acceleration Event (the "L/C Allocation
Basis") and (IV) each MCF Lender shall have outstanding participations in the
USF Letter of Credit Outstandings and the MCF Letter of Credit Outstandings in
an aggregate Principal Amount equal to the aggregate Principal Amount of its
participation in the MCF Letter of Credit Outstandings immediately prior to the
Acceleration Event, divided among each Letter of Credit and each Unpaid Drawing
on the L/C Allocation Basis, it being of agreed that all Mandatory Borrowings
and the assignments of outstanding Lira Loans to MCF Lenders required by Section
1.01 (D) shall be effected immediately prior to the purchase of assignments by
all Lenders pursuant to this Section 12.20.
SECTION 13. GUARANTY.
13.01 THE GUARANTY. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be
-108-
115
received by WLI from the proceeds of the Loans made to the Foreign Borrowers and
the issuance of the Letters of Credit issued for the account of the Foreign
Borrowers, WLI hereby unconditionally and irrevocably guarantees the full and
prompt payment when due, whether upon maturity, acceleration or otherwise, of
any and all of the Guaranteed Obligations. This Guaranty is a primary obligation
of WLI and not merely a contract of surety. If any of the Guaranteed Obligations
becomes due and payable hereunder, WLI unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand, together with any
and all expenses which may be incurred by the Guaranteed Creditors in collecting
any of the Guaranteed Obligations. If claim is ever made upon any Guaranteed
Creditor for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and any of the aforesaid
payees repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee
or any of its property or (ii) any settlement or compromise of any such claim
effected by such payee with any such claimant (including any specified
Borrower), then and in such event WLI agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon WLI, notwithstanding any
revocation of this Guaranty or any other instrument evidencing any liability of
the Foreign Borrowers, and WLI shall be and remain liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such payee.
13.02 BANKRUPTCY. Additionally, WLI unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
to the Guaranteed Creditors whether or not due or payable by any Foreign
Borrowers upon the occurrence in respect of such Foreign Borrower of any of the
events specified in Section 9.05, and unconditionally promises to pay such
indebtedness on demand, in lawful money of the United States.
13.03 NATURE OF LIABILITY. The liability of WLI hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations whether executed by WLI, any other guarantor or by any
other party, and the liability of WLI hereunder is not affected or impaired by
(a) any direction as to application of payment by any Foreign Borrower or by any
other party, or (b) any other continuing or other guaranty or undertaking as to
the Guaranteed Obligations, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by any Foreign Borrower, or (e) any payment made
to the Guaranteed Creditors on the Guaranteed Obligations which any such
Guaranteed Creditor repays to any Foreign Borrower pursuant to court order in
any bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and WLI waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
13.04 INDEPENDENT OBLIGATION. The obligations of WLI hereunder
are independent of the obligations of any other guarantor, any other party or
any Foreign Borrower, and a separate action or actions may be brought and
prosecuted against WLI whether or not
-109-
116
action is brought against any other guarantor, any other party or any Foreign
Borrower and whether or not any other guarantor, any other party or any Foreign
Borrower be joined in any such action or actions. WLI waives, to the full extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement hereof. Any payment by any Foreign
Borrower or other circumstance which operates to toll any statute of limitations
as to such Foreign Borrower shall operate to toll the statute of limitations as
to WLI with respect to the Guaranteed Obligations owing by such Foreign
Borrower.
13.05 AUTHORIZATION. WLI authorizes the Guaranteed Creditors
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect thereof, and
the Guaranty herein made shall apply to the Guaranteed Obligations as
so changed, extended, renewed or altered;
(b) take and hold security for the payment of any the
Guaranteed Obligations and sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against
any Foreign Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, any Foreign Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may substitute the payment of all or any part thereof to
the payment of any liability (whether due or not) of any Foreign
Borrower to its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Foreign Borrower to the Guaranteed
Creditors regardless of what liability or liabilities of such Borrower
remain unpaid;
-110-
117
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document
or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of WLI from its liabilities under this Guaranty.
13.06 RELIANCE. It is not necessary for the Guaranteed
Creditors to inquire into the capacity or powers of any Foreign Borrower or the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
13.07 SUBORDINATION. Any of the indebtedness of each Foreign
Borrower now or hereafter owing to WLI is hereby subordinated to the Guaranteed
Obligations of such Foreign Borrower; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such indebtedness of
each Foreign Borrower to WLI shall be collected, enforced and received by WLI
for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the
Guaranteed Obligations, but without affecting or impairing in any manner the
liability of WLI under the other provisions of this Guaranty. Prior to the
transfer by WLI of any note or negotiable instrument evidencing any of the
indebtedness of any Foreign Borrower to WLI, shall xxxx such note or negotiable
instrument with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, WLI hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
13.08 WAIVER. (a) WLI waives any right (except as shall be
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor (i) proceed against any Foreign Borrower, any other guarantor or any
other party, (ii) proceed against or exhaust any security held by any Foreign
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in any Guaranteed Creditor's power whatsoever. WLI waives any defense
based on or arising out of any defense of any Foreign Borrower, any other
guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out the disability of any Foreign Borrower, any
other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Foreign Borrower than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Collateral Agent or any other Guaranteed Creditor by one or
more judicial
-111-
118
or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Guaranteed Creditors may have
against any Foreign Borrower or any other party, or any security, without
affecting or impairing in any way the liability of WLI hereunder except to the
extent the Guaranteed Obligations have been paid.
(b) WLI waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. WLI assumes all responsibility for being and keeping
itself informed of each Foreign Borrower's financial condition and assets, and
of all other circumstances, bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which WLI
assumes and incurs hereunder, and agrees that the Guaranteed Creditors shall
have no duty to advise WLI of information known to them regarding such
circumstances or risks.
13.09 ENFORCEMENT. The Guaranteed Creditors agree that this
Guaranty may be enforced only by the action of the Administrative Agent acting
upon the instructions of the Required Lenders and no Guaranteed Creditor shall
have any right individually to seek to enforce or to enforce this Guaranty, it
being understood and agreed that such rights and remedies may be exercised by
the Administrative Agent for the benefit of the Guaranteed Creditors upon the
terms of this Guaranty and the Security Documents.
* * *
-112-
119
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Wang Laboratories, Inc.
WANG LABORATORIES, INC.,
000 Xxxxxxxxxx Xxxx Xx.
xx Xxxxxxxx
Xxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
By
----------------------------------------------------------
Attention: General Counsel
Name:
cc: Treasurer
Title:
Wang Nederland B.V.
WANG NEDERLAND B.V.,
c/o Wang Laboratories, Inc.
as Borrower
600 Technology Park Dr.
Tel: (000) 000-0000
Fax: (000) 000-0000
By
----------------------------------------------------------
Attention: General Counsel
Name:
cc: Treasurer Title:
120
Olivetti Solutions SPA,
OLIVETTI SOLUTIONS SPA,
c/o Wang Laboratories, Inc.
as Borrower
600 Technology Park Dr.
Tel: (000) 000-0000
Fax: (000) 000-0000
By
----------------------------------------------------------
Attention: General Counsel
Name:
cc: Treasurer Title:
121
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
-------------------------------------
Name:
Title:
122
NATIONAL WESTMINSTER BANK PLC,
Individually and as Syndication Agent
By
-------------------------------------
Name:
Title:
123
XXXXXX COMMERCIAL PAPER INC.,
Individually and as Documentation Agent
By
-------------------------------------
Name:
Title:
124
BANKERS TRUST INTERNATIONAL
PLC
As Lira Lender
By
-------------------------------------
Name:
Title:
125
ANNEX I
COMMITMENTS
USF MCF
Lender Commitment Commitment
------ ---------- ----------
Bankers Trust Company $ 82,500,000 $192,500,000
National Westminster Bank Plc 45,000,000 105,000,000
Xxxxxx Commercial Paper Inc. 22,500,000 52,500,000
Total: $150,000,000 $350,000,000
============ ============
126
ANNEX II
LENDER ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
National Xxxxxxxxxxx Xxxx Xxx X.X. Xxx 000000
Xxxxx Xxxxx
One Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxx Xxxxx
Tel. No.: 000-00-000-000-0000
Fax No.: 000-00-000-000-0000
Xxxxxx Commercial Paper Inc. Three World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
127
ANNEX IV
Part I: MATERIAL SUBSIDIARIES
Australia: Wang Australia Pty Ltd
Olivetti Australia Pty Ltd
(collectively, "Australian Subsidiaries")
Belgium: Wang Europe S.A. N.V.
Olsy Belgium S.A. N.V.
(collectively, "Belgian Subsidiaries")
Canada: Wang Canada Limited
Olsy Canada Ltd.
Denmark: Olsy S.A. (Denmark)
("Danish Subsidiary")
France: Wang France S.A.
Olsy France S.A.
(collectively, "French Subsidiaries")
Germany: Wang Germany GmbH
Olivetti GmbH
(collectively, "German Subsidiaries")
Italy: Olivetti Solutions SpA
("Italian Borrower")
Japan: Olivetti Corp. Japan
Netherlands: Wang Nederland B.V. ("EU Holdco")
Olsy Nederland B.V.
(collectively, "Dutch Subsidiaries")
Spain: Olivetti Espana S.A.
("Spanish Subsidiary")
000
XXXXX XX
Xxxx 0
Xxxxxx Xxxxxxx: Wang I-NET Ltd.
Olsy UK Ltd.
(collectively, "UK Subsidiaries")
United States: Olsy North America Inc.
[I-NET]
[WGSI]
[Bannex]
[All other U.S. subsidiaries that are
not Immaterial Subsidiaries]
Part II: MATERIAL SUBSIDIARIES PARTY TO FOREIGN GUARANTIES
Australian Subsidiaries (unless waived by Agents)
Belgian Subsidiaries
Italian Borrower
Dutch Subsidiaries
Spanish Subsidiary
UK Subsidiaries
Part III: MATERIAL SUBSIDIARIES PARTY TO FOREIGN
SECURITY DOCUMENTS
(in support of its Guaranty
and EU Intercompany Note unless
otherwise indicated)
Australian Subsidiaries (in support of Guaranty only) unless waived by
Agents
Belgian Subsidiaries
Danish Subsidiary (in support of EU Intercompany Note only)
129
ANNEX IV
Page 2
Italian Borrower (in support of Lira Note and subject to review of any
additional cost, its Guaranty)
EU Holdco (in support of its MCF Loans and its Guaranty)
Olsy Nederland B.V.
Spanish Subsidiary
UK Subsidiaries
